-, EYGENERAL
February 21, 1952
Hon. Robert S. Calvert
Comptrollerof Public Accounts
Austin, Texas
Opinion No. V-1410
Fle: Authority of Gatesville State
School for Boys to pay skilled
laborers engaged in repair
work out of the $269,000 re-
pair fund in the general appro-
priation bill for the biennium
Dear Sir: ending August 31, 1953.
You have requested the opinion of this of-
fice on the legality of drawing warrants in favor of
skilled laborers who are engaged in repair work at
the GatesvilleState School for Boys.
Section 31(b) of Article 11, House Bill 426
(the general appropriationbill), Acts 52na Leg., R.S.
195l, ch. 499, p. 1228, at p. 1300,providesin part:
"(b) . there is hereby appropri-
ated a fur&e; sum of Two Hundred and Sixty-
nine Thousand Dollars ($269,000)for the
repair of the GatesvilleState School for
Boys at Gatesville,Texas; said money to be
appropriatedto the Youth DevelopmentCoun-
cil out of the General Revenue Fund for the
biennium beginning September 1, 1951, and
ending August 31, 1953."
Under the heading "General Provisions L(Sec-
tion 5 of Article VI of House Bill 426, at p. 1438,
states:
"Sec. 5. Repairs, Improvementsand
Equipment.
"The terms 'Repairs,Improvementsand
Equipment,' 'Repairs and Improvements'or
Hon. Robert S. Calvert, page 2 (V-1410)
'Repairs and Equipment' includes all
objects of expendituresin the '4,000'
and '5,000' series of the Expenditure
Classificationsection of the State
Comptroller of Public Accounts publica-
tion lClasslficationof Accounts,' re-
vised to August 31, 1949, edition."
The '15000'1
series of the ExpenditureClassi-
fication above referred to, entitled "Acquisitionof
Property," relates to improvementsand equipment. The
'4000" series, which relates to repairs, is as follows:
"4000 - REPAIRS
"4100 &G'AIRS
4110 Repairs to Lands, Build-
ings & Machinery - Includ-
ing Contracts and Materials
4120 Repairs to Office and Plant
Equipment
4130 Repairs to Automobiles
4140 Other Repairs."
Your problem has arisen because salaries and
wages are in the 'UOO" series, which is not included
within Section 5, m, and there is no classifica-
tion within the repair category labeled "Wages."
We have some doubt as to the applicability
of Section 5 to an appropriationfor a specific “re-
pair," where the type of repair authorized is stated
in the appropriationitem itself. However, assuming
that Section 5 is applicable,the basic problem pre-
sented for decision is whether the statement that re-
pairs, etc. " jects of expenditurein the
'4,000' and limits the method of using
repair appropriationsmade throughout the entire gen-
eral appropriationbill to the categories set out in-
the Classificationof Accounts Manual. If this is a
limiting provision then repair work can be done only
by the letting of iump sum contracts for a complete job,
not by separatelypurchasing materials and hiring labor-
ers.
1/ Emphasis added throughout.
Hon. Robert S..Calvert,page 3 (V-1410)
The language of the $269,000 repair appro-
priation does not indicate that the Legislature in-
tended the work to be done only by lump sum bid, but
leaves the method to be used to the judgment of the
Youth DevelopmentCouncil. In the absence of Sec-
tion 5, SUI)PB,the Council would have the authority
to purchase the needed materials and also to hire
the necessary labor, in effect acting as its own con-
tractor, if it found that method more economical or
expedient.
In the case of e rlessCarbon Bla&Co.
v. Sheppard 113 S.W.2d 99%” (‘_
rex. Civ.,Aoo. 19~38.er-
ror ref.), ihe court was faced with a decision-asto
whether the followingdefinitionwas one of limita-
tion:
11
. The term ‘carbon black’ as
. .
herein used includeg all black pigment
produced in whole or in part from natural
gas, casinghead,gasor residue gas by the
impinging of a flame upon a channel disk
or plate and the tax herein imposed shall
,- reach ali products produced in such man-
ner.n
The court said:
” . . . The words ‘includesand
1including’ are regarded by the authorities
as being identical or equivalentto each
other; and the authoritiesuniformly hold
that unless the context in which such w0rd.g
ui eg they are never regarded
Bre used
as being- rea r i with or eauivalentto
identica
1mean and.include,* nor with ‘such less elas-
tic words and terms as ‘meant,’ ‘meaning,*
or ‘by which is meant.’ . . . In conse-
quence, it follows that the use of the word
‘includes t as used in the taxing act under
consideraiion, instead of some less elastic
word or term, such as ‘meaning,’ ‘meant,’or
‘by which is meant,’ would seem clearly to
imply that the Legislaturedid not intend to
use the word ‘includes’as one of limitation
or of enumeration,but rather of enlarge-
ment, or as illustrativeof those intended
to be included within the taxing act.”
.
Hon. Robert S, Calvert, page 4 (V-1410)
This same definition of the term "includes"
was approved and followed in Calvert v. J. M. Huber
Coruoratiog 231 S.W.2d 805 (Tex. Civ. App. 1950, er-
ror ref.), &d Houston Bank and Trust Co. v. Lana-
prn;,)201 S.W.2d 834 (Tax, Civ. App. 1947, error ref.
. . . .
The context of Section 5, u, does not
require that the phrase "includes all objects of ex-
penditures in the '4000' and 150001 series" be con-
strued as a limitation on repair expenditures,and on
the basis of the above decisionswe are of the opin-
tym;$at the categories set out in the '4000' and
series are merely enlargementsof, or illustra-
tive of, the categoriesincluded within the meaning
of the word "repairs." We therefore hold that the
Council may hire skilled laborers to carry out the re-
pair work at the School, and wages to the laborers
are properly payable out of the $269,000 repair fund.
SUMMARY
The definition of l*Repairs'l
in Sec- -.
tion 5 of Article VI, H.B. 426 Acts 52nd
Leg., R.S. 1951 ch. 499 p. 1328 at p.
1478, is only iilustrati:eof the'cate-
gorie,sincluded within the meaning of the
term and is not a limitation upon the
methods of expenditure of'repair funds.
The Gatesville State School for Boys may
properly hire skilled laborers and pay
them from the $269 000 repair appropria-
tion in the general appropriationbill.
APPROVED: Yours very truly,
C. K. Richards PRICE DANIEL
Trial & Appellate Division Attorney General
Mary K. Wall
Reviewing Assistant
By i: w2-u
Charles D. Mathews E. Wayn Thode
First Assistant Assistant
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