Morris v. Peters , 203 Ga. 350 ( 1948 )

Peters instituted against Morris a quo warranto suit to recover the office of Chairman of the State Democratic Executive Committee of Georgia, alleging in effect that he is the lawful holder of such office, having been duly elected thereto in 1946 for a term of four years, or until the convening of the next regular convention of the party to be held in 1950, and that the respondent is claiming, and exercising the duties of, such office in virtue of a so-called convention held on April 30, 1947, which latter convention was called by persons who had no authority to do so under the rules of the party, and whose action in electing the respondent was void. The respondent's general demurrer was overruled, and he excepted. Held:

1. The office of Chairman of the State Democratic Executive Committee of Georgia is not a public office of the State within the ordinary acceptation of that term, but is merely an office of the political party.

2. Nevertheless, Georgia statutes have given to such office a status in law at least equivalent to that of an office in a corporation, so that it is subject to the writ of quo warranto to the same extent as an office of the latter class, and this is true although the political party itself is not a corporation.

3. In view of the legal status that has been attached to such office by statute in this State, the quo warranto proceeding in which the relator claims title to such office and seeks to recover it from a rival claimant is not subject to demurrer as asserting a purely political right.

4. Nor was the petition subject to demurrer upon the ground that it appeared from the allegations that the relator was in office and therefore could not maintain an action to recover it.

(a) The allegations contained in the quo warranto suit were sufficient to state a cause of action and the general demurrer thereto was properly overruled.

5. The allegations of the answer were insufficient to show that the convention of April 30, 1947, at which the respondent claims to have been elected, was called by any duly constituted authority of the party having the power to call the same; and accordingly it did not appear that the convention had any right or authority as such either to remove the relator from such office as Chairman of the State Democratic Executive Committee, or to elect the respondent to such office. It follows that the trial judge did not err in sustaining the general demurrer of the relator and in striking the answer of the respondent.

6. There was undisputed evidence supporting the allegations of the petition, and the judge did not err in entering a finding and judgment in favor of the relator.

No. 16111. FEBRUARY 23, 1948. James S. Peters, alleging himself to be a citizen, taxpayer, member of the Democratic Party, and Chairman of the State Democratic Executive Committee of Georgia, brought quo warranto proceedings in the Superior Court of Richmond County against William S. Morris. Briefly his petition alleged: A Democratic primary election was held in Georgia, July 17, 1946, for the nomination of a candidate for Governor and other State-house officers. On October 9, 1946, pursuant to the rules, regulations, and customs of the Democratic party, a regular State convention was held in the City of Macon, Georgia, at which he was duly elected Chairman of the State Democratic Executive Committee for a term to expire on the convening of the next regular State convention in 1950. He accepted the office to which he was elected, received from the retiring chairman certain funds belonging to the party, entered upon the discharge of his duties, and has since been acting as Chairman of the State Democratic Executive Committee, and is now such Chairman. The party, while in regular convention on October 9, 1946, called a State-wide primary election to be held under the State's primary-election law on the second Wednesday in August, 1948, for the nomination of its candidates.

The relator further alleged: There was held in the City of Macon, Georgia, on April 30, 1947, a so-called State Democratic Convention, which was not called pursuant to the rules adopted by the party, but contrary to the same; and those persons who called the convention were without any authority whatsoever to do so. As thus assembled, the convention selected a new State Democratic Executive Committee and elected the respondent, William S. Morris, as Chairman of the Committee, who is now performing duties appertaining to the office which he has no legal right to discharge, and preparing to hold a State Democratic-primary election in 1948 on a date other than that fixed by the party while in convention on October 9, 1946.

Besides for process and general relief, the petition prayed that the court inquire into the right of Morris to hold the office in controversy.

The petition was demurred to upon the grounds: (1) the application and information filed pursuant thereto set forth no cause of action; (2) the matters and things complained of relate solely to a political question which the courts are without power to adjudicate, but which can and should be submitted to the proper tribunals of the Democratic party for determination; (3) the question sought to be presented to the court is peculiarly of a political nature and is not justiciable; (4) the allegations of the application and information show that the court is without jurisdiction to adjudicate the question sought to be presented and to grant the relief prayed; and (5) the information shows affirmatively that the petitioner has not attempted to pursue the remedies available to him in the forums of the Democratic party, although the exhaustion of such remedies is prerequisite to a resort to the court for relief, even if relief by judicial process were otherwise available to him. The demurrer was overruled upon each and every ground thereof, and that judgment is excepted to.

The respondent admitted that the relator was duly elected Chairman of the State Democratic Executive Committee of Georgia at a regular convention of the party held October 9, 1946, in the City of Macon, but contends that for party disloyalty he was removed from his chairmanship by a State Democratic Convention lawfully assembled at Macon, Georgia on April 30, 1947.

In the response, it was alleged that an immediate necessity for calling a second convention existed because the regular convention held October 9, 1946, fixed a date for the 1948 primary election too late to file with the Secretary of State the notice required by law of the party nominees.

Further answering, the respondent alleged: After it became publicly known that the relator had bolted the Democratic party by refusing to support its nominees in the general election in 1946, and had thereby forfeited his right to membership in the party and the right to hold a party office, and was no longer discharging the duties of his position as Chairman of the Executive Committee, the "rank and file membership" of the party in Georgia demanded relief through the regular party channels of a State convention. In obedience to that demand, the Acting Governor of Georgia, who is by custom, usage, and tradition titular head of the party, the National Democratic Committeeman, and the National Democratic Committeewoman, who are by usage, tradition, custom and rules of the party liaison officers between the National and State organizations, called a State convention to be held at Macon, Georgia, on April 30, 1947, and requested each County Democratic Executive Committee in the State to send delegates. A great majority of the County Committees, conforming to rules of the party, duly certified delegates to the convention, but in those few instances where the County Committees refused to certify delegates, they were chosen at local mass meetings called for that purpose, which is the traditional method of selecting delegates in such cases. The convention as thus called and assembled was a valid, legal, and truly representative Democratic party convention. The convention on being legally assembled considered charges against the relator, and on finding them to be well founded declared vacant his office as well as the offices of those members of the Executive Committee who were also found to be guilty of disloyalty and a failure to discharge their duties, and proceeded to elect a new Executive Committee, which elected the respondent as its Chairman. The respondent accepted the position to which he was elected, and has since faithfully and loyally carried out the will and mandate of the party as expressed through its members in convention assembled, and he is now the Chairman of the State's Democratic Executive Committee; and the Rules Committee appointed by the respondent in accordance with instructions from the convention has functioned and called a primary election to be held on the second Wednesday in July, 1948, which is a date that will permit the nominees selected therein to be legally placed on the official ballot in the general election. The National Democratic Party, which is the sole and supreme authority for determining such controversies, has in various alleged ways recognized and accepted the respondent and the other officers selected at the convention of April 30, 1947, as the only true and valid officers of the party.

It was further alleged that, since the Democratic party in Georgia is a branch of the National Party, the tribunal having jurisdiction to try and determine the issues between the relator and the respondent is the Democratic National Convention, if it be assembled, otherwise, the Democratic National Committee, when assembled, meanwhile the officials of the Democratic National Committee; and that the Democratic party has by its recognition of the respondent as the party Chairman in Georgia already settled the controversy between the relator and the respondent; that said party functions as an integrated organization at various levels, to wit, National, State, County, and Precinct; that each level of party organization performs its political functions in a continuous chain of authority and affiliation from Precinct to County to State to National, constituting a unified, integrated, and self-governing party; that each level of party political authority is interdependent with the whole party structure, and functions under custom, usage, traditions, and rules which conform interrelatedly from Precinct to County to State to National, and are binding upon all officers and members of the party; and that said political party through tradition, custom, practice, and rules provides procedures, forums, penalties, and remedies of its own for the settlement of differences, controversies, contests, and disputes arising within its ranks or concerning its affairs. Both members and officials of said party at all levels automatically submit and commit themselves to these party procedures for the adjudication of their rights, and for relief and remedy in purely political party matters.

It was further alleged in the answer that the relator is estopped by his acts to claim the office in controversy because: (1) When the call for the convention of April 30, 1947, went out to the County Committees, the relator sought to block the functioning of the committees by issuing public and private statements, by telephoning, wiring, personally and by messengers, urging the precinct members of the County Committees and the officers thereof not to function, not to name delegates to the convention, and in instances where they had already named delegates, urging that they rescind their action; but at no time did he deny that he had bolted the party and deserted his party position, nor did he appear in person or otherwise at the convention and make any defense, although he knew weeks in advance that the convention would be held at the time, place, and for the purposes aforementioned. (2) A controversy arose between the relator and the National party officials in 1947 over the selection of a Chairman of the Georgia Jefferson Day Democratic Dinner, which is an official party function. The National party officials adjudicated that issue adversely to the relator, and he at no time during these party proceedings denied that he had bolted the party and deserted his office. (3) The respondent was invited after his election as Chairman of the State Democratic Executive Committee to confer with the National party officials in Washington, and it was publicly proclaimed through the press that he would on a certain date apply to the National party officials in Washington to strike the name of the relator from the National party roster, and with knowledge of this the relator did not appear and contest the issue.

The relator demurred generally and specially to the answer, and prayed that it be stricken because it showed on its face that the respondent had no right to the office. Subsequently the court passed an order sustaining all of the relator's general and special demurrers and struck the answer of the respondent.

The relator then introduced Roy V. Harris as a witness, who testified that he had read the information in the nature of a quo warranto in the case, and that the facts as therein set forth were true and correct. The court thereupon entered a final judgment, holding that the relator was the legal Chairman of the State Democratic Executive Committee of Georgia, and entitled to hold the office until the next regularly called State Democratic convention, and that the respondent was not. The respondent brought the case to this court for review by direct bill of exceptions, properly assigning error on the judgment overruling the demurrer to the relator's petition, the judgment sustaining the relator's demurrers and striking the respondent's answer, and the final judgment. 1. As shown by the preceding statement, James S. Peters presented to the judge of the superior court an application for leave to file an information in the nature of a quo warranto to inquire into the right of William S. Morris to hold the office and exercise the duties of Chairman of the Georgia State Democratic Executive Committee, Peters himself claiming the right and title to such office. For brevity, all of this may simply be referred to as a petition by Peters for the writ of quo warranto to recover the office from Morris. In such a case the party suing is usually referred to as the relator, and the party sued as the respondent, and we shall generally so refer to them in this opinion.

As to quo warranto, the Code, § 64-201, provides: "The writ of quo warranto may issue to inquire into the right of any person to any public office the duties of which he is in fact discharging, but must be granted at the suit of some person either claiming the office or interested therein."

The respondent filed a general demurrer to the petition, urging several reasons why the petition should be dismissed as failing to state a cause of action. The court overruled the demurrer, and this is one of the rulings which he assigns as error in the bill of exceptions.

One of the contentions urged by the respondent, now plaintiff in error, is that the office or position in question, namely, Chairman of the Georgia State Democratic Executive Committee, is not a public office so as to come within the remedy of quo warranto.

A public office is one created by the Constitution, by some statute, or by municipal ordinance passed in pursuance of legislative authority. Benson v. Hines, 166 Ga. 781, 783 (144 S.E. 287). In McDuffie v. Perkerson, 178 Ga. 230, 235

(173 S.E. 151, 91 A.L.R. 1002), this court quoted with approval from Wyman's Administrative Law, 163, § 44, as follows: "A public office, then, is the right, authority, and duty conferred by law by which for a given period, either fixed by law or through the pleasure of the creating power of government, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The warrant to exercise powers is conferred, not by a contract, but by the law. It finds its source and limitation in some act of expression of governmental power. Oath, salary, operation, scope of duties, are signs of the official status; but no one is essential. The essential thing is that in some way or other the officer is identified with the government." It was held in that case, for reasons stated in the opinion, that a grand juror was not a public officer.

There is no contention made in the present case that the office in question is a public office created by the Constitution or by the express terms of any statute. The relator contends that it is a public office arising by necessary implication from legislative acts which impose upon the chairman of any political party which holds a primary election the duty to perform certain acts. It would too greatly prolong this opinion to attempt to quote or state the substance of all of these laws. They are found in the Code and the published acts, and any one interested may see them there. It will be noticed, however, that these statutes do not anywhere refer to any particular political party. The Code, § 34-3212, being a part of the Neill Primary Act of 1917, refers in general terms to every political party holding a primary. In this same section reference is made to political conventions, chairman or other party authority. It will be noticed that none of the statutes declare that such office as chairman shall exist. It is nowhere stated that any political party shall elect or choose such an officer. Nor has the legislature anywhere undertaken in terms to grant power to any political party to elect or choose such an officer, the reason being perhaps that this is and should be a matter for each and every political party, of which there might conceivably be several in this State, to determine for itself.

While some of the statutes do place duties upon such an officer, they do so merely upon the assumption that the political party may according to its own method choose such an officer, and if so, then the law says certain duties must be performed by him; but this we think is merely for the regulatory purpose of insuring honesty and fair play in the interest of those who choose to align themselves with any particular party by voting therewith, and for the benefit of the nominees. We do not think these statutes evince any intention on the part of the General Assembly to make the office of Chairman of the State Democratic Executive Committee a public office of this State within the meaning of the foregoing definition of a public office, or in any other sense. On the contrary, they simply recognize such an officer as an officer of the political party, if chosen or elected by a party holding a primary, giving sanction and legal approval to his status as such, without more. Furthermore, there are other provisions of our Code relating to qualifications, commission, bond, duties, filling vacancies, and other matters pertaining to public officers, which would tend strongly to the conclusion that the office here in question is not and cannot be treated as a public office of the State of Georgia within the purview of any of the laws of this State.

Courts of other jurisdictions generally hold that an officer of a political party does not become a public officer of the State, even though the party is regulated and controlled by statute. Davis v. Hambrick, 109 Ky. 276 (58 S.W. 779, 51 L.R.A. 671); Greenough v. Lucey, 28 R.I. 230 (66 A. 300); Brundage v. Brady, 302 Ill. 576 (135 N.E. 87); Heiskell v. Ledgerwood, 144 Tenn. 666 (234 S.W. 1001); Attorney General v. Barry, 74 N.H. 353 (68 A. 192); Attorney General v. Drohan,169 Mass. 534 (48 N.E. 279, 61 Am. St. Rep. 301); Ex rel Koontzv. Dunkle 355 Penn. 493 (50 A.2d 496); Tuck v. Cotton,175 Ark. 409 (299 S.W. 613); Williamson v. Montgomery,185 Ark. 1129 (51 S.W.2d 987); Stephenson v. Election Comrs.,118 Mich. 396 (76 N.W. 914, 42 L.R.A. 214, 74 Am. St. Rep. 402); Phelps v. Piper, 48 Neb. 724 (67 N.W. 755, 33 L.R.A. 153). Apparently, however, to the contrary are: Merrill v. Gerow,79 Fla. 804 (85 So. 144); Smith v. McQueen 232 Ala. 90 (166 So. 788). We do not think that the Federal cases cited for the relator, including Smith v. Allwright, 321 U.S. 649, (64 Sup. Ct. 757, 88 L. ed. 987, 151 A.L.R. 1110), Chapman v. King, 62 F. Supp. 639, 650 (affirmed 154 F.2d 460), and Rice v. Elmore, 165 F.2d 387, dealt with this question.

Nor does the act of 1946 (Ga. L. 1946, p. 75), which places certain duties on the Secretary of State, and which has been discussed by counsel on both sides, have any material bearing on the presently existing controversy.

From what has been said, we agree with the respondent that the office here in controversy is not a public office, within the ordinary meaning of that term, and that the petition should have been dismissed if the right of the relator depended solely upon that question.

2. Nevertheless it does not follow from what has been said above that the office or position here in question is not one that may be reached by the writ of quo warranto. Beginning withHussey v. Gallagher, 61 Ga. 121, decided by this court in 1878, and afterwards in Harris v. Pounds, 64 Ga. 121,McCarthy v. McKinney, 137 Ga. 292 (73 S.E. 294), andHornady v. Goodman, 167 Ga. 555 (146 S.E. 173), this court held that quo warranto would lie to try the title to an office in a private corporation. The Hussey v. Gallagher case involved a controversy between rival claimants to corporate offices in "St. Patrick's Total Abstinence Beneficial Society of Savannah, Georgia," a corporation having for its purpose the promotion of temperance and spiritual welfare among its members. Harris v.Pounds involved a contest for office between two sets of trustees of a Methodist campground which had been granted a charter. McCarthy v. McKinney was a contest between rival claimants to the office of secretary of "Supreme Circle of Benevolence of the United States of America," a charitable corporation. Hornady v. Goodman involved the office of president of "The Atlanta Woman's Club," a civic and social organization chartered for purely benevolent, charitable, social, and civic purposes. In Benson v. Hines, 166 Ga. 781 (2) (supra), it was said: "This writ [quo warranto] will lie in behalf of a claimant to test title to a private office."

The theory upon which these decisions were based was that quo warranto was the proper remedy to test the title to the office involved, not because the incumbent was a public officer within the literal meaning of that term, but because the corporations involved had been granted, by legislative authority, a franchise, and that the usurpation of a corporate office, therefore, amounts to the usurpation of a privilege granted by the State. See 44 Am.Jur. 110. In the cases mentioned, where recourse to the writ of quo warranto was recognized, the State, of course, did not provide the qualification or prescribe the method of election of the officers concerned, but it took the officers as selected by the corporation and applied the remedy of quo warranto because they performed corporate duties under legislative authority. This court, therefore, is thoroughly committed to the doctrine that quo warranto may be employed as a remedy to test the title to an office in a private corporation, and the rule has been recognized and applied in many other jurisdictions of this country.

In the present case, it is not insisted that the incumbent of the office involved performs corporate duties, but it is urged that the principle involved in the cases relating to corporate officers is applicable here because by statute the General Assembly has from time to time imposed upon the Chairman of the State Committee of any political party holding a primary election the duty to perform specified services. The legislature in 1917 (Ga. L. 1917, p. 183) passed an act which is commonly known in Georgia as the "Neill Primary Law." It has been several times amended. That act requires any political party holding a primary election for the nomination of candidates for United States Senator, Governor, State-house officers, Justices of the Supreme Court, and Judges of the Court of Appeals to comply with all of the provisions of the act. No political party is required to nominate its candidates for public office in a primary election, but when it elects to do so, it must comply with the terms of the act. The Democratic party in this State has nominated its candidates for public office under the act each election year since its passage. Some of the duties imposed by law upon such chairman are: He must within ten days after the primary election is held, together with the Secretary of the party's Executive Committee, accurately consolidate the count-unit votes, and within three days publish the result in a newspaper published at the capital. Code, § 34-3212. It is his duty to see that the names of the successful nominees are placed on the ballot in the general election. § 34-3213. He must sign and file with the Secretary of State immediately after the vote in any primary election is consolidated a certificate showing by counties the total number of popular and the county-unit votes received by each candidate in such primary election. Code (Ann. Supp.), § 34-3215.1 (Ga. L. 1943, p. 347). He is required to perform similar duties after any special primary election is held. Code, § 34-3215. He must receive, adopt, promulgate, publish, and certify the report from the recount committee provided for by the act of 1941 (Ga. L. 1941, p. 432; Code, Ann. Supp., § 34-3234).

While we agree with counsel for respondent that the Democratic party is not a corporation, nevertheless the principle as to quo warranto as laid down in the cases cited above applies with at least equal force to the case at bar, and since the General Assembly of Georgia has by its statutes placed the stamp of law upon the Chairman of the State Executive Committee of any particular party which holds a primary election in this State, not as a public officer, but as an officer of such political party. The law in this way gives to such office of a political party a legal status or, as we have said above, places its stamp of approval upon the office as one having more than mere political existence or recognition. While the statutes of this State, imposing duties upon the Chairman of any political party holding a primary election, do not make the office a public office of the State, they do, however, as we think, give to the office a status in law at least equivalent to that of an office in a private corporation, and thus on principle make it equally subject to the writ of quo warranto.

With respect to this question the trial judge said: "When the law imposes a duty, it also confers a right and will afford a protection in the performance of such duty." We fully agree with this statement. We can not bring ourselves to think that the law would impose upon the Chairman of a party's State Committee the duty to perform the services as described above, and at the same time decline to protect his title to the office while engaged in the performance thereof.

We therefore hold that the office in controversy is one coming within the purview of our quo warranto statute.

3. It is further contended that the relator is seeking to enforce a purely political right, and that for this reason his petition should be dismissed. This contention is without merit. In Beall v. Beall, 8 Ga. 210, this court — after stating that in measures exclusively of a political, legislative, or executive character, the supreme authority belongs to the legislative and executive departments, and that the mode of executing such powers could never become the subject of inquiry and investigation by the courts — further said: "But were this or any other question of a different nature, and capable of judicial inquiry and decision, then it would admit of a very different consideration — the action of either of the other departments, whether legislative or executive, being capable, in its own nature, of being brought to a judicial test, is subject to judicial review. It is, in all such cases, as we conceive, that the judicial authority is the final and common arbiter, provided by the Constitution itself, and to whose decisions all others are subordinate." Cited and quoted with approval in Thompson v.Talmadge, 201 Ga. 867, 873 (41 S.E.2d 883). The relator here is not seeking to enforce a mere political right, for, as we have seen in the preceding division of this opinion, the statutes have added to that right a legal status, and thereby given to the office a legal character, which is more than a purely political right. The petition of the relator was therefore not subject to this ground of the demurrer.

Nor was the petition subject to demurrer on the ground that it showed upon its face that the relator had not attempted to pursue the remedies available to him in the forums of the Democratic party. If the action of the convention of 1947 was void as alleged in the petition, the principle here invoked by the demurrer would not apply. See Code, § 110-701; New MissionBaptist Church v. Atlanta, 200 Ga. 518 (37 S.E.2d 377).

4. The only remaining contention of the respondent, insofar as the petition and the demurrer are concerned, is that the allegations of the petition show that the relator is himself inoffice, as Chairman of the Georgia Democratic Executive Committee, whereas quo warranto is a remedy available only to one who holds the legal title to an office from which he has been ousted and which he seeks to recover. With respect to this contention, the petition in substance alleges that there was held in Macon, Georgia, on April 30, 1947, a so-called State Democratic Convention which elected the respondent to the office in controversy. The respondent now claims the office in question, is performing duties which appertain to the office and which he has no legal right to discharge, and is preparing to hold a State Democratic primary election in 1948 on a date other than that fixed by the party while in convention on October 9, 1946. InHolmes v. Sikes, 113 Ga. 580 (38 S.E. 978), this court said: "A judgment of ouster on an information in the nature of a quo warranto can not be entered against one who, though once an unlawful incumbent of a public office, is not, at the time the information is filed, exercising the duties of the office or claiming any title thereto." The petition in the instant case sufficiently alleges that the respondent is not only claiming title to the office in controversy, but is in fact performing important duties pertaining to the office, and when the petition is considered in its entirety, we think that its allegations were sufficient to withstand general demurrer insofar as the respective situations and claims of the parties were concerned. The issue in a quo warranto proceeding is the title of the incumbent to an office from which he is sought to be ousted.Center v. Arp, 198 Ga. 574 (32 S.E.2d 308). For the reasons stated in this and the preceding divisions, the court did not err in overruling the respondent's demurrer.

5. The respondent further complains because the court sustained a general demurrer and struck his answer, wherein he alleged in effect, among other things, that at a convention called for April 30, 1947, and held on that date, charges were preferred against the relator for disloyalty to the party; that such charges were found against him and he was removed from the party and from such office as Chairman, and that such convention then elected the respondent as Chairman of the State Democratic Executive Committee to succeed the relator.

As to the manner in which the convention was called, the answer alleged that upon demand of the rank and file membership of the party a convention was called by the Acting Governor of Georgia, who is by custom, usage, and tradition the titular head of the party, and by the National Democratic Committeeman and the National Democratic Committeewoman, who are by usage, tradition, custom, and rules of the party liaison officers between the National and State organizations. These allegations were too vague, general, and indefinite to show any authority in the Acting Governor, either by himself or in connection with the other party officials named, to call such convention and thereby bring it into existence as a duly constituted convention of the party. This being true, the answer failed to show that such convention ever came into being as an authorized and duly constituted assembly of the State Democratic party, such as would have any right or authority either to remove the relator from office as Chairman of the State Democratic Executive Committee or to elect the respondent to such office.

We having thus ruled that the allegations of the response show no proper call for the convention, and the answer showing that Peters was properly installed in office, and there being no contention that he was removed except by the convention which we have held to be an illegal convention, all other questions raised by the answer are necessarily controlled thereby adversely to the respondent, and therefore it becomes unnecessary to deal specifically with them. It follows that the trial judge did not err in sustaining the general demurrer of the relator and in striking the answer of the respondent.

6. As shown in the statement of facts, there was undisputed evidence supporting the allegations of the petition, and the judge did not err in entering a finding and judgment in favor of the relator.

Judgment affirmed. All the Justices concur, except Wyatt, J.,who took no part in the consideration or decision of this case.