Marshall County Republican. (Plymouth, Ind.) 1856-1878, 1866-08-09
AN IMPORTANT OPINION.

AN kM Okt Il n y Il O1-RNAON.
The subioncd decision is predicatcd on
an act for the relief of soldiers families.
approved MARCH, &, 1865, and a subsequent
act, passed at the special session of the
same year, approved December 90, 1865,
repeating in part the first act.
The former act provided for the lcvying
on all taxable property. in the State, of a
special tax of three mills on each dollar
valuation. and one dollar on each taxable
poll for the purpose of supporting soldiers
/ families and sick and wounded Indiana
soldiers in hospital.
When the special session was held. in
! November, 1855. the war had ended, and a
! supplementary act was necessary. suspend
ing, in part, the operations of the former
act. Hence the repeating act of December
20. 1865. Section two of the repeating act
provides that 1.-The taxes levied in pursu-
ance of the above entitled act. for the wear
1855, shall be collected ard retained in the
several counties where the same was levied
under the control of the Board of County
Commissioners. and by them applied in
conformity with said act. as if the same
were still in force, subject to the provisions
herein recited."
The provisions referred to are. that on
and after the Sd day of March. 1866, all
disbursements from such fund To the per
sons named in the former act shall cease.
and the uneNpended balance be held and
retained in the treasures of the several
counties: as other money.
Section 4 provides that the County
| Treasurer shall pay over 10 the State
Treasurer five per cent. of the specified
fund, out of which five per cent. was To- be
| paid anv Indebtedness incurred or created
4 by the Governor in anticipation of the one
hundred thousand dollars appropriated by
the second section of the above named act.
/ for the year 1865. for the relief of sick and
wounded Indiana soldiers in hospitals, and
the residue of the said five per cent. was
tn be applied. under the direction of the
Governor. to the relief of sick. destitute.
wounded or disabled Indiana soldiers. who
We're honorably discharged and might need
\ such assistance, and the amount and man
ner of such expenditure TO he reported by
| the Governor 10 the next General Asscmb-
~.
Section > provides that nothing in this
act shall be construed so as to prevent the
boards of commissioners of any county
from allowing TO the families of soldiers
the amount TO which they are entitled by
the provisions of the act hereby repealed.
for the year 1865, i'm all cases where the
same has not been allowed.
1t will thus be seen that while the repeal
ing act suspended i'm part the operations of
the act of March It'll. 1855. it yet provided
for the payment TO families of soldiers the
amount to which they were entitled by the
provisions of the act repealed. for the year
lSGj, in all cases where the same had not
betn allowed. In certain Democratic coun-
tie, however. the commissioners made
haste To- incorporate the fund with the gen
eral county fund, and devoted il to the pay
ment of the Indebtedness of their counties.
refusing TO conform to section > OF the re-
pealing act given above Numerous letters
have been addressed from these counties
To the Governor, inquiring if the commits
siOners were not liable, and whether the
amounts to which the persons named in the
former act were entitled could not recover
at law from the commissioners. The Gov
ernor referred the matter to Attorney Gen
eral Williamson for an opinion, which we
publish herewith. 1t will be seen that Mr..
Williamson decides i'm favor of the com
plainants and against the commissioners:
ATTORNEY GENERALS OFFICE,
July -, 1866.
To His Ercelleney Gorrrnor o. p. Morton:
| DEAR SIR have the honor to acknOwl-
edge the receipt of your communication OF
the 18th ult., in which you direct my at
tentiOn to the 9TH section of an act approx
cd March 9TH, 1865, and request an opinion
on the same.
The latter act was intended as a source
of temporary relief to the families of sol
diers, seamcn and marines. and sick and
wounded soldiers in hospitals. This act
was passed Just at the close of the war. and
being necessarily slow in its process, the
relief, in many instances. did not reach the
objects of sOlicitude until after the emer-
gency had passed, and hence the repeating
act of December 10th, 1865. II evidently
was not the intention of the Legislature to
entirely withdraw said fund from the OBJ
jects specified in the first act. This con-
clusiOn is drawn from the language of the
second and fifth sections of the repeating
act.
The second section provides that the
taxes levied under the act of March ith for
the year 1865, shall be collected and retain
ed in the several counties where the same
were LEVIED, under the control of the Board
of County Commissioners, and by them ap-
piled, in conformity with said act, and il
the same were still in force, subject to the
provisions of the third section. This Sec
ton provides that latter the Sd day OF
March, 1866, all disbursements from such
funds to the persons in said act enumerated
shall cease" with provisions following for
the diversion OF said uncNpcndcd balance
of said levy for 1865.
The fifth section provides that nothing
in this act shall be construed so as to pre-
vent the Board of Commissioners of any
county from allowing to the families OF
soldiers the amount for which they are en-
titled by the provisions of the act hereby
repealed, for the year 1866, in all cases
where the same has not been allowed. -
This language would seem to leave appro-
priations to the families of soldiers a mat
ter of discretion with the Board of Com
missioners; that is. they may or may not
make appropriations at their pleasure
The question now arises, are the second
and fifth sections of the repeating act per-
perative? If the former, then the Board of
Commissioners have the entire control. If
the latter, then the persons for whose bene-
fit the act was passed can compel, by an
action in Court, the Board of Commission
ers to make the appropriations due and un-
allowed for the year 1865. In a case in the
courts of New York, reported in Sd Hill,
p. 6l2, Nelson, Chief Justice, after citing
several cases in support of this principle,
SAYS: 1.-The inference deducible from the
various cases on this subject seems to be,
that when public body or officer has been
clothed by statute with power to do an