The opinion
OH EETITIOH NOR REHEARING.
Hoyt, J.
— In the petition for a rehearing in this cause it is strongly insisted that the court should have granted the alternative writ, even although it was of the opinion. *498 that the peremptory writ would be denied on final hearing. In the opinion rendered we attempted to show that to do this was not according to the practice of the courts, and that in this court, at least, such had never been the course adopted. We only desire to say a word in addition to what was then said. The respondent in such a proceeding is not necessarily called upon to answer such alternative writ by showing cause why the peremptory writ should not issue, instead thereof he may return that he has done the act which it is sought to compel. If he should take this course the alternative order of this court would probably be a complete justification for the act, however illegal. In the case at bar, if the court had granted the alternative writ, the auditor might have issued the warrant in question and returned his action in so doing as a complete answer to said writ. And it would have followed that the order of' this court would be pleaded as justification for an act which was in its opinion, clearly illegal. The above statement clearly shows that the course contended for by the petitioner would be an improper and dangerous one.
A further contention is, that the petition on its face prima faoie established the right to the relief prayed for. This is probably true if we were bound by the conclusions of law therein pleaded. If this court was bound to accept as true the twelfth paragraph of the petition, there would be little left to be decided. Said paragraph is as follows:
“ Twelfth. That the said Thomas M. Reed was at all times mentioned herein and now is the duly elected and qualified auditor of the State of Washington; and that it was then and now is, his duty enjoined by law to draw his warrant upon the state treasurer for the payment of said voucher, bill and claims; but he unlawfully refused and still refuses so to do.”
What is herein alleged as a fad is the very question of law that the court was expected to decide. It needs no argument to prove that this and other conclusions of law *499 could not be taken as true simply because alleged in the petition. The court was bound by the allegations of fact in the petition, and if, assuming them to be as stated, it was of the prima fade opinion that the peremptory writ should issue, then the alternative writ should have been granted; but if from such facts the court was of the opinion that the peremptory writ would be denied, then the alternative one was properly denied. In other words, it would have been idle to call upon the respondent to answer a petition which did not, in the opinion of the court, even prima fade state a cause of action. Besides, in this case it appears from the petition that the auditor had substantially admitted the main facts pleaded therein, and had stated his view of the law to be directly contrary to the theory of the petitioner. It would have followed that, if the alternative writ had issued, he might well have thought that the court must be of the same opinion as the petitioner, as to the law applicable to the facts, and, as he could not deny the facts, that he ought to accept the view of the court as to the law, and, as directed, issue the warrant at once, and stop further contention.
This was a cause of importance to the public, and the court for that reason heard the petitioner much more fully than usual. When the petition was presented full argument was allowed, and the matter taken under advisement, and upon a conclusion being reached that there was no merit in the petition, instead of at once entering an order of dismissal, the counsel for petitioner were called and an intimation as to the situation given, and further argument allowed. We have carefully examined the able argument on the merits contained in the petition for rehearing, but our opinion has not been changed thereby. For, while it is true that several ingenious theories have been presented upon which it could be held that the legislature might have intended to legislate as claimed, yet none of them satisfy *500 us that in fact such was the intention; and for this court to hold that money could properly be paid out of the funds of the state because the legislature might have so intended, or even because it did so properly intend, would establish a precedent that would threaten greater evils to the commonwealth than will the delay for a few months of the work of the mining bureau, however important it may be. It is the contemplation of our constitution that money should only be paid out of the treasury of the state under and by virtue of some positive provision of law, and before this court will coerce the administrative officers into making such payments, the authority for so doing must appear with reasonable certainty.
The petition is denied.
Anders, C. J., and Dunbar and Scott, JJ., concur.