Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1876-09-02
Nashville Bsnner.l
Colonel :. B. Heiskell, Attorney-Gene
fle state:
acn. James D. Po: ter, Governor.

the surplus now In the stare treasury. Yours
respectfully JAMES ID. PORTER.
don. James D. Porter, Governor:
Your contamination of the twenty. eighth
OF August has been received, and have TO re-
ply that my attention had been called to the
question previous to ' our Inquiry. / am en-
abled, Lbe retore, to give you my vie vs. more
prom pity than IL would otherwise have been
posi- bic TO do. SILL, regret that the exlgen-
cies OF business require an opinion on SO i'm
porIant matter, with so little Time for delib-
grafton. You desire my opinton whether
there is ary leT Tal objection 10 the payment OF
the Interest on the State deb', which falls due
July 1, 1873, with c-rtain BALANCES for July,
@ and aaaady & S - ana me %ac IN nay Spin
in regard to the surplus now vita the Stale
treasurer.
Ny recollection Is that when the interest
was te be paid under the funding law of 1873,
the want OF specific directions, as to the mode
OF conducting the payment, transmitting
funds, etc, Was q cause OF olfncplty with GOV
tions in the act Of 1873 were SO clear that the
interest was to be paid that no serious emb ~
Iassment YVES caused by the deficiencies in
the Law. On an examination OF legisla-
ton since that time, am not ablI see that
any cortrolling change has takenl ces
The acts and resolutions to which my stten-
ton has been callei by an examination of the
su cot, are, hrst, the act Of 1875, ch. !, sec.
which rDpeals so much of the third section OF
the act OF LIS as makes IL the duty of the
treasurer to set apart for that exclusive pur-
pose, o much Of the revenues as may be nee
essaTy TO pay the entire in crest on said bonds
that is, the funded and registered bonds, the
pbject of that. This is the first act Of the
sion, passed January 20. lsTS. The history of
that act is thtss When The act of 1873 was
called to tho attention OF the State officials, 1t
wSs serious question with them whether II
did not appropriate the revenues TO the pay
ment of Inc interest to the exclusion OF the
current expenses of the government. This
| ground was taken in The canvass, and ii was
| generally conc 4ded on all hands that such q
| provision ought net to stand. Such a con-
Gf ru hn hH allowed
prevail over the abAolute necessities Of the
| government, but it Was considered desirable
that this feature OF the law should be re-
pealed, and II was accordingly done. While
the act admits of the construction that IL Is a
| repeal OF that section 30 far as 1t authorizes
| the setting apart of any fund for that purpose,
| my opinion has been, and is, tn al the intent
of the law was simply to mset this question
| and take away the apparent preference given
| by the act to the payment of interest before
| running expenses.
9he serious Obi ection TO this construction is
that the repeal is the very words OF the en-
| actment with the insertion of the word zen
| tire, 20 that the repeal is Of 30 much OF the
| section as m kes II his duty to set apart from
| that exclusive purpose SO much OF the reve
| nues as may be necessary to pay the entire
| interest. Now the word Il no. In the enaci1ng
| clause. II was con ended, however, that 1t Is
| so meant, and the Interpolation of that word
| gives an fnUica ion of the sense in which the
| repeal was in ended. II shall no longer be his
| duty 10 set apsrs 50 much as will pay the en-
| tire interest. This leaves strong implication
| that only q Iari was required TO be set apart
| and as there was NO other Indie stor what hat
part was to be, it must have been such part az
would remain after other ecessary expendt
4 lures were provided for. In no other way car
we acc unit for the fact that in a Legislature
in pa-t composed of strong advocates o
| prompt pRS me Mt of interest the bill passed
| In the senate without dissenting voice anc
in the house with only one: 80 ,0--
| No. A, in substance re enactsd in the esisla
! tive appropriation bill, provides for the pay
ment OF coupons on oonds held snd owned
| by cities and counties aud charitable, library
u and religious institutions in the tate. Thi
| has been supposed by some to indicate tina
the intention of the legi lature was to takt
away the existing po"eF TO pay any othdl
These provisions seem to me TO fail of thi
| ect from the fact that there was a pieviou
| law, giving to a portion this class of coupons
those held by library and charitable inslitu
| tions-preference in payment over Others OF
bo. ds Otherwise held. The purpose of thes
| provisions, therefore, may well be 10 eXtent
| the rights 10 Giles and counties holdini
bonds, and in this class OF bondholders, thu
enlarged TO extend its operations in bonds &C
| quired since the former acts were passed, ais
| 10 restrict them TO bonds reid at the time o
| its passage of the oint resolution al q appTC
priation hill, and not TO any acquired after.
As the presumption of law IN general
| against the repeal Uf = previously eXistin
law by inpii sation, am unable to see any
! thing IN these acts tnd this resolution indica
; tive OF an interest to change tE law unde
which the payments Of intere't were made !
July, 1873.
/ i I
ment OF interest, IL was SO easy to say So, i
upequivocsl Language, tina; it is not easy {
bf lieve that they Intended it in the abst nc
| of any clear declaration OF that purpose.
As to the duty OF the State of1cers In the eX
istiDg state OF the law with surplus fund Il
the treasury, am in more difficulty. Will
| am bound uDder the decision of the suprem
| court in the case of johnson Us. Penny
baker, Nashville, Deem Der term, 1874 to hol
that there my be an @ implied aPRroPaiatioI Pro sn
the State from time immemorial, have bee
Obliged TO yield in pTactice to the payment
NAL APPROPRIATION, as Unsuitable by Ion
usage. 1 am at a loss TO say that Ia the al
sence of an act clearly and spec fcally apprS
pTiaung money to the payment of specih
debLs and dues, therA can exist an
positive duty or obligation on the ficers {
the state. The constitution declares eth 3
] "no money shall be drawn from the treasur
except in consequence OF appropriation
mado by law. Evident Y the intention c
the constitution is that an appropriation
scch as is made in congress and the Englts
| parliament, shall be made from time [
tine. Yet the uniform practice in Tenne
see-and q most Vicious p actice IL seems
be-hak been to maze no such appro 1r1atlo
| except as 10 legislative expenses and som
, few special items usually included tnerewitt
but TO regard all other matters required b
any law 10 be paid, as being appropriated 70
In the absence of any express appropriate
personally, / am at loss to say that an,
duty is imposed on State omeeT TO pay any
thing, while can easily assert that he is ju
, ti6ed an making such pay ments as are AT
thorized by law not in form or substance 81
| prSpriation bills; that is, not sitting apart an
specific amounts for toe purpose. The case
johnson Us Pennybaker, however, recol
nized in the alleged uniform practice OF I'll
several departments construction OF tn
clause or The constitution, and upon that cor
struction held that ii was the duty of I'll
COM mptrcller 10 issue his warrant tor money
for the pay NEXT of which no specific apprS
priattUn had been made. However reluctant
ly may yield point so vital in my view
; sound cont t.tutionRl Cover nLaent, am Ooun
by due respect TO the highest judicial at
:hority 10 hold that the night 10 make th
, payment carries with IL a CORES ponding obi
gallon on the part of The officers OF the Stat
The act of 1873 setting apait the revenue
, ! this purpose was, in This view, ceclarst1o
unusua iy emphatic of the duty 10 pay. anu
the repeal was only intended to provide Il
! the Ru opposed xclusion OF all other payment
1t still left the implication OF appropriate
; | s'anding upon the ordinary footing, with II
. pledge Of prompt pay ment OF theinlei est adi
| eli 10 It,
. "I am free 20 say that a strict adherence
| 80 tne constitutional mode Of specific appropI
| "ations would leave this and many oth
! ceases free of embarrassment and difficult
I | land place the responsibility OF al paymen
D "where IL belongs,prIma lily, with the legisI
g | "tiVe der artnenl. But IL Is lsft by the s.
: "pIeme co1rt and legislative pratice to be d
: % cided, not by The plain appropriations
Hspeclfc funds to spccltc purposes, but
general laws. IL is therefore Imposed upC
> | Hihe executive officers to gTope their WI
), "where nothing ought to be left to executi
!, Judgment o! scretion, and to act upon N,
"Lers lot properly, under the consttt utio
| a. wi min the scope Il their department"
In giving you this, however, as the b'
opinfon can form upon the strlct law OF {
n subject, / must say that the question i I
?, free from DIM ulty, eod That while can bri