### EYGENERAL -,

February 21, 

### 1952

Hon. Robert S. Calvert Comptrollerof Public Accounts Austin, Texas Opinion No. V-1410

Fle:

Dear Sir: Authority of GatesvilleState School for Boys to pay skilled laborers engaged in repair work out of the $269,000repair fund in the general appropriationbill for the biennium ending August 31, 1953. You have requestedthe opinion of this office on the legality of drawingwarrants in favor of skilled laborerswho are engaged in repairwork at the GatesvilleState School for Boys.

Section 31(b) of Article 11, House Bill 426 (the general appropriation bill), Acts 52na Leg., R.S. 195l, ch. 499, p. 1228, at p. 1300,providesin part:

"(b)

. there is hereby appropriated a fur&e; sum of Two Hundred and Sixtynine ThousandDollars ($269,000)for the repair of the GatesvilleState School for Boys at Gatesville,Texas; said money to be appropriatedto the Youth DevelopmentCouncil out of the General Revenue Fund for the biennium beginning September1, 1951, and ending August 31, 1953." Under the heading "General ProvisionsL(Section 5 of Article VI of House Bill 426, at p. 1438, states: "Sec. 

### 5. Repairs, Improvements and Equipment. "The terms 'Repairs,Improvements and Equipment,' 'Repairsand Improvements' orHon. Robert S. Calvert, page 2 (V-1410)

'Repairsand Equipment' includes all objects of expendituresin the '4,000' and '5,000' series of the Expenditure Classificationsection of the State Comptrollerof Public Accountspublication lClasslfication of Accounts,'revised to August 

### 31, 1949, edition." The '15000'1

series of the ExpenditureClassification above referred to, entitled "Acquisition of Property,"relates to improvements and equipment. The '4000" series,which relates to repairs, is as follows:

"4000 - REPAIRS "4100 &G'AIRS 4110 Repairs to Lands, Buildings & Machinery - Including Contracts and Materials 4120 Repairs to Office and Plant Equipment 4130 Repairs to Automobiles 4140 Other Repairs."
Your problem has arisen because salariesand wages are in the 'UOO" series,which is not included within Section 5, m, and there is no classification within the repair category labeled "Wages."

We have some doubt as to the applicability of Section 

### 5 to an appropriation for a specific “repair," where the type of repair authorized is stated in the appropriationitem itself. However, assuming that Section 5 is applicable,the basic problem presented for decision is whether the statementthat repairs, etc. " '4,000'and jects of expenditurein the limits the method of using repair appropriations made throughout the entire general appropriation bill to the categoriesset out inthe Classification of AccountsManual. If this is a limitingprovision then repairwork can be done only by the letting of iump sum contractsfor a complete job, not by separatelypurchasingmaterialsand hiring laborers. 1/ Emphasis added throughout.Hon. Robert S..Calvert, page 

### 3 (V-1410)

The language of the $269,000 repair appropriation does not indicate that the Legislatureintended the work to be done only by lump sum bid, but leaves the method to be used to the judgment of the Youth Development

Council. In the absence of Section 5, SUI)PB,

the Council would have the authority to purchase the needed materialsand also to hire the necessarylabor, in effect acting as its own contractor, if it found that method more economicalor expedient.

rex. Civ.,Aoo. 19~38.erIn the case of e rlessCarbon B

%” la&Co. v. Sheppard 113 S.W.2d 99 (‘_ ror ref.), ihe court was faced with a decision-asto whether the followingdefinitionwas one of limitation:

,- **11**

**. .**  **.** The term ‘carbonblack’ as herein used includeg all black pigment produced in whole or in part from natural gas, casinghead,gas or residue gas by the impingingof a flame upon a channel disk or plate and the tax herein imposed shall reach al

i products produced in such manner.n The court said:
”
. . . The words ‘includesand 1 including’are regardedby the authorities as being identicalor equivalentto each other; and the authorities uniformlyhold that unless the context in which such w0rd.g Bre used rea

ui eg they are never regarded r i as being identica with or eauivalentto

- 1 mean and.

include,

* nor with ‘suchless elastic words and terms as ‘meant,’ ‘meaning,* or ‘by which is meant.’
. . . In consequence, it follows that the use of the word ‘includes

it as used in the taxing act under considera ion, instead of some less elastic word or term, such as ‘meaning,’ ‘meant,’or ‘bywhich 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 enlargement, or as illustrativeof those intended to be includedwithin the taxing act.”.

Hon. Robert S, Calvert, page 4 

### (V-1410)

This same definitionof the term "includes" was approved and followed in Calvertv. J. M. Huber Coruoratiog ror ref.), 231 S.W.2d 

### 805 (Tex. Civ. App. 1950,

&d Houston Bank and Trust Co. v. Lanaerprn;,)201 S.W.2d 

### 834 (Tax, Civ. App. 

### 1947, error ref.

. . . . The context of Section 

### 5, u, does not require that the phrase "includesall objects of expenditures in the '4000' and 150001 series"be construed as a limitation on repair expenditures, and on the basis of the above decisionswe are of the opintym;$at the categoriesset out in the '4000'and series are merely enlargementsof, or illustrative of, the categoriesincludedwithin the meaning of the word "repairs." We thereforehold that the Council may hire skilled laborers to carry out the repair work at the School, and wages to the laborers are properly payable out of the $269,000repair fund. SUMMARY The definitionof l*Repairs'l in Section 

### 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'categorie,s includedwithin the meaning of the term and is not a limitationupon the methods of expenditureof' repair funds. The Gatesville State School for Boys may properlyhire skilled laborers and pay them from the $269 000 repair appropriation in the general appropriation bill. APPROVED: Yours very truly, C. K. Richards PRICE DANIEL Trial & AppellateDivision Attorney General Mary K. Wall ReviewingAssistant Charles D. Mathews First Assistant EWT:wb 

## Byi: w2-u E. Wayn Thode Assistant -.