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

streets and bridges showed n balance to
its debit Of about the amount OF the aggre-
gate credit balances in the other accounts
So that by the principles Of commercial
bookkeeping balance sheet would show
no funds on hand, and that credits TO the
various amounts had been used for Streets
and bridges" II il likewise true that
these credit balances embraced balances
brought forward from year TO year in the
accounts, and did not show merely the
funds derived from the taxes and other
sources for 1887.
Under thcsystem OF bookkeeping adopt
ed, the main purpose was to show In each
account the amount OF revenue that had
accrued 10 the different accounts and that
had been expended therefore from the be-
ginning OF the government. The system
is admirable in that respect
But, however the case may be viewed,
II is indisputable that the Taxing District
officials have from time 10 time used funds
10 the credit OF particular municipal pur-
poses for other municipal purposes. This
practice has been treated, no doubt, in
good faith ~ a temporary borrowing by
one fund from another; but the legal quos-
ton for my determination is whether this
practice Is warranted by law.
The fact that no loss or serious conse-
quences have thus far cnsucd from the
practice cannot justify IT, II there arc de-
iccts or Inconvenience in the scheme or
details Of the law, the appeal must be made
TO the Legislature for relief, and not TO the
courts.
In this discussion II must be borne in
mind that we are dealing with the most
emphatic limitations and prohibitions Of
the law. The courts must reply 10 every
appeal for lenicncy or liberty Of construc-
ton eta lex scripta est"
Then, is this practice OF the temporary
use Of funds raised for one purpose 10 an
other illegal? The statute provides '1n
no case shall the fund collected for one
purpose DO used for any other, nor shall
said commissioners issue any warrants,
unless the money is in the hands OF the
trustee ut the time 10 redeem them, under
penalty OF being personally liable for the
amount, recoverable by the holder OF the
warrant" 1t is also provided: THAT the
diversion OF any portion OF any OF said
taxes or wharfage dues, or other funds
from the purpose for which they were
levied, by any Of the commissioners, or by
the trustee, shall be a felony, for which
the guilty party, upon conviction, shall
suffer imprisonment in the penitentiary at
hard labor for two years.
This court has nothing 20 do with the
penal features Of this law; nor can II decide
whether the temporary use OF one fund for
another in good faith and without fraud.
ulcnt or ielonious intent, M shown by this
record, could constitute a felony within
| the meaning of the law. Perhaps the
proper tribunals would hold that where
the evidence clearly and emphatically
showed an entire absence Of n criminal in
tent and that no evil consequences had re-.
suited from the technical violation Of the
law, no felony had been committed.
But In this civil suit the court must CON
slider the stern nature Of the prohibitions
| Of the law, aud under them ! am CON
strained TO mld that the practice now con.
sidcrcd Is . palpablc violation OF the law.
II evil consequences have not resulted 20
far, because Of the integrity Of these off.
cinls, there is no guaranty that they will
not result hereafter. when the government
may be placed In the power OF less scrupu-
lous men.
10 tolerate the slightest violation 81 the
plain and salutnry limitation Of this law,
will but open the door TO all the evils that
the Legislature intended TO guard against.
This court will not make precedent that
will sanction or encourage the slightest de-
parturc from the strict Limitation Of the
statute In any caso that may fall within
these limitations.
Tho record further shows that with the
funds collected when the bill was filed On.
iircly exhausted, tsagp aw outstanding
claims against the Taxing District govern
mcnt on the various accounts amounting
to $50 Tor which no warrants had been
drawn, but Tor the payment Of which the
Taxing District had ample resources In the
shape of some uncolloclcd taxes for 1857,
and back taxes, ON which every demand
had been satisfied. II docs not definitely
appear whether these unsltiHliod demands
nrosc from "any contract for work, mate
rial OF service" as provided In section II
81 the original act That section contains
this provision: "rhc said commissioner.
shall In no event contract tot
work or material or services In excess oI
the amount OF taxes levied Tor such work
material or services Tor that year.
Tho evidence IN this record does mo-
nnirmauyoy establish that this provision
OF the law has been violated, aud there
fore no Judgment thereon Is pronounced
But under the prayer OF the Till Il Is ms
duty in constituting il 10 say that th'
amount Of taxes "loyied' each year ih
thc several purposes Of the corporation I
ihc clear limit Of the power ui the com
miNioncn 90 make such contracts 10
such purposes, aud when they exceed tina
amount they violate the law. Tho limi
b. the taxes levied and not the taxes col
lccicd. Hence, when the commissioner
. ! fttHtg Mftst,fa A., tho limit ~ fax.sa tettat
"thc local government l-a power 4
cover any dohrits In the taxes collected b,
appropriations from The surplus In th
treasury. II proper 10 state that u m
p'uu that in n0 case has thc fund collect
cd Ia pay Interest ON the public debt bcci
touched for other purposes
Tho statute rcquircs thc countrywide
% keep each fund by him collected sep
ariic, 10 be- paid by him Tor the purpose
specified upon the joint warrants OF tW
oi said commissioners"
The record shows that The trustee com
plies with this provision ~ the law In vi
respects except tina, all the funds are Il,
posted in bank 90 enc account. III
grcat inconvenience oi making deposits Z
the separate accounts as the taxes are co
lcctcd, ate shown and appreciated by th
court but cuustruc the law TO rcquf
that the funds should he kept separate
. and u il clearly the duty of the truslc
! | with diligence after tho pnrsuro in nj
3 uilro IA over 81 hpponi0n the funds an
3 make separate deposits Of the apprupriai
: I accounts
5 What spropcr diligence must dopcn
! Z on the circumstances VI the cnsc. The Ia
+ / does not demand impusahiliiVs, bat