Public ledger. [volume] (Memphis, Tenn.) 1865-1893, 1876-09-02
D. PORTER.
Hon. Jas. D. Portion. Gerernnr:

JAMES ".
Hon. Jas. D. Porter, Governor:
Your communication ofthe 28th of Au.
gust has been received, and l have to re.
ply, that my attention had been called
to the question previous to your inquiry
| am enabled therefore TO give you my
views more promptly than it would other.
wise have been possible TO do. still,
regret that the exigencies Of business re.
q1ire an opinion on so important a mat.
ter, with so little time for elaboration,
You desire my opinion whether there is
any legal objection to the payment Of
the interest on the State debt, which falls
due July l, 1875, with cetain balances
for July 1874 and January 1875, and
what in my opinion is the legal duty Of
the executive officers in regard to the
surplus now with the State Treasurer.
Ny recollection is that when the in.
terest was to be paid under the funding
law Of 1873, the want Of specific direc.
tions, as to the mode of conducting the
payment, transmitting funds, etc, was o
cause of difficulty with Governor Brown
and the officers. Yet the indications in
the act Of 1873 we're so clear that the
interest was to be paid that no seriou;
embarrassment was caused by the def.
ciencies in the law, On an examination
Of the legislation since that time, | am
not able to see that any controlling
change has taken place.
The acts and reso. utions to which my
attention has been called by an exami
nation of the subject, are, first, the act
of 1875, chapter l, section l, which re.
peals so much Of the third section of the
act of 1873 as makes it the duty of the
Treasurer TO set apart for that p%articu.
lar purpose so much of the revenues a:
may be necessary to pay the entire ia,
terest on said bouds-that is, the funded
and registered bonds, the subject o.
that. This is the first act Of the ses.
sion, passed January 20, 1875. The
history of that act is this: When the act
of 1873 was called TO the attention Of
the State officials, it was a serious ques.
ton with them whether it did not appro.
pirate the revenues to the payment OIL
the interest TO the exclusion of the cur
rent expenses OF the government. This
ground was taken in the canvass, and il
vas generally conced on all hands thal
such a provision ought not to stand
Such q construction, however, could moi
be allowed to prevail over the absolute
necessities of the government, but il
was considered desirable that this fea
ture of the law should be repealed, and
it was accordingly done. While the acl
admits Of the construction that it is q
repeal of that section so far as it author.
ICES the setting apart of any fund fol
that purpose, my opinion has been and
is that the intent of the law was simply
to meet this question and take away the
apparent preference given by the act tc
payment of interest before running ex.
penses.
The serious objection to this construc
ton is that the repeal is the very words
Of the enactment with the insertion o.
the word entire" so that the repeal il
Of 80 much Of the section as makes i,
his duty to set apart from that exclusive
purpose SO much Of the revenues as may
be necessary to pay the entire interest
Now the word is not in the enGctiBl
clause. 1t was e%ontended, however, tina
it is so meant, and the Interpolation oil
that word gives an indication of the
sense in which the repeal was intended
1t shall no longer be his duty to sci
apart so much as will pay the entire in
terest. This leaves a strong implica
ton that only a part was required to bt
set apart, and as there was no other in
dicator what that part was to be, it mus.
have been such part IS would remain
after other necessary expenditures wert
provided for. In no other way can W.
account for the fact that in a Legislator,
in part composed Of strong advocates o
prompt payment of interest, the bill
passed in the Senate without O dissent
ing voice and in the House with only one
The Senate joint resolution OF Marcel
10, 1875, No. AZ, in substance re enacted
in the legislative appropriation bill
provides for the payment of coupons OF
bonds held and owned BY cities ant
counties and charitable, library, and re
llgious institutions In the State. Thi
has been supposed by some to indicat,
that the intention of the Legislature wa
TO take away the existing power TO pa,
any other coupons.
These provisions seem to. me to fail o
this effect from the fact that there was
previous law giving to a portion OF thi
class Of coupons, those held by librarl
and charitable institutions, preference
in payment over others on bonds other
wise held. The purpose of these pro
visions, therefore, may well be to extent
the right to cities and counties holdinl
bonds, aud in this class Of b~ondholders
thus enlarged to extend its operations Il
bonds acquired since the former acts wer,
passed, also to restrict them to bond
held at the time of its passage of tn,
joint resolution and appropriation bill
and not to any acquired after. ,
Az the presumption Of law in genera
is against the repeal Of a previously ex
isting law by implication, | am unable
to see anything in these acts and thi
resolution indicative Of an interest Il
change the law under which the pay
ments Of interest we're made in July
1874.
If the Legislature intended to stop III,
payment Of interest, it was so easy t,
say so, in unequivocal language, that iii
not easy to believe that they intended i
ia the absence Of any clear declaration
Of that purpose.
AS to the duty Of tho State officers II
the existing state Of the law with a sur
plus fund in the Treasury | am IN NOR,
difficulty. While | am bound under til,
decision OF the Supreme Court in the cas-,