Hon. J. E. McDonald            oplnlon Ho. TV-923.
Co8misslonerof Agriculture
State Land Office Bldg.        Re: Constructionof Sec-
Auatln, Texas                      tlon 11, House Bill
                                   ~;~~~~"a    51st Leg-
Deer Sir:                                  .
          Reference Is made to your request for an opln-
Ion es to the evellebllltyof the fees collected by the
Comnlsslonerof Agriculture In accordancewith the pro-
vlslous of Section 11, House Bill lio.35, Acts 51et Leg-
islature,page 112'7,forthe purposes stated therein.
            Section 1 of House Bill No.35 reeds es follows:
         "There Is hebeby establishedin this
    State the following procedure for vegetable
    plant certlflcetlon:
        ."The purpose of the vegetable plant
    certificationlaw Is to provide for the
    purchaser of vegetable plants the benefit
    of honest end reliable opinion of the free-
    dom from such dlseetiesend fungus infection
    es can be determined by field %nspectlon
    prior to preparing the plani% for shipment
    to insure in so far es possible, proper hand-
    llng end peckeglng the plants certified.
         "The Commlsslonerof Agriculture 1s
    charged with the duties of preserlblng sueh
    rules and regulations es ere necessery to
    the enforcementof the law. The eppolht-
    meut of qualified lnepectors,collection of
    fees, Issuance of tags end the ectuel en-
    forcement of the law.
          "The flrm or Individualholding such
     license end meeting the requirement of in-
     spection are issued such certificationStampS
     or tags es may be deemed necessary, such
     stamps or tags to be affixed tt containers
     Cafiying the certified plants.
Hon. J. E. McDonald, page 2 (V-923)


         Sections 10 and 11, read, respectively,as fol-
lows:
         "Sec. 10. Inspectionfees shall be es
    follows for tomato, cabbage, broccoli, col-
    lards, cauliflower,pepper and onions:
         "At the time of applying for the certl-
    flcatlon a minimum fee of Five Dollars ($5)
    shall be paid, and for each acre over five
    (5) acres the fee shall be not less than
    twenty-fivecents (25#) nor more than One
    Dollar ($1); this fee to be paid et the
    time of application. The certlfleatlon
    tag or stamp to be affixed to the conteln-
    er shell be ten cents (log) per thousand
    plants contained.
         "Sec. 11. (1) Applicationfor certl-
    flcetlon of sweet potato plants shall be
    made ~prlorto harvesting time the preceding
    season. The fee to be paid at the time the
    application 1s made for this Inspection
    shall be a mlnlmum of Five Dollars ($5) and
    for acreage of more than five (5) acres the
    added fee of not less than twenty-fivecents
           er acre nor more than One Dollar ($1)
    iz?icEe shall be paid All plants lifted
    or shipped shall be pa&caged ln bundles of
    one hundred (100) plants and ~8label or tag
    shell be affixed to each bundle. The price
    of labels or tags shall not be less than *.
              14) per label nor more than three
          (3#
    One cent f per label.
    cents




         “(3) Out of the feks collected under.
    this Act, the Chief of the I&rkets and Ware-
    house Division of the Department of Agrlcnl-
    ture shall be paid In addition to the amount
Hon. J. B. MaDonald, page 3   (V-93)



    of his salary in the general approprla-
    tion bill In the sum of Four Hundred and
    Eighty Dollars ($4&o) per annum; which
    amount Is hereby appropriatedfor said
    purpose." (HumberIngof paragraphs add-
    *) ,

          Paragraph'3 of Seotlon 11 olearly and deflnlte-
ly makes a speclflo appropriationof $480 out of the fees
collected for the purpose of supplementingthe annual
salary of the Chief of the Markets and Warehouse Dlwl-
SiOU, as fixed in the general appropriationbill for the
ourrent biennium. Paragraph 2 of Section'11 does not
aontaln the words "whloh amount is hereby appropriated
for sald purpose" found In paragraph 3. Therefore, we
must determine from the entire Act whether it was the in-
tent and purpose of the Legislature to appropriatethe
balance of the fees oolleoted by the Department of A@-
oultura for the purposes mentioned In paragraph 2.
          We quote from Attorney General's oplnlon Woo.
V-887, as follows:
          "Se&ion 6, Artlole VIII of--theCon-
     stitution of Texas, in part,,eads:   i
          "%o money shall bedrawu from the
     Treasury, but in pursuanae of speoifio ap-
     propriationsmade by law; nor shall any
     approprlatlonof money be made for a long-
     er period than two years.'
          "In the case of Pickle v. State Co    -
     troller 91 Tex. 484,
     &Justice      Gaines, :&%!$!oFEhs
     Court, said:
          "'It is clear that an appropriation
     need not .bemade In the general approprla-
     tioa bill. It 1s also true that no speoi-
     Sic words are neuessary In order to q akm
     anyappropriation;and It may be conoeded,~
     that an appropriationmay be made by lmpli-
     cation when the language employed leads to
     the belief that such was the intent of the
     Legislature.'"
          In 39 Texas Jurisprudence205, Statutes.,SeOtim
    J. E. McDonald. page 4   (V-923)


    it Is said:
         "It Is elementary that a statute
    will be oonstrued in such manner as to
    make It effeotlve - that i.s,enforceable
    and operative - if it is falrlg susoep-
    tible of suoh Interpretation. Thus where
    two conatruotionsmight reasonablybe
    given a statute, of whiob one will effec-
    tuate the leglslatlveIntent and purpose
    and make the act operative,while the
    other will defeat such Intent and purpose
    and render it inoperative,the former oon-
    'struottonwill be adopted."
          This law was enacted for the protectionof pur-
chasers of vegetable plants therein named by assuring
them as far as possible that the plants are apparently
free frontdiseases and pests "as determinedfrom,field
inspeotionprior to the lifting of the plants for sale
or 8hipment.v It is a matter of common knowledge that
the production of these plants Is a large and growing
industry in oertain looalifles of thie State. It is
also a~~wellknown faot that many states have eneoted
statutes prohibiting the Importationor sale of such
plants grown In 'pexas,for the reason that this State
has not heretofore had a law provfdlng for their pro-
per certlfloation. By the enactment of this law, the
Legislature Intended to not only give the producer of
such plants the protection therein provided,but to give
the producer nev fields in which to sell them.
          If the Legislature has failed to make an appro-
priation of the fees collected for the purposes stated In
paragraph 2, Section 11, It necessarilyfollows that the
purposes of the law have felled. The appropriationape:
oifioallg made by paragraph 3, Section 11, also fails, for
the reasons no certifioationfees or fees for tags, stamps:
or labels will be oollected. You are not euthorlzedto
issue certlfloatlontags, stamps, or labels unless there
has been a "field inapeotion~priorto the lifting of the
plsnts for sale." Suoh tnsyieations cannot be made vith-
out qualified lnspeotorsto make them. you cannot ob-
tain such lnspeotors unless funds have been made avalla-
ble to pay them for their servloes. Therefore, if the
Legislature haspfaLled to appropriatethenfees you are
authorizedto,oollect and expend for the purposes stat-
ed in the law, the law must remain lneffeotlveand ln-
operatlve from Oatober 5, 19@, until such the as the
*


    Ron. J. E. McDonald, page 5   (v+23)
         . . :

    Legislature appropriatessuch fees for the purpose of en-
    fortzingits provisions.
              We do not believe the Legislature intended swh
    a result. We think the Legislature Intended to make the
    law operative and enforaeable frcm Its effective date and
    to make an appropriationof all fees oolleoted for the
    pnrposes therein stated. and did make suoh appropriation.
    S&h a ooiastrizotlon Is reasonable and neither violates
    the ~provisionaof Seotloa 6, Artiole VIII of the Consti-
    tution of Texas, nor any other provision of that docu-
    ment.
              Furthermore, the Legislature evidently believ-
    ed it had appropriatedall the fees colleoted by the
    language used in paragraph 2, Section 11, or It would
    not have in plain language made the appropriationsin
    paragraph 3 of the same seotlon. Otherwise, it would be
    apparent that the Legislature had intentionallydone a
    useless thing,by appropriatingfees whioh it knew oould
    not~be oolleoted without an appropriationto enable you
    to oolleat them.
              Therefore, It is our opinion that Seotion 11
    of~~F@tie~BlllRo.35, Acts 51st Legislature,Chapter 581,
    pa e.1327,~~o'onsfltutes
                           a valid~approprlatlonof the fees
    ahfoh the Commissioner of Agrioulture is authorized to
    oolleot thereunder,for the purposea therein stated, for
    a.period of years, beginning Ootober 5 199, the day it
    beoomes effeotlve, and ending October 4, 1951.
                           SUMMARY
              House Bill Ro.35, Aots 51st Legisla-
        .ture, made a valid appropriationof all the
         fees oolleoted thereunder by the Commission-
         er of Agriculture for the purposes stated~
         there&n for a period of two years, begin-
         ning October 5, 1949, the effeative date of
         the Aot,.and ending Ootober 4, 1951. A-G.
         Opinions Ros. v-887, w-895 and authorities
         there oited.
                                      Yours very truly,
                                   A'Rl'ORRRYCRRRRAL
                                                  OFTRXAR




                                             Assistant
