The opinion
Burr, J.
(concurring specially). I agree with the principles of law laid down in this opinion, except as to the right of the plaintiff to maintain the action, and that there is a real controversy.
I doubt whether the statute gives the board this' authority to maintain the action. A board has no more power than the statute gives it and it is not entitled to extend that power simply because it may deem it advisable. It may be the legislature should have authorized the board to compel departments to report to the state auditor; but it saw fit to limit the work of the budget board to .a consideration of the requests filed with the auditor, presumably on the theory that a department did not need an appropriation when no request was made for one. The legislature has the cure of this situation in its own hand. The auditor did not see fit to mandamus these departments and these requests are not filed with the auditor as secretary of the board. But the majority of the court has seen fit to consider that at least by implication the power to maintain the action is given to the budget board.
Then, again, this proceeding is an attempt to obtain an advisory opinion, which cannot be given. This is the real purpose — we may say the avowed purpose. However, the court deciding otherwise, then my opinion in the decision is correct.