Untitled Texas Attorney General Opinion ( 1953 )

.
TI?IE A-BTO~~EY GENERAL
Opt TEXAS
Gctober.29, 1953 .’
Hon. Robert S. Calvert ‘Opinion No. S409
Comptroller of Public Accounts
Austin, ‘Texas ‘..’ Re: Islraance of salary warrants
from specified appropriation
items of the Insurance.Cot&
mission. Liquor Control
Dear Mr. Calvert: Board and Govkrnoi’s Office.
YOar letter quotes five appropriation items in the cur-
.rent general appropriations act,; none: o/‘whicb contains the words
*salary‘ or Wage.” .Your qu+fCfii :i&‘w.hether you may’ issue war-
rants .fn p&pm&t of payroll requests drawn’ ag&& tlria~+op&-
tions fn question in vie+w of the goners1 rider appearing .as Section
Sf of Article VI, ~ChapteriBl,‘Actii ‘of the~53rd Legislature. ‘That
L+i&li b as follo+s: 1. :,
.~ “f. None of the funds appropriated in this Act
for travel expenses or gesi+l’o$erating expenses,
for equipment, for maintenance and miscelldneoir&,
or for contingent expenses. or for any other purpose,
may be used for’ pSping any’saIa?ies ‘and wages unless
~the .langnage of ‘such’appropricrttjh;item..plicftl~.a~~
thorties .such usmhe provisions of this paragraph
shali not’ apply to~‘ap~proprfatfons mad&for’ agencies. of
higher education. ~’ .a
!*In.those insta&es.wh&e .&e. language of .su& X
appropriation itenia.does @plicitly ‘authorize theuse
.of funds for paying salaries.:d~-wag~~;.such employees
shall not be paid a larger amount than that provided in
the regular appropriated salary,items for similar posi-
tions in’such~agiincy of the.Stat.6; ‘In the event there are
no similar positions within such agency; then such em-
ployees shall-‘aot be paid a larger. amotmt than that pro-
vided fork sWillar~7Rdik or pOsitlons el&where’ fn the
’State Government. In the eveM’cbmmo% laborers, skilled
laborers, and mechanics -caititot be obtained at the~salary
rates indicated in this paragraph, then the head of such
agency of the State;mhy’pay’for temporary employment
only at rates not ex&‘ee’ding the’prevailing wage scale
paid’fn the’ localitj~where’-ti temporary s&vice ist0
be rendered.” (Emphasis added throughout this opinion.)
Hon. Robert S. Calvert. page 2 (S-109)
You state in your letter that -Except for the rider quoted above,
this department construes the claims for salary legal.”
The solution to your question, and to similar questions
which will undoubtedly arise later on, is dependent on a proper in-
terpretation of the phrase *or for any other purpose” as the same
appears m the first Sentence. If that phrase is given a literal iu-
terpretation. independent of other terms associated with it in Sec-
tion 5f. then the restrictions of Section 5f are applicable to all
funds appropriated by Chapter 81 because each and every fund ap-
propriated therein is for o~ne or more purposes and would be com-
prehended by the general words *or for any other purpose.” In
that event, no salary warrants could be drawn except against those
appropriations which “explicitly authorize the use of funds for pay-
ing salaries and wages.”
But we have concluded that no such literal and indepeud-
ent interpretation was intended by the Legislature. Instead, we think
that the general words “or for any other purpose” were intended by
the Legislature to include and refer only to funds appropriated for any
other purpose similar to the purposes theretofore specified. Stated
another way, it is our opinion that the words *or for any other pur-
pose” were intended by the Legislature to refer to any other funds of
the same general kind or class as those for “travel expenses,” ‘gen-
eral operating expenses, ” ‘equipment. ” *maintenance and miscellane-
ous - and “contingent .expense.”
Such an interpretation finds sanction in the rule of con-
struction called e’usdem eneris which holds that where general
words follow a des+--5-gnatron o particular subjects or things, the gen-
era1 words will be construed to refer to subjects or things of like
kind or class as those specified unless a contrary purpose is mani-
fest. This rule has been frequently applied by Texas courts in con-
struing statutes. Farmers’ & Mechanics’ Nat. Bank v.~Hanks, 104
Tex. 320. 137 S.W. 1120 (1911); Kowler v. Hults. 138 T 636 161
S.W.2d 478 (1942); Stanford v. Butler, 142 T ex. 692, 18%‘f.Z’d 269
(1944).
In the leading case of Farmers’ & Mechanics’ Nat. Bank
v. Hanks, su ra, the Court held that a passenger elevator was not
mcluded WIdi- n a statutorv~_ provision
- noverninn- operators
- of -any
railroad, steamboat, sta ecoach. or other vehicle for the conveyance
#
Part of the Court’s reasoning is shown by
of its opinion:
‘The same rule is also thus clearly stated in 36
cyc. p. 1119: ‘By the rule of construction known as
“ejusdem generis,” where general words follow the
Hon. Robert S. Calvert, page 3 (S-109)
enumeration of particular classes of persons or things,
the general words will be construed as applicable only
to persons or things of the same general nature or class
as those enumerated. The particular words are presum-
ed to describe certain species and the general words to
be used for the purpose of including other species of the
same genus. The rule is based on the obvious reason
that, if the Legislature had intended the general words
to be used in their unrestricted sense, they would have
made no mention of the particular classes. The words
*other.” or -any other,’ following an enumeration of par-
ticular classes, are therefore to be read as “other such
like,” and to include only others of like kind or charac-
ter.’ Ex parte Muckenfuss, 52 Tex. Cr. R. 467, 107 S.
W. 113 1. It is a rule often applied that the ‘meaning of
a doubtful word may be ascertained by reference to the
meaning of words associated with it.’ which is but a free
translation of the Latin maximum, ‘Noscitur a sociis.’ ”
(137 S.W. at 1124).
A thorough study of the current general appropriation
act and especially the rider contained in Article VI, Section 5f mani-
fests to us no legislative intent that in all instances money should be
spent for salaries and wages only when explicit authority to do SO is
granted. The current act, like its many predecessors, contains nu-
merous appropriating items in the form of ‘lump sum” provisions
to finance programs or projects requiring labor, material and other
diverse types of expenditures from the single appropriated item. In
many such instances a literal and independent interpretation of ‘for
any other purpose” so as to prohibit payment of salaries and wages
would substantially if not completely frustrate the particular legis-
lative purpose involved.
Moreover, the language of Section 5f. taken as a whole,
supports our conclusion that the words -or for any other purpose”
were not intended to refer to all kinds and classes of appropriation
items contained in the act. You will recall that during the preceding
three bienniums a rider corresponding to ‘the present Section 5f pro-
vided:
‘Contingent Expenses. None of the funds herein-
above appropriated for ‘contingent expenses’ or ‘main-
tenance and miscellaneous’ shall be used for the payment
of any salaries unless specifically authorized to be paid
in the itemization under the contingent maintenance and
miscellaneous items hereinabove set out and designated
[PC;.;, Hon. Robert S. Calvert, page 4 (S-10~9)
theremas ‘salaries,’ ‘extra help,’ or ‘seasonal labor.’ *’
It is apparent by comparison that the 53rd Legislature
in enacting Section 5f not only added the concluding phrase “or for
any other purpose” but also added to the original list several spcci-
fied types of expense other than ‘for maintenance and miscellaneous”
and -for contingent expenses.” In the second sentence of Section 5f.
the Legislature exempted appropriations made for agencies of higher
education from the general prohibition. and in the first and third sen-
tences made reference to “such appropriation items.”
The exemption for agencies of higher education doubt-
less was included as a precautionary measure. In practically all
cases, the form followed in Article V specifically included funds for
salaries and wages in an item designated “General Operating Expen-
ses* -- one of the general class of items listed in Section 5f. Tbe
Section 5f exemption was apparently thought necessary to remove a11
conceivable doubt or conflict. The point of present interest is that
the provision as to agencies of higher education was obviously inclu-
ded because of possible questions relating to General Operating Ex-
penses, a type or class of item listed in Section 5f: not because of
appropriations to higher educational agencies for any other” pur-
poses.
But of more significance to us is the use of the reference
‘such appropriation items” in the first and third sentences. If the
Legislature ,had intended Section 5f limitations to apply to appropria-
tions for all purposes it was entirely inconsistent to so use tbe word
“such.” On the other hand, if (as we believe) the Legislature intended
Section 5f limitations to apply to a limited class or limited variety of
appropriation items. then the reference “such appropriation items’
is entirely proper and meaningful.
Having so concluded as to the intent and meaning of Sec-
tion 5f. the problem remaining is one of classification. Each item
must be analyzed separately. As to each we must decide: Is the
item “of the same generai nature or class” or of like kind or, charac-
ter,as. or is it for any purpose similar to. those specified in Section
Sf? If so, Section 5f applies. If not. that Section requires no explicit
authorization for use of that fund for paying salaries and wages.
The first item mentioned in your letter is the one follow-
ing Item No. 18 of appropriations to the Life Insurance Division,
Board of Insurance Commissioners, as follows:
1
Acts 52nd Leg., 1951, Gh. 499, Art. III, Sec. 2(16)f.
p. 1439; Acts 51st Leg., R.S. 1949, Ch. 615. Sec. 2(15)f. p. 1349;
Acts 50th Leg., 1947, Ch. 400. Sec. Z(14)f. p. 938.
Hon. Robert S. Calvert, page 5 (S-109)
“From current revenues and any balances on
hand at the beginning of each fiscal year in the Burial
Association Rate Fund (No. 180), there is hereby ap-
propriated for supplemental expenses of the Burial
Rate Board Section 3714” (Acts 53rd Leg., 1953, Ch.
81, Art. III. p. 228).
This appropriation for *supplemental expenses” would
at first blush appear to be of like kind to ‘other operating expenseq”
‘general operating expenses, ” ‘maintenance and miscellaneous” and
*contingent expenses.” But, after considering the independent duties
and responsibilities imposed on the Burial Association Rate Board
by the general law (See Articles 14.47 and 14.48 of the Insurance
Code), and after learning that the only other appropriation to the
.: Board covers Board member’s per diem only, we have concluded
that this “supplementary expense” item is quite unlike the above. In
fact it constitutes the only fund out of which this Board may finance
its special activities of gathering and disseminating data, statistics
and information and of promulgating and amending rate schedules.
On the other hand, appropriations for “travel expense,” ‘other oper-
ating expenses, ” ‘general operating expenses.” “maintenance and
miscellaneous,” “equipment” and ‘contingent expenses,” as such
terms are ordinarily used, never constitute the entire fund from
which a distinct and independent state function or program is financ-
ed. Consequently. we hold that this *supplementary expense” item
was not intended to be included within the class of items to which
Section Sf applies.
The second item mentioned in your letter is Item No.
49 to the Liquor Control Board which is as follows:
“From current revenues and any balances on
hand at the beginning of each fiscal year in the Liquor
Board Confiscation Fund there is hereby appropriated
for expenses as stipulated in Art. 666-30(b), known as
the Liquor Control Act, estimated to be --- 28,000
28,000” (Acts 53rd Leg., 1953. Ch. 81. Art. III, p. 248).
Under the terms of the statute referred to this fund may
be expended for a wide variety of purpos,es if deemed necessary by
the Board in administering and enforcing the provisions of ,the Texas
Liquor Control Act. In our opinion the wide variety of enforcement
purposes which may be selected by the Board as authorized uses for
this appropriation distinguishes it from the classes of items listed
in Section 5f. even though some of these (e.g. *contingent expenses”)
to a lesser extent authorlze a discretionary selection of ultimate use.
For this reason we hold that Item No. 49 was not intended to be inclu-
ded within the class of items to which Section 5f applies.
Hon. Robert S. Calvert. page b (S-109)
The third, fourth and fifth items mentioned by you are
Item Nos. 24, 25 and 26 to the Governor’s Office which are as fol-
lows:
‘Defense of Texas’ Tidelands: I
*To be expended by the Governor for presenting facts
and arguments before committees of Congress in sup-
port of continned State ownership of submerged lands,
and for cooperation between the States in the defense
of State’s rights. there is appropriated for the bienni-
um beginning September 1, 1953 the sum of 50,000”
‘Southern Regional Education Compact:
-For participation by this State fn the educational pro-
gram under the Southern Regional Education Compact
administered by the Board of Control for Southern Re-
gional Education, and for out-of-State scholarship aid
under that program, ihere is appropriated the suin of
. . . 120,000 120,000”
-Interstate Oil Compact Co-ksion:
‘For the payment of Texas’ share of expenses for the
mai&ns.nce and operation of the Inters&e Oil Com-
pact Co-ission, and of expenses of the Governor’s
.:~. .~ .,. .‘...
Office related to the program of that Commission,
there is appropriated out of the Oil and Gas Enforce-
ment Fund (No. 79) for each of the fiscal years of the
bi’ennium beginning Sept. 1. 1953 the sum of 50.000
50,000’
(Acts 53rd,Leg., 1953, Ch. 81. Art. III. pp. X0-211).
.We have concluded that~each of these three items constitntes the
entire fund from which a distinct and independent state function
or program is financed. Therefore. we hold that none of them was
intended to be included. within the class of items to which Section
5f applies.
SUMMARY
Restrictions in Section 5f of Article VI, Chap-
ter 81. Acts of the 53rd Legislature (the current
. . .
Hon. Robert S. Calvert. page 7 (S-109)
general appropriation act) on the use of non-ex-
plicit appropriation items for paying salaries and
wages are applicable to appropriation items of the
types listed and to items “of the same general na-
ture or class.” Farmers’ 81 Merchants? Nat. Bank
v. Hanks. 104 Tex. 320. 137 S.W. 1120 (1911). Sec-
tion 5f does not apply to all items contained in the
act. Whether a given item is ‘of the same general
nature or class” must be determined from the dr-
cumstances of each case:
Yours very truly,
JOHN BEN SI-JEPPERD
Attorney General
APPROVED:
Willis E. Gresham
Public Affairs Division
Burnell Waldrep
Reviewer
W. V. Geppert
Reviewer
Robert S. Trotti
First Assistant
PR:mg