State ex rel. Mitchell v. Hodges ( 1913 )

McCulloch, C. J.

The relator, W. S. Mitchell, was appointed notary public by J. M. Futrell, as Acting Governor, but appellee, as Secretary of State, refused to attest the commission with the great seal of the State, acting, as he asserts, upon the advice of the Attorney General, that Mr. Futrell is not entitled to exercise the powers of Governor, but that the same devolve upon W. K. Oldham. This action was instituted in the circuit court of Pulaski County against appellee to compel him, by mandamus, to issue and attest with the great seal of the State the commission as notary public according to the appointment of Mr. Futrell.

The conclusion' reached in the case of Futrell v. Oldham, 107 Ark 386, this day announced, is decisive of the present case, Mr. Futrell being, according to the aliegat,ions of the complaint, entitled de jure to discharge the duties of the office of Governor, his acts as such must be respected. State ex rel. v. Heller, 63 N. J. L. 105, 57 L. R. A. 312, 42 Atl. 155.

The remedy by mandamus is appropriate according to the decision of this court in the recent case of State ex rel. Gray v. Hodges, 107 Ark. 272. The judgment of the circuit court is reversed and the cause is remanded with directions to sustain, the demurrer to the answer.