(dissenting)—I am unable to concur in the majority opinion in this case, and will here state my reasons.
In the act of March 27, 1890, will be found defined the duties of the state auditor. Section 6, Laws 1890, p. 637 (Rem. Code, § 9008) provides:
“The state auditor shall in no case issue any state warrant unless there is a law authorizing the issue of the same, and every warrant shall state the act under which it is drawn;
Section 20, Laws of 1890, p. 640 (Rem. Code, § 9021) provides:
“In all cases of grants, salaries, pay and expenses, ascertained and allowed by law, found due to individuals from the state when audited, the auditor shall draw a warrant upon the treasury for the amount, but in cases of unliquidated accounts and claims the adjustment and payment of which are not provided for by law, no warrant shall be drawn by the auditor or paid by the treasurer, unless the previous appropriation shall have been made by law for that purpose, nor shall the whole amount drawn by and paid under any head ever exceed the amount thus appropriated: Provided, that where an appropriation is made by law to be paid out of the state treasury, it shall be the duty of the state auditor to draw a warrant or warrants upon the state treasurer in accordance with the provisions of such law in favor of the person or persons entitled to the same.”
It will be observed that, by this section, where the claim is “ascertained and allowed by law,” the auditor shall draw a warrant upon the treasurer without reference to the fact as to whether there has previously been made an appropriation out of which the warrant should be paid, but that, for claims for unliquidated accounts, no warrant shall be drawn by the *260iiqditpj’ unless a previous appropriation shall have been made by law for that purpose.
Section 22 of the same act (Laws 1890, p. 641) provides:
“Ip a,ll cases where the laws recognize a claim for money against the state, and no appropriation shall be made by law to pay the same, the auditor shall audit and settle the same, and give the claimant a certificate of the amount thereof, under the official seal, if demanded, and shall report the same to the legislature with as little delay as possible.”
It seems to have been the policy of the legislature, in passing this act, to recognize a distinction between claims “asr certained and allowed by law,” mentioned in § £0 (Id., § 90£1) and for which a warrant might be drawn without a. previous appropriation, and cases where the laws “recognize” a claim. In the latter case, under the act, the claimant was only entitled to a certificate, not a warrant.
In 1895, the legislature, passed an act (Chapter 3.5, Laws 1895, p. 58; Rem. Code, § 50£5), relating to .deficiencies in public institutions and departments of the state, the first section of which provides:
• “That it shall be unlawful for any of the state officers or trustees, managers, directors, superintendents or boards of commissioners of any of the public institutions of the state of Washington, or for the officers of any of the departments of the state of Washington, to create a deficiency, incur liability, or to expend a greater sum of money than is appropriated by the legislature for the use of said'public institution or department.”
. In State ex rel. Rippetoe v. Cheetham, 17 Wash. 483, 49 Pac. 1072, it was held that § ££ of the act of March 27, 1890, which provided that the claimant was entitled to a certificate jyheye the laws recognized a claim and no appropriation had been made.to pay the same, was annulled by § 1 of. the act of 1895, ab.oye quoted, which makes it unlawful.for any of the state,officers to create a deficiency, incur liability, of to ex-pepd a greater sum of money than had been previously appropriated. by the legislature. ,.
*261. Section 22 of the act of March 27, 1890, being no longer-in effect, the question which is decisive upon the present ap-. plication for a writ of mandate is whether the relator’s salary, is “ascertained and allowed by law.” If it is so ascertained and allowed, it may be conceded, for the purposes of this-case, that he is entitled to the writ. On the other hand, if his claim is not one which is ascertained and allowed by law, the writ should be denied. Inquiry must then be directed to the determination of this question.
Section I of the act before mentioned (Chapter 76, L. ’09, p. 136; Rem. Code, § 8346), by which a bureau of inspection and supervision of public offices was created, provides that:
“There is hereby established in the department of the state auditor a bureau to be known as the bureau of inspection and supervision of public offices-; the principal officer of said bureau shall be known as the chief inspector and supervisor of public offices ; the state auditor shall be, ex officio, chief inspector and supervisor of public offices, and as such chief in-' spector and supervisor, shall appoint not exceeding three' deputies, who shall each receive a salary not exceeding two thousand five hundred dollars per annum, and a clerk who shall receive a salary not exceeding fifteen hundred dollars per annum, and in addition thereto an allowance for all necessary traveling and hotel expenses while absent from their places of residence in the discharge of their official duties.”
By this statute, the state auditor, as ex officio chief inspector and supervisor of public offices, has the right to appoint “not exceeding three deputies,” each of whom shall receive a salary “not exceeding two thousand five hundred dollars per annum.” The act nowhere provides that the auditor shall appoint three deputies, and that the salary of each shall be the sum of two thousand five hundred dollars. The number of deputies, not exceeding three, and the salary of each deputy, not in excess of two thousand five hundred dollars, is left to the judgment or discretion of the state auditor. It is fair to assume that, if the state auditor found that the duties of the bureau could be discharged with the assistance.of one, *262deputy at a salary of two thousand dollars a year, he would not keep upon the pay-roll three such deputies at a salary of two thousand five hundred dollars each. This statute is merely a limitation upon the power of the state auditor respecting the number and compensation of deputies. It certainly falls short of creating the legal obligation on the part of the state to provide employment for three persons at the maximum salary specified. Had the auditor, in the exercise of the judgment and discretion given him by the statute, fixed the salary of the relator at two thousand dollars per year, can it be said that mandamus would lie to compel the auditor to issue a salary warrant on the basis of a salary at two thousand five hundred dollars per year? It is necessary for the auditor to act before any right to a salary can arise. Before a claim can be said to be “ascertained” by law, it is necessary that it be made certain, fixed, or determined by law. To ascertain a matter is “to make (a thing) certain to the mind; to free from obscurity, doubt, or change; to make sure of; to fix; to determine.” (Webster’s Dictionary.) This definition has been judicially approved in: Wicecarver v. Mercantile Town Mut. Ins. Co., 137 Mo. App. 247, 117 S. W. 698; Brown v. Lyddy, 11 Hun (18 N. Y.) 451.
In Leddy v. Cornell, 52 Colo. 189, 120 Pac. 153, Ann. Cas. 1913C 1304, 38 L. R. A. (N. S.) 918, the court had before it an act of the legislature which, among other things, provided for the appointment of a secretary to the civil service commissioners, and that the “secretary shall be paid a salary not to exceed eighteen hundred dollars a year, . . .” The court there was of the opinion that the act did not fix the specific amount which the secretary was to receive, but merely placed a limit upon the same. Upon this question, it was said:
“The act itself does not fix the specific amount which the secretary is to receive, but merely places a limit beyond which no legislature in the future may go, until the act is amended, in making appropriations for its payment.”
*263As I read the case of State ex rel. Peel v. Clausen, 94 Wash. 166, 162 Pac. 1, it does not support the majority opinion. In that case, the state had acquired by condemnation private property for use as a highway, and had taken possession thereof. The highway fund being exhausted, the auditor declined to issue a warrant to the property owner for the amount of the judgment. It was there held that, since, under art. 1, § 16, of the constitution, land shall not be appropriated to a public use unless its value is first ascertained and paid into court for the owner, the warrant should issue. That case merely enforced a positive requirement of the constitution. The case, as I understand it, has no application to the facts in the present case, and the argument there, so far as material, tends to support the opposite view, for it is there said:
“Where a law creates an office, no special appropriation is necessary to authorize the issuance of a warrant for the payment of a salary fixed by the terms of the act.”
It would seem to follow that the converse of the proposition just quoted from the Peel case must necessarily be true, that is, if the salary is not fixed by the terms of the act, and no special appropriation has been made to pay the same, mandamus will not lie to compel the issuance of a warrant. The salary of the relator, the amount of which is to be determined by the state auditor, with only a maximum fixed, beyond which he may not go, cannot be said to be made definite, certain, or fixed by the law. In other words, it is not ascertained and allowed by law.
Neither reason nor authority will sustain the holding that mandamus will lie to compel the issuance of a salary warrant when no special appropriation has been made by the legislature therefor, and such salary is not fixed or ascertained by law, but is left to the judgment or discretion of an intervening agency, such as the state auditor in this case.
The cases of Evans v. McCarthy, 42 Kan. 426, 22 Pac. 631; Lightfoot v. Lane, 104 Tex. 447, 140 S. W. 89; and *264Shattuck v. Kincaid, 31 Ore. 379, 49 Pac. 758, are clearly distinguishable.
In the Evans case, it was held that an act making an appropriation for the state-house fund was an appropriation in praesenti, even though the taxes levied for that fund had •not found their way into the state treasury. There, there was an appropriation. Here, there is no such appropriation.
In the Lightfoot case, the supreme court of Texas held that the Attorney General had the right to compel the issuance of a salary warrant. In that state, however, the Attorney General’s salary was definitely fixed by the constitution at two thousand dollars per year.
• In the Shattuck case, the supreme court of Oregon directed the issuance of a warrant for the salary of a circuit judge; In that state, such salary was definitely fixed by act of the legislature at three thousand dollars per year.
' In neither of the cases last referred to was the amount of the salary left to the judgment or discretion of any officer, but was definitely fixed by the law itself.
. , In my opinion, the writ should be denied, and I therefore, dissent. %