Opinion
No. 37521.
May 22, 1950.
1. Appeal — mandamus — schools — school funds.
Where from a judgment in mandamus commanding the mayor of a municipality to sign and deliver a warrant on the maintenance fund of a municipal separate school district for part payment on a school building contract, a taxpayer under the statutes, gave bond for costs and prosecuted the appeal, the actions so taken constituted an appeal with supersedeas and would be entertained as the issue involved is one of great public interest. Secs. 1210, 1212, 1213, Code 1942.
2. Schools and school districts — maintenance funds — trust funds not to be diverted.
The maintenance funds of a municipal separate school district which consists of the state equalizing fund, the ad valorem tax, the state per capita fund, the funds derived from tuition, poll taxes and those from the state vocational fund are trust funds for the operation and maintenance of the school for the fiscal year and are not to be diverted to construction purposes except as to annual balances. Secs. 6444, 6528, 6541-6545, 9714 Code 1942.
3. Schools and school districts — municipal separate school district — trustees — control of funds.
The entire control of the bond and building fund and of the maintenance fund of a municipal separate school district is not vested in the trustees, but the mayor and board of aldermen are also under duty to assume responsibility to see that these trust funds are not diverted to any purpose other than such as is authorized by law.
4. Municipalities — warrants drawn on municipal funds — authority of the mayor.
The statute which requires that the mayor shall sign all warrants drawn on the city treasury, with the sole exception of warrants for teachers' services in a separate municipal school district, was intended as a checkrein on the expenditures of funds for any municipal purpose, and to the end that the taxpayer shall have the benefit of his judgment and discretion in determining whether or not the warrant is drawn on the proper fund and for a purpose authorized by law. Secs. 3624, 6287 Code 1942.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Pearl River County; J.C. SHIVERS, Judge.
Williams Williams, for appellant.
The question is squarely presented as to whether or not the mayor of a city or town can be compelled by writ of mandamus to sign a warrant ordered drawn by the board of trustees of a separate municipal school district against the operating and maintenance funds for the payment of work performed by contractors in constructing a gymnasium and vocational building of said municipal separate school district.
In this connection, it is to be noted that the mayor is required to sign all warrants drawn on the treasury for money (Sec. 3624, Code 1942) except warrants for services rendered as a teacher, which may be issued by the city clerk without approval by the mayor (Sec. 6287, Code 1942).
The above two sections of the Code clearly indicate, when taken together, that it was intended thereby to give the mayor a checkrein upon expenditures by the trustees of a municipal separate school district, except as to the payment to teachers for services rendered, and the mayor in refusing to sign the said warrant to Dye Mullins, Inc., drawn against the school or maintenance fund for work performed by them on the gymnasium and vocational building, when there was a separate bond or building fund levied, collected and received for such purposes, was not only acting within his right and exercising a discretion therein, but to force him by writ of mandamus to sign said warrant would be requiring him to perform an illegal act, as the trustees of said school district were clearly acting beyond their authority when they ordered such warrant issued out of the funds levied, collected and received solely for the purpose of operating and maintaining said school.
As to the use of said funds earmarked by the city clerk when he deposited same in the city depository as school funds or maintenance funds, which funds were received partly from the 20 mill ad valorem tax levied on all property situated within the Picayune Municipal Separate School District, and partly from the State (the per capita fund and the equalizing fund, and the vocational fund) and the remainder thereof from tuition collected from parents and poll taxes collected through Pearl River County, we call attention to the following authorities: 47 Am. Jur. p. 363, par. 92; 65 A.L.R. 1124; Hamiel, Chancery Clerk v. Rice, Attorney General, 176 Miss. 462, 169 So. 687; Secs. 3606, 6216, 6416, 6439, 6441, 6528, 6553, 6564, 6565, Code 1942.
These authorities, we think, clearly show that the funds deposited by the clerk of the City of Picayune and earmarked as the school or maintenance fund could be used for no purpose except for which they were levied and received, which as shown by the budget and provided by law was for administration, instruction, transportation, rent, insurance, wages of janitor, janitorial supplies and light and fuel, and that the mayor was not only within his rights but exercising a discretion in the public interest, which was of a judicial and not ministerial nature, and to have signed said warrant would have made him a party to that which the trustees of said municipal separate school district were unlawfully seeking to accomplish. The general rule with reference to school funds earmarked for a particular purpose is stated in 47 Am. Jur., p. 363, par. 92, as follows: "Sec. 92. Use of Funds. — School funds are held to be trust funds for educational purposes which the courts will not permit to be diverted to other even though closely kindred uses, no matter how meritorious the project may appear to be in its practical, ethical or sentimental aspects. Even the legislature itself, the fountainhead of matters educational, cannot divert school funds to other uses. So also, school funds can be expended by local bodies only for purposes authorized by statute either expressly or by necessary implication. In determining to what uses they may be put, however, the courts will regard the spirit of the law and the purpose intended to be accomplished, as well as the letter. Where the law provides for separate funds for distinct purposes, each fund is earmarked with a trust for the particular purpose for which it is raised, and they cannot be commingled or used interchangeably.
"School funds are not only impressed with a general educational trust, but in many cases they are impressed with a special trust limiting their use to special educational spheres, and in such case, of course, they can be used for no other."
In the case of Hamiel v. Rice, it was specifically held by this Court that the equalizing fund could not be used to cover deficits in the constitutional four-months term (see Secs. 205 and 206 of Const. 1890) and that a warrant could be drawn against the equalizing fund for such purpose.
Sec. 6553, Code 1942 provides that the common school fund, viz., the county poll taxes, the taxes covered by the 20 mill levy of the Picayune Municipal Separate School District, and the common school per capita fund appropriated by the State, must be used exclusively for expenses of maintaining and operating such school.
In this connection it will be noted that Sec. 6528, Code 1942 limits the trustees of a municipal separate school district as to the expenditures of funds left over from a preceding year to the expenditure of not more than $150 thereof for building, repairing or furnishings for the school and such building, repairing and furnishing shall be on furniture or other apparatus for the schoolhouse not on buildings.
The rule with reference to the issuance of a writ of mandamus is stated in 55 C.J.S., page 87, as follows: "Elements generally. Before the writ may properly issue, at least three elements must coexist: (1) The existence of a clear right in plaintiff or the relator to the relief sought, as discussed infra Secs. 52-61. (2) The existence of a legal duty on the part of respondent or defendant to do the thing which the relator seeks to compel, infra Secs. 62-68. (3) The absence of another adequate remedy at law, supra Secs. 17-27, and, although the coexistence of these elements, standing alone, will not always suffice to justify the issuance of the writ, in the discretion of the court, as discussed supra Sec. 9, the absence of either of these elements will make the issuance of the writ invalid."
We respectfully submit that neither of the elements necessary for the issuance of a writ of mandamus herein existed. There was certainly not the existence of a clear right in plaintiff or the relator to the relief sought, for the reasons (1) said school or maintenance fund could not be used for the construction of a gymnasium and vocational building and (2) the undisputed proof shows there were ample funds in said bond or building fund to pay said claim, and that there was no legal duty on the part of the mayor of the City of Picayune or defendant to do the thing which the relator seeks to compel. On the contrary, the act which said trustees seek to compel is an unlawful or an illegal act. In other words, said trustees are attempting by writ of mandamus to compel the mayor to perform an act which he is prohibited by law from doing, and said trustees had no more authority to force the mayor by writ of mandamus to perform said illegal act, than said trustees would have authority to compel said mayor to sign a warrant issued to the superintendent of said school in payment of a horse, or an airplane or a yacht purchased by them for said superintendent.
Furthermore, they needed no remedy at law to enable them to legally pay Dye Mullins, Inc., Contractors, because there were ample funds in said bond and building fund with which to pay them and they should have issued their warrant against said fund, which the mayor, according to the undisputed testimony, stood willing and ready to sign at all times.
We further submit that the act of the mayor here involved the question of determining whether or not said warrant was drawn upon the proper school fund and involved an exercise of discretion or judgment. Surely the legislature, by requiring him to sign all school warrants against funds received and placed to the credit of the City depository, intended that he should determine when warrants were issued against said funds whether or not such warrants were drawn against the proper funds, and also whether or not the clerk or the school trustees had authority to draw the same. In the case at bar he exercised his discretion in this matter, and we submit, properly exercised the same in determining that the warrant was illegally drawn and should not be paid.
It is only where the act is ministerial that a public officer will be compelled to perform an act, and the rule as to when an act is ministerial is stated in 55 C.J.S., p. 219, par. 132, as follows: "It is only when the duty of the officer to do the act is clear-cut, well-defined and positive that it is considered ministerial."
Immediately after the entry of the order for a writ of mandamus by the trial court, W.L. Moseley, who was then mayor of the City of Picayune, perfected an appeal herein with supersedeas, on July 7, 1949, under Sec. 1210, Code 1942.
When W.L. Moseley resigned as mayor of the City of Picayune, G.H. Williams, a taxpayer of said municipal separate school district of the City of Picayune immediately continued the appeal in force with supersedeas under Secs. 1212 and 1213, Code 1942.
The failure of H.R. McIntosh, mayor pro tem, to obey the supersedeas and his violation thereof did not, of course, annul the effect of the supersedeas, but it does place said mayor in contempt of court, and having wilfully and deliberately violated the supersedeas he is, of course, in no position to present said so-called plea in bar and contend that the issues or questions raised by the appeal have become moot. 4 C.J.S. p. 1159, pars. 675 and 676.
Moreover, the questions involved are matters of such great public interest that the facts in the case at bar bring it within the exception to the general rule that an appeal will be dismissed when no useful purpose could be accomplished by entertaining it, or, to put it differently, when "the decision upon the legal question involved would be merely academic".
We think the rule that applies here is strongly stated by this Court in the opinion of Sartin v. Barlow, 196 Miss. 159, 16 So.2d 376.
In the case at bar, we respectfully submit, the exception is of compelling propriety because said trustees will, if this Court refuses to pass upon the questions raised by the appeal, continue to divert funds raised by the State and municipal separate school districts for the purpose of operating and maintaining the school to building programs and such other purposes as they might wish to divert them, thereby violating the trust with which said sums are impressed and using said funds for different and other purposes from what said trustees represented that they would be used in their original budget, and thereby entirely prevent the inhabitants, property owners and taxpayers of said municipal separate school district from having any voice in the amount of taxes that said trustees could request of the mayor and board of aldermen and the State authorities for one purpose and use for another; and could and probably would finally result in such high taxes that many property owners would not be able to carry the tax burden and their homes and property would be confiscated for such taxes.
We also call the Court's attention to the recent case of California Company v. State Oil and Gas Board, 27 So.2d 547.
Morse Morse, for appellee.
The plea in bar to the right of appeal is the proper way to raise the question of matters occurring subsequent to the judgment which operate the waive the right of the parties to have the judgment reviewed. Turner Lumber Co. v. Robinson Land Lumber Co., 155 Miss. 882, 125 So. 86; Kemper County v. Maria G. Neville, 95 Miss. 56, 48 So. 727; James L. McDaniels v. Walter Hurt, et al., 92 Miss. 197, 41 So. 381; State ex rel. Abraham Kierskey v. Robert M. Kelly, 80 Miss. 803, 31 So. 901; Hughes et al. v. Ball, 140 Miss. 812, 106 So. 626; Keeton v. Robinson, 144 Miss. 899, 110 So. 839; Adams v. Carter, 92 Miss. 578, 579, 46 So. 59, 47 So. 409; Farmer v. Allen, 85 Miss. 672; McCaskey Register Co. v. Swor, et al., 122 So. 753; McInnis v. Simmons, 162 Miss. 606, 139 So. 872, and Sec. 1960, Code 1942.
Here we have the mayor resigning July 12, 1949, and the mayor pro tem, H.R. McIntosh, signing the warrant when he became mayor. The whole question now is moot. Bank of Port Gibson v. S. Dickson, 4 S. M. (12 Miss.) 689; James L. McDaniels v. Walter Hurt, 88 Miss. 769, 41 So. 381, 92 Miss. 197; Smith v. Citizens' Bank Trust Co., 125 Miss. 139, 87 So. 488; Turner Lumber Co. v. Robinson Land Lumber Co., 155 Miss. 882, 125 So. 86; Turner Lumber Co. v. M.C. Stallworth, 125 So. 89; Daniel D. McInnis v. James M. Pace, et al., 78 Miss. 550, 29 So. 835; Whidden v. Broadus, 108 Miss. 664, 67 So. 155; Lockard, County Superintendent of Education v. Hoy, 113 Miss. 238, 74 So. 137; Yates, et al. v. Beasley, et al., 133 Miss. 301, 97 So. 676; McKinnon v. Poole, 142 Miss. 416, 107 So. 550; State ex rel. Knox v. Board of Supervisors Pearl River County, 115 So. 343; McManus, et al. v. Craig, State Tax Collector, 190 Miss. 1, 198 So. 559; Rawlings, et al. v. Claggett, et al., 174 Miss. 845, 165 So. 620; Sellier, et al. v. Board of Election Com'rs. of Harrison County, 174 Miss. 360, 164 So. 767; Moran v. Murphy, et al., 187 Miss. 633, 193 So. 29; Sartin Circuit Clerk v. Barlow, Dist. Atty., 196 Miss. 159, 16 So.2d 372; Sherrill v. Stewart, 196 Miss. 422, 17 So.2d 443.
City municipal authorities have no control or jurisdiction whatever of funds of the municipal separate school district. Stevens v. City of Brookhaven, 64 F. 666.
The right to construct the school building is in the trustees. Sec. 6423, Code 1942, also par. 13 of said section; Van Zandt v. Town of Braxton, 194 Miss. 863, 14 So.2d 222, 870; Ladner v. Tolbert, 121 Miss. 592, 83 So. 748; Sec. 6287, Code 1942.
Mayor must sign the warrant. Sec. 3624, Code 1942.
School district expenditures not governed completely by budgetary estimates. Secs. 6303, 6416, par. 8, 6423, pars. 13, 6541, 6542, 6543, 6551, 6546, Code 1942.
This is an appeal with supersedeas from an order of the circuit court which directed the issuance of a writ of mandamus, whereby W.L. Moseley, Mayor of the City of Picayune, was commanded to sign, execute, and deliver a warrant for the sum of $9,368.70, in response to a requisition from the trustees of the Picayune Municipal Separate School District in favor of Dye and Mullins, Inc., building contractors, and which warrant was drawn on the maintenance fund for the operation and maintenance of the school for the scholastic year of 1948-49, instead of on the bond and building fund. The city clerk had prepared and signed the warrant pursuant to the requisition therefor by the superintendent of the school district at the instance of the trustees thereof, and had submitted the same to the mayor for his signature.
At the hearing on the petition for the writ of mandamus, the principal contention made by the defendant Moseley was that the school trustees were without authority to use the maintenance fund except for the purpose of maintaining and operating the school during the scholastic term, and he frankly stated as a witness that he would have signed the warrant if it had been drawn on the bond and building fund and that he was then willing to do so. But it appears that the trial court was of the opinion that he had no discretion as to whether or not the school trustees should be permitted to pay an installment on a building contract out of the maintenance fund, which was composed largely of the state per capita fund, plus the state equalization fund, the state vocational fund, and a local 20-mill ad valorem tax levy made by the mayor and board of aldermen against the taxable property in this separate school district, and that he should have therefore signed the warrant which was drawn on this fund to pay the seventh installment to the building contractors on the cost of the construction of a gymnasium and vocational building.
On the rendition of judgment which directed him to sign, execute, and deliver the warrant to the said contractors, an appeal was promptly executed by the Mayor under Section 1210, Code of 1942, which provides that in any suit or action, any officer who is a party to any suit or action in his official character, in which a city is beneficially interested, shall be entitled to appeal, and that "an appeal may be taken, without giving an appeal-bond; and in such case, if an appeal-bond would operate as a supersedeas in favor of a private person, the appeal, without bond, shall have the same effect in the cases herein provided for; and this provision shall apply to all the courts of the state."
Section 1212, Code of 1942, provides that: "In all suits now pending or hereafter brought, against . . . or the mayor and board of aldermen of any city . . ., or other officer of any . . . municipality . . ., in their official capacity, any taxpayer or taxpayers of the . . . municipality . . ., shall have the right at his or their own expense . . . to defend all suits instituted . . . and may prosecute an appeal to the Supreme Court of the state from any judgment or decree of a circuit or chancery court adverse to such officer or officers, if such officer or officers do not prosecute an appeal within thirty days from date same is rendered." The statute further provides that where an appeal is prosecuted by such an officer who is a party to the suit and he desires to dismiss such appeal, "the appeal shall not be dismissed if any taxpayer or taxpayers of the . . . municipality . . . shall object thereto, but the court shall retain the cause and render decision therein upon the issues presented by such appeal, provided, however, that such taxpayer or taxpayers shall enter into bond for costs as hereafter provided, and shall be liable for all costs of such appeal should said cause be decided adverse to him or them."
(Hn 1) In the instant case a taxpayer, G.H. Williams, entered into a bond for costs provided for in Section 1212, supra, and also pursuant to the provisions of Section 1213 of the said Code. We are therefore of the opinion that the action taken first by the Mayor, effecting the appeal, and by the taxpayer in prosecuting the same here upon the failure of the defendant named in the mandamus petition to do so was effectual to constitute an appeal with supersedeas, and especially where no appeal with supersedeas was denied by the trial court, assuming, but not deciding, that it was discretionary with the court as to whether or not such an appeal should be allowed.
Except for matters de hors the record, and found in the briefs of counsel alone, the failure of the defendant Mayor to prosecute the appeal here is not explained, nor has any motion or pleading been filed with the clerk of this Court, with proper notice to the appellant to answer the same, asking for a dismissal of such appeal, even if the said officer or the appellee would be entitled to have the same dismissed.
We shall therefore deal with the appeal as one with supersedeas, and as a pending cause for decision, and particularly for the reason that the issue involved is one of great public interest, even though the Mayor may have resigned, as stated in the briefs of counsel, though not shown by the record or by any motion or plea filed with the clerk of this Court, shortly after the judgment was rendered. Compare Sartin, Circuit Clerk v. Barlow, Dist. Atty. ex rel. Smith, 196 Miss. 159, 16 So.2d 372.
Prior to July 15, 1948, the City of Picayune had issued bonds in the sum of $175,000.00 to erect a high school building. On the date aforesaid this building had been completed and there remained a balance in the bond and building fund of $103,021.05, and the school trustees had received in addition thereto the sum of $18,000.00 for the said building fund, from the State Building Commission, and donations from L.O. Crosby, Jr., in the sum of $10,500.00 and from R.H. Crosby, a donation of certain bonds which were cashed in the sum of $26,228.80 principal and accrued interest, and all of which amounts were in the city depository to the credit of the bond and building fund in the total sum of $157,749.85.
Thereupon the trustees of the said Picayune Municipal Separate School District advertised for bids for the construction of a gymnasium and vocational building, and the contract therefor was awarded to Dye and Mullins, Inc., building contractors, for the sum of $93,301.00. This was done without taking the matter up with the mayor and board of aldermen and without a petition or election, but we are not concerned here as to the validity of the said building contract since the consideration of that question is unnecessary to the decision of the issue here involved.
On the said 15th day of July, 1948, the school trustees, pursuant to Section 6541, Code of 1942, prepared and filed with the state superintendent of education a budget of expenditures for the support, maintenance, and operation of the public schools of such separate school district during the fiscal year beginning on the first day of July. That statute provides that such budget shall contain a detailed statement of the estimated amounts to be expended for teachers' salaries, transportation, if any, and other expenses to be incurred in the operation of the separate school, or schools, during the fiscal year, showing the number of months for which funds will be available for the operation and maintenance of the school, or schools, during the school session, and the estimated cost of operation for each month.
Section 6542, Code of 1942, requires that the said board of trustees shall at the same time prepare and file a detailed statement of the revenues which will be available for the support and maintenance of the school, or schools, during the fiscal year; that such statement shall show in separate items the amounts to be received from the state common school fund, and the state equalizing school fund, if any, and the estimated amounts to be received from the separate school district tax levy, or levies, or any other sources which may be available for the support and maintenance of the separate school district school, or schools, during the fiscal year, and also the balance of money on hand to the credit of the separate school district on the first day of July, and the total amount of funds which will be available for the support and maintenance of the separate school district school, or schools, during the fiscal year.
Section 6543, Code of 1942, provides that the "State Superintendent of Education shall carefully examine . . . the separate school district budgets filed . . . for the purpose of determining whether or not the revenues to be made available during the fiscal year will be sufficient to meet the expenditures provided for in such budgets. (Italics ours.) If the State Superintendent of Education shall find that the budget of expenditures will not exceed the amount of revenues to be made available for the support and maintenance of the public schools during the fiscal year, he shall approve the same in writing, and shall certify his approval of such budget . . . to the board of trustees of such separate school district . . ." This statute further provides that if the State Superintendent of Education should be of the opinion that the revenues to be made available for the support and maintenance of the schools of the separate school district will be insufficient to meet the expenditures provided for in the budget, he shall return such budget to the board of trustees for revision and shall require the board to revise such budget by reducing the estimated expenditures in such amount as may be necessary to balance the expenditures against the estimated receipts.
Section 6544, Code of 1942, provides that the board of trustees of each municipal separate school district shall file a certified copy of the budget with the mayor and board of aldermen, and that the same shall be entered upon the minutes thereof.
Section 6545 provides that it shall be the duty of the board of trustees of each municipal separate school district to limit the expenditures of school funds during the fiscal year to the amount set forth in their respective school budgets.
The budget prepared by the board of trustees and filed with the State Superintendent of Education on July 15, 1948, for the scholastic year of 1948-49 was duly approved by the State Superintendent of Education, and was certified to and approved by the mayor and board of aldermen. Thereafter, on May 17, 1949, when the school term was nearing the end, the school trustees sought and obtained the permission of the State Superintendent of Education to revise their budget for the year beginning July 1, 1948, so as to include therein the $103,021.05, from the bond and building fund, the donation from L.O. Crosby, Jr., of $10,500.00, the donation from R.H. Crosby of $26,000.00 (the principal amount of his donated bonds), and the sum of $18,000.00, received from the State Building Commission. This request was granted by the State Superintendent of Education, but was never approved by the mayor and board of aldermen, nor were these elected officers requested to approve the same, nor did it contain any reference to expenditures therefrom for paying the cost of the construction of the gymnasium or vocational training building.
We find no authority in the statutes last above mentioned, or elsewhere, for such action of the school trustees with the approval of the State Superintendent of Education.
(Hn 2) Section 6564, Code of 1942, provides that the state equalizing fund, which was included in the budget as a part of the maintenance fund is to be used for the extension of the common free schools beyond the 4-months term as required by the Constitution, and that no part of the state equalizing school fund shall be used except as specifically authorized by law; and we are of the opinion that the 20-mill ad valorem tax levy made by the mayor and board of aldermen against the ad valorem taxpayers of this municipal separate school district, amounting to $94,000.00, the state per capita fund, the funds derived from tuition, poll taxes, and from the state vocational fund to carry on vocational training, and the equalizing fund, all constituted trust funds for the operation and maintenance of the school for the fiscal year involved, and that the board of trustees was without authority to expend any part thereof for the construction of buildings, except as authorized by Section 6528, Code of 1942, which statute is not applicable here. Under Section 6444, Code of 1942, the funds placed in the building fund shall in no event be used for maintenance purposes except as later provided for in Chapter 200, Laws of 1946, which is likewise inapplicable to the facts in the instant case.
Moreover, Section 9714, Code of 1942, precludes the taxing authorities in a municipal separate school district from levying this ad valorem tax on exempt homesteads therein for school maintenance, except to the extent of their value in excess of $5,000.00; and this is another reason why the maintenance fund should not be diverted to building purposes so as to unduly increase the tax burden on other property for the operation and maintenance of the schools.
At the time the warrant in question was drawn and presented to the Mayor for his signature, there remained in the bond and building fund the sum of $35,600.69, and it is therefore undisputed that there was available at that time more than a sufficient amount in the bond and building fund out of which to pay the said warrant. In fact, six progress payments on the basis of 85% of the value of the work done under the contract for the construction of the gymnasium and vocational building had already been paid out of the bond and building fund, and no valid reason is assigned by the appellee as to why the warrant in question should not have been paid out of such fund. (Hn 3) But it seems to be the position of the appellee that the entire control of the bond and building fund, as well as of the maintenance fund, is left by law to the discretion of the school trustees and that the Mayor was under a ministerial duty to sign any warrant called for by a requisition of the school trustees. The Court is unable to agree with this contention, since the mayor and board of aldermen fix the amount of the annual levy of ad valorem taxes on the basis of what is needed for the operation and maintenance of the school, after the state per capita fund, equalization fund, state vocational fund, tuition and poll taxes are taken into account for that purpose. These elected officers are under a duty to the taxpayers to assume some responsibility in the matter of whether or not these trust funds are to be diverted to a purpose other than such as is authorized by law.
As we understand the record, the payment of this warrant of $9,368.70 out of the school maintenance fund would have reduced the same to the sum of $7,576.59 from the amount of more than $100,000.00 called for by the budget submitted on July 15, 1948, whereas there was $35,600.69 available in the bond and building fund for the payment of the said warrant.
(Hn 4) Section 3624, Code of 1942, provides that the Mayor shall sign all warrants drawn on the city treasury for money, and the only exception to this statute is contained in Section 6287, Code of 1942, which permits the clerk of a municipality, if a separate school district, to issue a warrant in payment for the services of a teacher, stating the number of the month of the term during which the services were rendered. This authority was evidently granted to the city clerk upon the theory that since the monthly salary of each teacher is supposed to be fixed by contract the issuance of the warrant therefor would not involve the exercise of any particular judgment or discretion. But we think that the requirement that the Mayor should sign all other warrants on the city treasury was intended as a checkrein on the expenditure of funds for any municipal purpose, and to the end that the taxpayer should have the benefit of his judgment and discretion in determining whether or not the warrant is drawn on the proper fund and for a purpose authorized by law.
We are therefore of the opinion that it was error to have directed the issuance of the writ of mandamus, and that therefore the cause should be reversed and the petition for the writ of mandamus should be dismissed.
Reversed and judgment here for the appellant.