46 Ala. 423 | Ala. | 1871
By an act of the congress of the United States, passed on March 2d, 1819, entitled “An act to enable the people of Alabama territory to form a constitution and State government, and admission of such State into the union on an equal footing with the original States,” four
“ That five per cent of the net proceeds1 of lands lying within the said territory, and which shall be sold by congress, from and after the first day of September, in the year one thousand eight hundred and nineteen, after deducting all expenses incident to the same, shall be reserved for making public roads, canals, and improving the navigation of rivers, of which three fifths shall be applied to those objects within said State, under the1 direction of tho legislature thereof, and two-fifths to the making of a road or roads leading to said State, under the direction of congress.” — Clay’s Dig. pp. xxii, xxiii, xxiv ; ib. p xlii, ordinance ; Code of Ala. pp. 51, 52, § 3 ; ib. p. 47, ordinance. The funds raised and paid to the State under this “proposition” have been called in our statute laws, “ the three per cent, fund,” and “the two per cent, fund.” By further act of congress, approved September 4th, 1841, the two per cent, fund was relinquished by congress to the State, and accepted by the State, upon the terms proposed by the national government. — Pamphlet Acts, 1841,1842, p. ——. And up to January 1st, 1860, the State had received of the three per cent, fund the1 sum of eight hundred and fifty-eight thousand four hundred and ninety-eight dollars, ($858,498.00,) principal and interest. And of this fund, so received, there then remained unappropriated the sum of one hundred and ninety-five thousand three hundred and sixty-two dollars and ninety-one cents, ($195,362.91.) — Pamphlet Acts, 1851, 1860, Act No. 68, § 1, p. 54; Report of joint select committee to general assembly of Alabama, January 17th, 1860, passim. On the 18th day of February, 1860, after acting on the report above cited, a law was passed by the general assembly of this State, entitled “An act to loan and appropriate the three.per cent, fund audits interest.” — Pamph. Acts, 1859,
“ Sec. 1. That the sum of eight hundred and fifty-eight thousand, four hundred and ninety-eight dollars is hereby declared to be the amount due as principal and interest from the State to the three per cent, fund, of which sum one hundred and ninety-five thousand, three hundred and sixty-three dollars is the balance due as a loan to the Tennessee and Coosa Eailroad Company, under an act approved 17th February, 1854. Said loan is ratified as prescribed in said act, and the balance of said three per cent, fund, amounting to six hundred and sixty-three thousand, one hundred and thirty-five dollars, is loaned and appropriated as hereinafter enacted.”
“ Sec. 2. That the sum of two hundred and eighteen thousand dollars of said fund be loaned to the North-east and South-west Alabama Eailroad Company; that the sum of seventy-five thousand dollars of the same fund be loaned to the Wills Yalley Eailroad Company; that the sum of two hundred and twenty-five thousand dollars of the same fund be loaned to the Alabama and Tennessee Eivers Eailroad Company ; that the sum of forty thousand dollars of the same fund be loaned to the Selma and Gulf Railroad Company; that the sum of twenty-five thousand dollars of the same fund be loaned to the Cahaba, Warrior, and Greensboro Eailroad Company; that the sum of fifty thousand dollars of the same fund be loaned to the Opelika and Oxford Eailroad Company; and the sum of thirty thousand dollars of the same fund be loaned to the Montgomery and Eufaula Eailroad Company, all on the same terms and with the stipulation and conditions hereinafter prescribed.”— Pamph. Acts 1859-60, No 68, p. 54.
The language of this statute is too plain for doubt or misconstruction. The intent is strongly and emphatically" expressed, and the law actually “loans and appropriates” the fund therein named to the parties mentioned. This is a trust fund, and the State is the trustee, and it is bound
The ninth section of said last named statute also enacts, “ that when any of the railroad companies named in this act shall comply with the terms and conditions of this act, or the act of February 17th, 1854, relating to said companies respectively, and made conditions precedent to the-loan or payment of money, as the case may be, the governor of the State shall draw his warrant in favor of the proper party for the amount, on the comptroller, who shall draw his warrant for the same upon the treasurer of the State, which warrant shall be paid by the treasurer out of the moneys in the treasury not otherwise appropriated, and charge to account of the three per cent, fund.” — Pamph. Acts 1859-60, No. 68, § 9, p. 54. There are two other sections of this law proper to be noticed in this discussion. The first of these is section fourteen, and I cite so much of it as applies to this case :
“In case it shall appear'that the funds in the treasury, not otherwise appropriated and required to meet other appropriations, shall be insufficient to satisfy the loans and
And the other section referred to is in these words:
“ That if any of the companies mentioned in the second •section of this act shall fail for six months from the passage of this act, to apply for the loan therein prescribed, and to comply with the requirements prescribed in this act, the amount so proposed to be loaned such company shall be loaned pro rata to the other companies mentioned in the second section of this act, or to such of them as may apply therefor, upon the same terms and conditions as are prescribed in the third and fourth sections of this act; Provided, said companies shall apply for the same within eight months from the passage of this act.”— Pamph. Acts 1859-60, p. 54, No. 68, §§ 14, 18.
From these sections it very clearly appears that the governor was clothed with power to postpone these loans, or any one of them, if there were not funds unappropriated to pay them when applied for, and that the applications for these loans were required to be made within six months after the 18th day of February, 1860, the date of the passage of the act. This seems to me the most rational construction of the language of the statute. The legislature doubtless intended to close the operations under this law in five years and six months with the companies which did not fail to avail themselves of the benefits of the loans, or within five years and eight months after the date of the act, &a to those loans that were permitted to lapse and were not taken by the companies named in the first instance. Two months longer were allowed to dispose of such .loans as failed to be appropriated under the first offer. . But the governor was permitted to prolong this pe
Here the application for mandamus shows that the petitioner is the railroad company to which the grant of the loan was made, out of certain trust funds called the “three per cent, fund,” to the amount of forty thousand dollars ; that this loan was accepted and applied for by the company, in the proper way, and within the proper time; that the same was postponed by the governor, under authority given him by the act. In such a-case, this court will take notice of the intervention of the late war and the overthrow of the lawful government of the State during the late rebellion, and that the loan was necessarily postponed during this period; and that the application in renewal of the former application made at first, was made in reasonable time after the restoration of the rightful government of the State. The petitioner also shows, that upon the renewal of the application for the benefit of the loan granted the petitioner, the governor drew his warrant on the proper officer for the amount of money loaned of the three per cent, fund; that this officer was the auditor of the State, and that the auditor drew his warrant, in conformity with the warrant of the governor and the requisitions of the law. upon the treasurer of the State for the amount loaned, and this warrant of the auditor the treasurer refused to pay. Erom what has already been shown, I think in this the treasurer misapprehends the law, though at the same time his vigilance and caution are to be most highly commended.
Let a rule nisi issue as asked by petitioner, returnable instanter into this court, during the present term, requiring, &e.