Untitled Texas Attorney General Opinion ( 1947 )

R-717
OFFICE OF
THE ATTORNEY GENERAL
AUSTIN, TEXAS
PRICEDANIEL .~
ATTORNEY OENERAL
September 17, 1947
Bon. George R~.Shepperd
Comptrolle* of Public Accounts ^
Austin, Texas Opinion Ho. V-378
Re: Authority of Comptroller of
Public Accounts to pay sal-
aries from certain items in
the "Maintenance and Miscel-
laneous" appropriations 'made
to the Cigarette and Occupa-
tion Tax Division
Dear Sir:
Ui quote the following from your letter of Au-
gust 6, 1947,
peqkesting an opinion on the matter set
out above:
"The Fiftieth Legislature, in the
General Appropriation Bill, appropriated
to the Comptroller, under the heading of
... Maintenance and Miscellaneous, the follow-
ing items:
"101. Postage, Box Rent,
Telephone, Telegraph, Freight,
Supplies, Stationery, Printing,
Equipment, Rents, Bond Pr&uiume,
Court Costs, Contingent and Trav-
e11ngexpenae8.........$50,000.00
"102. Enforcement of Vending
~Machine Tax Law, including Travels
'Expenses, to be:psid from Vending
Machine Tax Enforcement Fund hereby
sppropriated......,;...12,500.OO
"103. Enforcement of Stete
Occupation Tax including travel
expense, to b,epaid from funds de-
rI.vedunder the provisions of AP-
'/ tlcle 7047, R.C.S., hereby appro-
priated ......... ...... 5,ooo.oo
Hon. George Ii.Sheppard - Page 2 (Ho. v-378)
"104. Enforcement of State
Admission Tax Law, Including Travel
Expenses, to te paid from admission
tax funds derived under the provi-
sions of Article 7047 A-19, R.C.S.,
hereby appropriated...... 5,OOO.OO
"Total Maintenance and Mlscellaneoua
........ .............. $72,500.00
"Under the Items listed for encorcement of
the different laws, this department has hereto-
fore used such miscellaneous for the payment of
salaries.
"But, under sub-division f. of Section
4;:: An&he Riders of the General Approprla-
, I find this language:
"'Contingent Expenses. Hone
of the funds hereinabove appropriat-
ed for 'contingent expenses' or
'Maintenance and eiscellaneous~ shall
be used for the payment of any salaries
unless specifically authorized to be
paid in the itemization under oontin-
gent, maintenance and miscellaneous
items hereinabove set out and desig-
nated thereIn as ~aalaries~k 'extra
help,' or 'seasonal labor.'
kou then request our opinion as to whether, in
view of this rider, salaries may be paid from Items 101,
102, 103, and 104 quoted above.
There can be no question that the Leglsleture by
the rider above quoted intended to prohibit the payment of
additional salaries of any kind from funds appropriated
for "oontingent expenses" or for "maintenance and miscel-
laneous" except in those Instances in which the particular
item of appropriation permits such use. We were at first
of the opinion that a specific designation as "salaries",
"extra help," or "seasonal labor' was an essential requi-
site to the use of such funds for these purposes; but an
examination of the entire General Appropriation Bill has
led us to the conoluslon that these words cannot serve as
the sole oriterion of legislative intent for the reason
that numerous specific appropriations have been made for
such purpoaes in items under the heading “Maintenance and
Hon. George H. Sheppard - Page 3 (No. v-378)
miscellaneous" without being "designated therein as
~salaries~, 'extra help', oP lseasonal labor'." The fol-
lowing are examples of clearly authorized expenditures
which do not use the ~specific designations enumerated in
the rider:
EXECUTI'JEDEPARTMRRT
Maintenance and Miscellaneous
“17. . . . labor and employees for the
mansion . . .I’(Emphasis added
-out this opinion)
TEXAS LIQUOR CONTROL BOARD
Maintenance and Mlsoellaneous
“43. Accumulating eVid8nC8 (Including
purchases, services, and expenses
. . .) . . .
TEXAS STATE PARKS BOARD
Maintenance and Miscellaneous
"20. . . . Seasonal Salaries . o .'
DEPARTNENT OF PUBLIC SAFETY
Maintenance and PIFsoellan8ous
“52. . . . and to employ men other
than regular employees when neoes-
aary . . .
”
n84. . . . . . .labor . . .”
'132. . . . seasonal help . . .I'
BOARD OF IlWURAIPCECOMMISSIOI'JBRS
Maintenance and Miscellaneous
“46. . . . messenger servioe . . .”
In each of these cases there Fs a conflict between
the plain wording of the 8p8CifiC itemization on the one
hand and the provisions of the general rider on the other
Ron. George H. Sheppard - Page 4 (Ho. v-378)
hand. It is a fundamental rule of construction that in
Such cases of conflict between a specific provision and
a general one, the provision which is specific and def-
inite shall control. Moreover any suggestion that the
above quoted items are invalid because not stated in one
of the exact designations of the rider would lead to a
result clearly at variance with the usual presumptions
against unreason and absurdity which guide in construing
legislative enactments. Endllch on Interpretation of
Statutes, gE 264, 265 and authorities cited therein.
Mr. Sutherland in g 5505 of his work on Statutory Con-
struction points out that the purposes and objects of a
statute should be d8terminatLve of whether a strict or
liberal construction is proper. Under this theory a
statute "is liberally construed when the letter of the
statute IS extended to Include matters withinthe spirit
or purpose of the statute . . .. A good example of this
sort of liberal and strict construction is the ancient doa-
trine of‘the equity of the statute to the effeot that cases
within the reason, though not within the letter of a statute
shall be embraced by Its provisions; . . ."
We are therefore of the opinion that the rider
here involved should not be construed to require that the
exact quoted designations reappear in the particular item,
provided the particular item itself clearly shows that it
is intended that the funds appropriated thereto may be
used for the payment of necessary salaries.
In choosing examples of Items, heretofore set out,
which depart from the exact designations used in the rider
we have Selected thO88 which so closely approximate "salar-
ies," "seasonal labor", and "extra help" that there could
be no difference of opinion as to the l8gl.slativeintent.
The Items involved in your request present a more difficult
problem. We shall now consider each item separately.
Item 101 lists "POStag8, Box Rent, Telephone,
'Telegraph, Freight, Supplies, Stationery, Printing, Equip-
ment, Rents, Bond Premiums, Court Costs, Contingent and
Traveling Expense". Eot one of the listed items, with the
possible exception of "Contingent", embraces the idea of
‘~alaPi88”, "extra help," or "seasonal labor". To allow the
expenditure of any part of the $50,000 appropriated for these
purpo;;sfwould violate the reason as well as the letter of
Sec. . Past oplnions om Department havemoved a
more liberal construction of the "uses" to which 'miscellaneous"
appropriations might be put; but in those cases there was no
such ge.neralrider as is found in the present bill. You are
therefore advised that no 'part of,item 101 may be used for
the payment of salaries.
Hon. George II. Sheppard - page ,5 (No. V-378)
Item 102 appr,opriates$12,500 for "Euf%rcement
of Vending Machine Tax Law, including Travel !%kpenses,to
be paid from the Vending 5fachineTax Enforceti'ent
Fund .r".
The ,varlous provisIons of th 1 1 ti t tax on tioin
operated machines are found ?n ~~t~~lk $470(:3); 7047a-2-
70478-18. Article 7047a-9 provides, In part as follows:
"The Comptroller of Public Accounts of
this State Is hereby authorized, ordered and
directed to collect, and issue lioenses or
permits for the payment of the tax levied
herein and to employ all the agencies of the
law available to him for the enforcement of
the provla,lonsof this Act. 0 . D Provided
further, that Ten Thousand Dollars-O)
of the funds derived under the provisions of
this Act shall be set aside annually I
special Tund subJect to the use of thenCzmp-
troller and so much of said fund as may be
necessary shall be expended for the printiug
of applloatlons, licenses and permits and -
for the administratlon and enforcement of the
provisions of this Act and so much of the pro-
ceeds of said fund shall be and the same Is
hereby appropriated for said purposes, same,to
be paid as needed; any unexpended portion of
said fund so specified shall at the end of the
biennium be uaid in mover orowortion to the
funds to which the tax levied herein is apport-
ioned. Provided, however, that any salaries so
here authorized to be paid shall not exceed in
any nartd.cuIarthe amount specified in the gen-
eral-appropriation bill passed at the Forty-
fourth Legislature, Regular Session, for ~the same
or similar services."
Undoubtedly the above statute contemplates that
Salaries ,are to be paid out of the fund therein created.
This artic,lecontaius the fir&appropriation and provides
a limitation as to the amount of the salary to be paid to
those engaged in enforcing the lew, The Fiftieth Legisla-
ture has seen fit to appropriate the fund so allocated for
the purpose of "Enforcement of Vending Machine Tax Law
. . .". Webster's Rev International Dictionary, 2nd Ed.,
gives as one of the Uieanf;ngSof "8nfoPC8uent" the "act
, or pce;s of enforcing . Clearly a "process of enforc-
ing con emplates an enforcing agency, I.e. a person or
P8PSon8 . Xe are therefore of the opinion that an lnter-
pretation of this provision as alloving the payment of
Hon. George II. Sheppard - Page 6 (No. v-378)
salaries is the only interpretation which could be "within
the reason of the statute".
What we have heretofore said in regard to item
102 relates to the use of the funds appropriated thereto.
We must now considerthe amount of the appropriation lest
we leave the lmplioatlon v full expenditure of thls~
item is authorized. The allocation for the "Vending Ma-
chine Tax Enforaement Fund" as created by Article 7047a-9,
previously quoted,~is in the amount of $10,000 "to be set
aside annual1 in a special fund.. . ." Moreover, it Is
providd at the *end of each biennium the unexpended
portion of said fund shall b8 paid in proper proportion
"to the funds to which the tax levied herein is apportioned."
;;,~;'yre can b8 no surplus.carri.edover at the end of a
The amount appropriated to item 102 for the com-
ing biennium is $12,500 for each year. It is well settled
that an appropriation bill ceneither repeal nor mod
general law. See Attorney General's Opinions Ros. O-
O-4788; O-3935; and authorities cited therein. Therefor:,
the Legislature could not Increase by $2,500 the alloca-
tion made by Artiole 7047a-9. However, the Legislature
might validly have appropriated $10,000 for each year by
appropriating for each year "all the funds in the 'Vending
Machine Tax Enforcement Fund '7 The reasoning of the'court
in Atkins v. State Highway Department, 201 S.W. 226, sup-
ports this conclusion. We are of the opinion that this is,
in effect, what the Legislature has appropriated, and that
the appropriation is therefore valid to the extent of
$10,000 for each year of the biennium.
Item 103 is likewise appropriated for "enforce-
ment" purposes. The particular laws which are to be en-
forced being generally stated as "State Occupation Tax."
Various occupations are made subject to tax by Article 7047,
R.C.S. We think that the definition of "enforcement' pre-
vlously given in this opinion is the proper deflnltion to
apply heP8, 1.8. "the process of enforcing", which naturally
entails enforcing agencies or persons. Therefore, you may
pay necessary salaries for such persons from Item 103.
The appropriation under item 104 is made for "en-
forcement of the State AdmissIon Tax Law. includlntzTravel
Expenses," and is to be paid "from admission tax funds de-
rived under the provlsiona of Artlcle?fUY7 A-19, R .C .S .
. . . Section o of Article 7047 a-19 read8 as follows:
"All the revenues derived under and by
virtue of this Section shall be credited by
Hon. George H. Sheppard - Page 7 (No. v-378)
the Treasurer, one-fourth to the Available
School Fund, and three-fourths to the Texas
$I; kg; Assistance Fund. Acts 1936, 44th Leg.,
p. 2040, ch. 495, Art. 3, 8 6; Acts
1937, 45ih Leg., p. 311, ch. 161, B 1."
By virtue of this section of Article 7047a-19 all
of the funds derived under the provisions of Article 70478-19
have been allocated and disposed of as therein provided. As
stated above, an appropriation bill cannot repeal or modify
a general law. This attempted approprlatlon being completely
Ineffectual, there are no funds under item 104 to be used by
YOUP Department fOP any purpose.
SUMMARY
When specific itemizations in the General
Appropriation Bill, S.B. 391, Ch. 400, Acts
50th Legislature, clearly authorize use of funds
for purposes requiring payment of salaries, such
specific Itemization and authority shall control
over conflicting provisions of a general rider.
(Sec. 2 (14)f). The Comptroller may not use any
of the funds appropriated under Item 101 for the
payment of salaries as such use is not withln the
q eanlng of the itemizations therein. ,The Comp-
troller may use for the payment of salaries only
such funds as are validly appropriated by Item
102. Funds appropriated by item 103 are available
for such use. Ro funds are available for any
purpose under item 104 since the funds from which
such item is to be paid have been fully allocated
to other purposes by general law.
Yours very truly
ATTORREY GENERAL OF TEXAS
ByaMe
. cs@- Assistant
MC/lb
APPROVED
j!iL.Az~
ATTORRlE GRRERAL