Public ledger. [volume] (Memphis, Tenn.) 1865-1893, 1876-09-02

Of johnson VS.. Pennebaker, Nashville,
December term. 1874, to hold that there
may be an implied appropriation in the
Treasury, and while under the usage of
the State from time immemorisl, | have
been obliged to yield in. practice to the
payments Of money out of the Treasury
without a formal appropriation, as justi-
fable by long usage. am at a loss to
say that, in the absence of an act clearly
and specifically appropriating moneys to
the payment Of specific debts and dues,
there a exist any positive duty to obli-
cation on the officers of the State. The
Constitution declares that no money
shall be drawn from the Treasury except
in consequences of appropriations made
BY law Evidently the intention OF the
Constitution is that an appropriation.
such as is made in Congress and the
English Parliament, shall be made from
time to time. Yet the uniform practice
in Tennessee land a most vicious prsc-
tice it seems to, be has been to
make no such appropriation except AS
to Legislative expenses and some few spe-
cial items usually included Herewith.
but to regard all other matters required
by any law to be paid, rs being appro.
priated for. In the absence of any ex-
press appropriation personally | am at
a loss to say that a duty is imposed on a
State officer to pay anything, while can
very easily assert that be is justified in
making such payments as are authorized
by law not in form or substance appro-
priation bills, that is not setting apart
any specific amounts for the purpose.
The case of Johnson vs. Pennebaker,
however, recognized in the alleged uni.
form practice Of the several departments
a construction of this clause of the con-
stitution, and upon that construction
held that it was the duty OF the Comp
troller to issue his warrant for moneys
for the payment of which no specific APP
preparation had been made. However
reluctantly | may yield a point so vital
in my view to sound constitutional gov.
ernment, | am bound by a due respect to
the highest judicial authority to hold
that the right to make the payment car
ries with IL a corresponding obligation
on the part of the officers of the State.
The act of 1873 setting apart TIE reve.
que to this purpose was, in this view, a
declaration unusually emphatic of the
duty to pay, and if the repeal was only
intended to provide for the supposed ex-
clusion of all other payments, it still left
the implication Of appropriation stand.
ing upon the ordinary footing, with the
pledge of prompt payment of the utter
est added to it.
l am free to say that a strict adherence
to the Constitutional mode of specific
appropriation would leave.this and many
other cases free of embarrassment and
difficulty, and place the responsibility of
all payments where it belongs primarily,
with the. Legislative Department. But
it is left by the decision Of the Supreme
Court and Legislative practice, to be
decided, not by plain appropriations of
specific funds to specific purposes, but
by general laws. 1t is therefore imposed
upon the Executive officers to grope
their way where nothing ought to be left
to executive judgment or discretion, and
to act upon matters not properly under
the Constitution, within the scope OF
their department.
In giving you this, however, as the best
opinion | can form upon strict law OF
the subject, | must say that the question
is not free from difficulty, and that while
| can bring my mind to no other conclu-
sions, | am satisfied that you can be sub
ject to no just reflection if you should,
under the circumstances, defer the pay
ment until the Legislature a act upon
the subject. j. B. HEIsKELL,
Attorney Gen'l.