The People, etc., ex rel. The Illinois Institution for the Education of the Deaf and Dumb v. Orlin H. Miner, Auditor of Public Accounts.

School, College ahp Semhusy Fonb—of the distribution of the interest thereon. The 8th section of the act of 1839, bestowing upon the Institution for the education of the Deaf and Dumb a certain portion of the interest accruing annually upon the school, college and seminary funds, was continued by the act of 1849, in reference to that Institution; and the act of 1857, giving to the Normal University such proportion of the interest upon the college and seminary funds as might be deemed necessary, did not operate to deprive the Institution for the Deaf and Dumb of- any part of the interest upon those three funds, bestowed by the former acts; and the rights of that Institution in that regard, as declared in the acts of 1839 and 1849, are recognized by the act of 1867, on that subject.

.This was a proceeding in the name of the People, on the relation of “ The Illinois Institution for the Education of the Deaf and Dumb ” against Orlin H. Miner, auditor, on an application for mandamus. The points in the case are sufficiently stated in the opinion of the court.

Mr. William Thomas, for the relator.

Mr. Robert G. Ingersoll, Attorney General, for the respondent.

Mr. Chief Justice Breese

delivered the opinion of the Court:

On the 23d of February, 1839, the general assembly passed an act entitled “ An act to establish the Illinois Asylum for the education of the deaf and dumb,” and certain persons named therein were created a body politic and corporate, to be styled and known by the name of the “ President and Directors of the Illinois Asylum of the Deaf and Dumb.”

*368It was a private charity, and located at Jacksonville. Scates’ Comp. 166.

By the eighth section of this act, in order to aid the friends of this asylum, the Auditor of Public Accounts was authorized and required, annually, before making an apportionment and distribution of the interest upon the school, college and.seminary funds among the several counties of the State, to pay over to the president and directors of this asylum, out of this interest, a sum not exceeding one-quarter per cent, upon the whole amount of the several funds, the legislature reserving the right to repeal, at any time, this section. Ib. 168.

By the act of February 3,1849, this asylum was made a public institution ; it was re-organized; the number of directors reduced'; their appointment provided for biennially by the Governor and senate, and the name changed to that which it now bears, “ The Illinois Institution for the Education of the Deaf and Dumb,” and by the third section of the act,, it was provided that all the deaf and dumb residing in this State, of suitable age and capacity to receive instruction, should be admitted into, and enjoy the benefits of, the institution without charge. Ib. 174.

By section 1 of an act of the general assembly, approved February 28, 1867, it is. declared “that in addition to the provisions made to aid the Illinois Institution for the Education of the Deaf and Dumb, by the act establishing said Institution, which is hereby continued, the following sums be and are hereby appropriated, payable out of the treasury in quarterly payments, as required for use.” Sess. Laws 1867, p. 9.

It had been the constant practice of the Auditor of Public Accounts, acting under the act of 1839,’ above referred to, before making an apportionment and distribution of the interest on the school, college and seminary funds, among the several counties in the State, to issue warrants on the treasury in favor of this Institution for the Education of the Deaf and Dumb, for this one-quarter of one per cent, upon the whole *369amount of these several funds, as the law required him to do, until, as the relators allege in their petition, January, 1867, when he refused to issue the, required warrant, alleging as a reason for such refusal, that the general assembly had, by an act for the establishment and maintenance of a Normal University, approved February 18,1857, appropriated the interest on the college and seminary funds, or such part thereof as might he found necessary, for the maintenance of this Normal University, payable on the order of the board of education, from the treasury of the State.

It is further alleged, that the Auditor refused to issue a warrant for the interest on the college and seminary funds to the relators, payable in January, 1868, for the same reasons assigned by him as above.

The Auditor of Public Accounts admits all the statements contained in the petition, and assigns as a reason for his refusal to issue a warrant to the relators, that by the act establishing the Normal University, the interest on the college and seminary funds, or such part thereof as might be found necessary, was appropriated to that institution, and that the board of education of that university had declared the whole of the interest upon these funds to be necessary for the maintenance thereof and demanded it from the Auditor, and he, being in doubt as to the party entitled to it, refused to pay it to either.

The Auditor insists he is not bound to pay it to the Institution for the Deaf and Dumb, for the reason that it has been appropriated to the Normal University, and the board of education of that institution have demanded it of him.

The petitioners ask, on these facts, that a peremptory mandamus issue, compelling the Auditor to issue his warrant in favor of the relators for the one-fourth of one per cent, of the annual interest' of the college and seminary funds, they admitting they have received their proportion of the school fund.

It appears, from the petition, and it is not denied, that in their biennial report to the general assembly, made at the *370session held in January, 1867, the relators gave a full statement and history of the legislation in respect to the funds, referring especially to this act of February, 1857, establishing the Normal University; and the general assembly, in view of all this legislation, passed the act of February, 28, 1867, by a fair interpretation of the first section of which, this one-fourth of one per cent, on the annual interest of the school, college and seminary funds, was continued to the Deaf and Dumb Institution. '

If then, by inadvertence or misapprehension, the general assembly did, in 1857, grant the interest on the college and seminary funds, or such part of it as might be necessary, to the Normal University, by the act of February 28, 1867 they virtually recalled the grant, and continued it to the relators, as it had been originally in 1839 appropriated to them.

This act is at least, declaratory of a rule by which the Auditor shall be governed, and is the last expression of the will of the general assembly in' respect to this subject. We think the claim of the relators is sustained by a fair construction of the act of 1867, passed as it was, by the general assembly with a full knowledge of all previous legislation, and that the right of the relators to this fund is indisputable.

A peremptory mandamus will issue.

Ma/ndamus awarded.