1906-1908 Ind. Op. Att'y Gen. p. 136

the term clerk synonomous with employe, and the name of the position itself coming within the latter classification, and there being no provision made for the manner of the selection of a securities clerk, it is my opinion that the position is not an office but a mere employment. CUSTODIAN-WHETHER CERTAIN REPAIRS SHALL BE MADE UNDER CONTRACT OR BY MATERIALS PUR- CHASED BY CUSTODIAN, LEFT TO SOUND DISCRE- TION OF CUSTODIAN. March 26, 1907. Hon. 0. A. Baker, Custodian of Public Buildings and Grounds: Dear Sir.-Your communication of March 25th received stat- ing that you desire my opinion as to whether you are required to advertise for bids and have certain repairs to the state house and grounds done by contract, or whether under the law you are authorized to buy materials and have the same done by day labor. Section 7782 Burns' Annotated Indiana Statutes 1901 pro- vides: "It shall be the duty of the custodian to take charge of and protect the capitol building and all its furniture and other property connected therewith; to preserve the same from injury, and constantly to keep every part there- of cleaned and in proper order," etc. And it is provided by section 7783 of said statutes, that: "The custodian is hereby empowered, and it shall be his duty, from time to time to purchase such needed sup- plies 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." Section 7784 Burns' Annotated Indiana Statutes 1901, among other things, provides: "The custodian is authorized and empowered to con- tract for and have supplied all water, ice, telegraph and telephone service required -in the convenient and efficient discharge of the duties of the legislative, executive and judicial and other officers of the state boards, and other boards or representatives of the state at the seat of govern- ment, but all contracts and expenditures made by him for any of the purposes enumerated, or for any other purpose, must be approved by the auditor of state. Such custodian is hereby authorized to employ all such labor as may be required in carrying out the duties imposed by this act, to have charge of the same in and about the capitol and grounds at all times, and employ and discharge the same, or any part thereof, as the public interest may demand." Again it is provided by section 7787 of said statutes, that, "At the end of each month he shall, under oath, make out a list of expenses incurred under this act itemizing the same, with the names of the persons entitled to payment thereunder and amounts thereof, and upon the same being approved by the auditor of state, the said auditor shall issue warrants in the amounts and to the persons entitled thereto." These in part are the duties to be performed by the custodian, and there needs only the necessary appropriations to enable him to perform them, and the legislature has at each session appro- priated certain moneys for that purpose. By the appropriation act of 1907 at pages 678 and 679 of the acts of 1907 there was appropriated for the use of the custodian, among other amounts the following: "Specific. Paving drive- way, north entrance, one thousand seven hundred fifty dollars; repair to steps, west entrance, five hundred dollars. Available April 1, 1907; concrete walks on Washington Street, one thou- sand five hundred dollars; roof repairs, three thousand three hundred ninety dollars" etc. Neither the sections of the statute prescribing the duties of the custodian, among which is to "furnish, superintend and cause such repairs to be made to the capitol or other property in his care," nor the act of 1907, appropriating the money to make the specific i-epairs named, direct or attempt to direct, whether he shall cause the repairs to be made by contract or by buying the necessary materials and the employment of the necessary labor to make them. ie is expressly authorized by the provisions of section 7784 to employ such labor as may be required in carry- ing out the duties imposed upon him. In the appropriation act of 1907, money is appropriated to pay for the services of "one tinner or roofman" and "one carpenter," besides quite a number of laborers, and I know of no legal reason why the services of these men may not be required by you to assist in making the repairs provided for in the appropriation act, should you require their services. It is my opinion, construing the statutes prescribing the duties of the custodian together with the appropriation act of 1907, that the question of whether the repairs mentioned in your letter shall be made under contract or by materials purchased by you, and labor employed by you, is left to your sound discretion, al- was, however, under the approval of the auditor of state, as provided by sections 7783, 7784 and 7787 of Bnrns' Annotated Indiana Statutes 1901. FEEBLE "MINDED YOUTI, INDIANA SCHOOL FOR-AB- STRACT OF TITLE TO LAND. March 28, 1907. ion. John C. Billheimer, Auditor of State: Dear Sir.-I have examined the abstract of the title to the southwest quarter of section 20, township 31, north range 13 east in Allen county, Indiana, and find that the title as shown by said abstract is clear except the ditch assessment against same, and the taxes for 1907, all as of the date of March 14, 1907. There are some slight irregularities which are not covered by the record. but which appear to be fully covered by the affidavits accom- panying the abstract of title furnished me by you, and which in my judgment make the title entirely sufficient. I have also examined the form of deed made by Abe Ackerman for this real estate, and find the same to be incorrect in this, that the deed should be made to the state of Indiana for the use and benefit of the Indiana School for Feeble Minded Youth. See the last paragraph of the appropriation act of the general assembly of the state of Indiana, on page 685 of the acts of 1907. and from a reading of said paragraph you will observe that the appropriation made for the purchase of said real estate will not be available until the board of trustees of such institution shall convey all property held in its name for said institution to the state of Indiana, and if the title to the lands and property now held for the use and benefit of said institution is not in the state, conveyances thereof should be made to the state before the ap- propriations in said act for said institution can be made available.