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 "Improvementsand MiscellaneousRepairs" as used In ApprbprlatlonBill for,StephenF. Austin State Teachers College.
We acknowledge receipt of your opinion request reading as follows:

"SenateBill No. 

### 333acts 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 'Mafntenanceand Equipment $18,019’ for each year of the biennrum, and line 

### 73 'Improvementsand MiscellaneousRepairs $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 classroombuildings. May vouchers for such painting be properlydrawn against the approprtatlon for maintenance and equipment? 

### "2. May vouchers for such plastering ofwalls, togetherwith subsequentrepainting,be properly drawn against the appropriation for maintenance and equipment? 

### "3. May vouchers for sanding floors, together wlth subsequentrefinishing,be properly drawn against the appropriation for maintenance and equlpment? 

### "4. In case the answers to questlons 1, 2 and/ or 

### 3 are affirmative, and vouchers are properly1 i

Hon. Paul L. Boynton, page 2 o-6140

chargeable to the appropriation for Maintenance and Equipment, would Items such as roof repairs and rearrangement of the President'shome, and repairs to the Home Economics PracticeHouse, which requires a repainting job in connection therewith,be properly chargeable against the appropriation for 'Improvement and Repairs'?" That portion of the approprlationbill for Stephen F. Austin State Teachers College for the.blennlumbeginnlng September 1, 1943 and ending September 1, 1945, Involved in your Inquiryread,s

as 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. Improvementsand 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:

"Nomoney shallbe drawn from the Treasurybut in pursuance of specificappropriationsmade by law." This provision requlres specificnessas to purpose as well as to amount.

If the appropriationblll~provlded only for "maintenance and equipment"under Item 72 and omitted Item 73 altogether, we would have no hesitancy in saying that all Items of expensewhich you inquireabout could be properly pald out of Item 72 as maintenance. and "maintenance" It has been held that "equipment" are not synonymous. Neal v.'Cltg of Morrllton, 92 S.W. (2) 208, 209, 192 Ark. 450. It has been held that the term "maintenance"of schoolsdoes not include the cost of the construction of school houses. Love v. Rockwell IndependentSchoolDlst., Civ. App. 194 S.W. 659. The word "maintain"is ordinarily held to include 'repairs"when there has been no separateprovlslonmade 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 legislaturemust have had a reason for their separateuse. 30 Tex. Jur. 196, 202. This pre-c ,

Hon. Paul L. Boynton ,page 3 o-6140

sumptlon is especially strongwhen, as ln your lnqulrg, an appropriation ismade for 'maintenance"and a stilldifferent approprlatlon 1s made for "miscellaneousrepairs" ln the same bill. Under such circumstances our only recourse IS to find a difference Inmeaning between the words. The word "malntenance" is a broad term. (26) 208. Neal v. City of Morrllton; 92 S.W.

In Webster's New InternationalDictionary, Second EditLon, the definition of maintain is 'tohold 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 "torestore to a sound or good state after decay, Injury, dilapidation or partial destruction."

Under the limited facts that you glve us In your letter, 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 shouldbe answered In the affirmative.

Our answer to your question No. 2 **is** based on the assumptlon that "suchplastering ofwalls, togetherwLth subsequent repaintlng" Is being done in order that the original walls may be preserved. Our answer to your third qusetlon is likewisebased on the assumption that the sanding and reflnishlng 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 instancedeterminewhf$therthe cost.,,is'payable out of "maintenanceand equlflment (Item 72) of "improvementsand miscellaneousrepairs (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 'lmprovements and miscellaneousrepairs is that the cost of all upkeep of the physical properties of the schoolplant Involved should be payable only out of such fund. There are two reasons for refusing to apply the rule 'express10unlus est exclusio alterlus" to this situation. We know from examination of the 1941 appropriationbill for the same institutionthat heretofore the upkeep of the physical plant has been provided for under the Item of "maintenanceand equipment". Also, we observe that In that appropriationbill the item for "maintenance and equipment" is almost ten times as large as the Item for "improvementsand miscellaneous repairs" as provided for in the 1943 appropriationbill. The 1941 Legislature appropriated $23,929.00annually for "maintenanceand equipment" for Stephen F. Austin State Teachers College for the years endingAugust 31, 1942, and August 31, 1943, and nothing for "improvementsand miscellaneousrepairs." We are informed that under the prior appropriationbill the cost of upkeep forHon. Paul L. Boynton, page 4 o-6140

the physical plant known as Stephen F. Austin State Teachers College has been paid out of ,theappropriation for “maintenance and equipment”heretoforementioned. We know from common knowledge that the current appropriation of $2,500.00 for “Improvementsand miscellaneousrepairs” at Stephen F. Austin State Teachers College iswholly inadequateto defray the cost of upkeep of the physicalplant of that lnstltutlon for any one year. Rather than ascribe to the Legislature an intentionwhich is contrary to fac,t we believe that prior appropriationbills for this institutionas well as the physical properties to be benefittedby this appropriationmay be lookea to for determining the legislative intent in the current bill. This is the rule applicable to the construction of other legislativeacts and we know of no reasonwhy it shouldnot have application here. The rule is stated in Texas Jurfsprudence as follows:

“In construingambiguous phraseology or conflicting statutoryprovisions resort maybe had not only to the language of the particular act and that of other acts inpari materia, but also to clrcumstancesattending its passagewhich bear upon the legislative intention.

. . . Ana so when necessary to a correct understandingand interpretationof a statute, the court will take Into considerationthe state of the law at the time of its enactment, the conditionsdesigned to be dealt with, the good intended to be accomplishedand the mischief sought to be prevented or remedied. Furthermore, the subject-matterof the enactmentand the necessity or occasion for it are also proper subjects of judicial consideration.” 39 Tex. Jur. 214, 215, 216. When thus viewedwe are unable to say that the 1943 legislature intended that no part of the $18,019annual appropriationfor “maintenanceand 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 restoration and Improvementsin the sense of adding to already exlsting facilities should. be paid out of Item 73 and all other items of cost for upkeep shouldbe paid out of Item 72. Trusting that the foregoingwill aid you in passing on these accounts, according to your best judgment,as and when they are presented to you, we areHon. Paul L. Boynton, page 5 o-6140

Yours very truly ATTORNEY GENERAL OF TEXAS

By s/FaganDickson Fagan Dickson Assistant
FD:BT:wc

APPROVED NOV. 16, 1944 s/Grover Sellers ATTORNEY GENERAL OF TEXAS This Opinion ConsideredAnd Approved In Limited Conference