(dissenting) — I dissent, for I believe the majority's opinion does little more than pay quaint homage to the rules which govern our review of a motion to dismiss for failure to state a claim.
I
The rules are quite simple. A complaint can be dismissed under CR 12(b)(6) only if it is clear beyond a doubt that the plaintiff can prove no set of facts which would entitle him to relief. For the purposes of testing the sufficiency of the complaint, the factual allegations contained in the complaint must be accepted as true. Barnum v. State, 72 Wn.2d 928, 435 P.2d 678 (1967); Higgins v. State, 70 Wn.2d 323, 422 P.2d 836 (1967); Sherwood v. Moxee School Dist. 90, 58 Wn.2d 351, 363 P.2d 138 (1961). The majority goes beyond accepting the factual contentions of the complaint as true and proceeds to make its own findings in contradiction to the rule above stated. This establishes a precedent with which I cannot agree.
It must be emphasized that the only pleadings before us consist of the complaint and the motion to dismiss. The following allegations are contained in appellants' complaint:
The defendant Gorton has long sided with private school forces in efforts to obtain for them public funds notwithstanding clear constitutional prohibitions.
In 1971, with encouragement of defendant Gorton, the legislature enacted Chapter 56, Laws of 1971, First Extraordinary Session, to provide tuition grants to students of private colleges and universities in the state of Washington. ... In 1972, private taxpayers asked defendant Gorton as attorney general to challenge the constitutionality of the program. He refused, saying "We not only will not file an action challenging the same but will vigorously defend it constitutionality."...
. . . [H]is refusal to [recover for the state the funds illegally disbursed] constitutes acquiescence in an illegal gift of public funds which serves the private interests or personal political ambitions of the defendant Gorton to *769the loss and detriment of the interests of the state of Washington.
(Italics mine.)
The majority admits that public officers may be personally liable for errors or mistakes in exercising a discretionary function when those errors or mistakes are the product of corrupt or malicious motives. It is hard for me to conceive of stronger allegations of questionable motives than those found in the appellants' complaint. It has been quite clear in this state for many years that legislation which financially benefits any sectarian school, whether directly or indirectly, and no matter how minimal, is unconstitutional under Const, art. 9, § 4. See Weiss v. Bruno, 82 Wn.2d 199, 509 P.2d 973 (1973); Visser v. Nooksack Valley School Dist. 506, 33 Wn.2d 699, 207 P.2d 198 (1949); Mitchell v. Consolidated School Dist. 201, 17 Wn.2d 61, 135 P.2d 79, 146 A.L.R. 612 (1943); State ex rel. Dearle v. Frazier, 102 Wash. 369, 173 P. 35 (1918); Attorney General Opinion, September 19, 1891. Appellants have alleged that the respondent actively sought passage of a patently unconstitutional measure and then arbitrarily refused to collect the funds disbursed under this measure.4 To my way of thinking, these allegations state a claim for individual liability of a public officer. See Whatcom County v. Langlie, 40 Wn.2d 855, 859, 246 P.2d 836 (1952).
The majority dismisses this claim by saying that "[t]here is no allegation that such a suit would have been successful *770as a matter of law, or had even a likelihood of success,..." Never before has this court required litigants to allege that their suit will be successful. To make such a requirement is tantamount to forcing a plaintiff to predict the outcome of his lawsuit in order to avoid a motion to dismiss.
What the majority is actually saying is that it does not believe appellants will be able to successfully prove the allegations in their complaint. The majority has already tested the truthfulness of these allegations and found them wanting, without the benefit of a fact-finding proceeding. This is not our function. See Barnum v. State, supra. Our function is to review the complaint and determine if it states a claim for which relief could be granted. It goes without saying that in order for us to determine if it states such a claim, we must accept the allegations in the complaint as being true. Parties should be allowed to have the truthfulness of their allegations tested by a trial court in a fact-finding proceeding. The majority has cut off appellants' right to employ all of the discovery devices allowed under our rules and to present their evidence to the trial court. The majority thus forces the appellants to try their case on the complaint standing alone. I cannot agree with this treatment of the case and the precedent it creates for future cases.
II
The majority, in essence, rests its result upon the assertion that the commencement of a suit to collect unconstitutionally disbursed funds is wholly discretionary with the Attorney General. If this be so, it appears to me that the allegations of the complaint are broad enough to sustain a finding of an abuse of discretion if those allegations should be established as true.
As we pointed out in Weiss v. Bruno, supra, Const, art. 9, § 4, is crystal clear. It provides:
All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence.
*771Not only does the constitutional provision speak for itself, but, as heretofore indicated, it has been consistently construed by this court in varying circumstances as prohibiting exactly what it and Const, art. 1, § 11,5 intend to prohibit. Visser v. Nooksack Valley School Dist. 506, supra; Mitchell v. Consolidated School Dist. 201, supra; State ex rel. Dearle v. Frazier, supra.
Against this background, it could well strain credulity that the Attorney General would not recognize that Laws of 1971, 1st Ex. Sess., ch. 56, appropriating the funds in question, was at the very minimum fraught with grave constitutional inhibitions. Appellants allege, however, that rather than institute a test case to ascertain the constitutionality of the legislative enactment, the Attorney General stood aloof and casually watched as the funds were unconstitutionally disbursed.
The Attorney General would, as I understand his contentions, seek to justify the alleged nonaction upon the ground that it is the Attorney General's duty to uphold legislation rather than question an enactment's constitutionality, regardless of the patency of the enactment's invalidity. Thus, where the legislation in question appropriated funds for unconstitutional purposes, a trial court could conclude that the Attorney General played the game alluded to in footnote 4. If this be so, I cannot believe that such is an appropriate function of the Attorney General in our scheme of government.
On the contrary, this court stated, albeit in a different context, in State ex rel. Dunbar v. State Bd. of Equalization, 140 Wash. 433, 440, 249 P. 996 (1926):
(e) Contention is made that the Attorney General is compelled, under the constitution and statutes, to represent state officers, and that therefore he can not begin an action wherein state officers are defendants. Attention is called to Rem. Comp. Stat., § 112, subd. 3, where it is *772made the duty of the Attorney General to defend all actions against any state officer. The legitimate conclusion of such an argument is that the Attorney General must, if such a situation arise, sit supinely by and allow state officers to violate their duties and be recreant to their trusts, and that instead of preventing such actions it is his duty to defend the delinquents. The law can not be given any such construction. His paramount duty is made the protection of the interest of the people of the state and, where he is cognizant of violations of the constitution or the statutes by a state officer, his duty is to obstruct and not to assist; ...
In my opinion, the Attorney General has an analogous role and duty with respect to patently unconstitutional appropriations.
If it be established at trial that ‘the Attorney General deliberately failed to pursue his obligations at the outset, it could well be concluded that the duty rested twofold upon the shoulders of the Attorney General to have subsequently undertaken recovery of the unconstitutionally disbursed funds. And, in this respect, it would appear to be a bright crimson herring to assert that to carry out that duty would require the pursuit of some 8,500 students for $100 apiece. As pointed out in Weiss v. Bruno, supra, the funds were disbursed to the colleges and universities involved, some 10 in number, and not to the students.
In conclusion, it is my view that if appellants' allegations, that the Attorney General deliberately, and without justification, refused to seek recovery of the unconstitutionally disbursed funds, be established, then a trial court could conclude that such refusal constituted such arbitrary and capricious action as would justify a recovery on appellants' claim.
Being of the view that appellants' allegations are sufficient to carry their claim for relief past a motion to dismiss,
*773I would accordingly reverse the dismissal.
Wright, C.J., and Rosellini, J., concur with Hamilton, J.One author has described the various ploys indulged in to obtain public funds for sectarian school purposes after the United States Supreme Court handed down its decision in Lemon v. Kurtzman, 403 U.S. 602, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971), as follows:
A game plan emerged. Pass a law providing.aid to parochial schools and start paying immediately or as quickly as possible. Continue paying until the Supreme Court finally declares the law unconstitutional. It may take a year or more before a suit is started to challenge the law, and perhaps another two years until the case gets to the Supreme Court. In the meantime, keep paying. When the law is finally struck down by the Supreme Court, rush some variation through the legislature and start over again. This pattern was followed in New York, Pennsylvania, Ohio, and Connecticut, among others.
L. Pfeifer, God, Caesar, and the Constitution 282 (1975).
Const. art. 1, § 11 provides, in pertinent part, that: "No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment: ..."