Le Grand, C. J.,
delivered the opinion of this court.
This is an application for a mandamus. Whether or not it should issue, depends, in our judgment, upon the construction which ought to be placed upon certain acts of Assembly.
The act of 1839, ch. 234, (after an allusion to a previous act,).in its first section, provides, that for the purpose of building an out-let lock at Bell’s ferry, opposite Port Deposit, on the Susquehanna canal, certain named persons were appointed commissioners, “with full power and authority, by a scheme or schemes of lottery, and the sales- thereof, or of the tickets [105]*105therein, and without being subject to any tax whatsoever, to raise the sum of $30,000, free and clear of all charges and interest whatsoever.”
By the act of 1842, ch. 74, the grant of the act of 1839 was consolidated with the State lotteries. This act directed the Commissioners of Lotteries to pay to the commissioners named in the original act, or appointed in pursuance thereof, a ratable proportion, semi-annually, of the sum authorized by the original act.
The act of 1852, ch. 113, gives to the Lottery Commissioner, under the present constitution of the State, the power of the commissioners under previous legislation, and by its fourth section provides, “that the Commissioner of Lotteries, on the maturity of each instalment for distribution, shall divide and distribute the same, pro rata, amongst the persons and bodies corporate or politic entitled, to receive the same.’'’’
The petition alleges, that in the year 1847, the commissioners mentioned in the act of 1839, contracted with certain parties for building the lock, and all moneys arising from the lottery authorized by the act of 1839- that the lock was duly built and completed, according to contract, and the contractors assigned their interest in and to said lottery grant to certain persons, in certain proportions, and that among these assignees is the appellant, with interest in the proportion set out in his application for the mandamus; that the Lottery Commissioners refused to recognize the assignees until some legal proceedings were taken to make a proper transfer of said lottery grant to the assignees, and a direction from a proper court to the commissioners, ordering the payment of the sum ascertained to be due to them. The petition then avers, that because of this refusal of the Lottery Commissioners, a proceeding was had in the Superior Court of Baltimore city, whereby it was decreed that the complainants “be entitled to receive from the Slate Lottery Commissioners, and their successors, such sum, semi-annually, as amounts to the proportion of said lottery grant, out of the proceeds of the State lotteries, until the said complainants receive the sum of fifteen thousand dollars and ninety-two cents, being the residue of the thirty thousand dol[106]*106lars authorized by said act of 1839, ch. 234, to be raised, after deducting what has been paid to the said defendants, over and above their expenses. ”
To this petition the defendant, admitting the passage of the several acts of Assembly, proceeds to give his opinion of the legal effect of certain acts, both of commissioners under the old constitution and those who were named in the legislation in relation to the grant for the lock, and also of the contractors and assignees. He avers that his predecessor did not recognize the obligation to raise, under the grant, more than thirty thousand dollars, and that, with this understanding of his duty, he made semi-annual distributions on this basis.
At the time the decree was passed, Messrs. Wharton and Dickenson were the commissioners. On the adoption of the new constitution, they were succeeded by Mr. Stewart, and he by Mr. Roberts, and Mr. Roberts by the present appellee. From this statement, it must be apparent the appellee, as Lottery Commissioner, has no personal knowledge of the earlier circumstances attending the grant; his knowledge, as such, is only derivable from his experience since he became commissioner, and from what the records of the commissioners who preceded him disclose. His own personal knowledge, as such, only evidences the fact that the appellant received a sum on a basis which excluded “expenses” as ascertained by the decree, and did so under protest. His construction of the legal operation of the acts of the Superior Court, and of those of the commissioners under the old constitution, can have no influence, because they are matters of law, and not of fact.
• On this state of case, the question is, ought the writ to issue? We are of opinion it should. It must be recollected, that under the act of 1839, (the one authorizing this grant,) the commissioner therein named and authorized by it to be appointed, so far as this particular grant is concerned, had as much power as had the State Lotteiy Commissioners over-grants placed, by other acts of Assembly, under their direction, and subject to their control. So far as this grant was concerned, the act of 1839 was, pro tanto, a repeal of the authority conferred on the State Lotteiy Commissioners; and what [107]*107the latter could do in regard to grants placed under their jurisdiction, the act of 1839 authorized its commissioners to do in reference to tire particular grant. They were empowered to raise, for the specified purpose, $30,000, “free and clear of all charges and interest whatsoever.” This was their power. Now, who was to determine whether $30,000 was raised, “free and clear of all charges,” &c? Certainly themselves, and none others. If this be not so, then by what authority did the Lottery Commissioners determine? If one set had not the power, then the other had not, for the power over the particular cases is the same, and derived from the same source, namely, acts of Assembly. Of course we allude to cases free from fraud, for in such cases the ascertainment, as in all other cases, when proved, would not avail against parties in interest. But there is no fraud alleged in the case at bar, the defence being, simply, that the decree of the Superior Court is not binding, and that there is no proof of any expenses beyond the $30,000 authorized to be raised. If the decree be binding, then this objection is of no force, because the decree concludes the party from availing himself of it in this proceeding. We are clearly of the opinion that the decree and the entry of it with the assignment on the books of the Lottery Commissioners, did conclude them, because the court passing the decree was one of competent jurisdiction, and because the parties to it were the only parties whose interest, in the then posture of affairs, was involved. The contractor not being nominally a party to this proceeding, whatever position he may, in reality, occupy toward it, we abstain from comment on the terms of his contract. We are to be understood as saying nothing in this opinion as concluding any rights he may have under his contract.
By the act of 1839, the State empowered certain enumerated persons to perform and fulfill a trust; the object to be accomplished (viz: the construction of the lock) was to be accomplished under their supervision and direction; and the expenses to be incurred, and the interest to be paid, were to t>e ascertained and paid by them. Their appointment by the Legislature entitles them to an exemption from the charge of
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Le Grand, C. J.,
delivered the opinion of this court.
This is an application for a mandamus. Whether or not it should issue, depends, in our judgment, upon the construction which ought to be placed upon certain acts of Assembly.
The act of 1839, ch. 234, (after an allusion to a previous act,).in its first section, provides, that for the purpose of building an out-let lock at Bell’s ferry, opposite Port Deposit, on the Susquehanna canal, certain named persons were appointed commissioners, “with full power and authority, by a scheme or schemes of lottery, and the sales- thereof, or of the tickets [105]*105therein, and without being subject to any tax whatsoever, to raise the sum of $30,000, free and clear of all charges and interest whatsoever.”
By the act of 1842, ch. 74, the grant of the act of 1839 was consolidated with the State lotteries. This act directed the Commissioners of Lotteries to pay to the commissioners named in the original act, or appointed in pursuance thereof, a ratable proportion, semi-annually, of the sum authorized by the original act.
The act of 1852, ch. 113, gives to the Lottery Commissioner, under the present constitution of the State, the power of the commissioners under previous legislation, and by its fourth section provides, “that the Commissioner of Lotteries, on the maturity of each instalment for distribution, shall divide and distribute the same, pro rata, amongst the persons and bodies corporate or politic entitled, to receive the same.’'’’
The petition alleges, that in the year 1847, the commissioners mentioned in the act of 1839, contracted with certain parties for building the lock, and all moneys arising from the lottery authorized by the act of 1839- that the lock was duly built and completed, according to contract, and the contractors assigned their interest in and to said lottery grant to certain persons, in certain proportions, and that among these assignees is the appellant, with interest in the proportion set out in his application for the mandamus; that the Lottery Commissioners refused to recognize the assignees until some legal proceedings were taken to make a proper transfer of said lottery grant to the assignees, and a direction from a proper court to the commissioners, ordering the payment of the sum ascertained to be due to them. The petition then avers, that because of this refusal of the Lottery Commissioners, a proceeding was had in the Superior Court of Baltimore city, whereby it was decreed that the complainants “be entitled to receive from the Slate Lottery Commissioners, and their successors, such sum, semi-annually, as amounts to the proportion of said lottery grant, out of the proceeds of the State lotteries, until the said complainants receive the sum of fifteen thousand dollars and ninety-two cents, being the residue of the thirty thousand dol[106]*106lars authorized by said act of 1839, ch. 234, to be raised, after deducting what has been paid to the said defendants, over and above their expenses. ”
To this petition the defendant, admitting the passage of the several acts of Assembly, proceeds to give his opinion of the legal effect of certain acts, both of commissioners under the old constitution and those who were named in the legislation in relation to the grant for the lock, and also of the contractors and assignees. He avers that his predecessor did not recognize the obligation to raise, under the grant, more than thirty thousand dollars, and that, with this understanding of his duty, he made semi-annual distributions on this basis.
At the time the decree was passed, Messrs. Wharton and Dickenson were the commissioners. On the adoption of the new constitution, they were succeeded by Mr. Stewart, and he by Mr. Roberts, and Mr. Roberts by the present appellee. From this statement, it must be apparent the appellee, as Lottery Commissioner, has no personal knowledge of the earlier circumstances attending the grant; his knowledge, as such, is only derivable from his experience since he became commissioner, and from what the records of the commissioners who preceded him disclose. His own personal knowledge, as such, only evidences the fact that the appellant received a sum on a basis which excluded “expenses” as ascertained by the decree, and did so under protest. His construction of the legal operation of the acts of the Superior Court, and of those of the commissioners under the old constitution, can have no influence, because they are matters of law, and not of fact.
• On this state of case, the question is, ought the writ to issue? We are of opinion it should. It must be recollected, that under the act of 1839, (the one authorizing this grant,) the commissioner therein named and authorized by it to be appointed, so far as this particular grant is concerned, had as much power as had the State Lotteiy Commissioners over-grants placed, by other acts of Assembly, under their direction, and subject to their control. So far as this grant was concerned, the act of 1839 was, pro tanto, a repeal of the authority conferred on the State Lotteiy Commissioners; and what [107]*107the latter could do in regard to grants placed under their jurisdiction, the act of 1839 authorized its commissioners to do in reference to tire particular grant. They were empowered to raise, for the specified purpose, $30,000, “free and clear of all charges and interest whatsoever.” This was their power. Now, who was to determine whether $30,000 was raised, “free and clear of all charges,” &c? Certainly themselves, and none others. If this be not so, then by what authority did the Lottery Commissioners determine? If one set had not the power, then the other had not, for the power over the particular cases is the same, and derived from the same source, namely, acts of Assembly. Of course we allude to cases free from fraud, for in such cases the ascertainment, as in all other cases, when proved, would not avail against parties in interest. But there is no fraud alleged in the case at bar, the defence being, simply, that the decree of the Superior Court is not binding, and that there is no proof of any expenses beyond the $30,000 authorized to be raised. If the decree be binding, then this objection is of no force, because the decree concludes the party from availing himself of it in this proceeding. We are clearly of the opinion that the decree and the entry of it with the assignment on the books of the Lottery Commissioners, did conclude them, because the court passing the decree was one of competent jurisdiction, and because the parties to it were the only parties whose interest, in the then posture of affairs, was involved. The contractor not being nominally a party to this proceeding, whatever position he may, in reality, occupy toward it, we abstain from comment on the terms of his contract. We are to be understood as saying nothing in this opinion as concluding any rights he may have under his contract.
By the act of 1839, the State empowered certain enumerated persons to perform and fulfill a trust; the object to be accomplished (viz: the construction of the lock) was to be accomplished under their supervision and direction; and the expenses to be incurred, and the interest to be paid, were to t>e ascertained and paid by them. Their appointment by the Legislature entitles them to an exemption from the charge of [108]*108having abused their powers, unless such a charge be supported by proof. In the absence of all evidence, to the contrary, the presumption must be, that they have ascertained the amount of interest and expenses correctly. Besides, under the act of 1842, ch. 74, sec. 2, they were compelled to give bond for the faithful discharge of their duties.
(Decided June 14th, 1858.)
The State Lottery Commissioners were, by the act of 1842, charged with the duty of drawing the lottery, and paying over to the commissioners named in the grant, the money authorized to be raised. Nowhere do we find any power or authority conferred upon them to supervise the acts of the special commissioners, or to make the ascertainment of the amount of expenses and interest incurred. They were directed to apportion the money raised among the several consolidated grants; but the distribution was to be made, so far as the grant in question is concerned, upon the basis ascertained by the special commissioners. In this case the decree was such an ascertainment, made by the proper parties, and if made bona fide, is conclusive of the question. If there was collusion or fraud in the ascertainment, a corrective may be applied, so as to prevent the abuse of the powers and privileges granted; the proceedings before us show neither.
Judgment reversed, writ ordered, and procedendo awarded.