I am sorry to dissent from the majority opinion in this case but feel constrained to do so upon the ground that mandamus does not lie in this case.
Section 28-201, A.C.A. 1939, provides in so far as we are here concerned that: "The writ of mandamus may be issued by the supreme or superior court on the verified complaint of the party beneficially interested, to any inferior tribunal, corporation, board, * * *, or person, to compel the performance of an act which the law specially imposes as a duty resulting from an office, trust or station, * * *."
While the creditors are the parties primarily interested, I do not question the existence of a sufficient beneficial interest in the board of regents to enable it to maintain the action of mandamus where it is a proper remedy. Barry v. Phoenix Union High School Dist., 67 Ariz. 384, 197 P.2d 533. It is the right to invoke its aid in this character of case that I question.
Mandamus may be used to compel an officer to perform an act only when the law makes the performance of the act the officer's duty. Riley v. Cornwall, 48 Ariz. 10, 58 P.2d 749. However, only ministerial, not discretionary, acts of officers may be compelled by mandamus, Ackerman v. Houston, 45 Ariz. 293, 43 P.2d 194. The authorities are all in accord on the above proposition.
Section 4-302, A.C.A. 1939, imposes upon the state auditor the duty to investigate any claim presented and "* * * If such an investigation discloses that all or any portion *Page 65 of any claim is not for actual public purpose, connected with the activities of the office, board, commission, or department where the claim originated, he shall refuse to draw a warrant, except for such amount of each claim as appears to be for anactual public purpose. * * *." (Emphasis supplied.)
The auditor not only may, but must therefore, decline to draw a warrant in payment of any claim presented by the board of regents when upon investigation she determines that said claim was not for a public purpose. Fairfield v. W.J. Corbett Hardware Co.,25 Ariz. 199, 215 P. 510. Section 12-501 provides that: "Whenever any person whose duty it is to approve, audit, allow, or pay, claims or demands upon the state, shall approve, audit, allow or pay or consent to, or connive at, the approving, auditing, allowing, or paying of, any claim or demand against the state not authorized by law, such person, and the party in whose favor such claim or demand was made, shall be liable for any money thereby procured, and twenty (20) per cent additional thereon, and legal interest upon such payment from the date thereof."
In the case of Proctor v. Hunt et al., 43 Ariz. 198, 29 P.2d 1058, where suit was brought against the state auditor and others, under this section, we held that if the claim appeared upon its face to be for a public purpose and the auditor in the exercise of his discretion found it to be for a public purpose he was not liable under this section of the statute for authorizing its payment. In other words, the court said the auditor was not bound to minutely investigate every claim in order to relieve himself of liability but recognized the duty of the auditor to determine whether or not said claim was for a public purpose.
In determining whether a claim is for a public purpose the state auditor acts in a quasi-judicial capacity and performs a purely judicial function in that she is called upon to exercise a discretion vested in her by law to say whether or not the claim presented is for a public purpose. We held in Magma Copper Co. v. Arizona State Tax Commission, 67 Ariz. 77, 191 P.2d 169, 174, that "An act is ministerial where the law requiring it to be performed, prescribes the time, manner, and occasion of its performance with such certainty that nothing remains for judgment or discretion." An official act is judicial when it is the result of judgment or discretion based upon evidence gathered.
The auditor was clearly exercising a discretion in determining whether the claims in question were or were not for a public purpose.
In 34 Am.Jur., Mandamus, section 68 at page 858 we find the following statement: "* * * whenever an element of discretion enters into the duty to be performed, the functions of mandatory authority are shorn of their customary potency and become powerless to dictate terms to that discretion. * * *."
Mandamus will issue to compel an officer, who refuses to act, to exercise a discretion *Page 66 vested in him but it may not direct how such discretion shall be exercised. Maricopa County Municipal Water Conservation District No. 1 v. La Prade, 45 Ariz. 61, 40 P.2d 94. That question, however, is not involved in this case. The state auditor twice exercised her discretion promptly as the law required and refused to issue her warrant therefor upon the ground that she found the claims to be not for a public purpose and the Governor exercised his discretion and likewise rejected said claims. No appeal lies from the rejection of said claims because none is given by the statute. This does not deprive the creditors whose claims were refused from their legal remedy. They may bring an action in the proper court against the state, or against the state and the board of regents as the circumstances may require, to enforce payment thereof. State v. Miser, 50 Ariz. 244, 72 P.2d 408.
Mandamus is not a substitute for, and cannot be resorted to in civil proceedings to subserve the purpose of an appeal or writ of error. 34 Am.Jur., Mandamus, section 40.
In accordance with the universal rule, this court has on a number of occasions stated that mandamus will not lie to compel an officer, board or inferior tribunal vested with discretionary power to exercise such discretion in a particular manner; that while action of some kind will be compelled by mandamus where such action is refused that said officers, board or tribunal must be left free to exercise such discretion and to form such judgment as is deemed justified by the facts.
We have so often enunciated this rule that I deem the citation of authorities unnecessary.
It seems to me that the conclusion is inescapable that if the court has not the power or authority in the first instance to direct that the discretion of such officers, board or tribunal be performed in a particular manner designed to reach some particular result then it cannot, after such discretion has been exercised and judgment pronounced, require such officer, board or tribunal by mandamus to change said judgment and compel something to be done which it could not do originally. To hold that it may do so constitutes a contradiction in the law.
Justice Cardozo, speaking for the Supreme Court of the United States on this subject in the case of Interstate Commerce Commission v. United States, 289 U.S. 385, 53 S. Ct. 607, 611,77 L. Ed. 1273, at pages 1278, 1279, said: "* * * The Commission heard the complaint and proceeded to a decision. If the mandamus were to stand, the result would not be to compel the Commission to adjudicate the cause, for that it has already done; the result would be to compel an adjudication in a particular way. The rule is elementary that this is not the function of the writ. Mandamus is an appropriate remedy to compel a judicial officer to act. It may not be used as a substitute for an appeal or *Page 67 writ of error to dictate the manner of his action." Interstate Commerce Commission v. United States, 260 U.S. 32, 34,43 S. Ct. 6, 67 L. Ed. 112, 114; Wilbur v. United States, 281 U.S. 206, 218,50 S. Ct. 320, 74 L. Ed. 809, 816; Interstate Commerce Commission v. New York, N.H. H.R. Co., 287 U.S. 178, 204, 53 S. Ct. 106,77 L. Ed. 248.
To the same effect is Bismarck Tribune Co. v. Wolf, et al.,64 N.D. 656, 255 N.W. 569. The court in this case cites High Legal Remedies, 2d Ed., 149, et seq.; Ex parte Newman, 14 Wall. 152,81 U.S. 152, 20 L. Ed. 877, and others.
In the case of People ex rel. Francis v. Common Council of Troy, 78 N.Y. 33, 34 Am.Rep. 500, the court held that where the city council had exercised discretion vested in it by the city charter that mandamus did not lie to compel it to change the decision it had reached.
The instant case is distinguishable from Fairfield v. W.J. Corbett Hardware Co., supra, in that the auditor in the Fairfield case did not question the fact that the claim was for a public purpose but rejected it upon the ground that the state had a set-off against the creditors whose claims were assigned to the Corbett Hardware Company. The law vested in him no such authority and the writ properly directed him to perform his purely ministerial duty. In the case of Barry v. Phoenix Union High School District, supra, the mandamus properly issued in that case for the reason that the statute defining the duties of the county school superintendent does not vest in him the discretion that is vested in the state auditor.
Section 54-301, A.C.A. 1939, expressly provides: "* * * On the order of the board of school trustees of any district, he (the county school superintendent) shall draw his warrant on the county treasurer for all necessary expenses against the school fund of any such district; * * *."
It will be seen that no discretion whatever may be exercised by the county school superintendent under the language of the statute. His duties in that particular were purely ministerial.
The office of the writ of mandamus has been extended upon rational and logical reasoning in many jurisdictions to authorize the court to consider the constitutionality of a law where the legality of the action of an officer, board or inferior tribunal depends upon whether or not such law is constitutional and when such officer or board may be liable if funds are illegally disbursed. 34 Am.Jur., Mandamus, section 81 to 90, inc.; Department of State Highways v. Baker, 69 N.D. 702, 290 N.W. 257, 129 A.L.R. 925; Welch v. Swasey, 193 Mass. 364, 79 N.E. 745, 23 L.R.A., N.S., 1160, 118 Am. St. Rep. 523, Id., 214 U.S. 91,29 S. Ct. 567, 53 L. Ed. 923. This is admittedly an enlargement of the original functions of mandamus and is denied in many jurisdictions. State ex rel. Atlantic Coast Line R. Co. v. State Board of *Page 68 Equalizers, 84 Fla. 592, 94 So. 681, 30 A.L.R. 362; Threadgill v. Cross, 26 Okla. 403, 109 P. 558, 138 Am. St. Rep. 964. This court has passed upon the constitutionality of statutes in a number of cases when the question was raised in mandamus proceedings including the case of Earhart v. Frohmiller, 65 Ariz. 221,178 P.2d 436 and Hernandez v. Frohmiller, 68 Ariz. 242, 204 P.2d 854.
It is my considered judgment that the use of the writ of mandamus has been more or less abused in this state largely perhaps because such improper use has not been challenged. The fact that such a condition has obtained, does not warrant a further continuance of its abuse. I am therefore constrained to hold that the writ in this case should be quashed and the creditors relegated to their remedy at law.