(dissenting)—I am unable to concur in the conclusions reached by the majority opinion. The fundamental error voiced by the opinion, as I view it, is in attempting to draw an analogy between the statutes relating to the sale arid leasing of school lands and those relating to tidelands- upon which there are not natural beds of oysters, but upon which oysters can be propagated if planted. I think a portrayal of the history of the two subjects and a consideration of the different public policies involved, will so demonstrate. In my discussion, I shall refer to this special type of public lands as “oyster lands.”
The public policy relating to oyster lands was adopted by the territorial legislature in 1873, while that relating to school lands was adopted after statehood. The basis of the former was the encouragement of oyster propagation on those tidelands where oysters had to be artificially planted, thereby putting the lands to beneficial use, furnishing a vocation for individuals and the creation of a food product, while that of the latter was to secure revenue when needed to support the common schools.
The act of 1873, entitled “An Act to Encourage the Cultivation of Oysters,” indicates that the territorial legislature • considered it good public policy to encourage the cultivation of oysters by the use of those tidelands upon which there were not natural beds of oysters, but upon which oysters could be propagated. In order to carry out such *919policy, the act provided that any citizen of the territory who had planted or might thereafter plant oysters in any bay or arm of the sea where there were no natural beds of oysters might acquire by conforming to the requirements of the act an exclusive right for such a purpose to that portion of such bay or arm of the sea as he should so occupy, not exceeding for any one person an area of ten acres. The person desiring the benefits of the act was required to locate the place or portion of tidelands he desired to claim by marking the area so far as practicable with stakes or other artificial marks; also to make an affidavit that he had taken the premises described for the purpose of planting oysters, that he had planted or was about to plant oysters thereon, that the premises were not upon and did not include any natural bed of oysters, and that they were unoccupied except by himself.
Section 3 of the act provided:
“The premises so taken shall, for the purposes aforesaid, belong to the person taking them, his heirs and assigns, so long as he or they shall so occupy them and no longer.”
Section 5 provided:
“Any person may transfer his right to any other person qualified to hold, by signing the transfer upon record in the presence of the auditor, or by a written transfer, witnessed and acknowledged in the same (way) as is or may be required for deeds.”
At this juncture, it is important to have in mind the right, title, or interest which a qualified person acquires when he complies with statutory requirements. Throughout all legislation on the subject, both territorial and state, a substantial property right has been acquired though the method has been changed with reference to what one must do in a procedural way to acquire such property right.
If some right, title, or interest is acquired by compliance with the statute so that a denial thereof by the land comm'ssioner causes the holder thereof to sustain some direct, special, and pecuniary injury to himself separate and distinct from that suffered by the general public, then he has *920the capacity to sue such public official to vindicate that right.
It seems clear to me that the lands selected under the act of 1873 became the property of the selector just the same as if he had received a deed therefor, subject to automatic defeasance if he ceased to occupy them. The fact that the lands descended to his heirs, and that he had the right to transfer them, must lead one to such a conclusion.
I think it is safe to say that if the auditor accepted and recorded the affidavit of some subsequent claimant, the one who had acquired the right to the land could maintain an action against the auditor and join the claimant therein to avoid the effect of the affidavit and cause it to be canceled of record, so that his affidavit might be legally filed, and that the doctrine later pronounced by Powers v. Webster, 47 Wash. 99, 91 Pac. 569, would not have been regarded as applicable.
The method of acquiring the right to plant and cultivate oysters, as provided by the act of 1873, continued in effect until the passage of chapter 255, Laws of 1927. The later act relates to the selection, control, management, sale, and disposition of lands belonging to or held in trust by the state, and legislates with reference to both school lands and oyster lands. Sections 142 to 149, inclusive, relate to the kind of oyster lands under consideration. Section 201 of the act contains a savings clause preserving the rights of existing holders of oyster lands. These sections of the act preserve and carry forward the same public policy voiced by the territorial legislature—encouraging the planting and cultivating of oysters upon those tidelands not covered by natural oyster beds.
It now remains to be seen whether a person who complies with statutory requirements, acquires such a right to a lease as will enable him to maintain an action against the commissioner of public lands and others to protect and enforce the same.
The principal change made in the former law was that, instead of transferring a conditional title to. the oyster lands, *921the state provided for the leasing of such lands. Under the act of 1927, one desiring to plant and cultivate oysters may file with the commissioner of public lands a written application accompanied by a map indicating the land desired to be leased and making and causing to be recorded an affidavit that he has taken the premises so described for the purpose of planting oysters. The director of fisheries is required to ascertain whether the land is a natural oyster bed, whether such land or any part thereof has been a natural oyster bed within ten years last past or may be reasonably expected to again become such within ten years in the future; also, whether it is necessary in order to secure adequate protection for any natural oyster bed to retain the lands described in the application for lease or any part thereof. If these factors do not exist, the statute enjoins upon the commissioner of public lands the mandatory duty to issue to the applicant a lease for such lands for a term not exceeding twenty years and at such annual rental as may be fixed and determined by the commissioner.
It seems to me that, when a qualified person files his application and map with the commissioner, and the lands covered are in fact leasable, he then becomes possessed of the right to be given a lease which he may protect by an appeal to the courts if such right is denied or invaded, even though it be by the land commissioner and those conspiring with him.
Upon the expiration of a lease, the lessee has the right to renew the same. When he seeks such renewal, the commissioner must inspect the lands to determine if they are still artificial oyster lands.
At this point in the statute, language is used which the majority opinion construes to mean that a renewal of a lease is wholly discretionary with the commissioner. The commissioner is required upon the application for a renewal to “cause the lands to be inspected.” It further provides that when the application for renewal is made, “it shall not be necessary for the lands to be inspected and reported upon by the director of fisheries”; also that
*922“. . . if he deem it for the best interests of the state to re-lease said lands, he shall issue to the applicant a renewal lease for such further period not exceeding twenty years and under such terms and conditions as may be determined by the commsisioner.”
When we consider the policy of the law from its territorial inception, we find that it has been regarded “for the best interests of the state” that the continued planting and cultivating of oysters be encouraged, provided such activity does not interfere with the rights of others specially protected by statute; that such activity be conducted by only those having the qualifications prescribed by statute and in amounts and area of lands limited by statute; and that the lands are not, nor may be reasonably expected to again become natural oyster beds within ten years in the future. These are the enumerated matters and things in which the state is interested so far as the rights of parties are concerned, and when it is found that none of them is inconsistent with the planting and cultivating of artificial oyster beds, it must follow that the best interests of the state will be served by renewing leases because of the declared public policy to encourage oyster planting. The commissioner has more to do than merely exercise a discretion, as that term is popularly understood—a duty is cast upon him which he must perform.
In the case of selling and leasing school lands, we have an entirely different situation. The school lands were granted to the state by the Federal government in order that the state might obtain revenue to support its common schools by selling and leasing such lands. An applicant to purchase or lease such lands is not given by statute any right or interest therein by indicating his desire to purchase or lease and taking possession thereof, or by filing application therefor, as in the case of oyster lands. All he does by making application to purchase or lease is to start administrative machinery in motion which may result, but not necessarily, in a sale at public auction or the execution of a lease. Inasmuch as the commissioner of public lands has discretion whether he will sell or lease any particular land at any *923particular time, it necessarily follows that no justiciable rights are acquired by an applicant prior to his becoming a grantee or lessee; and this is why we decided in State ex rel. Pelton v. Ross, 39 Wash. 399, 81 Pac. 865, and Powers v. Webster, 47 Wash. 99, 91 Pac. 569 (which furnish the basis for the decision by the majority on the question of capacity to sue), that an applicant to purchase state lands or to lease the same has no interest other than that of the general public, and therefore cannot maintain an action against the commissioner of public lands. The rule is a very salutary one and seems to protect public officials against harassment and annoyance by litigation instituted by busybodies who have no other purpose to serve.
It is my view that the cases just cited were correctly decided. I do not think they apply to the situation now before us. My opinion is that appellants acquired such an interest in the subject matter of this action as to give them capacity to sue the land commissioner to cancel leasés or renewals of leases which collectively placed a party in possession or control over a greater area of oyster lands than he was lawfully entitled to possess or control, and thereby, in effect, prevent a qualified person from initiating and acquiring a right to a lease to some of them.
The allegations of the complaint, which we must accept as true upon demurrer, show that the commissioner of public lands (not the present commissioner) violated his statutory duty when he enabled a party by means of leases and renewals to and through “dummies” to acquire a greater area of oyster lands than the statute permits and sought thereby to deprive appellants of the rights they had acquired by compliance with the statutes to obtain leases to some of such lands.
I am of the opinion that appellants have the capacity to maintain this action, and that their complaint states a cause of action. I would reverse the judgment and remand the case for further proceedings.