(dissenting) — It seems that I am unable to agree with my associates. If it were not for that part of the statute providing that the insurance commissioner has the right to make a personal examination of the books and records to ascertain the fact of circulation, I could concur in the majority opinion on the ground that courts cannot control the discretion of a public officer or compel the finding of a particular fact by him. Under a statute similar to ours, but without the proviso or some similar limitation, it has been uniformly held that a court will not control the discretion of an officer or review his finding of fact. Holliday v. Henderson, 67 Ind. 103; Matter of Troy Press Co., 94 App. Div. 514, 88 N. Y. Supp. 115; People ex rel. Opdyke v. Brennan, 39 Barb. 651; Merrill, Mandamus, § 31.
I contended for this rule in the case of Times Printing Co. v. Star Publishing Co., 51 Wash. 667, 99 Pac. 1040. I find no statute similar to our own to have been construed by any of the courts. But I am of the opinion that, when the statute says that the insurance commissioner shall have the right to make an examination of the books and records of a newspaper to determine its circulation, it is equivalent to saying that it is his duty to do so, unless otherwise satisfied upon such showing as may be called for by him. It does not appear that any showing was called for in this case. The terms “right” and “duty,” as here employed are correlative. The word “right” was used to give power to the commissioner in the performance *112of a duty where he might otherwise be hampered in carrying out the spirit and mandate of the statute. It if were not the intent of the law to compel the publication of these notices in the paper having in fact the largest circulation, it was unnecessary to point out a specific method for ascertaining that fact. The way was not left discretionary, as in.the statutes referred to in the cases which I have cited. Therefore the duty of the commissioner is not to exercise a discretion, but to determine a fact capable of mathematical demonstration, and when the fact is determined, the duty becomes ministerial. There is. no discretion.
“When the law requires a public officer to do a specified act in a specified way upon a conceded state of facts, without regard to his own judgment as to the propriety of the act, and with no power to exercise discretion, the duty is ministerial in character, and performance may be compelled by mandamus if there be no other remedy.” Matter of Troy Press Co., 94 App. Div. 514, 88 N. Y. Supp. 115.
See, also, United States ex rel. Miller v. Raum, 135 U. S. 200.
As illustrative of the distinctions I wish to draw, reference may be had to two cases. In Holliday v. Henderson, 67 Ind. 103, the statute provided that the statements of foreign insurance companies should be published in “the two leading daily newspapers of the state having the largest general circulation therein.” Upon a mandamus proceeding brought on behalf of the Indianapolis News, although the complaint alleged that the News was one of the two leading newspapers and had the largest general circulation in the state, and that the papers designated by the state auditor were not entitled to the publication, it was held, on demurrer to the complaint, that the writ would not issue; many cases being cited to sustain the text that, “because the act requires the exercise of discretion and judgment, which is entrusted by law to the auditor,” a mandate would not issue to compel him to act in a particular manner. In other words, the law being silent as to the manner in which the fact should be found, the court refused to go behind the certificate and designation of the *113officer. In People ex rel. Frances v. Common Council of Troy, 78 N. Y. 33, 34 Am. Rep. 500, a like holding was made, the court saying that:
“Where a subordinate body is vested with power to determine a question of fact, the duty is judicial, and, though it can be compelled by mandamus to determine the fact, it cannot be directed to decide in a particular way, however clearly it be made to appear what the decision ought to be.”
It was held that the act of the city council in designating newspapers would not be controlled although the true fact might be other than as found by the council, the premise of the court’s reasoning being that “no mode of ascertaining which papers have the largest circulation is pointed out by the statute, and consequently that question is left open as one of fact to be determined by the common council;” indicating that, if a mode had been provided for ascertaining the fact, the rule would have been otherwise. There would have been no discretion. It is so here. The mode is pointed out.
“Where the particular steps for the accomplishment of an object are prescribed by law, or from the nature of the case the act can be performed in but one way, the writ may very properly specify the exact thing to be done.” Spelling, Injunctions and Other Extraordinary Remedies, § 1434.
As I read the statute, this case does not come within the rule that discretion and judgment will not be controlled, nor within the rule permitting courts to control the act of public officers when they have acted arbitrarily or in fraud of the rights of an individual; but rather within the primary rule that, where an act is ministerial, no discretion or judgment being left to the officer, mandamus is a proper remedy.
The; writ should issue.