On Petition to Rehear.
The complainant has filed a petition to rehear, complaining (1) that an important question was overlooked in the original opinion, to-wit, that the chancellor was in error in holding an appropriation of $1,000 for the “Knoxville Nursery School” was legal, it being Item 28 i'n the budget for county purposes; (2) that this Court was in error in disallowing a reasonable attorney fee for complainant’s solicitor, and in not entering a judgment *305against the county for $2,500 as compensation for his services; and (3) in holding that the 3 cent levy for building, repairing, and equipment of rural schools was not subject to division between the county and the City of Knoxville.
Responding to the alleged illegal appropriation above mentioned, complainant contends that, “It was unlawful for the quarterly county court to take common county funds and turn them over to the City of Knoxville, or use them for school purposes.” The appropriation cannot he sustained for two reasons: (1) it is an appropriation for school purposes out of funds raise by taxation for general county purposes, and (2) it is invalid as an appropriation for the care of the poor.
In State ex rel. v. Pollard, 124 Tenn. 127, 136 S. W. 427, 428, it was expressly held that the county court has no power to make an appropriation out of the general county funds “for special county purposes,” and cannot legally appropriate any part of the fund for the maintenance of public schools; that “while the maintenance of public schools in the county is a county purpose, it is not, under our statutes, a general county purpose hut a special county purpose. ” ,
The county does not seriously contend that it should be sustained as a valid means of caring for the county poor, although similar appropriations had been made by the county upon that theory, such as $1,200 to the Knoxville Colored Orphanage, $2,000' to St. John’s Orphanage, etc.
We think it is settled law that the quarterly county court cannot appropriate money to an individual, or an unincorporated society, as a means of taking care of the poor, unless made in fulfilment of a contract with such persons for the care of the county poor, as provided *306in Code sections 4816 and 4817. Such contracts may, upon good cause'shown (Code section 4819), be set aside by the county court after making,due allowance for the time they have been in operation. The chancellor was in error in holding this to be a legal appropriation.
The correctness of our opinion in disallowing attorney fees is challenged upon the theory that such fees may be taxed as a part of the costs of the case, and that it was error to hold that, if the suit is not for specific land or property, or does not impound such property by some process which places it in the custody of the court, there can be no lien.
Counsel has cited American National Bank v. Meadors, 162 Tenn. 324, 36 S. W. (2d) 86, 87, as authority for taxing attorney fees in the instant case as a part of the costs. The fees which appellant questioned in the Meadors case were allowed to guardians ad litem and adjudged to be proper because they “had rendered their services in aid of the proper administration of the estate.” In our original opinion it was pointed out that in the Grant case, 93 Tenn. 691, 28 S. W. 90, 27 L. R. A. 98, and the Carmack case, 180 Tenn. 571, 177 S. W. (2d) 351, 353, certain property was protected from loss or preserved. For this reason the cases did not support complainant’s contention. In the Carmack case the counsel not only rendered services to Mrs. Carmack, but to the American Red Cross, “the principal other beneficiary” under the will. It was there held that but for their services “there would be no assets in the hands of these executors.” It thus appears that fees were paid out of the estate of the decedent. It may be true, as argued by counsel, that the estate consisted of various kinds of property and no specific item was referred to. There is no merit in this contention. While mention is made in the original opinion of “specific *307property” out of whicli fees may be paid, the words were not used in a narrow or restricted sense as meaning a particular kind of property. The issue was clearly made that there was property, regardless of its kind and character, saved for the benefit of beneficiaries under the will and under the control of the executors who were before the court.
Another case cited by counsel is Vanderbilt University v. Mitchell, 162 Tenn. 217, 36 S. W. (2d) 83, 86, in which attorney’s fees were taxed as costs “to be paid from the accumulated income from the trust fund.” In this case the Vanderbilt University, as trustee under the will of Thomas E. Mitchell, filed a bill seeking a construction of the terms of the trust, and a decree approving a deviation from an express direction of the testator or creator. In passing upon the question of counsel tees, Mr. Justice Swiggart said: “The services of all counsel have contributed to the preservation and proper execution of the trust. ‘It is a doctrine of equity that a trust fund of right should bear the expenses of its oivn administration. ” Citing authorities. (Italics ours.)
With great deference to counsel, we cannot agree ‘ ‘ The trust funds in the hands of Vanderbilt University were no more in the possession or control of the court than were the funds in the County Treasury in this case. ” Nor can we agree that “The treasury (of Knox County) was as much impounded as were the trust funds in the Vanderbilt case.”
The case of Regan v. Babcock, 196 Minn. 243, 264 N. W. 803, does not support complainant’s contention. In this case the attorney fees were allowed and ordered paid partly out of money in the hands of the clerk of the court ($33,597.30) and the balance out of a.fund to be retained by the state pursuant to a stipulation between the parties *308to the suit. We are in accord with the holding of the court (196 Minn. at page 250, 264 N. W. at page 807) that attorney fees may be allowed by a court of equity “out of the funds recovered or saved, where a suit is brought in a representative capacity for the benefit of an estate, municipality, or other beneficiary.” (Italics ours.) It was there properly held that in these circumstances the attorney had a common-law lien upon the sum of money recovered. In the instant case the complainant sued for himself and other taxpayers to enjoin illegal appropriations of money. Nothing was sought to be recovered on behalf of (Knox County or any other beneficiary. While Knox County was before the Court as a defendant-litigant, the treasury of the county was not in any sense in the custody of the court. We know of no case holding or even intimating that, where counsel have by bill in equity enjoined illegal appropriations, the Court is authorized to declare lien upon the county treasury for attorney’s fees, or to order such fees paid as court costs, however meritorious the services may have been. This assignment must be overruled:
In response to the last assignment of error that the 3 cent levy for repair of rural schools should be divided between the county and City of Knoxville* we find no authority for making such a division. Begardless of whether the authority to levy the tax'in question is found in Subsection 7 or Subsection 8 of Code section 2346’, the division so claimed cannot be made. The levy does not specify what schools are to be repaired other than “rural schools.” It is conceded by counsel that there is no provision in the law for the division of this fund, except that funds raised by bond issues for the same purpose are to be divided on the basis of scholastic population as provided'in Code section 2563. We cannot *309agree that, where the statute provides for a capital outlay by the issuance of bonds for building and repairing school'houses, and requiring a division of such funds between the county and the city operating a special school system, a tax for the repair of rural schools must likewise de divided. If the statute fails to require such a division, we are without authority to direct it by judicial fiat.
The petition is granted for the purpose of passing upon the question inadvertently pretermitted — that is, the alleged illegal appropriation for the Knoxville nursery school. In other respects, the errors complained of are overruled and the petition denied.