(concurring): In order that the true significance of the majority opinion may be set out clearly and plainly, I desire to add a few words of concurrence.
*440The action is one of mandamus to compel the state highway commission to go forward with construction of a highway which, with the approval of the commission, and at considerable expense to the county, has reached a certain stage of completion. The purpose of a writ of mandamus is to compel performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station. (R. S. 60-1701.) In the first volume of the reports of the decisions of this court appears the opinion of the court in a case decided in 1862, the syllabus of which reads:
“Mandamus will not lie to compel a public officer to do an official act, unless the act be ministerial, and not discretionary.” (The State, ex rel. Ross, v. Robinson and others, 1 Kan. 188, syl.)
This is still the law.
The facts which plaintiff believed created a duty on the part of the commission to build the highway were stated in an alternative writ of mandamus which commanded the commission to perform, or show cause why it had not done so. Defendants filed what is called a motion to quash the alternative writ, on the following ground:
“Come now the defendants above named and move this court to quash the alternative writ of mandamus heretofore in this cause issued, for the reason that said alternative writ and the petition for alternative writ of mandamus heretofore in this cause filed, do not contain sufficient facts to constitute a cause of action against these" defendants, and do not contain sufficient facts to warrant the relief prayed for.”
The filing of such a motion has been regarded as proper practice in mandamus cases ever since the decision in the case of The State, ex rel. Ayres, v. Stockwell, 7 Kan. 98. In that case an alternative writ was set aside, at cost of plaintiff, pursuant to a motion to quash. The syllabus reads:
“A motion to quash an alternative writ of mandamus on the ground that such writ does not state facts sufficient to entitle the relator to the relief sought, is equivalent to a demurrer to a petition in an ordinary action.” (Syl. § 1.)
The result of the Stockwell decision is that a defendant in a mandamus case may raise the question whether he ought to be required to answer (make formal return to the writ by showing cause), and unless the writ does state a cause of action for nonperformance of official duty the writ should be quashed. Applying the principle, unless on the face of the writ issued in this case the commission has been guilty of official misconduct, it ought not to be kept in court any longer and the court ought not to be bothered with the case any longer.
*441Whether the writ states a cause of action is a question of law pure and simple. The members of the commission are public officers acting under their oaths, and are responsible for their official conduct. This court’s function is performed when it decides the legal question presented.
The writ states facts which for convenience may be symbolized by the letters A, B and C, and the writ states that the commission, although requested to do so, has failed to authorize or permit completion of the improvement. These facts raise the legal question: Has the work progressed to a point where completion of the project is a mere ministerial duty? The answer to the question is that the subject of completing the work still lies within the field of the commission’s discretion.
Since completion of the work does still lie within the field of the commission’s discretion, the plaintiff is entitled to an honest exercise of that discretion. The law presumes integrity of official conduct, until a new fact, fact D— log-rolling, or other impropriety, appears. If shuffling, quibbling or evasion is to be charged, the facts must be set down in black and white. This is not a technicality, but a rule of sound public policy, followed not only in this state, but in all states. In this instance the only facts stated in the alternative writ are still just facts A, B and C showing lawful discretion and nothing more.
The brief for plaintiff speaks of changing route from time to time at the whim of individual members of the commission. If that were to be the burden of the complaint against the commission, the place to put the facts was in the alternative writ, and no such facts appear there.
The alternative writ does not pretend to say that the board of county commissioners, desiring to work in harmony with the state highway commission, sought information concerning exercise of the commission’s discretion, and were put off with specious or trivial reasons for not completing the work, or were told to mind their own business. So far as this writ discloses, the reasons for the commission’s conduct may be known to everybody interested in completion of the highway; and if this case involves blocking highway improvement for “any reason or no reason,” the facts were carefully excluded from the sworn petition on which the writ issued.
The motion to quash the writ was signed by the attorney-general and the assistant attorney-general of the state of Kansas. This fact is sufficient guaranty of the sincerity of the motion. The attorneys-*442general make no claim in the motion of sacrosanctity of the board. They simply say the alternative writ does not disclose any cause of action against the commission, and because no breach of official duty or .other kind of official misconduct is disclosed, the cause ought to be dismissed.
In my judgment it will not help to give the state an adequate system of highways for the court to hold that anybody qualified to sue may hale the highway commission into court on a • pleading which does not show it has done anything wrong, and the court will then turn confessor or inquisitor, and require the commission to tell how it conducts the public business falling within its jurisdiction.