concurring:
It is the duty of respondent, as state controller, “ to audit all claims against the state for the payment of which an appropriation has been made, but of which the amount has not been definitely fixed by law, and which shall have been examined and passed upon by the board of examiners,” and he shall allow, of such claims, “ such an amount as he shall decree just and legal, hot exceeding the amount allowed by said board,” and draw warrants on the treasurer for such amounts as shall be allowed. (Gen. Stdt. 1811.) The statute also provides that “ no warrant shall be drawn oh the treasury, except there be an unexhausted specific appropriation by law to meet the same.” (Gen. Stat. 1812.)
The claim presented by relator is not of that class, within the contemplation of the framers of the constitution, to be “ considered and acted upon by the board of examiners.” (Art. 5, sec. 21.) Thb legislature did not intend that this claim should, in any event, be passed upon by the board of examiners and audited by the state controller. It should not be treated the same as claims coming within the appropriations for the support of different state institutions, and other eases, where thfe value of the services rendered, and of the supplies furnished, cannot, from the very nature of the claims, be ascertained in advance, and for the payment of which a gross sum is always appropriated. It belongs to an entirely different class, to wit: the salary and compensation of public officers, the amount of which is definitely fixed either under the provisions ■of the constitution or by the statute.
The appropriation of five thousand four hundred dollars was intended as compensation for' the services to be rendered by the state librarian and adjutant-general. The legislature, supposing that the lieutenant-governor would comply with the Iritvs then in force, and perform the duties of these offices, appropriated a definite and fixed amount as compensation for the services to be rendered therein. It is true that the appropriation, as made by the legislature, includes compensation for the services performed by relator as státe librarian; but it also includes compensation for the services of the lieutenant-gov,ernor as ex officio adjutant-general, which is a separate and distinct-office. The amount appropriated cannot be segregated, *375as the statute does not declare what portion of the amount was intended as compensation for the services of the state librarian, or what portion was intended for the services of the adjutant-general. The fact that these offices are held by different persons — a condition of affairs not contemplated by the legislature when the appropriation was made — makes it apparent, as stated in the opinion of the chief justice, that this appropriation has become inoperative, and cannot be used as compensation for the services rendered in either office.
In Kinsey v. Kellogg the court said: “ When the act of 1876 was passed, there was a person who was discharging the duties of clerk, recorder, and auditor, and, unless subsequent legislation should require otherwise, one person would continue to fill the three separate offices. It was to this condition of things that the law was made applicable; and the compensation provided by it was provided as compensation to the clerk, the recorder, and the auditor. The law did not determine how much should be paid to each of the three officers — a matter of no consequence so long as the three offices were in one man. But when the organization of the county government was changed, and the person who was clerk was not auditor nor recorder, it is clear that no one of the three officers was entitled to receive the compensation intended for the three; and, as the act of 1876 did not provide for the event, the act, by force of its own expressions, became inoperative when the event occurred.” (65 Cal. 115.)
In the case at bar there is a general appropriation for the entire services to be rendered in two separate and distinct offices; but there is no specific appropriation of any sum of money for the payment of the particular claim and demand of relator as state librarian; and, as there is no “ unexhausted specific appropriation by law to meet the same,” it was the duty of the state controller to refuse to draw any warrant therefor. Owing to the existing condition of affairs, it will devolve upon the legislature to determine, in accordance with the justice of the case, the amounts which the relator and the lieutenant-governor are respectively entitled to receive.
For the reasons stated, I concur in the conclusion that the writ of mandamus should be denied.