                       TIIE.L%TI?OICNEY GENE-L
                                OP TEXAS
                               AUIBTI?U 1%TEXAS
PRICE    DANIEL
AIIOFl?aEYGEWERAL

                                          Yaroh 25, 1947


                   Hon. lc. G. Garvey            Opinion Ro. v-103
                   Co’unty Audit or
                   Bexar County                  Re:   Under the giyen raots
                   San Antonio, Texas                  would the Conmlaslonereq
                                                       Court or Bexar Co?mty
                                                       hare the authority  to
                            :                          reallocate oertaln funda
                                                       under the Budget Law?
                   R8az Mr. Gamey:
                                 In your Isttrr      or’*ebAaxy   26, 1947; you’re-   -
                  quest the opinion or thla depaH+ant upon certain ques-- 1
                 tlons arising under Bouacl Bill 240, Chapter 63, page 93;
                 A&3 or the 49th Le$islature,            1943; AS. 1666, V.R.O.S.,
              ,~‘and espeoially      the power of the Commissionereq Court to
                 ‘transfer’ or reallocate      existing    budget surpluses during
                 the year.     This is comaonly referred        to ae House Bill
                 240 and ia the budget ‘law pelrtalning to oountfes wltha.a
                 population    in efceda of:225,CCC, ai shown by the last
                 zfi;dihg     Federal Ceneua, Your County falls within iJiis
                           vie do not deea it ueoesaary to eet out your op-
                 Inion’requeet     in -full,   but we think it my be divided in-
                 to three questions,        one of which is general and two speo-
                 irio e Your general question is ror a oonstruotion            or
                ~what la meant by “a budget or l&he kind and fumIW which
                 appeara in said House Bill 240 ad hollows:.
                               “Said Court may upon proper’ applioa-
                         tion transfer  an existing budget surplus
                         during the year to a. budget of like kind
                        .aad rund, but ho euoh transfer  ahall in-
                        “oream the total of the budget .”
                              The two conorete    questiona   presented   by you
                 w8 r&stake’ as follows:
                               (1) bray the Commissioners1 Court transfer
                 ok reallocate   the existing    balance of $17 589.00 remain-
                 ing in the, County Farm Budget after its d$econtinuahoe
                 by the Comisefonerrrq    Court, and no longer needed for the
                 purpoee originally   allocate&,     to the budget fo.r the ootm-
                 ty ,jail;.




                 t
              .,. TV
        ..’
 Han, E. G. Garvey - Page 2       (V-103)


                (2) May the Commissioners’ Court transfer
  or reallocate   $3,000,00 from the Advertising and Publi-
  oations Budget to the Voting Maohlne Budget?
               We do not think it desirable,  either rrom
 the standpoint of Bexar County or other counties corn-
 ing under the provisions    of Bouse Bill 240, or of thfs
 department, to attempt to formulate a rule or pattern
 ror the Comnissionersl   Court to follow applicable  to
 all or the situations   whlah night arise in the ooortmo-
 tion that, should be placed upon what Is meant by “a bud-
 &et of like kind and rundw; but in answering the two
 oonorete questions whioh we have stated above, it will
 Abe moemary ror us to endeavor to aeoortaln the legis-
 lative  Intent in the use of this term, and the mearirg
 that should be aaaribed to it.     In doing 80, we do net
 attempt to extend’thb meaning beyond Its applioation to
 the two conorete questions whioh we shall answer, bUti
 or neoessity  some gendral idea6 or its meaning and ap-
 ~pli~atlon   will   roilon.


                 The Legislature    did not derine “like kind,”
  hence ‘we are relegated     in, oonstrulmg this ten.to    itr
 .:usual,’ ordinary and generally     aooepted meaning, unless
*-the ‘Dontext in whloh we rind .it requires a different
  ~meanlng, and we do snot think it does.        This is in ao-~
  oord w1th.a universally      aooopted rule of atbtutory Qon-
   struction,   and needs no oltatlon     of authority to sup-
  pert it.    It  is not  neoeasary   for  us to determine wheth-
   er or ,not the proposed tranerers      or allocations  are to
   a “like i’und,w for your request shows that In any event
  the transfers are withih wllke fund.”          We need, there-
  ~rore, to oonsider only the quastion or whet&or or not
   the transfers   or allooatlons    are to a wbudget of like
  kind.”
                We are prlmarllp,~onoermd       with the meaning
 that should be a-sorlbed to the word *like” as used in
 the phrase “budget of like kind.”         Webster derlnes.the
 word “like” as having the same, or nearly the same, .ap-
 pearanoe, qualities,     or charaoteristlos;     resemblQg,
 similar to.. Applying this natural and ordinary meaning
 to the word, as we must, we think the language or the
 statute means a budget having the &me or nearly the
 same qualities    and charaoteristioe;     resembling or aim-
 tpM;,”   the budgetfrom     which a transfer     or allocation
            We think, however, the distlnotion         Intended
 is a brAad one between the respective        budgets as orig-
 inally set up, and should not be construed so strictly
Hon. E. GO Garvey - Page 3       (V-103)


as to virtually   nullffy   the power of the CoaunisslonersP
Court in transferring     or allooating  funds from one bud-
get item to another budget item, as contemplated by the
Act o That the Legislature      intended that the Commiss~ion-
ers’ Court have the power to transfer unexpended bal-
ances when no longer needed for the purpose eriginally
set up in the budget to ansther budget short of runds
is clearly  evidenced by a rea&ing of the entlra Aot, for
in it we find:
              “The amount set aside in any budget
       ror any purohase, orbr   er requialt&on,     con-
       tract)  speolal purpesa, or salitry and labor
       aaoount, shall not be available    for allooa-




              ”     9 The report shall ooatair a eom-
       plate &aCement of the balances on hand at
       the beginning and the close of the &e&h,
       and the aggregate receipts   to and aagaagate
       disbursemeats   from each fund, the t
       to and Sraa WC@ fund="
                Thus it olearly    appears that the Legislature,
in the pasrago of this Act, recognized         th8   necessity  of
transfers    iron one fund to another as set up in the bud-
get, but has put two e*prers limitations           on the power
thus conrerred upon the Cemmiseioners* Court, namely, t&t
the transferbe      from a fund or budget to a fund or budget
of like kind, and that the tranarer        shall not lncroase
the over-all     a&ount originally    set up in the budget.
             A budgat,‘undbr  the Aot, is more than a &ara
estimate of probable revenues and expenditures.       It fs
this and more,    It is a method whereby expenditures     are
controlled and Ifs&ted during the fiscal     period by desig-
nating the amounts of money legally     at the disposal   of
the oommissfonors,   and the purposes for which they may be
expended.  The Legislature   rsoognized   that tax payiag cit-
izens have a vital interest   in the appropriation    and ex-
pondibure of publio funds ia that it is pravUe4       lnthe
                                                                     .




Hon. E. G. Garvey - Page 4       (V-103)


Aot that, a public hearing be had on the adoption of the
budget, and that any Interested        citizen    has a right to
be heard.    After ~the adoption of such a budget, it can-
not be changed, except within the limitation           we restate
below,    Realizing,   however, that the orderly adminis-
tration   of the fiscal    affairs   of the county might re-
 quire oooasional    reoonsideration    of the needs of the
various departments ana institutions          of the county, pro-
vision has been made by authorizing          unused and une~xpend-
ed balances in the various budgets to b8 transferred
where the need is greater,        but such transfers    are limit-
ed from and to budgets of *like kind,”           We believe the
budget of the County Farm is enough like that of the
County Jail to come within the spirit,          if not the letten
of the statute,      The County Jail and the County Farm are
both dounty institutions,        both have superlntenaents,     ce
tain oommon items of maintenance suoh as fuel, lights,
water, eto. S as disolosed      by an examination of the Copy
of the budget submitted by you, and we think wIthin the
meaning of the budget law are “budgets of a like k1nd.w
Allocations   Sor maintenance and operation of slmilar~~
county owned~institutions       are of like kind, In our opin-
ion.
               In the case of Commissioner of Internal~Rev-
 enue v. Crichton.     122 F. (26)’ 181, .Judge Eutoheson, in
 oonstruIng the term wproperty of a like kInd,.w.appearihg
 In the Internal Hevenue Code, whioh provides that no
 gain or loss shall be reoognized     if property held for
 produqtlve use’ In. trade or business or for investment
,is: exohanged ‘solely  fork property of a like land, said:


               “The commlssi~oner oonoodes, as he
      must’, that under Louisiana law, mInera
       ri~ghts are Interests     not in personal but
      ‘In real property,     and that the rights ex-
       qhanged were real righta.       In the light
      therefore     of the rule. the regulation    lays,                 ..~.
      down, of the examples given in the ,Illus-
       trations   it puts forth,    and of the oon-
       struotion    which, under its interpretation,
      the statute has been given throughout this
      long period,     it will not do for him to now
      marshal or parade the supposed dissimilar-
      ities    in grade or quality,    the unlikenesses,
      In attributes,      appearance ,and capaoitiea,
      between undivided real interests        In a re-
      speotively     small town hotel,   and mineral
Hon. 3, G. Garvey - Page 5        (V-103)


       properties.      For the regulation   and the
       interpretation     under it, leave in no
       doubt that no gain or loss is realized
       by one, other than a dealer, fron.an
       exchange of real estate for other'real
       estate,   and that the distinction     in-
       tended and made by the statute is the
       broad one between olawes       and charab-
       ters of properties,     far instance,    be-
       tween real and persazal property.         It
       was not inte+ded to draw any al8tino-
       tlon between parcel6 4f real progorty
       however dlsslrilar     they my be 18 leca-
       tioa,   in attribute8   and la capaaitl88
       for prafitable    uae~.~
            Conoeddly this oa88 is not altogather    anal-
ogous to the imsta8t 8ltuatlan oonsidered here, but it
does in our opllion land weight to a broad oonstruotlon
of the term "like kind4 a8 used in H. B. 240.
             You am, therefore,      r88peotfully    advised
that in our 4piniOa the f.%d.I8i8wrS’         OOUrt  la auther-
iz8d to tramfor    all or any part of the umx)88dOd bal-
anoo no longer m8d8d for th4 08uaty Far8 to the budget
of the County Jail.     of OOUr86 the OXi8tO&O,      Of thi8 un-
U88& bala8or in the Ceunty Farm Budgot, a8d th8 powor of
the Comais8ioner8q Court to tramtier it to th8 County
Jail Budgrt, mrts     within the seund disor8ti84      ef the
Comml88ion~8~ Court ba88d up8n sourd ecenwdo p~lmolplos
in the admld8tratlea     of tkm fisoal   afrairr    of the O~U-
ty.
                We OOBOmw to the sooenl quo8tie&, the auth-
ority Of tho CO10Li88d4P*r8e CQUrt t4 trrL88f4r a'8U&U8
in tke Adverti8iPg       aad Publloation   Budget of )ar;OW.OO~to
th8 Toting Maokll, Bud&&, an6 if w8 apply, a8 u8 must,
the 8am4 reaaozing in passing upon this seoond quobtlaa
as the first,      it is obvious that the budget for advertir-
ing and publication       is not of like kind to that of voting
IMOhilleS. In dafarrnoo to what weoono~lve           to be the
legislative     intent in the enaotment of this law to vest
in the Comnlssionerse         Court rather broad discretion  in
transferring      unused surplus in one buaget to anothatr, we
would be inclined       to approve a transfer   of the budgetlprrs
lnvolvod if we 00uia        find some baeis of slrtlatlty   bo-
tweea the two budgets, but this ti are mabl8 to de,             It
therefore    foll8w8 that we an8w8r y4ur 8848~d qUO8ti8n In
the negative.
.




    Hon. E. G, Garvey -~Pags 6        (V-103)


                 It oannot be'$aia that the~term "budget of
    like kind and fund," as used in II, B. 249, is free from
    ambiguity; and we take the liberty     to suggest that it
    might be desirable   for this p;rovision of'the   A& to be
    clarified  as to lheanfng by the Legislature    now in ses-
    sion.


                    The Commis8ionerss Court of Boxer
           'County is authorized under House Bill 240,
            Chapter 65, page 93~, Aots of the'49tB Leg-
            islature;    Article   1666, V.R.C.S.,   to trans-
            for an unused surplue from the County Farm
           ,Budget to the, County Jail. Budget,, as they
            8.1.0 budget8 of "like kind"; but f8 without
            authority    to transfer an u&expended bal-
            anee in the Advertising      and Publioatlon
            BUQet to the Totimg:M8ohiae ~Budgot, ,a8,
          ~.they are not budgatr~ ef a llke klzd a8 oon-
          :,templ8ted by~the previsleas      of House BLll
            240, applioable      to Bexar Ceunty aad ether
            oouat$es hqlng a populatimir           Woe88 of
            225,000 a8 shown 'by the 188t pro4e(tiig
           United   Sb4k8   hl8U8.
                                          Y,Uti8 Very     tl?UlJ,

                                     A~+WIXYOENERA%QFT&X&.8




                                          L. P.~ Loller             d
    lL;zL:am:yb                           A88illtMt


                                     AFPROVEDHAROH26,1947
