The morning call., 1892-12-30
HELD IN TRUST.
The Cemetery Fund Not
for Supervisors.
8UT THEY: UTILIZE
A Legal Opinion Decides They Cannot
Divert Money Given for a
+. Special Purpose.


Colonel Mendall of the Engineer Corps
ana United States District Attorney Carter
visited the City Hall yesterday afternoon
and paid into the city treasury the price of
the lots in the City Cemetery tract con-
demned Tor military purposes. The money
was In United States treasury notes, seven
for $4,000 each and one for S50e0 The
receipt was signed by tile Mayer, Auditor
and Treasurer. Along withthe receipt was
gfyeE 8 written waiver of appeal for the
Judgment awarding $4,000 for the land.
the City Treasurer did not credit the
money 10 the general fund, but received it
asa trust. subject to the order OF the Board
OF Supervisors.
Tile following are extracts from an ex-
hanstiye opinion furnished by Pierson d
Mitchell to L. L. Ebert, chairman of
the Finance Committee of the Board .of
Supervisors, upon tire right OF fhe city to
use the $4,000 received from the Federal
Government for tire condemnation of a por-
tlonuf the City Cemetery tract for the pay
mens of the general iDdebteness Of the city /:
AS you are We'll aware all OF the lands above
high:watef mark within. Tie corporate limits OF
The cii y are held by title derived from lis pre-
necessor. lie pueblo. In tie case OF Hart VS..
burnett. 10 Cal.s 67S-which Is the cardinal an
thoTity Oh the nature or that tille-the Supreme
Coufi OF THIS State has decided I'M The most enl-
plIatc manner that the pueblo held these lands
in trust for lie use and DeAeiir OF lt lnhabi,ants
and when the city succeeded 20 the pueblo The
title aeHOlve6 upon II as,Such trustee.
Under these conditions The city undertook I'm
execution OF lle Trust, 70 set apart by order 500
OF your board, 200 O'acIes: of It's land ASA public
cemetery, aud mat 'the tTac5 or portion OF land
set apart Tot cemetery shall not be less II ex-
tent thaE 200 acres"
Order SUo was ratified by the Legislature OF
the State hut In ratfyihg II II was s'pTOqIueG tnat
BOaFg silafi havs
apart tract Of land for cemetery, as provided
III sa1d order, tile said board may, If Ia their
judgment the same w09fd be better for the PUB
lie health or convenience, by vote of al least
ten members and with the aDpToRalof the Mayor,
exchange SUCH lands so set apart for cemetery
purposes fer other lands, not less than 200 acres
IN extent. 10 be used as cemetery" tSiatutes
1SG7-GSs D. 3S2.)
Tie land 80 set apart and dedicated for Gem.
etefy furposes becaae, in ouT Judgment {nen
imra essee with airus for the purposes OF a:pue-
lie cemetery, subject 10 Tie single eaBd ION that
II The Board OF Supervisors ana The Mayor, under
the Terms OF TIE act rafifying ordinance SEQ
deemed r. exi ed eut to exchange said lands for
another tEset Of q least 200 acres, they weTt so
70 uos ana VILE mat quailhcatl0n tie 200 acres
so set aBaI must I've considered as held by the
city III trust feF the specific purpose OF public
Now. the iIse by the city of the proceeds OF the
p0rtioE Of This cemetery which mas been taken
bs The l lnlied States ~ payment OF. the expenses
OF: FOCAL government IS nothing more nor less
tifan the raynFeut of Its debts ana If the pros
erty Itself could not bs seized for the payment
Slstent tis.t. the proceeds OF an involuntary sale
6f 1s could be used fOrtGe same purpose.
III some private individual had conveyed TO the
city the tTaet OF LAND now used for public eeIG-
etefy on the trust that II b. forever maintained
by the elty Hs such the funds derived from q
concentration OF II would undenia6ly re i'm
pressed WIN The same trust. ana therefore they
cnuld n0I be used by the city for its ordinary
curtebt expenses. If the city held tile title 10
Tie eeiaeleiy tract on sTust as well defined as
the case supposed There could be no room for
question That Ihnss proceeds are now held and
can only be emnloyed Tor the same purpose.
III only d0ubI, therefore, would seem TO be
whether tie taking by ihe Federal Government
OF iane devoted by the public 70 public purposes
FOR another public purpose Chat OF military
eceupaiion3 extingaished The frsI pubic uss and
The tfIst thereby created, and converted the pro
ceeds from trust 10 absolute ownership We
speIceiSe DO tangible distiAetion Between lie two
eases.
We Therefore INCLINE TO tne opinion that the.
$4,000 referred 10 Is held III ITIIsL for cemetery
purposes aud that IL Can only be employed by
the city for the purposes either of acquiring add
tOnal cemetery facilities or maintaining lie re
ma1Iyder OF the cemetery.
Tie legal question involved Is however. not
Tree iTOa dOpbt, ane We would therefore suggest
ihat:the oplnion OF t4le court ought TO b. taken
befose any Use Of this fund Is made BY the civ
Tor us Ordinary expenses.
A;speeia meeting of the Board of Super
yfsOrS was held last night at which a reso-
luton, introduced by Mr.. 7aber. was
adopted, directing the transfer of the
S75seQ9 received from tile Federal Govern
mert fer the City Cemetery properly into
the gsnsraI fund, the money 10 be devoted
TO THE. payment Of the debts contracted BY
the board during the past six months.
These shortages in tie funds, as was
pointed out hy The CALI. Yesterday. aggre
gate fully $4,000. The principal tleficien
cies are In tiIe Fire Department running
expenses fund, SIT, 900; Street Department
furd, $4,000; stationery fund. SIC, zoo, and
other funds, ,S24 Geo.
The resolution was adopted by a vote of
to 2, Antiques and HryeF voting in tile
negative. Supervisors Ebert ana WFikin
son were absent.
a resolution was adopted authorizing the
payment OF $500 to City Surveyor Tllt0n
for surveys ulade for the Richmond sewer
district