1906-1908 Ind. Op. Att'y Gen. p. 130

my opinion, taking the facts stated in Mr. Elbert's letter as true, that he has not abandoned the office of school trustee, and hence has a right to hold such office, the appointment of his successor by the town trustees to the contrary notwithstanding. If it may be held that a temporary absence of sixty days vacates an office, even though there was no intention to abandon the office, it might be held with equal reasoning that a much shorter absence should va- cate such office. It is a question of intention, and this intention must be shown by the facts and circumstances surrounding the absence. CUSTODIAN-AUTHORITY LIMITED TO REPAIRS. March 22, 1907. Hon. 0. A. Baker, Custodian of Public Buildings and Grounds, Indianapolis, Indiana: Dear Sir-In answer to your inquiry as to whether you would be authorized without a specific appropriation, or authority, other than that given you under the statute defining your duties, to build and construct a new steel vault in the state house or capitol building, for the use of the treasurer of state, and submitting the architect's estimate of the cost of the construction of same, amount- ing to $2,751.00, I beg leave to advise that section 7783, Burns' An- notated Indiana Statutes, Revision 1901, defining your duties with reference to the matter inquired about, reads as follows: "The custodian is hereby empowered, and it shall be his duty, to purchase from time to time such needed supplies as are required, under the orders of the auditor of state, and to furnish, superintend and cause such repairs to be made to the capitol or other property in his care as shall be deemed necessary to its protection, subject to the approval of the auditor of state." In the appropriation act passed by the general assembly of 1907, relating to the same matter, appears this language: "Repair and supply fund, $5,000." Unless the section of the statute above quoted, or the language quoted from the appropriation act, author- izes the building of this vault, it is apparent that you are without authority to construct it. It is perfectly plain that such authority is not authorized by the language quoted giving you power to pur- chase supplies, and unless your duty to -make repairs authorizes it, you are without authority, The word "repair" is defined in Vol. 24, Am. & Eng. Encyc. of Law, 2 ed., page 470, as follows: "To 'repair' is to restore to a sound or good state, after decay, injury, dilapidation, or partial destruction; as, to re- pair a house, a well or a ship. To repair as is ordinarily understood, means to amend; not to make a new thing, but to refit, to make good, or restore an existing thing. Thus, the term does not include construction, reconstruction, or re- building." In Pittsburg and Birmingham Passenger Railway Co. v. City of Pittsburg, 80 Pa. St. 72, in considering the liability of a railroad company for street repairs, in a case where a railroad company had acquired the right to occupy a certain street in the city of Pitts- burg, on condition that it keep such street in repair, the court used this language: "Repair means to restore to sound or good condi- tion after injury or partial destruction." In the case of Weaver et al. v. Templin, 113 Ind. 298, page 302, in a case where a landowner had appealed from an assessment laid upon his land for repairs upon a public ditch, to the circuit court, and from an adverse judgment appealed to the supreme court, where the repairs as shown by the special finding in the court were such as to cost $2,529.82; the ditch had been cut two feet wider at the bottom for the first half mile, four feet wider for the next half mile, and for the remainder of its length five feet wider; and the line of the ditch for one-fourth of a mile was changed and a new ditch cut; that the ditch as repaired was from ten to twenty- five feet wide at the top, when the original specification for such ditch provided that for one and one-fourth miles it should be three feet wide at the bottom and eight feet wide at the top; for three miles further it should be eight feet wide at the top, and for a distance of three-fourths of a mile five feet wide at the top, and for the remainder of the distance eight feet wide at the top; that the total cost of such original ditch was $1,437.60 ; that such trustee in making said repairs removed the obstructions consisting of bumps and muck to bring the drain to a uniform grade at the bot- tom, and that the improvement cost more than it would have to have constructed the ditch according to the original specfications, the supreme court of the state of Indiana in considering the ques- tion of the right of the trustee to make this improvement under authority to repair, used this language: "We are unable to resist the conclusion that the trustee, under color of making repairs and removing obstructions, has changed and improved the ditch in several essential par- ticulars. The ditch has been greatly widened and deepened, and, doubtless, much improved, since the amount expended is almost twice the cost of the original ditch. The inference from the facts stated is that the trustee has improved the ditch instead of repairing it. Under authority to repair there can be no enlargement and improvement, except in so far as the work of repairing necessarily enlarges and im- proves." "Repair," says the supreme court of Pennsyl- vania, "means to restore to sound or good condition, after injury or partial destruction." Pittsburgh, etc., R. W. Co. v. Pittsburgh, 80 Pa. St. 72. The authority of the township trustee was t9 restore the ditch as nearly as practicable to its original condition, not to enlarge or improve, no matter how much the im- provement may have been needed, nor how much property owners may have been benefited." In the case of Board of Commissioners et al., v. Mankey, 29 Ind. App. 55, in a case involving an injunction to prevent the board of county commissioners, while acting as free gravel road diTectors, in making repairs, from cutting down the grade of a free gravel road, and to set aside an appropriation of money made to pay for the work under authority given such board to make repairs, the appellate court of the state of Indiana said that such board was given the authority to do such acts in the way of em- ploying labor and purchasing material as are necessary to keep roads in repair, citing section 6868 Burns' Annotated Indiana Statutes, Revision 1901, so much of which said section as is ap- plicable reads as follows: "Such directors shall employ all labor and purchase all materials necessary to keep the district (roads in the district meaning) under his control in repair." And proceeding further that court said: "A provision is made for a fund to pay the cost and expense of such repair. '- z * It is true a discretion is vested in the board as to when and to what extent repairs shall be made. The question of the necessity and exped- iency of repairing the road is not a question to be deter- mined by any judicial proceeding, but is wholly within the discretion of the board, but this discretion as to the making of repairs only and not to the improvement of the road by practically reconstructing a portion of it. To re- pair is to restore to a sound or good state after decay, injury, dilapidation or partial destruction." Citing author- ity. Again in the same opinion on page 57 the court said: "If a completed road or portion of it, should for any reason need to be reconstructed or improved the legisla- ture must provide the method. No such authority is given the board as turnpike directors. They are authorized to make repairs only, that is, to bring the road back to its former state as nearly as practicable. The authority to repair does not carry with it the power to raise the grade of the road or to lower it, no matter how much the im- provement is'needed. When they have restored the road as nearly as practicable to its former condition, they have exercised all the authority vested in them as to repairs. They 'may restore the road, but they can not materially change it. If the grade may be cut down in one place, it may be raised in another, and thus practically a new road con- structed throughout its entire length, and paid for out of a fund expressly provided for making repairs. The board has no authority in making repairs, to make any material departure from the original established grade of the road." Citing authority. Again on page 58 that court in the same opinion said: "Nor can it be claimed that the board under its author- ity to repair is authorized to cut down a grade at one place in a road in order to procure material necessary to make repairs at another place." In the light of these authorities, which to my mind directly bear upon the question you propound to me, your authority is limited to making repairs. I am clearly of the opinion that you do not have the authority to construct such vault.