 .


             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
