Untitled Texas Attorney General Opinion ( 1960 )

FVILL WILSON
ATTORNEY GENERAL
my 6, 1960
Mr. J. E. Lyles, Commissioner
Bureau of Labor Statistics
Capitol Station
Austin, Texas
Opinion No. W-839
Re: Texas Inspection of
Steam Boilers Act;
Article 5221~, Ver-
non's Texas Civil
Dear Mr. Lyles: Statutes.
You have requested our opinion regarding certain
provisions of the Inspectionof the Steam Boilers Act, Arti-
cle 5221~, Vernon's Civil Statutes.
The question presented by your request is as follows:
'Are low pressure boilers (as defined
in Section 1, DEFINITIONS) for heating in
(or near) buildings (such as apartment houses)
occupied solely for residence purposes with
accomodations exceeding four (4) families
subject to the Provisions of this Act?-"
Section 3 of Article 52210, Vernon's Civil Statutes,
specifically exempts certain boilers and low pressure heating
boilers from the provisions of the Act. The Section reads as
follows:
"Sec. 3. The following boilers and
low pressure heating boilers are exempt
from the provisions of this Act;
"1. Boilers and low pressure heating
boilers under Federal control and stationary
boilers at round houses, pumping stations and
depots of railway companies under the supervi-
sion or inspection of the Superintendent of
Motive Power of such railway companies;
L
or. J. E. Lyles, Page 2 (W-839).
"2o Low pressure heating boilers on
which pressure does not exceed 15 lbs. per
sq. in. gauge steam or at pressures not ex-
ceeding 160 lbs. per sq in guage and tempera-
tures not exceeding 250o F. for water, except
where such boilers are located In public or
private schools, colleges, universities or
county courthouses;
“3. Automobile boilers and boilers on
road motor vehicles;
“4. Boilers and low pressure heating
boilers used exclusively for agricultural pur-
poses;
“5. Low pressure heating boilers for heat-
ing in buildings occupied solely for residence
purposes with accomodations not to exceed four
(4) families;
“6. Boilers and low pressure heating boil-
ers used for cotton gins,"
The question you have asked would quite obviously
be answered in the affirmative by Subsection 5 of Section 3
of Article 522lc, quoted above, were it not for the language
of Subsection 2 of Section 3 of Article 5221~ which by its
literal language exempts all low pressure heating boilers
from the provisions of the Act, unless they are located in
"public or private schools, colleges, universities, or county
courthouses."
What Is the effect to be given the languaged used in
Subsection 2 of Section 3 of the Act?
To answer this question we must resort to the processes
of statutory construction. The following language from page
502 of the opinion in Lacy v. State Banking Board, 118 Tex. 91,
11 S.W.2d 496 (1928) is a helpful guide to the determination
of the intent and purpose which prompted the Legislature to
enact Article 5221``
"In construlng any statute, as Indeed
any instrument, the intention of the framers
is the prime inquiry. While the occasion
for the inquiry is usually what a particular
Mr. J. E. Lyles, Page 3 (m-839).
provision, clause or word means, yet to
answer the Inquiry 'one must proceed as he
would with any other composition--construe
it with reference to the leading idea or pur-
pose of the whole instrument. A statute is
passed as a whole and not in parts of sections
and is animated by one general purpose and in-
tent. Consequently each part or section should
be construed in connection with every other part
or section and so as to produce a harmonious
whole. . . ,I'
The intention of the Legislature in enacting Article
5221~ was to afford the members of the public some measure of
protection from bodily harm resulting from the operation or
use of unsafe or defective boilers, The Legislature has pro-
vided for inspectors, certificates of inspection and penalties
to be Imposed upon those who operate or use uninspected boil-
ers covered by the Act. This much is readily ascertainable
after reading Article 5221~ as a whole.
Having ascertained the Legislative intent, we must
now endeavor to construe the statute so as to effectuate the
purpose of the Legislature, even though this may require a
departure from the strict language of the statute as written
by the Legislature. This we are bound to do, If legally possi-
ble. 39 Tex.Jur. 166-172, Statutes, Sec. 90.
If we follow the language of Subsection 2 of Section 3
of Article 5221~ literally we are faced with the Inescapable
conclusion that all low pressure boilers are exempt from the
Act unless they are located in public or private schools, col-
leges, universities, or county courthouses. It Is true that
this construction would afford those persons in and around
these specific places the protection intended by the Legislature,
but such a construction ignores the fact that the Legislature
enacted Subsection 5 and Subsection 2 of Section 3 at the same
time, for the obvious reason that this construction treats Sub-
section 5 of Section 3 merely as extra words and renders the
language completely Ineffective.
The Legisl.atureenacted Subsection 5 of Section 3 for
some reason. They Intended it to have force and effect. There-
fore, we must construe the statute in a manner which gives force
and effect to the Legislative intent in relation to the whole
as well as each material part of the Act.
w. J. E, Lyles, page 4 (WW-839).
At 39 Texas Jurisprudence 172-174, Statutes, Section
91, we find the following language:
"An important rule to be observed in statu-
tory Interpretation is that an Act should be
given a fair, rational, reasonable and sensible
construction, considering Its language and subject-
matter, and with a view to accomplishing the legis-
lative intent and purpose . . D construction should
comport with common sense and justice, and irration-
al conclusions or deductions should be avoided."
Quoting further from 39 Texas Jurisprudence 181-182,
Statutes, Section 95, we find this statement:
"When necessary to effectuate or preserve
the legislative Intent, the Court will depart
from the exact and literal import of a statute,
or a particular part, provision of word there-
of a * o words or clauses should not be given
their literal meaning when such an ~interpreta-
tion would thwart the plain purpose of the Legis-
lature, or wouldlead to palpable absurdity,
contradiction, injustice or uncertainty, if such
construction can reasonably be avoided."
We, therefore, hold in construing the Act from Its
four corners, that the effect of Subsection 5 is to add
another exception to those contained in Subsection 2 so that
said Subsection 2, In effect, will read as follows:
"Low~pressure heating boilerson which
pressure does not exceed 15 ibs. per sq* in.
gauge steam OP at pressures not exceeding 160
lbs. per sq. in. gauge 3nd temperatures not
exceeding 250’ F. fop water, except where such
boilers are located in publfc or private schools,
colleaes, universities or countv courthouses:
and l;w sre8sure heating bollerk for heating-in
buildings occupfed solely for residence purposes
with acconodations exceeding four (4) families;"
In our opinion Subsection 5 of Section 3 of Article
5221~ plainly reouires that low pressure heating boilers for
heating in buildfngs occupied soiely for residence purposes
be exempt from the provisions of the Act only in those in-
stances where the accomodations do not exceed four (4) fami-
lies. Therefore, your question is answered in the affirmative.
. . .
Mr. J. E. Lyles, page 5 (w-839 10
SUMMARY
Subsection 2 of Section 3 of Article
5221c, Vernon's Texas Civil Statutes,
does not limit the force and effect
of Subsection 5 of Section 3 of Arti-
cle 522lc, Vernon's Texas Civil Stat-
utes; low pressure heating boilers
for heating in buildings occupied sole-
ly for residence purposes and with ac-
conodations exceeding four (4) families
are not exempt from the provisions of
Article 522lc, Vernon's Civil Statutes.
Very truly yours,
WILL WILSON
'Attorney General of Texas
By Lo.
W. 0. Shultz
Assistant
WOS:ms:nfh
APPROVED:
OPINION COMMITTEE
W. V, Geppert, Chairman
Martin DeStefano
Elmer McVey
Iola B. Wilcox
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore