The opinion of the court was delivered by
Gordon, J.
This is an application for a writ of mandate to compel the respondent, as state treasurer, to make the statutory indorsement of “ Not paid for want of funds ” upon a warrant drawn upon the general fund. The petition upon which the application for the writ is based recites that the relator is the owner and holder of the warrant; that on the 13th of September it was presented to the respondent and, “ there being no money in said general fund applicable to the payment thereof, relator demanded that said warrant be indorsed” that it was not paid for want of funds, “ that respondent refused to make said indorsement, claiming the right to invest in said warrant at par money in the special tide land fund of the scate of "Washington, set apart pursuant to chapter 159 of the Session Laws of 1891, for the construction and maintenance of a system of permanent and substantial improvements in aid of commerce and navigation in and for the harbors of the cities and towns of said state wherein tide lands have been sold, and said treasurer accordingly tendered to the relator $125 of said moneys for said warrant,-which relator refused to [23]*23accept.” The petition further shows that at the date of such presentation there was money in the special tide land fund; that the amount of warrants upon the general fund of the state outstanding largely exceeded the cash in said fund or in any fund applicable to the payment of relator’s warrant.
The cause was submitted upon' a motion to strike -certain portions of the petition, and a general demurrer. We think the motion and demurrer present a single question and do not require separate consideration. The act of January 22, 1897 (Laws 1897, p. 3, Bal. Code, §2202), entitled: “An act directing the state treasurer to invest certain moneys in the tide land fund in general warrants and declaring an emergency,” is as follows:
“ Section 1. That the state treasurer be and he is hereby directed to invest all moneys now in his hands, or which shall come into his hands prior to the first day of January, 1899, belonging to the tide land fund, in the general fund warrants of the state to be issued hereafter, at the face or par value thereof, without regard to interest due thereon.-
Sec. 2. Whereas, at present there is a large amount of money in the tide land fund for which there is no other immediate demand; and whereas, the investment of such money, as directed in section 1 of this act, will result in profit to the state, an emergency exists for the immediate taking effect of this act, and the same shall be in force immediately upon its passage and approval by the governor.”
It is a matter of common knowledge that, at the time of the passage of this act, warrants upon the general fund of the state were being sold and discounted for less than their face value, and in determining the purpose and effect of the act that fact may properly be considered. A disposition of this case will be made upon the assumption that it is entirely competent for the legislature to make such adjustment or disposal of the moneys in the tide land fund as may be [24]*24considered desirable. Assuming, therefore, without deciding, that such is the character of the moneys in that fund, it becomes important to determine what duty the act of January 22d imposes upon the respondent. Is it to pay warrants drawn upon the general fund with moneys from the tide land fund in the same manner and to the same purpose as if they were drawn upon the latter fund? In other words, are such warrants to be paid and canceled upon presentation, or does the act contemplate the purchase by the state treasurer of such warrants drawn upon the general fund as he may be able to obtain from legal holders “ at the face or par value thereof, without regard to interest due thereon? ”
There is a manifest difference between a purchase and a payment, and, while the state may rightfully pay its warrants with funds lawfully available for that purpose, it has not the power to compel a lawful holder of a warrant to sell the same to the state or to any other would-be purchaser. If the act contemplates the payment and extinguishment of the warrants, the assumption upon which we are proceeding, viz.: that the legislature may devote moneys in the tide land fund to the payment of general fund warrants, would lead us to conclude that the writ should be denied. Subd. 10, §105, Gen. Stat. (Bal. Code, §155), relating to the duties of the state treasurer, provides:
“Upon payment of any warrant, he shall take upon the back thereof the signature of the person to whom it is paid, and return the same to the auditor with his quarterly statement.”
On the other hand, if the act contemplates and only authorizes the purchase for the benefit of the tide land fund of such warrants as the treasurer may be able to obtain from willing sellers, at a price not exceeding their “ par value [25]*25without regard to interest due thereon,” the writ must be granted.
The authority conferred by the act is, in our judgment, to purchase and not to pay, and we think the language of the act will reasonably admit of no other interpretation. It is stated in the title that the purpose of the act is to direct the state treasurer to “ invest certain moneys in the tide land fund in general warrants.” By section 1 of the act he is “ directed to invest.” Section 2 asserts that “ the investment of such money . . . will result in profit to the state.” The language used is singularly inapt if the leg-' islative intention was to confer authority to pay. The word “ invest,” as ordinarily used, has no such meaning. The definition of it given by Webster is: “To lay out (money or capital) in business with the view of obtaining an income or profit, as to invest money in bank stock.”
In State, ex rel. Stull, v. Bartley, 41 Neb. 277 (59 N. W. 907), the supreme court of Nebraska say:
“We are aware of no precise legal definition of the term ‘ investment ’ as applied to money. In common speech it means the loaning or putting out of money at interest, so as to produce an income. (People v. Utica Ins. Co., 15 Johns. 358; Scott v. Depeyster, 1 Edw. Ch. 513; Shoemaker v. Smith, 37 Ind. 122.) It implies the contractual relation of purchaser and seller or borrower and lender, and in that sense it is employed in the constitution.”
This view of the act in question is also strengthened by the language of section 1 of the act, which directs that the money should be invested “ in general fund warrants of the state to be issued hereafter, at the face or par value thereof without regard to interest due thereon.” The treasurer is permitted to invest only in warrants issued after the passage of the act. If it was the legislative design that the warrants should be paid by the treasurer and not purchased, [26]*26for the benefit of the tide land fund, why the- words “without regard to interest due thereon?” There could he no interest upon warrants drawn after the passage of the act until they were presented and indorsed; and if it is the duty of the respondent under the act to pay such warrants upon presentation, the words, “without regard to interest due thereon,” become absolutely useless and meaningless.
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The opinion of the court was delivered by
Gordon, J.
This is an application for a writ of mandate to compel the respondent, as state treasurer, to make the statutory indorsement of “ Not paid for want of funds ” upon a warrant drawn upon the general fund. The petition upon which the application for the writ is based recites that the relator is the owner and holder of the warrant; that on the 13th of September it was presented to the respondent and, “ there being no money in said general fund applicable to the payment thereof, relator demanded that said warrant be indorsed” that it was not paid for want of funds, “ that respondent refused to make said indorsement, claiming the right to invest in said warrant at par money in the special tide land fund of the scate of "Washington, set apart pursuant to chapter 159 of the Session Laws of 1891, for the construction and maintenance of a system of permanent and substantial improvements in aid of commerce and navigation in and for the harbors of the cities and towns of said state wherein tide lands have been sold, and said treasurer accordingly tendered to the relator $125 of said moneys for said warrant,-which relator refused to [23]*23accept.” The petition further shows that at the date of such presentation there was money in the special tide land fund; that the amount of warrants upon the general fund of the state outstanding largely exceeded the cash in said fund or in any fund applicable to the payment of relator’s warrant.
The cause was submitted upon' a motion to strike -certain portions of the petition, and a general demurrer. We think the motion and demurrer present a single question and do not require separate consideration. The act of January 22, 1897 (Laws 1897, p. 3, Bal. Code, §2202), entitled: “An act directing the state treasurer to invest certain moneys in the tide land fund in general warrants and declaring an emergency,” is as follows:
“ Section 1. That the state treasurer be and he is hereby directed to invest all moneys now in his hands, or which shall come into his hands prior to the first day of January, 1899, belonging to the tide land fund, in the general fund warrants of the state to be issued hereafter, at the face or par value thereof, without regard to interest due thereon.-
Sec. 2. Whereas, at present there is a large amount of money in the tide land fund for which there is no other immediate demand; and whereas, the investment of such money, as directed in section 1 of this act, will result in profit to the state, an emergency exists for the immediate taking effect of this act, and the same shall be in force immediately upon its passage and approval by the governor.”
It is a matter of common knowledge that, at the time of the passage of this act, warrants upon the general fund of the state were being sold and discounted for less than their face value, and in determining the purpose and effect of the act that fact may properly be considered. A disposition of this case will be made upon the assumption that it is entirely competent for the legislature to make such adjustment or disposal of the moneys in the tide land fund as may be [24]*24considered desirable. Assuming, therefore, without deciding, that such is the character of the moneys in that fund, it becomes important to determine what duty the act of January 22d imposes upon the respondent. Is it to pay warrants drawn upon the general fund with moneys from the tide land fund in the same manner and to the same purpose as if they were drawn upon the latter fund? In other words, are such warrants to be paid and canceled upon presentation, or does the act contemplate the purchase by the state treasurer of such warrants drawn upon the general fund as he may be able to obtain from legal holders “ at the face or par value thereof, without regard to interest due thereon? ”
There is a manifest difference between a purchase and a payment, and, while the state may rightfully pay its warrants with funds lawfully available for that purpose, it has not the power to compel a lawful holder of a warrant to sell the same to the state or to any other would-be purchaser. If the act contemplates the payment and extinguishment of the warrants, the assumption upon which we are proceeding, viz.: that the legislature may devote moneys in the tide land fund to the payment of general fund warrants, would lead us to conclude that the writ should be denied. Subd. 10, §105, Gen. Stat. (Bal. Code, §155), relating to the duties of the state treasurer, provides:
“Upon payment of any warrant, he shall take upon the back thereof the signature of the person to whom it is paid, and return the same to the auditor with his quarterly statement.”
On the other hand, if the act contemplates and only authorizes the purchase for the benefit of the tide land fund of such warrants as the treasurer may be able to obtain from willing sellers, at a price not exceeding their “ par value [25]*25without regard to interest due thereon,” the writ must be granted.
The authority conferred by the act is, in our judgment, to purchase and not to pay, and we think the language of the act will reasonably admit of no other interpretation. It is stated in the title that the purpose of the act is to direct the state treasurer to “ invest certain moneys in the tide land fund in general warrants.” By section 1 of the act he is “ directed to invest.” Section 2 asserts that “ the investment of such money . . . will result in profit to the state.” The language used is singularly inapt if the leg-' islative intention was to confer authority to pay. The word “ invest,” as ordinarily used, has no such meaning. The definition of it given by Webster is: “To lay out (money or capital) in business with the view of obtaining an income or profit, as to invest money in bank stock.”
In State, ex rel. Stull, v. Bartley, 41 Neb. 277 (59 N. W. 907), the supreme court of Nebraska say:
“We are aware of no precise legal definition of the term ‘ investment ’ as applied to money. In common speech it means the loaning or putting out of money at interest, so as to produce an income. (People v. Utica Ins. Co., 15 Johns. 358; Scott v. Depeyster, 1 Edw. Ch. 513; Shoemaker v. Smith, 37 Ind. 122.) It implies the contractual relation of purchaser and seller or borrower and lender, and in that sense it is employed in the constitution.”
This view of the act in question is also strengthened by the language of section 1 of the act, which directs that the money should be invested “ in general fund warrants of the state to be issued hereafter, at the face or par value thereof without regard to interest due thereon.” The treasurer is permitted to invest only in warrants issued after the passage of the act. If it was the legislative design that the warrants should be paid by the treasurer and not purchased, [26]*26for the benefit of the tide land fund, why the- words “without regard to interest due thereon?” There could he no interest upon warrants drawn after the passage of the act until they were presented and indorsed; and if it is the duty of the respondent under the act to pay such warrants upon presentation, the words, “without regard to interest due thereon,” become absolutely useless and meaningless.
Interpreting the act as we do, however, every word is given force and effect, and is accorded its accepted and ordinary meaning. Thus interpreted, it is beyond the power of the respondent to force the relator to sell his warrant in the manner proposed. In other words, it is the relator’s legal right to hold the obligation as an “investment” of his own until in due course there are available funds 'in the hands of the respondent wdth which to pay such obligation; and, until such time arrives, he cannot be compelled to relinquish that investment for the benefit of any other individual or of any fund under the control of the state.
The constitutional inhibition against interference with private property except for public purposes, where a necessity therefor exists, is as applicable to property of this species as to any other. If the state desires to “invest” for profit or otherwise any of the funds over which it has control, it may do so upon terms of equality only; but it cannot compel the individual to part with his property in order that it may be afforded a desirable or profitable investment.
The only case bearing upon this question to which we have been referred is that of State, ex rel. Stull v. Bartley, supra. The decision in that case did not, as we think, necessarily involve this question, but it was, nevertheless, considered, and the reasoning of the court is pertinent. In denying the right of the legislature to transfer the perma[27]*27nent school fund of that state, and incidentally determining the meaning of the act authorizing an “investment” of such fund, the court say:
“ . . . by no process of reasoning can it be proved that the character of the transaction is altered by calling it an ‘investment’ instead of ‘transfer.’ . . . But if the state, as trustee for said fund, desires to invest in that class of securities, it is required to do so on terms of equality with other investors. ... It follows that the state, in its relation as trustee, can no more require the holder of state warrants to part with them than it can enforce the sale by a citizen of any other species of property.”
It seems to us that it would be the establishment of a dangerous precedent to assert that the state might, except in the exercise of the right of eminent domain, forcibly compel a property holder to part with his property without his consent. Tinder constitutional government the tenure of property is more sacred.
But the respondent urges that, conceding that the act only authorizes the treasurer to invest the moneys in such warrants as holders may be willing to part with at par, the relator has no such interest in this controversy as will enable him to maintain the present action; that he holds at most merely an account or claim against the state for so much money, and cannot be permitted to question the right of the respondent to pay it in any funds which may be tendered him. But this contention, in our judgment, cannot be sustained. The law requires the treasurer, whenever a warrant is presented to him, to do one of two things, either fay it or indorse it as required by statute. If he is not in possession of any funds of the state legally available for the purpose of paying it, his plain duty under the statute is to indorse it. To deny the right of the holder of such warrant to enforce compliance with this duty would be to [28]*28permit the treasurer to juggle with and evade a duty specially enjoined by law. The right to have such indorsement made is a right conferred by law. The office of the writ of mandate is “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.” 2 Hill’s Gode, §736. And while the writ will not issue at the instance of a mere private person who has no more interest in the performance of an act than that shared in common with all other citizens, it is apparent that the interest which the relator has in having the respondent perform the duty of indorsing his warrant is not an interest which is shared by others, and he may invoke the remedy. It is enough that the law requires the treasurer to perform the act, and that the relator is interested in having it performed. Of course the right to compel such performance would not exist in a stranger to the warrant, or in any one excepting the lawful holder of it. But it does not lie in the mouth of the officer whose duty is to indorse it to say to the relator, “You have no ■interest in the question of whether I discharge my duty or not.”
Belator advances another reason why he should be interested in having the warrant paid only with funds legally available for that purpose. He urges that if the treasurer paid the same with funds not lawfully applicable therefor, the act would not be binding upon the state and that the state could recover the money so unlawfully paid. "We think there is much force in the suggestion, but the importance of the question forbids that we should determine it in a case in which its determination is not necessarily involved.
Our conclusion is that the act of January 22, 1897, does not authorize the state treasurer to pay and cancel general fund warrants with moneys in the tide land fund, [29]*29but authorizes and permits merely the purchase of such warrants at their par value without regard to interest, from such parties as may be willing to part therewith; that the effect of the act was not to transfer the tide land fund to the general fund so as to make the same available for the payment of warrants drawn upon the general fund, and that in the present case it is the duty of the respondent to make the indorsement.
The peremptory writ must be granted.
Aitoees, J., concurs.