The times. [volume] (Richmond, Va.) 1890-1903, 1898-10-29
MR.. MONTAGUE
WILL APPEAL.
The Department Of Agriculture Case
Not Yet Settled.
OPINION OF JUDGE WEXFORD.
yuterestinC Points i'm His Position on
the Mandamus Proceedings Be-
tween the Commission of Agri-
culture and the Auditor.

Attorney-Genera Montague yesterday
decided TO appeal from the decision OF
Judge b. r.. Wexford, Jr., Of the Circuit
Court instructlng the Auditor Of Public
Accounts to honor the warrants OF the
Commissioner Of Agriculture to an
amount approximating $500.
The matter grew out OF mandamus pro-
ceedngs brought by the Commissioner,
Colonel Whitehead, through Messrs.
Thomas Whitehead, Jr., and r. Carter
Scott.
Judge Wellfords opinion is an interest
ing one and the belief Is expressed that
IL will be sustained. The matter will be
heard by the Supreme Court. sitting In
this city. between now ana November 9th.
The position taken by Judge Wexford is
as follows:
JUDGE WELLFORD's OPINION.
The Board Of Agriculture OF the Common
wealth Of Virginia and others.
V M'nd'm''.
Morton Marye, Auditor Of Public Ac-
counts.
OPINION OF THE COURT.
The petition sets out substantially that
the petitioners. as a department OF the
government charged with grave public
duties. are disabled from the discharge OF
those duties by the Auditors construction
Of the Appropriation acts and his refusal,
therefore. to honor their drafts for the
operating expenses OF the department and
prays for a mandamus requiring him TO
pay those drafts or some OF them specih-
! cally named. If the Auditors construc-
; ton be wrong and the facts set out I'm the
petition be true. do not.see that the pc
1 utfoners have any other remedy 10 en-
able them to fulfl their public trust. II
/ il undoubtedly true that as general rule
! only the holder OF the drafts could ask
| for a mandamus-but do not think that
rule is so unbending as TO require a pub
/ lie officer. embarrassed i'm discharging his
/ public duties by the dishonor of his legal
! demand upon a public treasury, TO de-
mend upon the action Of any other party
| for the assertion OF the only adequate le-
/ gal remedy.
! think therefore, the demurrer should
! be overruled.
PROVIDES AN APPROPRIATION.
J. The Code OF Virginia, Sec. l'JJ, provides
/ for an annual appropriation Of SVD Ioi
! the support and maintenance or the de-
/ partment Of Agriculture. This amount
was increased to $4,000 by act Of Assem-
/ bly, OF March s. 1855 This act has never
/ been positively repealed and, until tn'
Appropriation act OF March 3, 1888, there
! has been no legislation inconsistent viii
or repugnant thereto which could have
the effect of a repeal by implication. The
| general appropriation acts since lsss prlol
10 the last apparently recognized the con
| inued force OF the act OF March s. 1873
by embracing in the annual budget al
| appropriation in exact correspondence
! Herewith. But the last Appropriation ac
OF March. 1888. is directly repugnant u
the act OF March. 1858, in its positive en-
! actment THAT In no event shall an
portion Of the expenses Of the Agricul
tural Department be paid out OF the pup
I lie treasury" This necessarily operate
as a repeal from and after the passage o
this last appropriation act on the 81 o
March. 1898. OF the previous authority o
the AUdltor TO pay drafts OF the Depart
ment upon the treasury 10 the amount o
$4,000. But until that repeal he had am
pie authority TO do so. and all such pay
ments made. therefore. prior TO March
1898. were lawful and completed acts.
THE FERTILIZER ACT.
Tho original Fertilizer act Of Februar
oath. 1890. imposed additional duties on In
Agricultural Board, and. in contempla
tion of the collection OF fees, taxes etc
! authorized by the act. directed the sam
| TO be deposited with the Treasurer OF th
state: all such deposits to be known n
the Fertilizer Fund and 20 be kept b
the Treasurer separate from other publ
funds. and only TO be paid out on requis
tIons OF the Commissioner OF Agrlcultui
for the purpose Of carrying out the pro
visions OF the act-any remainder tnere'
TO be- paid into the general Agrlcultur.
rund-all such deposits. however, TO cor
stitute a part Of the $1,000 appropriate
Of the act OF March s. ISIS. The act'wa
subsequently amended by act OF March
1896 acts CSC. p. 800. removing the chart
of these deposits against the $1,000 appr'
priation and limiting the authorized e.
penses for carrying out the provisions
the Fertilizer act 10 the sum or S3tJJ.
This was the law when the Legislatul
passed the Appropriation act OF March
1885 The provisions Of that act dlit'
from the old law in two particulars: Fir
Ia charging the charges upon the fertl
izer Fund Second, In removing the I'm
tatlons of the amount OF those charges
| the sum or So.UyN But inc e9aCA''aI 4S'
ture OF the old law IS retained ana en-
phaslzed. The collection OF fees az
taxes are recognized as a continuing d
post 70 the credit of the Agricultural d
partment, and no part thereof regarded I
In the treasury until the end OF the fisc
gear and payment OF all authorized e.
penses Of the Department There Is
repugnancy. therefore, in the act
March, 1898. which can be construed as
! repeal OF the old Fertilizer law, ar
there can be no legal difficulty In givlr
as full effect 10 the legislative Will Il