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THURSDAY Vorvina, Dec. 5, 1939. Mr. Laughlin presen ted a communication from the President and . Directors of the Penitentiary turnpike company, which being read, Mr. Jennings submitted the following, to wit:

Whereas, the charter granted by the last General Assembly, incorporating what is styled the Penitentiary tampike company, is unju:st and oppressive, because of the enaction which is without any commen- ' surate advantage to the public, is therein granted to a few individuals; and wherear, the very terms of said charter justify the belief that the course of Legislation pursued at the time of its enacteut was unfair and deceptive in effect, if not in intent and design--thera'ore

Be it resolvell as the sense of the General Assembly of the State of Tennessee in relation to said charter, Thut a regard to the requisitions of public justice demands at the han is of said company a proinpt surrender of their privileges.

Resolved, That the Clerk of the Senate be, and is hereby required, to transmit a copy oi these proceedings to the President and Directors of said company.

Resolved, That nothing herein contained shall be construed on the part of this Goneral Assembly as 'expressive of any sentiment of disrespect and disapprobation so far as the President and Directors or any other member of said compony is concerned.

Mr. Gillespy submitted the following:

Resolved by the General Assembly of the State of Tennessce, That a joint select committee, to consist of three on the part of the Senate,' and such number as may be appointed by the ilouse of Representatives to whom shall be referred a memorial from the Penitentiary turnpike road company, and all bills and resolutions and other papers relating to that subject; that said committee have power to send for persons and papers, to qualify and examine witnesses to bear testimony, and that said committee report to this General Assembly.

And the rule being suspended, said resolution was adopted. The Speaker appointed Messrs. Jennings, Coe and Ashe to be of said committee on the part of the Senate.

On motion of Mr. Gillespy,

Ordered, That the memorial of the President and Directors of the Penitentiary turnpike company, together with all other documents relating thereto, be transmitted to the House of Representatives.

Mr. Yoaktun, from the joint select committee on Common School Funds, made the following

REPORT: The joint select committee who were appointed by a resolution of the General Assembly of the 16th November, to enquire into the situation of the Common School monies of this state; whether the Superintendent of Public Instruction had used due diligence in collecting the common school monies; whether he has property invested said monies as by law he is required; whether he has distributed the sums by him required to be distributed for the benefit of Common Schools; and whether there has been any waste or loss of said monies or any part there

of, since the appointmeni of said Superintendent; beg leave respectlully to report,

That immediately after their appointment they entered upon the discharge of their duties. They found the matters submitted to their investigation much more difficult and complicated than they at first imarined. They also found that it was most convenient for them to examine the receipts and dishursenents of the Superintendent in connection, that they might the better compare them.

With regard to the diligence used by the Superintendent in the col. lection of the school monies: The fourth section of the act creating the office requires “the monies, notes, bonds, stocks, securities and other property belonging to the State or Coinnon School Fund, in the possession or under the control of the agents appointed to close the concerns of the Bank of the State, the county common school commissioners and county bank agents,” to be delivered on demand to the Superintendent, or the authorized agent of the board of cornion school commissioners. He is also authorized in the fifth section of the act, to take possession of the inonies and securities in the hands of the late Treasurer of East Tennessee, which belonged or were appropriated to the use of colleges, academies or common schools. For the purpose of collecting these monies and efiects, the act authorizes the appointment of an agent in each county. These agents were to be furnished with a schedule of all accounts against the debtors to the School Fund in their respective counties; and they were to be required to call in the ten per centum on the amount of each debt at the first renewal, and twenty-five per centum at the end of each succeeding six months; so that the whole would be paid at the end of two years. The Superintendent went into office about the first of March, 1836. How this duty of collecting these monies has been performed will be better seen by a táble hereto annexed, marked A, which the committee have prepared with much care from the books and papers in the Superintendent's office. The first column shows the amount of monies due from each county at the time the Superintendent went into office. It agrees with a report made to the Legislature of the State on the 17th October, 1836, except, that in that report Knox county is charged with 14,152 71 dollars, being $1,967 28 more than is now charged. This discrepancy was occasioned by the bank agent at Knoxville, who, in making out the account against that county, charged interest upon the fund, which he ought not to have done; for the commissioners had a right to consume the interest for purposes of education. From this statement there seemed then to be due from the county common school commissioners and county agents, the sum of four hundred and twenty-one thousand six hundred and fifty-two dollars and eighty cents.

The second column" exhibits the monies collected by the county agents appointed under the act of 1836, and includes not only the monies drawn from the hands of county school commissioners, but also the taxes collected from school funds and tippling houses, up to the passage of the act of 1835, requiring the same to be paid into the treasury of the State: also in some instances, monies due the old bank. The

amount collected from Shelby county, includes the bonus up to January, 1938, and part of the dividends derived from the Farmers and Merchants Bank at Memphis. That of Knox county includes a portion of the old Bank monies. The third column exhibits an estimated balance due from the several counties, exclusive of old bank judgments and claims. The fourth column is an estimate of the amount of these debts that are considered doubtful. By an addition of the sun yet due and owing, with the amount collected, the whole amounts to three hundred and eighty-nine thousand three hundred and ninety-six dollars and thirty-nine cents; which (supposing the whole amount collected to have belonged properly to the county school fund) leaves a balance of thirtytwo thousand two hundred and fifty-six dollars and forty-one cents of the amount originally charged against the counties. This balance is accounted for by the investment of the school fund of Davidson, Rutherford, Bedford and Sevier counties, in works of internal improvement. Your committee have no positive testimony that any of the agents have collected monies which they have not acccunted for; yet from some circumstances they are induced to believe that a few of them have not acted properly on this point. The Superintendent has not obtained, from time to time, such lists of claims, paid and unpaid from the different agents, as would be entirely satisfactory to the committee.

The last column in this page shows a very great inequality in the amount of monies paid for tippling license in the different counties.Your committee are satisfied that monies have been collected for these license, which have never been paid over to the Superintendent. The amount collected on tippling license is included in the $299,154 94 collected by the agents.

The committee, after obtaining this result, proceeded to ascertain the sums collected by the Superintendent from all other sources, and after examining his books and other documents, found that the same amounted to the sum of five hundred and seventy-seven thousand two hundred and eighty-eight dollars and thirty-nine cents; making in all of total receipts from the first day of March, 1836, to the 18th day of November, 1539, the sum of eight hundred and seventy-six thousand four hundred and forty-three dollars and thirty-three cents. The am't received since the first day of October last is $8,492 28, which taken from the amount reported on the 1Sth November last, leaves a balance which he had received up to the first day of October, of $S67,951 05; that is, one thousand one hundred and sixty-one dollars and eighty-six cents more than was stated in his last report to have been received up to the Sth of October, the date of his report. Of this difference, one thousand dollars is accounted for, by a mistake of the Superintendent in adding up the items in the account of Shelby county.

Your committee proceeded to ascertain and make out a table of the monthly receipts and expenditures of the Superintendent from the first day of March, 1936, to the 18th November, 1839. This table, the first four columns of which were carefully condensed froin the books of the office, and under the eye of the Superintendent, is here to

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annexed, marked B. The fourth column will show the monies paid out by the Superintendent during each month of his official action.By comparing these monthly disbursements with the monthly receipts in the third colnmn, it will be seen that the amounts which remained in his hands, after making the investments and paying the expenses incident to his office, was constantly increasing from the first month of his service up to the 18th of November, 1839. This increase was so constant and rapid as to induce the committee to make out the balances in the hands of the Superintendent at the end of each month. This result will be found in the seventh column of the table. It will be seen that on the last day of March, 1837, only thirteen months after he went into office, he was indebted to the fund in the sum of $72,414 35; at the end of the next twelve months the balance against him amounted to $141,218 83; and in four months more it had swelled up against him to the amount of $179,445 $5; at the end of March, 1839, it was $112,715 45. On the 19th day of November, the day your Committee commenced their investigations, the balance against the Superintendent, as shown by his own books, was one hundred and fifteen thousand four hundred and twenty-five dollars and eighty-three cents. The average amount in his hands during his term of service has been upwards of eighty-seven thousand dollars. It will be seen from an interest account which the Committee have added to this table, that the amount which the Superintendent retained in his hands, would, if the same had been deposited at an interest of six per centum, which could have been done, have added to the grand total the sum of nineteen thousand four hundred and twenty-eight dollars and ninety-eight cents. They have calculated this interest for the whole time upon the principal only. The question here arises whether the superintendent has pursued the law in the course he has taken upon this subject.

The 11th section of the 23d chapter of the act of 1836 directs that as fast as the school monies shall be collected by the county agents, or other persons, they shall be paid over to the Superintendent of Public Instruction,“who shall invest the same by subscribing for stock of the Planters Bank of Tennessee, in the name of the Board of Common School Commissioners; and who shall in like mannerre-invest the profits as they arise on the capital stock, or deposit the same on the best terms and for the highest rate of interest he may be able to obtain, or he may deem most advisable.” The course here laid down was obvious. The monies collected heashell invest” hy subscribing for stock of the Planters Bank. There is no discretion or alternative left. So far as the profits of the investments are concerned, "he shall, in like manner," either re-invest or deposit them for the highest rate of interest he may be able to obtain. There is no authority here to lend the money collected, or to use it in shaving notes or buying bills. When the law is plain, the rule is cqually plain that there is no discretion but to pursue the law.

But, in the account of receipts exhibited to us by the superintendent, he has charged himself with interest received to the amount of seven thousand three hundred and fifty-six dollars and twenty-nine cents.-

If we compare the interest account which he has made out, with an account of the interest upon the monies he collected and failed to invest, as is shown in the last column of table B, it will stand thus:

Int. Acc't. of Sup. Int. really due at 6 per cent.
July 5, 1337, $2,025 00 $3,773 00
Oct. 4,

1,012 50 1,187 13 Nov 4,

500 00

419 49 Jan, 23, 1839 3,075 10

8,516 43 743 69 5,129 85

Oct. 8,

$7,356 29 $19,084 90-difference $11,728 61 It is obvious, that if the superintendent could, by any effort of fancy so construe the law as to justify the use to which we will hereafter show that he made of the money, he should at least pay legal interest for the same. But from the foregoing statement, it appears that up to the 8th of October last there was a deficiency of eleven thousand seven hundred and twenty-eight dollars and sixty-one cents in this item, to which, if we add the interest up to the 1Sth November, that is, $334 28, we find a total balance of interest against the superintendent not accounted for of twelve thousand and sixty-two dollars and sixty-nine cents.

It is true that stock of the Planters Bank, for some time in 1837, was selling very low in the eastern markets. Yet no one doubted but the stock required to be taken would be safe. The superintendent was himself a director of the Bank. During the most critical period of the Bank's existence, the superintendent had confidence in it. Between the last day of May and first day of November, 1837, he paid into that Bank, $61,700 for stock. Why then did he not invest the whole of the large balance which the account shows to have been in his hands during these months? If a part was safe, the whole would have been safe. But, if the general want of confidence, inspired by the suspension of the Banks in May, 1837, had been sufficient excuse for not investing the monies in the hands of the superintendent during its existence, the case was different during the first three months of 1837; for then the Banks had not suspended—they were in the full tide of prosperity. If during this period we examine the balance in his hands, we find that they range from forty-four thousand to seventy-two thousand dollars.' The Banks resumed specie payments in January, 1838. And again we find that he has failed to invest the monies in his hands. The balance in his hands, had, by the end of January 1938, increased to $121,910-an amount below which it seldom fell from that time to the present.

Your committee addressed' a note to the Prosident of the Planters Bank, inquiring “what were the best terms' on which the common school monies could have been deposited in that Bank from the first of March 1936, to first July 1SSS." In answer, he says, "I beg to state that in my opinion the Bank would have allowed interest at the rate of 6 per cent. per annum, for any period not less than six months.” So that, if the monies collected had ever been deposited in the Bank at 6

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