2 Wash. 491 | Wash. | 1891
Lead Opinion
The opinion of the court was delivered by
— This is an application by the plaintiff, upon motion and affidavit, for a writ of mandate commanding the respondent, who is state auditor, to draw his warrant upon the state- treasurer in favor of the plaintiff for the payment of a voucher certified to by the president and secretary of the mining bureau for $150, alleged to -be due and owing to plaintiff for services as assistant state geologist for the month of May, 1891. It appears from the affidavit accompanying this motion that the mining bureau, at a regular meeting held at Olympia on April 9, 1891, at which a majority of its members was present, directed a geological survey of the state to be made, and that, in furtherance of that determination, at a subsequent regular
M Seo. 3. It shall be the duty of the mining bureau to collect reliable statistical information concerning the production and reduction of all precious and useful, minerals of this state, and examine the different processes for the treatment of ores used in this state; to inquire into the merits of other processes alleged or demonstrated by practical experience elsewhere to be the most successful; to inquire into the relative merits of the various inventions, machines and mechanical contrivances now in use, or which may hereafter be introduced for mining and metallurgical purposes; to keep on file in their office reports and papers which may be published from time to time, and all correspondence on the subject of mines and milling and reducing, ores, with the view of eliciting and collecting such information for the public use. They shall address circulars to corporations and individuals engaged in mining, and*494 shall correspond with the school of mines in other states in reference to the mining and metallurgical interests. They shall make a report to the governor, for transmission to the legislature, of the operations of the bureau on or before the fifteenth day of January in each year for the year ending on the thirty-first day of December of the preceding year, which report shall contain all statements of accounts, money received and expended, statistics, and other information which may tend to promote the development of the mineral resources of the state, and such other reports from time to time as they may deem necessary. They shall examine, audit and allow all bills which relate to expense of money received by or appropriated for this purpose; they shall co-operate with the bureau of statistics, agriculture and immigration; they shall be allowed to employ such clerical assistance as may be necessary to carry out the full intent of this act.”
Upón a critical examination of this act, it will be seen that there is no expression of the legislature therein indicating an intention to authorize the mining bureau either to direct or superintend a geological or mineralogical survey of the state, or to disburse the moneys appropriated for such purpose. It is simply authorized to collect certain reliable statistical information, specified in the act, and to examine, audit and allow all bills which relate to expenditure of money received by or appropriated for that purpose, the expenses under its provisions being limited to $1,500. Nor do we think the powers or duties of the mining bureau have been in any way enlarged or changed by any provision contained in the general appropriation act of March 7, 1891. By that act the sum of $50,000 was appropriated “for making a geological and mineralogical survey of the state, and making and publishing maps and reports of the same,” but the act is silent as to the method or agency whereby the same is to be expended. Indeed, if the legislature had attempted to enlarge or define the powers and duties of the mining bureau in the general appropriation act, the provis
Concurrence Opinion
(concurring). — I fully concur in what has been said by the chief justice in deciding this case, and I do not desire to add anything as to the merits of the controversy j but, in view of what was said by the attorneys for the petitioner at the time of the application for the writ, to the effect that they supposed the alternative writ would issue almost as a matter of course, I desire to say a word as to the course and practice of this court in matters of this kind. ' The writ of mandate is not a writ of right of as high an order as a writ of habeas corpus. The latter writ is, of course, of the very highest right, and is regarded of such importance that it is secured and protected by the constitutions of nearly all the states. Yet even the writ of habeas corpus does not issue as a matter of course. The facts alleged in the petition therefor must be such that, if
Rehearing
OH EETITIOH NOR REHEARING.
— In the petition for a rehearing in this cause it is strongly insisted that the court should have granted the alternative writ, even although it was of the opinion.
A further contention is, that the petition on its face prima faoie established the right to the relief prayed for. This is probably true if we were bound by the conclusions of law therein pleaded. If this court was bound to accept as true the twelfth paragraph of the petition, there would be little left to be decided. Said paragraph is as follows:
“ Twelfth. That the said Thomas M. Reed was at all times mentioned herein and now is the duly elected and qualified auditor of the State of Washington; and that it was then and now is, his duty enjoined by law to draw his warrant upon the state treasurer for the payment of said voucher, bill and claims; but he unlawfully refused and still refuses so to do.”
What is herein alleged as a fad is the very question of law that the court was expected to decide. It needs no argument to prove that this and other conclusions of law
This was a cause of importance to the public, and the court for that reason heard the petitioner much more fully than usual. When the petition was presented full argument was allowed, and the matter taken under advisement, and upon a conclusion being reached that there was no merit in the petition, instead of at once entering an order of dismissal, the counsel for petitioner were called and an intimation as to the situation given, and further argument allowed. We have carefully examined the able argument on the merits contained in the petition for rehearing, but our opinion has not been changed thereby. For, while it is true that several ingenious theories have been presented upon which it could be held that the legislature might have intended to legislate as claimed, yet none of them satisfy
The petition is denied.
Dissenting Opinion
(dissenting). — Section 26 of article 2 of the constitution provides that the legislature shall direct by law in what manner and in what courts suits may be brought against the state. Upon this subject no legislation has been had, and it is therefore assumed that there is no present way by which a claimant against the state may have his rights adjudicated. In the present case the petitioner claims to have performed services for the state, and seeks as his only remedy a mandamus against the auditor. Under such a state of facts I think that the courts should be somewhat liberal in the granting of alternative writs, and that in this case the alternative writ should be issued, as it is only after the issuance of the alternative writ that the petitioner has any real opportunity to have his cause presented by counsel and argued to the court. For this reason I do not agree to the decision of the court, and express no opinion on the merits of the application.