subject, but when the sovereign engages in business and the conduct of business enterprises, and contracts with individuals, although an action may not lie against the soyereign for a breach of the contract whenever the contract in any form comes before the courts, the rights and obligations of the contracting parties must be adjusted upon the same principles as if both contracting parties were private persons. Both stand upon equality before the law, and the sovereign is merged in the dealer, contractor and suitor." People v. Stephens, 71 N. Y. 549. Of course, like any other contract, the contract of the state may be impeached for fraud, but no such question is presented by the answer before us. True, the answer avers that the compensation agreed upon was unreasonable and excessive, but, in the absence of fraud, the railroad commission is the sole judge of that question. So long as the Legislature keeps within the Constitution, and the officers charged with the administration of the law keep within the statute, the State Auditor and the courts have no concern with the policy of the law or the methods employed in its administration.

The petitioner contends that the State Auditor acted in a purely ministerial capacity in drawing his warrant on the State Treasurer upon the presentation of his claim, whereas the respondent contends that he exercised judgment and discretion in its adjustment and settlement. Subdivision 1 of section 134. Ballinger's Ann. Codes & St. provides that it shall be the duty of the State Auditor; "to audit, adjust, and settle all claims against the state, payable out of the treasury, except only such claims as may be expressly required by law to be audited and settled by other officers or persons." Section 147 provides that "the auditor, whenever he may think it necessary in the settlement of any account or the drawing of any warrant, may examine the party, witnesses, and others on oath or affirmation touching any matter material to be known in the settlement of the account or the drawing of the warrant, and for that purpose he may issue summons and compel witnesses to attend before him and give testimony in the same manner and by the same means allowed in courts of record, and he shall reduce such evidence to writing, and file the same in his office." Under these provisions, where the amount of a claim is fixed by law, or where the claim is audited and settled by some other officer or person by express authority of law, the Auditor acts in a purely ministerial capacity in drawing his warrant on the Treasurer: but in all other cases he exercises judgment and discretion in the adjustment and settlement of the claims presented to him. In this connection the respondent contends that the railroad commission had no authority to audit or adjust the claim. in suit and this is, perhaps, true.

The commission seems to have no express authority to audit and adjust claims, except the traveling expenses of the commissioners, their secretary and clerks, under section 2, and the fees of witnesses under section 14. It is proper that all vouchers for debts incurred by the commission should be approved by the commission for the guidance of the State Auditor, but whether such approval is anything more than advisory to that officer we need not now determine. Under the old practice in mandamus the question whether an auditing officer against whom a writ of mandamus was sought acted in a purely ministerial capacity, or whether he exercised judgment and discretion in the settlement and adjustment of claims presented to him, was one of controlling importance, as the writ would lie in the former case, but not in the latter. Under the practice in this state, however, the question whether the officer acts in a purely ministerial capacity, or whether he exercises judgment and discretion seems to be one of little moment, except in so far as it may serve as a guide for the officer himself in the discharge of his official duties.

This court has repeatedly held that a mandamus proceeding under our statute possesses all of the elements of a civil action, and that it is no defense to the writ to show that the officer to whom the writ is directed exercised judgment and discretion, and acted in good faith in the disallowance of the claim upon which the application for the writ is based. If any part of the relief to which the petitioner is entitled is by writ of mandamus the court will try out all incidental questions in the mandamus proceeding. Thus in State

Brown v. McQuade, 36 Wash. 579, 79 Pac. 207, after reviewing our previous decisions the court said: "In our practice, mandamus is nothing more than one of the forms of procedure provided for the enforcement of rights and the redress of wrongs. The procedure has in it all the elements of a civil action. The facts stated in the affidavit for the writ may be controverted by a return, raising both questions of law and fact. The return likewise may be controverted, and a trial had on the issues of fact thus raised, either before the court, a jury, or a referee, as the court may order. Judgment can be entered on the verdict or findings not only directing the issuance of a peremptory mandate, but for damages and costs on which execution may issue. The statute has been so framed as to afford complete relief in all cases falling within its scope and purport, whether these be cases of willful violation of recognized rights or denials, made in good faith, that the rights contended for exist. In other words, the right to sue out the writ is not made to depend on the character of the dispute, but on what answer is given to the question, can the ordinary course of law afford a plain, speedy, and adequate remedy? If the ordi

nary course of law will furnish such a remedy, the writ will not issue; otherwise, it will. It was to avoid circuity of action, thus doing away with the necessity of resorting to more than one proceeding for the enforcement of a right, that the law was framed." See, also, Bacon v. Tacoma, 19 Wash. 674, 54 Pac. 609; State ex rel. Dudley v. Daggett, 28 Wash. 1, 68 Pac. 340, and the numerous cases cited in State ex rel. Brown v. McQuade, supra. Perhaps the same liberal practice would permit the State Auditor to interpose any defense that would be available to the state if sued directly, at least, we concede that auch in favor of the respondent for the purposes of this case.

For the foregoing reasons we are of opinion that the claim in suit is a valid charge against the state, and the writ will issue as prayed.

MOUNT, C. J., and CROW, ROOT, DUNBAR, and HADLEY, JJ., concur.

FULLERTON, J., (dissenting). The majority hold, as I understand the foregoing opinion, that the railroad commission, since they are empowered to employ an expert and fix his compensation, may lawfully contract to pay him any sum they please as long as they are not guilty of fraud in making the contract. I am unable to concur in this holding. It seems to me that it not only puts a too narrow construction upon the statute, but one harmful to the interests of the state as well.

The statute defining the powers and duties of the Auditor is cited in the majority opinion. Briefly, it grants to the State Auditor power, and makes it his duty, "to audit, adjust and settle all claims against the state, payable out of the treasury, except only such claims as may be expressly required by law to be audited and settled by other officers or persons." There is in this, it will be observed, no limitation to the effect that the duty and power to audit, adjust, and settle, can only be exercised by the Auditor where the contract giving rise to the claim has been fraudulently entered into. On the contrary, the only limitation is in the case where the duty has been delegated to some other person. All claims are to be audited. but certain claims may be audited by persons or officers other than the State Auditor. As no exception is made in favor of claims incurred by the railroad commission, it must follow that claims against the state created by that body are subject to audit by the State Auditor, unless some other person or officer is empowered to audit it. The only other person or body in whom this power could possibly rest, under the existing statutes, is the railroad commission itself, but it is expressly conceded by the majority that they have no such power. I can see no escape therefore from the conclusion that the statute vests this power in the State Auditor.

As power to "audit, adjust, and settle a claim," is power to hear and examine it, and after such hearing and examination to allow it or reject it as a whole, or to allow it in part and reject it in part, I think that when the Auditor rejected this claim he acted within the powers conferred upon him by the statute, and if the claim is to be paid out of the treasury at all it must be established as a lawful claim by an action against the state, or by some form of legislative relief.

But the majority say that "it is scarcely to be supposed that one whose compensation is measured by no fixed rules would voluntarily enter the employ of the state, and leave the question of his compensation to the discretion of the State Auditor or to the uncertainty of litigation after his contract of service was completed, and we do not think the Legislature so intended. On the other hand, it would seem to be in the interest of the state and in consonance with sound business principles to know the extent of the state's liability before the indebtedness against it becomes an established fact." It seems to me that this reasoning is inconclusive. If the statute is free from ambiguity, a proposition the majority seem to concede, then effect should be given it according to its terms, regardless of any question of inconvenience or difficulty that may arise in procuring some one to perform services for the state on the terms it imposes. Defects in the law under such circumstances must be laid to the fault of the law. A fault it is the prov ince of the Legislature, not that of the court, to correct. The claim that it is to the interest of the state that the commission should have the right to fix the amount of the compensation in advance of incurring the liability, is refuted by the facts of the very case at bar. Here, according to the State Auditor, the railroad commission have agreed to pay an expert out of the state treasury unreasonable and excessive fees, yet the state under the rule laid down by the majority cannot protect itself against the unlawful payment without alleging and proving that the commission have been guilty of fraud in contracting to pay the fees. Surely, if the Auditor be correct in his contention, it would be to the best interest of the state to allow it to test the reasonableness of that contract. But admitting that the statute is ambiguous, and in need of construction, I think the majority wrong in holding that the auditing power of the state cannot be permitted to inquire into the reasonableness of a contract made by the railroad commission without first alleging and proving that the commission was guilty of fraud in making the contract. It must be remembered that it is the money of the state that is being expended, and that the financial result to the state arising from the payment of unreasonable and excessive compensation is the same regardless of the intent with which the contract to pay is entered into. Where, therefore,

there is room for two constructions one of which will protect the state against extravagant claims, while the other will not, I cannot think there ought to be any hesitancy in deciding which one to adopt.

In my opinion the relator should be compelled to take issue upon the allegations made by the State Auditor, and submit the issue to some tribunal competent to determine questions of fact.

(14 Wash. 416)

LOSNES v. LEROY et al.

(Supreme Court of Washington. Nov. 14, 1906.) MASTER AND SERVANT-INJURIES TO SERVANT -EVIDENCE-SUFFICIENCY.

In an action for injuries to a car repairer owing to cars having been moved by a locomotive while he was between them. evidence considered, and held to show him guilty of contributory negligence, in that he failed to set out a signal showing that he was between the cars, as required by a rule of the company, though he knew that such signal was the only method of protecting himself.

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Action by Christ Losnes against J. LeRoy and another. From a judgment in favor of plaintiff, defendants appeal. Reversed.

L. C. Gilman and B. O. Graham, for appellants. John E. Humphries, Geo. B. Cole, and John C. Murphy, for respondent.

DUNBAR, J. This is an action for damages for personal injuries. Plaintiff was in the employ of the defendant company as a car repairer, and was informed by the foreinan that a casting would arrive during the day from Interbay, which should be placed upon the end of a car standing upon track No. 4, and was directed by the foreman to secure said casting upon its arrival, and bolt it in place upon said car. Upon the arrival of the casting, the plaintiff, who had been engaged in making some repairs upon a car standing on track No. 3, a parallel track and near to track No. 4, left the place where he had been making such repairs, and placed himself between a baggage car and a mail car which were coupled together on track No. 4. One of the switch engines operating in the yard passed on to track No. 4 and backed down against one of the cars under which plaintiff was working, thereby squeezing plaintiff's head between the buffer irons on said car, and causing the injury complained of. The cause was tried to a jury, and a verdict was rendered in favor of plaintiff for $15,000. Upon motion for a new trial, the court indicated that he would grant the motion unless the plaintiff would remit the sum of $7,000. This modification was accepted by the plaintiff, and judgment was entered for $8,000. From this judgment this appeal is taken.

Numerous errors are assigned by the appellants, which we have not found it necessary

Other

to pass upon in view of the fact that it appears conclusively from the record that there was no proof that the appellants were guilty of negligence, and it does appear as conclusively that the respondent was guilty of contributory negligence which was the proximate cause of the injury. The following rule was introduced in evidence: "A blue flag by day and a blue light by night, displayed at one or both ends of an engine, car or train, indicates that workmen are under or about it. When thus protected it must not be coupled to or moved. Workmen will display the blue signals and the same workmen are alone authorized to remove them. cars must not be placed on the same track so as to intercept the view of the blue signals without first notifying the workmen." The undisputed testimony in this case is to the effect that this rule was in effect at the time, and had been for a long time prior to the time when the respondent was injured, and while the respondent testified that this rule had never been read to him or made known to him, his testimony as a whole conclusively shows that he was familiar with the rule, and that he governed his actions while repairing cars in accordance with the terms of the rule. He had been working as a car repairer for 24 years, and for the appellant company for several months. He testified that the engine came in 15 minutes earlier than it was expected that day, and that he thought he was going to get through before the engine came in, which was evidently the reason that he did not take the flag from track No. 3 where he was repairing, and place it on track No. 4 where he was at work when he was injured. It is true that he testified that he had no notice while he was working there that the engine was going to be backed in against the car, and that it was the usual custom when he was at work there for the brakeman to notify him when the train was coming in. His testimony on direct examination in this regard was as follows: "Q. What was the usual custom when you were at work there of notifying you when the train was coming in? A. Yes, the brakeman come and tell me all the time when they were going to take the cars out all the time. Q. Did he come this time and tell you? A. No." But his subsequent examination shows that he understood that the brakeman would come and tell him when the brakeman was notified that there was a repairer at work by seeing the blue flag upon the train if in the daytime, or the blue light at night, as shown by the following excerpt from the testimony: "Q. When the brakeman would come down with the switch engine for some cars, if he found your blue flag out on the end of some cars, then he would come around and tell you that he was going to couple up? A. Yes, and one fellow named Brown tell me he come out and took the flag off. I ask him what he was going to take the flag off for. He had no right.