Untitled Texas Attorney General Opinion ( 1944 )

Honorable Paul L. Boynton, President
Stephen F. Austfn State Teachers College
Ng!o@ioches,Texas
Dear Sir: Opinion No. 0-6140
Re: Construction of items for"Malntenance
and Equipment" and "Improvements and
Miscellaneous Repairs" as used In Ap-
prbprlatlon Bill for,Stephen F. Austin
State Teachers College.
We acknowledge receipt of your opinion request reading
as follows:
"Senate Bill No. 333 acts of the Forty-eighth
Legislature, and act flxlng appropriations for
educational lnstitutlons of higher learning, etc.,
contains the follonlfigItems applicable to the
Stephen F. Austin State Teachers College, Nacogdoches.
"Line 72 'Mafntenance and Equipment $18,019’
for each year of the biennrum, and line 73
'Improvements and Miscellaneous Repairs $2',5OQ'
for each year of the biennium.
"We shall appreciate your advice on the following:
"1. The college has contracted to repaint
certain portions of Its classroom buildings. May
vouchers for such painting be properly drawn a-
gainst the approprtatlon for maintenance and equip-
ment?
"2. May vouchers for such plastering of walls,
together with subsequent repainting, be properly
drawn against the appropriation for maintenance
and equipment?
"3. May vouchers for sanding floors, together
wlth subsequent refinishing, be properly drawn a-
gainst the appropriation for maintenance and equlpment?
"4. In case the answers to questlons 1, 2 and/
or 3 are affirmative, and vouchers are properly
1 i
Hon. Paul L. Boynton, page 2 o-6140
chargeable to the appropriation for Maintenance and
Equipment, would Items such as roof repairs and re-
arrangement of the President's home, and repairs to
the Home Economics Practice House, which requires a
repainting job in connection therewith, be properly
chargeable against the appropriation for 'Improve-
ment and Repairs'?"
That portion of the approprlation bill for Stephen F.
Austin State Teachers College for the.blennlum beginnlng Sep-
tember 1, 1943 and ending September 1, 1945, Involved in your
Inquiry read,sas follows:
"'i-2.Maintenance and Equipment. . . .$ a,Ql9.00 $ u,Ol9.00
Total Salaries, Summer School,
Maintenance and Equipment. . . .$202,599.00 $204,939.00
Improvements, Repairs and Buildings
“73. Improvements and Miscellaneous
Repairs. . . . . . . . . . . . . 2,500.00 2,500
Total Improvements, Repairs and
Buildings. . . . . . . . . . . .$2.500.00 $!2.500.00
Section 6 of Article VIII of the Texas Constitution
provides that:
"No money shall be drawn from the Treasury but
in pursuance of specific appropriations made by law."
This provision requlres specificness as to purpose as
well as to amount.
If the appropriation blll~provlded only for "mainten-
ance and equipment" under Item 72 and omitted Item 73 alto-
gether, we would have no hesitancy in saying that all Items
of expense which you inquire about could be properly pald out
of Item 72 as maintenance. It has been held that "equipment"
and "maintenance" are not synonymous. Neal v.'Cltg of Morrll-
ton, 92 S.W. (2) 208, 209, 192 Ark. 450. It has been held
that the term "maintenance" of schools does not include the
cost of the construction of school houses. Love v. Rockwell
Independent School Dlst., Civ. App. 194 S.W. 659. The word
"maintain" is ordinarily held to include 'repairs" when there
has been no separate provlslon made for repalrs. Words &
Phrases, Permanent Edltlon, Vol. 26 pp. 62 to 68. When both'
words are used In different connections In the same legislative
act, it Is presumed that the legislature must have had a rea-
son for their separate use. 30 Tex. Jur. 196, 202. This pre-
c ,
Hon. Paul L. Boynton , page 3 o-6140
sumptlon is especially strong when, as ln your lnqulrg, an
appropriation is made for 'maintenance" and a still different
approprlatlon 1s made for "miscellaneous repairs" ln the same
bill. Under such circumstances our only recourse IS to find
a difference In meaning between the words. The word "maln-
tenance" is a broad term. Neal v. City of Morrllton; 92 S.W.
(26) 208. In Webster's New International Dictionary, Second
EditLon, the definition of maintain is 'to hold or keep in
any particular state or condltlon, especially In a state of
efficlencg or validity; to support, sustain, or uphold; to
keep up; not to suffer to fail or decline". The definition
of repair is "to restore to a sound or good state after de-
cay, Injury, dilapidation or partial destruction."
Under the limited facts that you glve us In your let-
ter, we are of the opinion that your first three questions
should each be answered in the affirmative. We are also of
the opinion that your fourth question should be answered In
the affirmative.
Our answer to your question No. 2 is based on the as-
sumptlon that "such plastering of walls, together wLth sub-
sequent repaintlng" Is being done in order that the original
walls may be preserved. Our answer to your third qusetlon is
likewise based on the assumption that the sanding and reflnish-
lng of the floors is to preserve the original floors and thus
to maintain the building as a useable part of the physical plant.
Our ruling Is that the nature of the wdrk done will in
each instance determine whf$therthe cost.,,is'payableout of
"maintenance and equlflment (Item 72) of "improvements and
miscellaneous repairs (Item 73). This IS necessarily a fact
question and not a question of law. We cannot hold that the
legislative intent In appropria;lng a small sum for 'lmprove-
ments and miscellaneous repairs is that the cost of all up-
keep of the physical properties of the school plant Involved
should be payable only out of such fund. There are two reasons
for refusing to apply the rule 'express10 unlus est exclusio
alterlus" to this situation. We know from examination of the
1941 appropriation bill for the same institution that hereto-
fore the upkeep of the physical plant has been provided for
under the Item of "maintenance and equipment". Also, we ob-
serve that In that appropriation bill the item for "mainten-
ance and equipment" is almost ten times as large as the Item
for "improvements and miscellaneous repairs" as provided for
in the 1943 appropriation bill. The 1941 Legislature appro-
priated $23,929.00 annually for "maintenance and equipment"
for Stephen F. Austin State Teachers College for the years
ending August 31, 1942, and August 31, 1943, and nothing for
"improvements and miscellaneous repairs." We are informed
that under the prior appropriation bill the cost of upkeep for
Hon. Paul L. Boynton, page 4 o-6140
the physical plant known as Stephen F. Austin State Teachers
College has been paid out of ,the appropriation for “mainten-
ance and equipment” heretofore mentioned. We know from com-
mon knowledge that the current appropriation of $2,500.00 for
“Improvements and miscellaneous repairs” at Stephen F. Austin
State Teachers College is wholly inadequate to defray the
cost of upkeep of the physical plant of that lnstltutlon for
any one year. Rather than ascribe to the Legislature an in-
tention which is contrary to fac,twe believe that prior ap-
propriation bills for this institution as well as the physical
properties to be benefitted by this appropriation may be look-
ea to for determining the legislative intent in the current
bill. This is the rule applicable to the construction of other
legislative acts and we know of no reason why it should not
have application here. The rule is stated in Texas Jurfspru-
dence as follows:
“In construing ambiguous phraseology or con-
flicting statutory provisions resort maybe had not
only to the language of the particular act and that
of other acts in pari materia, but also to clrcum-
stances attending its passage which bear upon the
legislative intention. . . . Ana so when necessary
to a correct understanding and interpretation of a
statute, the court will take Into consideration the
state of the law at the time of its enactment, the
conditions designed to be dealt with, the good in-
tended to be accomplishedand the mischief sought
to be prevented or remedied. Furthermore, the sub-
ject-matter of the enactment and the necessity or
occasion for it are also proper subjects of judicial
consideration.” 39 Tex. Jur. 214, 215, 216.
When thus viewed we are unable to say that the 1943 leg-
islature intended that no part of the $18,019 annual appropri-
ationfor “maintenance and equipment” for Stephen F. Austin
State Teachers College should be used for upkeep of the physical
plant of that institution. We, therefore, hold that only those
Items of upkeep which are clearly for the purpose of restora-
tion and Improvements in the sense of adding to already exlst-
ing facilities should.be paid out of Item 73 and all other
items of cost for upkeep should be paid out of Item 72.
Trusting that the foregoing will aid you in passing on
these accounts, according to your best judgment, as and when
they are presented to you, we are
Hon. Paul L. Boynton, page 5 o-6140
Yours very truly
ATTORNEY GENERAL OF TEXAS
By s/Fagan Dickson
Fagan Dickson
Assistant
FD:BT:wc
APPROVED NOV. 16, 1944
s/Grover Sellers
ATTORNEY GENERAL OF TEXAS
This Opinion Considered And Approved In Limited Conference