Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1874-06-26

been prevented The law directing it
being unconstitutional, conferred NJ
authority upon the Treasurer to d.
what was required. It is quite anothe
thing, hO yever, to compel him, in hi
official capacity, to substitute othe
moneys now in the Treasury for tina
which he has improperly used.
That, in substance, is what we AT,
called upon to do in this case. True
the form of the prayer is that the
Treasurer be restrained from paving
out money from the Treasury, but the
real object is to compel him to retain
III the Treasury an amount equal tC
that which he has misapplied. This
requires refusal by the Treasurer tc
pay the orders drawn upon him to the
proper authorities, pursuant to law.
He is but the custodian of the public
money. He has no discretion as to it's
use. It is held to be paid out and ap-
| propriated as the law directs.
The Immediate question for our de-
| termination, therefore, is, no. whether
| the State should provide the means
and require the Treasurer to replace
this fund. but whether it has so done
When the order to use the $150,O00
was made, the Treasurer was author
lied to replace it out of the first money
which came into the Treasury by way
of dividends or taxes. When that Of
the 5000, 900 was ordered, he was au-
thOrized to replace it from dividends
and taxes for general purposes. The
Revenue Act of 1871, however, ex-
pressly prohibited him from using for
that purpose any money collected I'M
der It's authority. The acts of 1878
and 1874 do not contain any such pro-
hibition, but they each direct that
the taxes levied shall be applied to
defray the expenses of the State gov
ernment, and to pay appropriations
for charitable and penal institutions.
This is the statement of the special
object to which the taxes are to be ap-
piled, required to be made in every
law levying taxes, and the Ion
stitution expressly prohibits their
application to any other. While,
therefore, the law does not pro-
kibit the reimbursement of the special
tax fund ont ofthe money raised under
its authority, the Constitution does.
The expenses on account of which the
money was taken from the fund, have
already been paid with the money of
the State. 1t is true, the money paid
ought not to have been so used, but it
was none the less ON that account the
money of the State. The bondholders
might, perhaps, if the money still re-
mained in the Treasury, compel its APP
plication to the payment of the inter
est on their bonds, but until so applied |
it did not become their property, and |
that of the State.
1t is not claimed there is now any |
money in the Treasury except that |
which has been collected from taxes |
levied under the Revenue Laws of 1873 |
and 1874, and it is clear to our minds |
that there is no existing law which re-
luires, or even authorizes. the Trea-
surer to reimburse the special fund
from that. The State may be under
obligation to provide for such reim-
but the State and the
Treasurer occupy different positions.
The State is the debtor and bound by
is pledge of faith to pay its debts.
The Treasurer is hpt an agent of the
State, and bound only TO pay its
leDuS when required TO 90 So r.y q
valid law. II such a law exists and he
.efuses to act, ii proper court will by
11andanaus compel him to perform his
luty. If he threatens to divert money
for the payment of a
lebt, on proper application, he may be
But to authorize interfer-
,nce in either case, it ,nust clearly APP
1ear that he wrongfully refuses to ex-
ecute a valid law which has been en-
acted 10y the legislative department for
lis guidance. The court cannot make
avs fof him. 1t can only compel him
% execute such as have been made.
AS there is therefore no money in
he Treasury which the Treasurer is
or required by any existing
aw to appropriate for the reimburse
nent of the special tax fund, we can
lot restrain him from paying out the
unds in his hands until the reimburse
nent has been made. The principal
n this case can not be reached through
he agent now before the Court.
The bill is dismissed viii. costs.
(The other eases between the same
parties fall under the principle of the
lbove opinion, and are also dismissed
With cOsts.)