(concurring in part and dissenting in part). While certain language in Laws 1915, chap. 164, furnishes some foundation for a contrary view, I am of the opinion that, under the existing laws, moneys appropriated for the payment of glanders and dourine claims do not in fact go into and become a separate fund; but properly belong in the general fund, and that glanders and dourine claims are properly chargeable against such fund. I therefore agree with the opinion prepared by Mr. Justice Bronson that, under the showing made in this case, there was available on September 5, 1919, in the general fund the sum of $13,023.93, which had been erroneously transferred to the so-called Glanders and Dourine Horse Bund. I do not, however, agree that this fact alone warrants the issuance of a writ of mandamus to compel the defendant to issue a warrant to the relator.
'The statute provides: “It is the duty of the state auditor: . . . 17. To draw warrants on the state treasurer for the payment of money directed by law to be paid out of the treasury; which warrants shall be numbered consecutively in the order in which they are drawn; but no warrants shall be drawn unless authorized by law, nor unless there are funds in the treasury applicable to the payment thereof to meet the same.” Comp. Laws 1913, § 132, subd. 17.
The return or answer of the defendant, state auditor, is accompanied by a detailed itemized list of unpaid claims chargeable against the general fund. The correctness of such list is not denied. It appears therefrom that there are outstanding unpaid claims chargeable against the general fund, aggregating $7,624.31, which were presented for payment prior to, and duly allowed by the state auditing board on, August 5, 1919; that there are outstanding unpaid claims, chargeable against said general fund, aggregating $108,794.93, which were presented for payment prior to, and allowed by the state auditing *298board on, Angnst 28, 1919; that there are claims for salaries of state officers and employees chargeable against the general fund aggregating $14,721.36, which were presented for payment and allowed by the state auditing board on August 28, 1919, among which is the claim of the relator; that there are unpaid claims in favor of the different state institutions chargeable against the general fund, aggregating $17,940.-01, presented for payment and allowed by the state auditing board on August 28, 1919. These different claims amount in all to $172,875.64. It also appears that there are unpaid claims chargeable against the general fund aggregating $23,876.06, which were presented for payment prior to July 1, 1919, but are held in abeyance on account of inadequate subvouchers, mileage reports, etc. It further appears that claims aggregating $78,464.64, chargeable to the general fund, were presented for payment prior to September 5, 1919, but have not been acted upon by the state auditing board. From the defendant’s answer it appears that on September 5, 1919, there was a balance in the general fund of $22.61. If to this is added the $13,023.93, erroneously transferred to and remaining in the so-called Glanders and Dourine Horse Fund, there will be $13,046.54 in the general fund. And as already stated, it is undisputed that there are outstanding unpaid claims properly chargeable against the general fund, aggregating $172,875.67, which had been presented for payment and allowed on or prior to August 28, 1919. An examination of the list indicates that a great, if not the greater, portion of such claims are of equal rank with that of the relator. And the relator has neither made nor attempted to make any showing whatever that his claim is entitled to priority over any of the other claims. Under the circumstances I do not believe that the relator has shown that he is entitled to a writ of mandamus to compel the defendant to issue the warrant. The majority opinion is based upon the theory that this question is not presented. It is said: “The question whether the compulsory issuance of the salary warrant should be enforced as against outstanding prior claims, filed and unpaid by the state auditor, is not an issue before this court.” The state auditor, in his contentions before this court, has not refused to issue such salary warrant for such reason. I do not agree with this reasoning. The writ of mandamus may be issued by this court *299to compel the state auditor to issue a warrant only when the issuance thereof is “an act which the law especially enjoins as a duty” upon the state auditor. Comp. Laws 1913, § 8457. To entitle a relator to such writ he must show that he has a clear and complete legal right to have the particular act performed. Bailey v. Lawrence County, 2 S. D. 533-537, 51 N. W. 331; 26 Cyc. 151.
Robinson, J., concurs.