The record-union., 1896-03-02

Subdivision 4 Of the same section
authorizes the Board of Education to
provide for the school department all
necessary supplies, and to incur such
other incidental expenses as may be
necessary for the welfare of the depart
ment."
Subdivision 5 of the same section
authorizes the Board of Education ito
build, alter, repair, rent and provide
schoolhouses, and to furnish them with
proper school furniture, apparatus and
appliances"
Subdivision 13 of the same section
authorizes and empowers it ito receive
and manage property or money ac-
quired by the devise, bequest or dona-
tion in trust for the benefit of any
school, educational purpose, or school
property"
Though Subdivision 4 of Section % of
the charter gives the power to the
Board of Trustees "to sell, use, lease,
control and take care of the real estate
and personal property of the city,
and because Section 215 pro-
vides that no office shall be created ex-
cept by the Board of Trustees, which
board may discontinue any office
which, in its judgment, is unnecessary,
50 far as we are aware it never has. been
contended that it could in any way in
terfere in the management of the pub
lie schools, its property or its funds, or
with the employees of the Board of Ed
ucation. The limitation of the power
of the Board of Trustees over the funds
of the city, and the salaries, fees and
percentage to be allowed to its officers
and employees, is found in Subdivision
p of Section %, which empowers it ito
make appropriations, examine and
audit, reject or allow, the accounts OF
officers, or other persons having the
care, management, collection or dis
bursement of any money collected for,
belonging, appertaining or appropriated
to the city or any of it's uses or trusts,
and to determine, allow, and pay the
salary, fees or percentage which such
officer or other person may by law be
entitled to receive, except as otherwise
herein provided
What are the exceptions provided in
this section? Under the rule invoked
by counsel for the defendant and
which, as said before, is the correct
rule, i. E., that the intent of the Legisla-
ture must bAdstermined-not necessar-
lily from the language used, but from the
general scope and tenor of the statute
it is clear that, among others, the ex-
ceptions are that the Board of Educa-
ton shall have the control and man
agement Of the public schools the
school property and the school fund,
and that the Board of Health with but
one single exception, and that is that
lot with the consent of the Board of
Trustees-but by the consent of the
Mayor only, can it establish a Pest
House and provide the necessary at
tendants and supplies therefor. Char
ter, Section 172), shall have supervision
OF all matters appertaining to the sani-
tary condition of the city and full
power over all questions Of foul or de-
fective drainage, and the disinfecting
and sanitary cleaning of streets, alleys,
cesspools, sewers Or naisances of any
description, and of all low places within
the city limits calculated to receive and
retain unhealthy deposits" Which
necessarily implies the power to employ
persons to carry into effect such pow
ers and duties and to incur liabilities to
that extent against the city
1t is further contended by counsel for
defendant that the debt sued for could
not be created by the Board of Health
First-Because no fund had been Gre
ated or set aside by the Board of Trus-
tees out of which the sum could be paid
Second-That if. in any event, it could
have been paid out of the general fund,
the plaintiff cannot recover, because the
charter provides that no debt shall be
created many year in excess of the fund
out of which it is 70 be paid, derived
from the revenue of that year, and that
there was no money in the general fund
at the time of the trial Of this action.
The answer to the first point is that
in the case of Humbert vs.. Dunn, 81
Cal, 80, the Supreme Court held that
all that was necessary to the validity
of an appropriation, III the absence of
any constitutional objection, was that
the Legislature had fixed the amount of
the claim and designated it's payment
out of a certain fund. From which it is
clear that the allowing of the plaintiffs
demand and designating the general
fund out of which it should be paid
would be sufficient appropriation, or
setting aside the fund.
Beside Section 173 of the charter
makes it mandatory upon the Board of
Trustees to make appropriations out of
the general fund to pay all necessary
expenses incurred by the Board of
Health in carrying out the law and of
the charter, and this may be done at
any time.
The answer to the second objection is
that at the time the claim was present
ed to and rejected by the Board of Trus-
tees there was money in the general
fund out of which it could have been
paid and that the Board of Trustees
cannot defeat valid claim by postpon-
ing it's allowance until the fund out of
which it should have been paid is de-
pleted or exhausted
1t is further contended by defend
ants counsel that if it was the inten-
tion of the Legislature to delegate to
the Board of Health the power to en-
ploy men. to that extent the charter
would be unconstitutional and in sup
port of his contention cites Article XII,
Section 13, of the Constitution, which
provides as follows:
1.-The Legislature shall not delegate to
any special commission, private corpo-
ration, company, association or indi-
vidual any power to make, control ap-
propriate, supervise or in any way in
terfere with any county, city, town or
municipal improv venent, money. prop
erty or effects, whether held in trust, or
or to levy taxes or assess
ments, or perform any municipal func-
tion whatever
The answer to this contention is that
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