delivered the opinion of tiie court.
The petition states that the relator, under the provisions of an act of the General Assembly of the State of Missouri entitled “An act to levy additional State taxes for the years 1865 and 1866,” and the instructions of the Auditor of Public Accounts made in pursuance of said act, made an assessment of the county of Cole, and duly returned a book of the same to the County Court of Cole county, and that the compensation therefor allowed by law amounts to two hundred and eighty-four and TV¡r dollars, and that the Auditor audited said account and drew his warrant for the same as fol-. lows: “ No. 1035. Auditor’s Office, 21st day of June, 1865. Treasurer of the State of Missouri, pay to H. W. Long, Assessor Cole county, two hundred eighty-four and m dollars, .out,of any money appropriated for the pay of the Union Military fund,for expenses incurred according to law. (Signed) 'A. Thompson, Auditor. 1284.20.” That on the 3d day of . July, ,0.865, the relator presented said warrant to the re*63spondent at his office in Jefferson City, Missouri, and demanded payment, which was refused; and the petition closes with a prayer that a peremptory writ of mandamus issue against said respondent commanding him to pay the amount due on said warrant.
The answer of respondent assigns among other reasons for not paying the warrant, the following: That there is no law authorizing or requiring the respondent, as State Treasurer, to pay said warrant out of the Union Military fund.
Many other objections are urged in the answer to the warrant in question, but they are all embraced in his statement above given.
In the act of the Legislature creating this fund, (Acts of 1863, p. 27, § 9,) after providing how this fund should be created and of what moneys it shall consist, it is enacted that “ this fund shall be and is pledged for the payment and redemption of all the bonds, principal and interest, which may be issued under this act, (and shall be set apart by the Treasurer for that purpose only,) and shall be paid out under its provisions.” This would seem a solemn appropriation of the whole of this fund for the sole and only purpose of redeeming the Military bonds issued under the provisions of that act, and would of necessity exclude the payment of any other claims or expenses.
In 1865 the Legislature passed an act. in relation to the militia, which contained some sections bearing upon this fund; but in a few weeks afterwards that act was abrogated by the State Convention and “An ordinance for the organization and government of the Missouri militia” was passed in its stead. By the 23d section of this ordinance it is provided that “ out of such fund (the Military fund) shall be paid first, all sums now due the Enrolled Missouri militia for services rendered and Union Military bonds now outstanding or hereafter to be issued ; and second, all expenses incurred according to law and audited by the proper officers, and appropriations for military purposes as other claims *64against the State. I do not know that it is claimed that this warrant is to be paid under the provisions of the Convention ordinance as “expenses incurred according to law;” if it were so contended, it would be a sufficient answer that these expenses are put in the second class, and a large amount of bonds still unpaid are outstanding which belong to the first class, and must be paid before the second class is reached.
But the ground contended for by the relator is, that the services rendered were in behalf of the Union Military fund, and that each fund ought to pay its own expenses. This depends very much upon whether the Legislature has so provided. In this case the Legislature has expressly provided otherwise; as we have already seen, the Legislature, by the act of 1868, appropriated this fund exclusively to the redemption of Union Military bonds, and the ordinance of the Convention does not disturb this in the least, for it provides that these bonds shall be first paid out of this fund. But not only that, but there is an appropriation or fund set apart by the Legislature for the payment of the very expenses mentioned in this warrant — the appropriation for the expenses of assessing and collecting the revenue. (Sess. Acts 1865, p. 5.) Even if the assessment had been exclusively for the benefit of this fund (which it was not), still I apprehend it would be included in assessing the revenue. It would hardly be contended that the “ Military fund” is not composed of revenue ; and if it is, the expenses of assessing and collecting of it ought to be paid out of the general appropriation for assessing and collecting the revenue.
A peremptory mandamus cannot issue in this case commanding. the Treasurer to pay the wai’rant out of the Military fund.
Mandamus refused;
the other judges concurring.