-,                             EYGENERAL




                       February 21,   1952

     Hon. Robert S. Calvert
     Comptrollerof Public Accounts
     Austin, Texas
                      Opinion No. V-1410
                       Fle: Authority of Gatesville State
                            School for Boys to pay skilled
                            laborers engaged in repair
                            work out of the $269,000 re-
                            pair fund in the general appro-
                            priation bill for the biennium
     Dear Sir:              ending August 31, 1953.
                You have requested the opinion of this of-
      fice on the legality of drawing warrants in favor of
      skilled laborers who are engaged in repair work at
      the GatesvilleState School for Boys.
                Section 31(b) of Article 11, House Bill 426
      (the general appropriationbill), Acts 52na Leg., R.S.
      195l, ch. 499, p. 1228, at p. 1300,providesin part:
               "(b)      . there is hereby appropri-
          ated a fur&e; sum of Two Hundred and Sixty-
          nine Thousand Dollars ($269,000)for the
          repair of the GatesvilleState School for
          Boys at Gatesville,Texas; said money to be
          appropriatedto the Youth DevelopmentCoun-
          cil out of the General Revenue Fund for the
          biennium beginning September 1, 1951, and
          ending August 31, 1953."
                Under the heading "General Provisions L(Sec-
     tion 5 of Article VI of House Bill 426, at p. 1438,
     states:
               "Sec.   5. Repairs, Improvementsand
         Equipment.
                "The terms 'Repairs,Improvementsand
          Equipment,' 'Repairs and Improvements'or
Hon. Robert S. Calvert, page 2   (V-1410)


       'Repairs and Equipment' includes all
       objects of expendituresin the '4,000'
       and '5,000' series of the Expenditure
       Classificationsection of the State
       Comptroller of Public Accounts publica-
       tion lClasslficationof Accounts,' re-
       vised to August 31, 1949, edition."
          The '15000'1
                     series of the ExpenditureClassi-
fication above referred to, entitled "Acquisitionof
Property," relates to improvementsand equipment. The
'4000" series, which relates to repairs, is as follows:
                   "4000 - REPAIRS
       "4100 &G'AIRS
             4110 Repairs to Lands, Build-
                  ings & Machinery - Includ-
                  ing Contracts and Materials
             4120 Repairs to Office and Plant
                  Equipment
             4130 Repairs to Automobiles
             4140 Other Repairs."
          Your problem has arisen because salaries and
wages are in the 'UOO" series, which is not included
within Section 5, m,     and there is no classifica-
tion within the repair category labeled "Wages."
          We have some doubt as to the applicability
of Section 5 to an appropriationfor a specific “re-
pair," where the type of repair authorized is stated
in the appropriationitem itself. However, assuming
that Section 5 is applicable,the basic problem pre-
sented for decision is whether the statement that re-
pairs, etc. "               jects of expenditurein the
'4,000' and                  limits the method of using
repair appropriationsmade throughout the entire gen-
eral appropriationbill to the categories set out in-
the Classificationof Accounts Manual. If this is a
limiting provision then repair work can be done only
by the letting of iump sum contracts for a complete job,
not by separatelypurchasing materials and hiring labor-
ers.
  1/    Emphasis added throughout.
     Hon. Robert S..Calvert,page 3   (V-1410)


               The language of the $269,000 repair appro-
     priation does not indicate that the Legislature in-
     tended the work to be done only by lump sum bid, but
     leaves the method to be used to the judgment of the
     Youth DevelopmentCouncil. In the absence of Sec-
     tion 5, SUI)PB,the Council would have the authority
     to purchase the needed materials and also to hire
     the necessary labor, in effect acting as its own con-
     tractor, if it found that method more economical or
     expedient.
               In the case of e rlessCarbon Bla&Co.
     v. Sheppard 113 S.W.2d 99%” (‘_
                                  rex. Civ.,Aoo. 19~38.er-
     ror ref.), ihe court was faced with a decision-asto
     whether the followingdefinitionwas one of limita-
     tion:
               11
                    .   The term ‘carbon black’ as
                        .   .

          herein used includeg all black pigment
          produced in whole or in part from natural
          gas, casinghead,gasor residue gas by the
          impinging of a flame upon a channel disk
          or plate and the tax herein imposed shall
,-        reach ali products produced in such man-
          ner.n
               The court said:
                ” . . . The words ‘includesand
           1including’ are regarded by the authorities
          as being identical or equivalentto each
          other; and the authoritiesuniformly hold
          that unless the context in which such w0rd.g
                       ui eg they are never regarded
          Bre  used
          as being- rea  r i with or eauivalentto
                    identica
           1mean and.include,* nor with ‘such less elas-
          tic words and terms as ‘meant,’ ‘meaning,*
          or ‘by which is meant.’ . . . In conse-
          quence, it follows that the use of the word
           ‘includes t as used in the taxing act under
          consideraiion, instead of some less elastic
          word or term, such as ‘meaning,’ ‘meant,’or
          ‘by which 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 enlarge-
          ment, or as illustrativeof those intended
          to be included within the taxing act.”
                                                         .




Hon. Robert S, Calvert, page 4   (V-1410)


         This same definition of the term "includes"
was approved and followed in Calvert v. J. M. Huber
Coruoratiog 231 S.W.2d 805 (Tex. Civ. App. 1950, er-
ror ref.), &d Houston Bank and Trust Co. v. Lana-
prn;,)201 S.W.2d 834 (Tax, Civ. App. 1947, error ref.
 . . . .
          The context of Section 5, u,     does not
require that the phrase "includes all objects of ex-
penditures in the '4000' and 150001 series" be con-
strued as a limitation on repair expenditures,and on
the basis of the above decisionswe are of the opin-
tym;$at the categories set out in the '4000' and
       series are merely enlargementsof, or illustra-
tive of, the categoriesincluded within the meaning
of the word "repairs." We therefore hold that the
Council may hire skilled laborers to carry out the re-
pair work at the School, and wages to the laborers
are properly payable out of the $269,000 repair fund.
                         SUMMARY
         The definition of l*Repairs'l
                                     in Sec-             -.
    tion 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'cate-
    gorie,sincluded within the meaning of the
    term and is not a limitation upon the
    methods of expenditure of'repair funds.
    The Gatesville State School for Boys may
    properly hire skilled laborers and pay
    them from the $269 000 repair appropria-
    tion in the general appropriationbill.
APPROVED:                          Yours very truly,
C. K. Richards                       PRICE DANIEL
Trial & Appellate Division         Attorney General
Mary K. Wall
Reviewing Assistant
                                   By i: w2-u
Charles D. Mathews                   E. Wayn Thode
First Assistant                           Assistant
EWT:wb
