The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1888-05-02

on the law by the authorities. and the pay
ment OF one.hali of the fund TO tho
board Of education was proper The pur--
poses for which the other was devoted
having failed, and there being no demand
upon il for the purpose indicated, hold
that this was q surplus or unapproprla'ed
fund, which the "local government had
power 10 appropriate 10 municipal pur-
poses, as was done.
IL appears that during the year 1887 the
Taxing District authorities failed tQspay to
the board OF education funds collected Tor
school buildings, from time 10 time, MS the
law required, and which was only paid
after this suit was instituted. ] hold that
the defendants, MADDEN and Lee, who
drew warrants on ii for other purposes, are
personally liable for interest thereon from
the several dates, when under the law the
funds on hand should have been held UNI
til paid. This is easily ascortained by
simple calculation, and for the amount
execution will be awarded. lnasmuch as
the defendant Harris could only pay on
warrants drawn by two commissioners,
and such warrants were not drawn Tor this
fund until alter this suit was brought, he
incurred no liability on this behalf.
But IL IL contended that il the power OF
appropriating surplus funds existed in the
local government" as settled in the opinion
in the Mitchell case, this power was vested
by law In the Legislative Council alone,
and that no act Of this council appropriat-
ing these funds liz shown except in two
cases. IL becomes necessary under this
contention TO decide the quostions-not
raised in the Mitchell case-what officers
OF the Taxing District have power under
the law 10 make these appropriations, and
in what mode IL should be done. In the
Mitchell case il was held that the warrant
for this power Of appropriation" must be
found in the first section of the amendatory
act which enumcrales TIT powers OF the
"local government" and contains what is
termed "the general welfare clause, aud
must BIO sanctioned by the scope and pur-
poses Of the act" Who, then, constitutes
tho appropriate focal government 10
which IL committed the power Of appro-
priatonY There is much ambiguity in the
law in reference TO the distribution Of pow
ers between the Legislative Council and
police and fire commissioners. But the
power "oimaking ordinances or local laws"
is in expressed terms granted 10 the Legis-
latiye Council, which Is the legislative de-
partmcnt OF the government. And twill be
observed that for the most part the pow
ers enumerated in the section from which
the power OF appropriation Is derived
under the doctrine Of the opinion In the
Mitchell case are legislative powers. Both
the constitution OF the United States and
Of the State OF Tennessee (as well as the
constitutions OF the other Snles) contain
provisions that delegate 10 the legislative
departments the sole power OF appropriate
ing money. This may be regarded IA u
fundamental feature OF the genius OF our
institutions. "fhe council il tho govern
ing body Of the municipal corporation, and
the corporation, unless il is otherwise pro-
yidcd, can act and he bound only through
the medium Of the council" DILLON Nun.
Cor. see. 30
Because, therefore, tho section Of the
law from which this power OF appropriation
Is derived in great measure embraces lcgis-
latiye powers conferred on the Legislative
Council because under the principles of
our institutions, this Is legislative power,
because the act does not otherwise cX-
prcssly provide, aud because ii IL OF the
flrsi Importance that power 80 great
should be- exercised formally and with due
dclibcmtion. | have no difficulty in de-
Gliding that this power OF appropriating sur
plus iundsis granted under the law 10 the
Legislative Council alone.
In my opinion, II should bc exercised by
ordinances duly passed, and each or1i-
nance should find and declare that there
arc no specific demands against the fund
for the purposes 10 which IL
WIS originally devoted. The ordinances
may make general or special appUpria-
tons, a. may be- oxpcdicnt.
The court Il spared the labor and re-
sponaibility Of determining the measure
ui the pccuninry redress against the de-
Pendants In this case 10y the candid nvowal
Of the Encouragement ut the hearing,
that no Is satisfied that they have been
guilty OF no fraudulent transportation
Ia other than municipal purposes, aud
that under the circumstances public inter
csls will be- fully subscrved by decree
constituting the provisions of the law in
yolvcd, aud pcrpciualy CnjOining the de-
Pendants from further iniraclions OF the
law as construed by the court. prrhaps
in this suit. brought Tor the benefit OF Tie
Taxing District, the proof that all funds
diverted, "a found by this opinion, have
been fairly and fully appropriated and
uH'u iNI llNlhi anu AhNalAsNnlE hlullrl-
pal purposes, u might be hold that the
Taxing District has sustained no damage,
and the judgment, except as 10 tho inter.
est In favor oi the Board Of Education, gs
bcioW stated, might bc 'damnum absluu
| injuria.' However, M already indicated,
Il b unnccc ary 10 formally decide this
/ question. In reference to The unsaiisiicd
claims on specific funds L u propoT 10 fiy
/ that II Tor any mason Il should turn oui
/ hereafter that the creditors who may hold
these demands are not paid, there will be
q plain remedy In their favor against th,
! defendants.
Aud however these questions may bC
! viewed the officials who administer thi.
| government assume very great personal
/ peril in violating the provisions Of thc Tax
Ing District law.
10 add In ihc force ol the limitations oI
| the statute ] ilnd that under the authuri
ties this cour, las jurisdiction In ob,dunc,
to the prayer oi the bill 10 popciullly en-
join lhc defendants from further exceed
Ing the line OF their lawful authority, q
| under the law, ~ construed and csilb
lishul IN this opinion. The power ui thh
court a. exercise this Jurisdictions proper
| ~ based upon the jurisdiction of courts O
equity over trusts and trust funds. Thcs,
officials nrc trustees for the public, aud th,
funds That they administer are trust funds
The Jurisdiction Is well established. u Dil
Ion on Nun cor. secs. OOd, 900, OF. %
and eases ciicd.)
The decree 10 be entered win declare IN,
principles Of this opinion aud pcrpciuall,
cnioin the defendants from exceeding thl
line oi their lawful authority under IN,