I am not able to concur in the judgment in this case, and, considering the importance of the questions involved, I deem it proper to state briefly the grounds of my dissent. I fully agree with the court in the proposition that the state cannot contract a debt for works of internal improvement, or be a party in carrying on such works; that it can only accept as a trustee grants of land made by the general government to *635aid in the construction of particular works, and apply the proceeds of such lands to the purposes of the grant. In accepting the grant of land to aid in the construction of a railroad from the river St. Croix to the west end of Lake Superior, it became the plain duty of the state, while it held the title, to protect these lands against trespassers, and to prosecute any person who might cut and carry away timber growing upon them. Chapter 46, Laws of 1869, and chapter 75, Laws of 1871, were necessary and proper enactments to secure that end. Under these acts the governor was expressly authorized to employ agents to look after these lands and fix their compensation. The governor was likewise authorized to employ attorneys, if necessary, to prosecute and defend suits arising under these laws. The governor probably had the power, under the general statute (Tay. Stats.,ch. 10, § 2, p. 260) to employ counsel to prosecute or defend actions in behalf of the state which affected or concerned these lands, if the rights or interests of the state as trustee required it. It appears from the complaint that the governor employed the plaintiffs to aid in defending the re-plevin suits therein mentioned; and that the plaintiffs have rendered legal services for the state in this employment, and have never been paid therefor. It appears that the state thus far has refused to pay them. I see no reason why they should not be paid what their services were reasonably worth.
It is alleged that there is now in the treasury of the state §100,000, received for collections made by agents for acts of trespass upon these lands. It seems to me it is the duty of the state to pay the expenses which have been legitimately incurred, including the plaintiffs’ services, out of this fund. It is said that any judgment which this court may render in favor of the plaintiffs must be paid out of the general fund in the treasury, and thus the state will become liable for a debt in carrying on a work of internal improvement. Rut the state is in no danger of incurring any such liability, because it has an ample trust fund out of which it may indemnify itself on *636paying the judgment. It will doubtless charge the amount paid on the judgment to that fund. So, upon the facts stated, the possibility of incurring an indebtedness in this matter need not be feared. I am not disposed to consider what would be the consequence if there were no trust funds in the treasury of the state to meet this claim. But I do not think the secretary of state, as auditor, has any authority under the law to settle and adjust this unliquidated claim for legal services, nor do I think it competent for the legislature to confer upon him that power. He has no authority to call witnesses, take testimony, and investigate facts as to the value of these services. That is the province of the courts. The word “ auditor,” as used in the constitution, does not, ex vi termini, import one clothed with judicial power or function. It fairly implies that the officer is one who mainly exercises or performs a ministerial duty. These points were so decided by this court in the case of The State ex rel. Dixon v. Doyle, at the January Term, 1876. I drew up the opinion of the court in that case, but the relator discontinued the action before the decision was announced. But I had not then, nor have I now, any doubt as to the correctness of these conclusions, which I understood to be concurred in by the other members of the court. Under these circumstances, I do not agree with the court that the secretary of state can audit this claim. I think both motions, in view of the matters stated in the answer, should be denied.
Taylob, J. I concur with the views of the chief justice.By the Court.— Let judgment be entered dismissing the complaint.