#### The People, *ex relatione,*Mark Skinner, *v.*The Auditor.

APPLICATION FOR A MANDAMUS.

It is the duty of the Auditor to apportion the proceeds of the two mill tax, collected under the provisions of the 15th article of the Constitution, upon such state indebtedness, as shall be exhibited to him for the purpose, and draw his warrant on the treasury.

This provision of the Constitution is complete, and can be executed without legislative aid.

The proceeds of this tax shall be apportioned annually, on the first day of January, to the payment of the principal of such of the indebtedness provided for, as shall he presented for that purpose.

Neither the surplus revenue deposited with the state, by act of Congress of 23d June, 1886, nor interest bonds, are iudebtedness, within the appropriation of this tax.

It is not competent for the legislature to direct that any portion of this tax shall be reserved for the benefit of such creditors as may fail to present their demands on the day named by the Constitution.

So much of the act of the 12th February, 1849, as requires, that the surplus revenue deposited with' the state, shall share in the proceeds of this tax, is unconstitutional.

This application is grounded upon ¡the.following petition:

“ That on the first day of January, A. D. 1851, your petitioner, being the legal holder of certain state indebtedness of the State of Illinois, other than the canal and school indebtedness of said state, to wit: Mew Internal Improvement Stock, to the amount of one hundred and seventy-one thousand eight hundred dollars, did, on said first day of January, present the same to the Auditor of the State of Illinois, Thomas H. Campbell, Esq., and demanded from Mm payment of the same, or so much thereof as your petitioner would be entitled to receive, from all moneys in the treasury of the State of Illinois, collected under and by-virtue of a tax imposed under and by virtue of the fifteenth article of the Constitution of the State of Illinois, and under and by virtue of the twenty-first section of an act entitled, “ An act to amend the several acts concerning the Public Revenue,” in force February 8th, 1849, passed in furtherance of said section of the Constitution. And your petitioner left with said Auditor, at the time of making such demand, said state indebtedness, for the purpose of having proper credits entered thereon, in obedience with the provisions of said 15th article of the Constitution, and of the said law passed in aid thereof. And your petitioner further shows, that on the second day of January, A. D. 1851, your petitioner applied to said Auditor and Remanded your petitioner’s *pro rata*portion of all money then in the treasury of the *310'State of Illinois, collected under and by virtue of said tax, to which the said Auditor replied, that he doubted his authority to pay the same, or issue his warrant on the treasury therefor, and ■therefore refused so to do.

And the said Auditor further informed your petitioner, that . his Excellency, A. C. French, the Governor of the State of Illinois, had preferred a claim, without presenting any legal evidence of indebtedness or voucher therefor, to- receive a portion of said tax moneys, upon and on account of some claim in favor ' of the United States, for certain money, amounting to about the "sum of four hundred and seventy-five thousand dollars, hereto- ■ fore loaned or deposited by the said United States, to or with the State of Illinois; and your petitioner further shows that said ‘ Governor preferred the said claim without any authority from the United States in that behalf, and not for the purpose of pay- " ing the same to the United States, but solely to use and employ any money he might receive on account of said claim, in the purchase of Illinois bonds, in manner and form as directed in the first section of “An act concerning the Public Debt,” in force April 18th, 1849.

' And your petitioner would further show, that said Auditor , informed him that certain interest bonds, or bonds given for interest on other state indebtedness, and which said interest bonds will and do not bear interest until from and after some time in A. D. 1857, have also been presented to said Auditor for payment as aforesaid.

And your petitioner further shows, that there is now collected from said tax and in the treasury of the State of Illinois, one hundred and sixty-six thousand dollars, or thereabouts, which ought to be distributed and paid over to your petitioner and others, in conformity with the requirement of the Constitution, and the law. -

And your petitioner prays that a writ of mandamus may be issued out of and under the seal of this honorable Court, directed to said Auditor, commanding him forthwith to apportion and pay to yeur petitioner, by his warrants on the treasury of the State of Illinois, the amount which your petitioner is entitled to receive from said tax money, excluding from the computation and apportionment to *he*made by said Auditor, the said pretended claim on behalf of the United States, and the said interest bonds.”

*311The answer of the Auditor, admits that the state indebtedness was presented, and that a demand was made on the first and second days of January, as stated in the petition, and that payment was refused. Admits also, that Governor French, acting under the provisions of an act, entitled “An act concerning the Public Debt,1’ in force April 13, 1849, and with such authority as is solely derived from law, has presented a claim, on behalf of the state, for payment from the proceeds of said tax, of the amount of the money heretofore loaned by the United States to the State of Illinois, under and by virtue of the provisions of an act of Congress, entitled “ An act to regulate the Deposits of the Public Money,” approved June 23, 1836, and of an act entitled, “An act to postpone the fourth installment of deposit with the States,” approved October 2,1837: or of so much thereof as a *pro rata*division of the proceeds of said tax among the persons presenting claims would pay. And further, that various persons have also presented for like payment, various bonds of the state issued for the interest that has accrued on the state indebtedness. Admits that there is in the treasury about the sum stated in the petition. States that he is not advised, whether he is the proper officer to whom such claims should be presented for payment, nor does he know that he is empowered to'draw his warrant on the treasury for the payment of them. Also, that he is not advised, whether the claim presented by the Governor, nor whether the interest bonds, are entitled to payment under the Constitution.

An agreement was filed, consenting that if the Court should be of opinion, that the Auditor should apportion the money, excluding from the computation the claim made by the Governor, on account of the deposit fund due the United States, as also the interest bonds, or either of them, and that it was the duty of the Auditor to pay the petitioner his *pro rata*proportion of said tax moneys, then a peremptory mandamus might issue accordingly.

The Relator made the following points in support of his petition:

The 15th article of the Constitution imposes the tax, and specifically directs that the proceeds shall annually, on the *first day**312*sf January,*be apportioned and paid *pro rata,*on all *state indebtedness*other than the canal and school debts, *presented on that day,*by the *holders, and credits shall be endorsed thereon, &c.*

The 21st section of the Revenue act of 1849, passed in the very words of the Constitution, assesses the tax, and makes a *specific appropriation*of the proceeds. The law was unnecessary, but it removes all question as to the necessity of legislative action, to give vitality to the constitutional provision.

Neither the Constitution, nor law in aid thereof, specifically appoint the officer or person to whom the claims are to be presented, and by whom the tax money should be apportioned and paid. But all general appropriations are paid under the order and direction of the Auditor, to whom the claimant first applies in all cases, where the law does not specifically direct otherwise, and who issues his warrant on the treasury to pay, &c. In this case, an *appropriation is made,*and the duty of carrying out the appropriation is devolved upon the Auditor, and as clearly belongs to and is as incumbent on his office, as in the case of any appropriation. See R. S., chapter “Auditor and Treasurer.” Nothing can be clearer than that all claims must be presented to the officer whose duty it is to pass upon them.

The Constitution and the Revenue act, specifically direct that the tax money shall be paid in reduction of the *principal*of the state debt. This necessarily and absolutely excludes *interest*No one would pretend that payment could be made on the *interest coupons*if presented. An “interest bond” is but an amalgamation of several coupons, and is therefore in nowise different.

The law entitled “An act concerning the Public Debt,” in force April 13th, 1849, is clearly opposed to the letter and spirit of the Constitution, in contemplating an appropriation of the moneys to the benefit of the state and not of her creditors, *by pretending at the same time, and with the same money, to pay the state debt to the United States, and also to buy up the state bonds in the marlcet!*The legal *holder*of a debt is the *creditor*always, and not the debtor. In this case, the state attempts to appear as *the holder*of a debt against herself) to the immediate injury of her diligent creditors. But the United States deposit money was always considered a donation, made in the guise of a loan. And at any rate, the question is conclusively settled against the present claim of the state, by the act of 25th Congress, Ch. 1, where *313it is directly and in terms enacted, that this money *shall remain on deposit with the States until otherwise directed by Congress.*No act altering or changing this disposition of the money has since been made, and therefore there is no officer or person now authorized by Congress *to present*this claim. But again, $355,000 of this money has been by the state merged in the school fund, and is part of the school debt, which is in terms excluded by the Constitution from sharing in the proceeds of the tax. And again, the Constitution, and the law, (Revenue act,) both contemplate the presentation of some evidence of indebtedness, on which credits are to be endorsed, &c. In this case, no legal evidence of indebtedness, issued by virtue of any law of the state, is pretended to be presented. The state has never executed any such evidence of indebtedness to the United States, the United States have no such evidence of indebtedness to present, have appointed no agent to present any; but on the other hand, Congress, by the act above quoted, has in terms expressly prohibited the presentation of any such claim, until Congress shall otherwise direct.

The objection that no particular 1st January is named.in the law, is scarcely worth replying to. It is as plain as a postulate, that the law means the 1st of January of every year after a tax shall have been collected. In this case the tax money, or a principal portion of it, has been in the treasury for more than six months. It is better for the state to apply the money on few claims, than on many, and thereby save an immense expense in keeping accounts, &c. Suppose the whole debt had been presented. The dividend would scarcely have been ten cents on a bond, and the Auditor would have required an army of clerks to aid him in the matter.

If the above views are correct, then the Auditor is the proper officer to whom to present the claims. It is his duty to apportion and pay to the legal holders of all claims, presentable by the law, that present their claims on the 1st day of January, of any year, after a tax shall have been collected under the law. That in the present instance the claim preferred by the Governor, on behalf of the United States deposit fund, and the claims presented on behalf of interest bonds, must be excluded from the computation and apportionment to be made by the Auditor; and a writ of mandamus must issue as prayed for.

*314D. L. Gregg, for the Respondent.

It is contended on the part of the respondent,

1. That the Auditor of Public Accounts is not entitled, by law, to make a distribution of the proceeds of the tax provided for by the 15th article of the Constitution, or to issue his warrant for the payment of the same or any part thereof.

T,he duties of the Auditor are defined by law. R. S., ch. IB, §7, 8. He is not authorized to act beyond the settlement of ordinary accounts, unless specially directed so to do. His general powers do not extend to the payment of moneys belonging to special funds. That this is so regarded, is shown by the fact, that whenever such funds have been created, special provision is made by law, for their disbursement. The “ *interest*fund” provided for by the act of March 1, *1845, is*paid out by the Governor. R. S., 600. So also of other special funds, as that for the support of the deaf and dumb asylum, the hospital for the insane, &c., &c. Had these funds been within the class of “accounts” which the Auditor is required to take under his charge and disburse, such provisions for their payment would have been unnecessary and superfluous.

The loth article of the Constitution directs the assessment and collection of a two mill tax, and provides that the fund so created shall be apportioned and paid over, *pro rata,*on the principal of that portion of the state debt not included under the heads of canal and school indebtedness. The language of this article is copied into the Revenue Act of February 8, 184-9, (§21,) but no direction is given either in the Constitution or law, specifying the officer by whom such apportionment and payment shall be made. The Auditor, as has been already shown, does not possess the requisite power for this purpose. If it exists at all, it must be vested in the Governor. He is bound by the Constitution (Art. IV, §9) to “take care that the laws be faithfully executed,” and where the law is silent, as to the officer who shall give effect to a specific power, which is required to be executed, the duty must fall into his hands.

Therefore, it must be concluded that the petitioner has mistaken his proper remedy. He should have made his application for payment to the Governor, and not to the Auditor of Public Accounts.

*3152. That the deposit fund is a *debt*due from the State of Illinois to the United States, and consequently, entitled to share in the *pro rata*distribution of the proceeds of the two mill tax, provided for by the 15th article of the Constitution. It is shown to be a debt, from a consideration of the terms on which it was received. On its receipt, certificates of deposit were issued to the General Government, expressing the usual legal obligations, and pledging the faith of the state “for the safe keeping and repayment thereof.” U. S. Statutes at Large, vol. 5, p. 55.

The State of Illinois is bound to refund every dollar when Congress shall require the same to be done. Act of June 23, 1836, and act of October 2, 1847. Stat. at Large, p. 57, 501. The obligation of re-payment is not less sacred, than in the case of bonds in the hands of individual creditors.

The act of February 12, 1849, (Laws, p. 70,) recognizes this obligation, and provides for the application of “the annual dividend upon the surplus revenue due the General Government.” This the state has a right to do, as the amount is, for the present, under her sole and exclusive control.

If, then, it be established that the amount of surplus revenue deposited with the state, under the act of Congress above cited, is a valid and subsisting debt, due to the United States, it follows conclusively, that the proceeds of the Constitutional tax must be applied upon it *pro*rata, as in the case of other indebtedness.

3. That the proceeds of the two mill tax can be applied *only*to the extinguishment of *thq principal*of the public debt. Hence, interest of every kind is excluded, whether liquidated by the issue of interest bonds, or otherwise. It is none the less interest because funded. It still retains its distinctive character, and must be excluded from a proportional share in the proceeds of the tax. It follows, then, that the bonds of this character presented for payment, are entitled to no consideration which will place them on the footing of the original bonds. They represent merely a portion of the *interest*of the public debt, and stand on an inferior footing.

Treat, C. J.

It is the duty of the Auditor to apportion the proceeds of the two mill tax, assessed and collected under the provisions of the 15th article of the Constitution, among the *316holders of state indebtedness presented for the purpose, and draw warrants on the treasury for the payment of their respective shares. He is required to audit the accounts of “all persons authorized to receive money out of the treasury, by virtue of any appropriation made, or to be made by law, particularly authorizing such account;” and “on ascertaining the amount due any person from the treasury, the Auditor shall grant his warrant on the treasury for the sum due." E. S., ch. 13, §7, 8. This general direction clearly embraces the apportionment and distribution of the two mill tax. The fund receivable from this source is expressly devoted to a particular object—the payment of the principal of a certain portion of the state debt. It is specifically appropriated by the Constitution, and by the law passed in pursuance thereof. Laws of 1849, p. 126, §21. But an appropriation by the legislature was unnecessary. The provision of the Constitution is complete in itself, and can be executed without the aid of legislation. Money can only be drawn from the treasury on the warrant of the Auditor, except where the law has prescribed a different mode, as in the case of the interest fund, which is required to be apportioned and paid by the Executive. E. S., 600. In the absence of any law specially designating the officer, by whom the apportionment and distribution of the fund in question are to be made, the general provision of the statute clearly devolves the duty on the Auditor.

The duties of the Auditor in respect to this fund are plain and manifest. The 15th article of the Constitution is clear and explicit in its terms. It is capable of but one construction. It levies a two mill tax for the specific purpose of extinguishing the principal of the state indebtedness, except the canal and school debts; and directs that the proceeds shall annually be applied *pro rata*on the principal of such of the preferred indebtedness, as shall be presented for the purpose. The fund is not to be apportioned generally on the preferred indebtedness, but only on such part thereof, as shall be exhibited to the Auditor for payment. It is to be applied exclusively to the reduction and discharge of the 'principal of the indebtedness, and not on account of the interest. The Auditor has, on the 1st day of January, in each year, to ascertain the amount of the two mill tax actually paid into the treasury, and likewise the amount of unpaid principal on such of the preferred indebtedness, as shall, *317on that day, be presented to him for payment; and then to declare a dividend on the principal of such indebtedness, so that each holder thereof may receive his proportionate share of the fund in the treasury. He must then issue a warrant on the treasurer, in favor of each holder, payable out of the special fund, and indorse the amount on the bond or other legal evidence of the indebtedness, as so much paid thereon on account of the principal.

As before remarked, the proceeds of the tax are to be applied exclusively in the satisfaction of the principal of the indebtedness. This is the express requirement of the Constitution. Mo portion of the fund can be apportioned and paid on account of interest. Interest bonds are necessarily excluded. They cannot be considered as principal, within the true intent and meaning of the constitutional provision. It would not be contended, that interest coupons could be included in the apportionment of the fund. An interest bond is but an amalgamation of several coupons into one obligation. The indebtedness, though changed in form, still retains its distinctive features. It is still a part of the interest of the public debt, as contradistinguished from the principal. The law, authorizing the funding of the interest, shows on its face, that it was not the design to convert the interest into principal. The interest bonds are not payable, and do not bear interest, until 1857. The chief object of the law was to avoid the confusion and inconvenience resulting from the large quantity of coupons, identical in number and amount, and often detached from the obligations to which they belonged. Laws of 1847, p. 161. Besides, specific provision, however inadequate, had already been made for the payment of the interest. R. S., 600. It may possibly be, that interest bonds, after their maturity, should be regarded as part of the principal of the public debt, and entitled to share in the proceeds of the two-mill tax. But upon that question no opinion is now intimated.

Mor can the surplus revenue deposited with this State, under the provisions of the act of Congress, of the 23d of June, 1836, be now considered as an indebtedness on the part of the State, that can be presented for payment out of this fund. It was expressly provided, by the act of Congress, of the 2d of October, 1837, that the surplus revenue previously distributed, should “remain on deposit with the States, until otherwise directed *318by Congress.” That act continues in full force. There must, therefore, be some affirmative action by Congress, before this deposit can be recalled. Until such legislation is had, the general Government cannot present the certificates of deposite, and claim to participate in the distribution of the fund in question. The Governor is not in any sense the holder of these certificates of deposit. If they could be presented for payment, it would be the right of the United States, and not of the State, to designate the agent to whom the dividend should be paid. The creditor has the option to present his debt for payment or not. The State cannot appoint an agent to represent its creditors, much less to divert any part of the fund from its intended destination. It is not even competent for the Legislature to direct a portion of the fund to be reserved from the apportionment, for the benefit of creditors who may fail to present their demands, on the day indicated by the Constitution. So much of the act of the 12th of February, 1849, as requires the amount of the surplus revenue deposited with the State, to be taken into considereration, in the apportionment of the proceeds of the two-mill tax, and the dividend thereon to be paid to the Governor, is a clear and palpable violation of the Constitution. The legislature might with equal propriety have directed the whole of this tax to be annually added to the school fund, or distributed among the several counties in the state.

Let a peremptory mandamus issue pursuant to the prayer of the petition.

*Mandamus awarded.*