(dissenting)- — The majority hold, as I understand the foregoing opinion, that the railroad commission, since they are empowered to employ an expert and fix his compensation, may lawfully contract to pay him any sum they pleas'e as long as they are not guilty of fraud in making the contract. I am unable to concur in this holding. It seems to me that it not only puts a too narrow construction upon the statute, but one harmful to the interests of the state as well.
The statute defining the powers and duties of the auditor is cited in the majority opinion. Briefly, it grants to the state auditor power, and makes it his duty,
“ . . . to audit, adjust and settle all claims against the state, payable out of the treasury, except only such claims as may be expressly required by law to be audited and settled by other officers or persons.”
*445There is in this, it will be observed, no limitation to the effect that the duty and power to audit, adjust and settle, can only be exercised by the auditor where the contract giving rise to the claim has been fraudulently entered into. On the contrary, the only limitation is in the case where the duty has been delegated to some other person; all claims are to be audited, but certain claims may be audited by persons or officers other than the state -auditor. As no exception is made in favor of claims incurred by the railroad commission, it must follow that claims against the state created by that body are subject to audit by the state auditor, unless some other person or officer is empowered to audit them. The only other person or body in whom this power could possibly rest, under the existing statutes, is the railroad commission itself, but it is expressly conceded by the majority that they have no such power. I can see no escape, therefore, from the conclusion that the statute vests this power in the state auditor. As power to “audit, adjust and settle a claim,” is power to hear and examine it, and after such hearing and examination to allow it or reject it as a whole, or to allow it in part and reject it in part, I think that when the auditor rejected this claim he acted within the powers conferred upon him by the statute, and if the claim is to be paid out of the treasury at all it must be established as a lawful claim by an action against the state, or by some form of legislative relief.
But the majority say that:
“It is scarcely to be supposed that one whose compensation is measured by no fixed rules would voluntarily enter the employ of the state, and leave the question of his compensation to the discretion of the state auditor or to the uncertainty of litigation after his contract of service was completed, and we do not think the legislature so intended. On the other hand, it would seem to be in the interest of the state, and in consonance with sound business principles, to know the extent of the state’s liability before the indebtedness against it becomes an established fact.”
*446It seems to me that this reasoning is inconclusive. If the statute is free from ambiguity, a proposition the majority seem to concede, then effect should be given it according to its terms, regardless of any question of inconvenience or difficulty that may arise in procuring some one to perform services for the state on the terms it imposes. Defects in the law, under such circumstances, must be laid to the fault of the law — a fault in the province of the legislature, not of the court, to correct. The claim that it is to the interest of the state that the commission should have the right to fix the amount of the compensation in advance of incurring the liability, is refuted by the facts of the very case at bar. Here, according to the state auditor,- the railroad commission have agreed to pay an expert out of the state treasury unreasonable and excessive fees, yet the state, under the rule laid down by the majority, cannot protect itself against the unlawful payment without alleging and proving that the commission have been guilty of fraud in contracting to pay the fees. Surely, if the -auditor be correct in his contention, it would be to the best interest of the state to allow it to test the reasonableness of that contract.
But admitting that the statute is ambiguous and in need of construction, I think the majority wrong in holding that the auditing power of the state cannot be permitted to inquire into the reasonableness of a contract made by the railroad commission without first alleging and proving that the commission was guilty of fraud in making the contract. It must be remembered that it is the money of the state that is being expended, and that the financial result to the state arising from the payment of unreasonable and excessive compensation is the same, regardless of the intent with which the contract to pay is entered into. Where, therefore, there is room for two constructions, one of which will protect the state against extravagant claims, while the other will not, I cannot think there ought to be any hesitancy in deciding which one to adopt.
*447In my opinion the relator should be compelled to take issue upon the allegations made by the state auditor, and submit the issue to some tribunal competent to determine .questions of fact.