Wentz v. Thomas

In the court below Maude O. Thomas, defendant in error, was plaintiff and Lew H. Wentz, plaintiff in error, was defendant; they will hereinafter be referred to as they appeared in the trial court.

Plaintiff commenced this action by filing her petition wherein, among other things, she alleged that she was the duly appointed, qualified, and acting commissioner and member of the State Highway Commission, under and by virtue of the laws of the state of Oklahoma, and that she was in possession of the office and exercising the duties provided by law. She also charged that the defendant had been, and was still, unlawfully claiming the right and title to the office occupied by and in her possession, and prayed that he be restrained and enjoined from obstructing or interfering, other than by proper action at law, with the plaintiff in her possession and exercise, of the duties of said office. The court issued a restraining order and assigned the application for temporary injunction for hearing. Defendant filed his answer and cross-petition, and on the same day an agreed statement of facts was filed, by which both parties waived trial by jury and agreed to submit the application for temporary injunction andthe case for trial on the facts and on the pleadings.

The agreed statement of facts is quite, lengthy, but we think it will be sufficient to say that it was agreed that on April 1, 1929, the defendant was regularly appointed Highway Commissioner for the six year term by Governor Holloway; and that Governor Murray, on April 1, 1932, filed an executive order of removal wherein he undertook to remove the defendant from office; and that on the same day he issued a commission to the plaintiff as commissioner to fill the alleged vacancy caused by the removal of defendant.

After the case had been argued upon the pleadings and agreed statement of facts, the trial court entered an order sustaining plaintiff's demurrer to the cross-petition on the ground that it was not germane to the subject of plaintiff's action; and then adjudged that plaintiff had no prima facie title to the office and was in the, unlawful possession thereof; and that the highway act approved April 1, 1929, was the Governor's only authority for appointing a member of the Highway Commission, and that said act was constitutional; and that the provisions thereof conferring exclusive power of removal on the courts were valid and binding; and that the Governor had no power to remove the defendant.

Plaintiff first raises a question of pleading in that she contends that the court was without authority to try the title to the office in this proceeding; that the action is an injunction action to protect her in the possession of the office and that the court will not, in such action, try title to the office; that the demurrer to defendant's counterclaim was therefore properly sustained. To determine whether she is correct in this contention, it is necessary to look to the pleadings filed herein, and especially to the allegations in her petition.

The first and second paragraphs thereof are as follows:

"That the plaintiff is a duly appointed, qualified and acting commissioner and member of the State Highway Commission of the state of Oklahoma, under and by virtue of the laws of the state of Oklahoma. That the plaintiff is in possession of such office and exercising its duties and functions in the manner provided by law.

"That the defendant has been, and now is, unlawfully claiming the right and title to the office occupied and now in the possession of the plaintiff, and has threatened to and will, unless enjoined by this court, interfere with and obstruct the, plaintiff in the exercise of the duties, and functions of said office, and threatens to and will, unless enjoined by this court, attempt to usurp and occupy the office now occupied by and in the possession of the plaintiff."

In her prayer, she asks for both special and general relief.

In reply to this petition defendant, among other things, filed a general and special denial, and prayed for both special and general relief. When plaintiff alleged that she was aduly appointed, qualified, and acting commissioner and a member of the State Highway Commission of the state of Oklahoma, under and by virtue of the laws of the state of Oklahoma, and that she was in possession of such office and exercising the duties thereof, and that defendant had been and then was unlawfully claiming the right and title to the office which was in her possession, and the defendant filed a general denial thereto, the pleadings placed in issue all of the facts alleged by plaintiff.

By these pleadings we think the following issues were raised: First, was the plaintiff duly appointed and entitled to theoffice? Second, was the defendant unlawfully claiming titlethereto? These questions were directly raised by general denial and they are questions of law and not questions of equity, for the reason that their correct determination must necessarily depend upon our statutory and constitutional provisions.

Plaintiff contends that the only question she has raised is the naked question of possession of the office. If that were true, we would have a different question presented. However, we cannot agree with that contention, for the reason that the allegations in her petition, in our judgment, are contrary thereto. We hold, first, that when she alleged that she was theduly appointed, qualified, and acting commissioner and member of the State Highway Commission of the state of Oklahoma, under and by virtue of the laws of the state of Oklahoma, and that was denied by the defendant, it directly brought in issue the question of whether she had been legally appointed and legally made a member of the Commission, which necessarily carries with it a determination of her title to the office; and second, that when she alleged that the defendant had been and then was making unlawful claim to the right and title to the office occupied by and then in her possession, and he denied that allegation that directly raised the question of whether his claim to the office was unlawful, and raised the issue of the legality of his claim thereto.

Not only is this true, but an agreed statement of facts was filed which contains the facts and circumstances upon which the plaintiff bases, the legality of her appointment to the office, in support of her allegation that she had been duly appointed, and the facts and circumstances surrounding defendant's claim to the title to the office in connection with her allegation that his claim thereto was unlawful. We think the agreed facts contain but few, if any, statements that do not necessarily revolve around these issues. In fact, as we view it, when the issues raised by the allegations of plaintiff's petition and defendant's general denial are determined, there is very little, if anything left in the case.

As we understand it, it is admitted that if title to the office, and not the mere naked possession thereof, is raised in plaintiff's petition, then defendant's cross-petition is germane. Since we hold that issue was raised, it disposes, of that question.

When the case came on for trial, it was submitted upon the pleadings and agreed statement of facts — in the language of this court in the case of Bynum v. Strain, 95 Okla. 45,218 P. 883 — to a court endowed with the dual powers of a court of equity and a court of law, where redress for every remediable wrong might be had by a civil action. There it was said:

"Under our Code procedure and system of Code pleading, the court is endowed with the dual powers of a court of equity and a court of law and redress for every remediable wrong may be had by a civil action upon the facts stated in the pleadings called a petition. Sections 174 to 178, inc.; sections 231, 263, 264, and 265, Comp. Stat. 1921.

"Where a pleading is indorsed a 'petition,' as the statute provides, and contains a statement of facts as the statute requires, which show on their face and from their nature that plaintiff has wrongfully sustained a detriment, a wrong for which the law or equity provides redress, then from the nature of the facts stated, the court, vested as it is with the dual powers of a chancellor and a court of law, will determine and grant the proper relief.

"Where the petition of a party in interest states specifically and with sufficient certainty that he is the duly qualified and acting appointee under valid appointment from the Governor to an appointive position in an executive department of state, and that by executive order he has been wrongfully removed from such position, and that such purported order of removal is without authority of law and is void, and that he has unlawfully sustained a detriment by reason of such void and unlawful order of removal, he has stated sufficient facts to give the court jurisdiction to determine whether or not the acts complained of were without authority of law.

"And by such acts it is not improper exercise of jurisdiction for the trial court to determine the validity of the acts complained of, though determination of same may have the effect, of determining the legality of title to office."

Undoubtedly, under the facts as disclosed by this record and under the doctrine announced in the Bynum Case, the questions of plaintiff's title to the office and of defendant's right thereto were raised, and both questions should have been determined by the court below. They are now here for determination.

Governor Murray, in his executive order of removal, based his authority to remove the defendant on section 2, article 6, and section 8, article 6, of the state Constitution, and they are as follows:

"The supreme executive power shall be vested in a chief magistrate, who shall be styled 'the Governor of the State of Oklahoma.'

"The Governor shall cause the laws of the state to be faithfully executed, and shall conduct in person or in such manner as may be prescribed by law, all intercourse and business of the state with other states and with the United States, and he shall be a conservator of the peace throughout the state."

In her brief, plaintiff relies principally upon the provisions of the Constitution with reference to the three departments of government in article 4, which provides:

"The powers of the government of the state of Oklahoma shall be divided into three separate departments; the Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others.

She contends that the second paragraph of section 1, of the 1929, highway act, vesting exclusive power in case of a removal proceeding in a court of competent jurisdiction to determine whether the officer was guilty as charged, is in conflict with the Constitution and void because the Governor has the implied power of removal and is not bound by the act. It is urged that the power to appoint officers is necessarily implied from the provisions of the Constitution which define the powers of government and the separate departments — legislative, executive, and judicial — vesting the supreme executive power in the Governor and directing that he shall cause the laws of the state to be faithfully executed.

The proper interpretation of this question must necessarily depend upon the provisions of our own Constitution and not upon that of any other state or of the federal government. It must be remembered that there is no provision in our Constitution which gives the Governor an express power to appoint members of the Highway Commission, or officers generally. The only provisions which expressly confer the power of appointment upon the Governor are:

Article 7, sec. 3 — to fill a vacancy in the membership of the Supreme Court;

Article 9, sec. 15 — to fill a vacancy in the office of Corporation Commissioner;

Article 6, sec. 13 — unless otherwise provided by law, to fill vacancies in office until a successor shall be elected, or appointed and qualified according to law;

Article 14, sec. 1 — to appoint a Bank Commissioner for a term of four years by and with the consent of the Senate.

In approaching this question, since plaintiff relies on the case of Myers v. U.S. (U.S.) 71 L.Ed. 160, we must keep in mind the fundamental difference between the federal and the state Constitutions, and the authority of Congress under the one, and of the Legislature under the other. The federal government is one of delegated, enumerated, and limited powers, and when an act of Congress is assailed as void, it is necessary to look to the federal Constitution for agrant of specified power broad enough to embrace the act; the power of our Legislature to enact a law is subject to no restrictions except those imposed by the state and federal Constitutions. In other words, there must be a grant of authority in the national Constitution, to support an act of Congress; but an act of our, Legislature is valid unless prohibited by the state or federal Constitution.

Judge Cooley, in distinguishing these powers, in his work on Constitutional Limitations (8th Ed.) vol. 1, page 354, said:

"There is a broad difference between the Constitution of the United States and the Constitutions of the states as regards the powers which may be exercised under them. The government of the United States is one of enumerated powers; the governments of the states are possessed of all the general powers of legislation. When a law of Congress is assailed as void, we look in the national Constitution to see if the grant of specified powers is broad enough to embrace it; but when a state law is attacked on the same ground, it is presumably valid in any case, and this presumption is a conclusive one, unless in the Constitution of the United States or of the state we are able to discover that it is prohibited. We look in the Constitution of the United States, for grants of legislative power, but in the Constitution of the state to ascertain if any limitations have been imposed upon the complete power with which the legislative department of the state was vested in its creation. Congress can pass no laws but such as the Constitution authorizes either expressly or by clear implication; while the state Legislature has jurisdiction of all subjects on which its legislation is not prohibited. 'The law-making power of the state,' it is said in one case, 'recognizes no restraints, and is bound by none, except such as are imposed by the Constitution.' That instrument has been aptly termed a legislative act by the people themselves in their sovereign capacity, and is therefore the paramount law. Its object is not to grant legislative power, but to confine and restrain it. Without the constitutional limitations, the power to make laws would be absolute."

In the Myers Case, supra, the question was, Does the federal Constitution vest power in Congress to create an office to be filled by the President and provide for removal by joint act of the President and the Senate? The court held that there was no provision in the federal Constitution which authorized Congress to pass such an act.

That, however, is not the question here involved. In this case, the question is, Does the state Constitution contain any provision which prohibits the Legislature from creating the office of Highway Commissioner and vesting appointive power in the Governor and the jurisdiction to remove, for cause, in the courts? It is admitted that there is no express provision which gives the Governor such power. Then, if there is one, it must exist by implication.

Again, there is a fundamental difference between the executive powers of the President of the United States under the federal Constitution and the executive powers of the Governor of this state under our state Constitution. There is no division of the federal executive department; the President has power and control over all of the executive branches of government — each acts as his agent and performs his discretion. It was largely upon this theory that the Myers Case was decided. This is not the case under our state government. The executive authority, under our government, is vested in a Governor and eleven other heads of departments, and, in addition thereto, the Constitution contains a residium clause which authorizes the Legislature to create other officers and place them in the executive department, and make them an independent branch of the executive department, or make them directly responsible to the Governor or to some of the other branches of the executive department.

Section 1, article 6, is as follows:

"The executive authority of the state shall be vested in a Governor, Lieutenant Governor, Secretary of State, State Auditor, Attorney General, State Treasurer, Superintendent of Public Instruction, State Examiner Inspector, Chief Mine Inspector, Commissioner of Labor, Commissioner of Charities and Corrections, Commissioner of Insurance, and other officers provided by law and this Constitution, each of whom shall keep his office and public records, books, and papers at the seat of government, and shall perform such duties as may be designated in this Constitution or prescribed by law."

From this section it will be seen that the executive department of the state consists of the twelve heads of departments specifically named therein with the further addition, "and other officers provided by law and this Constitution, each of whom * * * shall perform such duties as may be designated in this Constitution or prescribed by law." The words, "other officers provided by law and this Constitution," grant to the Legislature power to create other offices and make them as much a part of the executive branch of the government as is any of the twelve heads of departments named in section 1. The phrase, "and shall perform such duties as may be designated in this Constitution or prescribed by law," grants specifically to the Legislature the power to prescribe the duties of an office created by it.

The framers of the Constitution doubtless deemed it wise to reserve a residium of executive power which the Legislature could enact into law and vest in a new officer or department as it might deem expedient from time to time and as occasion might demand. In this connection, it may be said that there is no such residium of executive power vested in the national Congress by the Constitution of the United States. When the Legislature created the Highway Department and vested it with administrative and executive powers, it took nothing from the Governor or any other executive officer or department. Before its creation, none of the executive officers mentioned in section 1, supra, had any power to build and construct roads and highways and expend the public moneys for that purpose.

Under the provisions of section 1, article 6, and section 1, article 16, when the Highway Commission was created, the Legislature had power to make it independent and responsible to the people for its acts, or place it under the control of either one of the executive branches of government named in section 1, supra. It did not place it under the control, or make it responsible to, either of the executive branches, but gave it independent discretion.

Not only is this true, but under the heading of public roads, highways, and internal improvements, section 1, article 16, of the Constitution, directed the Legislature, by mandatory provision, to create a department of highways. The section is as follows:

"The Legislature is directed to establish a department of highways, and shall have power to create improvement districts and provide for building and maintaining public roads and may provide for the utilization of convict and punitive labor thereon."

In compliance with this mandatory provision, the Legislature established a department of highways and a portion of the act under consideration is as follows:

"A State Highway Commission is hereby created with offices at the State Capitol, and said offices shall be furnished and provided for by the State Board of Public Affairs. That State Highway Commission created by this act shall consist of three members, not more than two of whom shall be of same political party. Said Commission shall be appointed by the Governor by and with the advice and consent of the Senate; one member shall be appointed for a term of two (2) years; one member * * * for a term of four (4) years; and one member * * * for a term of six (6) years. And upon expiration of the terms of office of said commissioners, respectively, their successors shall be appointed by the Governor by and with the advice and consent of the Senate for a term of six (6) years.

"Any commissioner appointed under the provisions of this act shall hold office for the term for which the appointment is made. Provided, that any such commissioner may be removed from office only by any court of competent jurisdiction for willful neglect of duty, corruption in office, drunkenness, incompetency, or any offense involving moral turpitude committed while in office."

Under this provision, one member was appointed for a term of two years, one for four years, and the defendant for six years, and upon the expiration of their terms, respectively, their successors were to be appointed by the Governor by and with the advice and consent of the Senate for a term of six years. Evidently, it was the intent of the Legislature, in providing for the terms in the manner in which they were provided, to prevent the appointment of all new commissioners at one time. Doubtless it was thought wise to make such provision in order that the Commission would at all times have two members an it who were familiar with its affairs. Under this system, after the first Commission was appointed, only one member would be appointed in any one year. It was further provided that any commissioner appointed should hold his office for the term for which the appointment was made and that he could be removed from office only by a court of competent jurisdiction for willful neglect of duty, corruption in office, drunkenness, incompetency, or any offense involving moral turpitude committed while in office.

We are not here concerned with the wisdom of this legislation, but only with its interpretation. It will readily be admitted that, under the provisions of the Constitution, the Legislature had complete jurisdiction to establish the Highway Department without express limitations of any kind or character. It was but natural for it to provide for the manner of appointment, the duties of the commissioners, and the manner of their removal. It is admitted that the act is valid, except that portion which provides for the removal of the commissioners. It is our duty to hold that provision valid unless there is a prohibition in the Constitution which precludes its enactment by the Legislature.

In addition to the mandatory provision in the Constitution directing the Legislature to establish a highway department, article 5, among other things, defines the powers and duties of the Legislature. Section 36 thereof provides:

"The authority of the Legislature shall extend to all rightful subjects of legislation, and any specific grant of authority in this Constitution, upon any subject whatsoever, shall not work a restriction, limitation, or exclusion of such authority upon the same or any other subject or subjects whatsoever."

Since it is contended that the provision of the act creating the Highway Commission, which provides for the removal of the commissioners in a court of competent jurisdiction, is unconstitutional and void, the question naturally arises: Is the question as to how an officer is to be removed one of "rightful legislation"? It seems to us that the question of how an officer shall be removed from office is just as much a "rightful" subject of legislation as the question of how he shall be "appointed," or "elected." Undoubtedly the questions, who shall appoint an officer, how long his term shall be, what his salary shall be, and how he shall be removed from office, are "rightful" subjects of legislation. We think article 4 of the Constitution does not, by implication, prohibit the Legislature from providing that the Highway Commissioners may be removed for certain specified causes provided for in the statute by lodging the proceedings in a court of competent jurisdiction, to, remove a commissioner from office.

It must be noted that it is not within the power of the court to remove him without a hearing and without his day in court. In fact, before he can be removed it is necessary for a judicial determination of whether he has been guilty of any of the acts set out as causes, for his removal. It requires a hearing, introduction of evidence, and a judgment.

It rather seems to us that whether he has been guilty of willful neglect of duty, corruption in office, drunkenness, incompetency, or any offense involving moral turpitude committed while in office, is properly a judicial question. All the court is called upon to do is to determine, on a proper complaint filed by the proper authority, on competent evidence, whether the commissioner had been guilty of any of the specified acts while he was in office. Certainly it cannot be successfully contended that article 4 of the Constitution would prevent a court from entertaining jurisdiction to determine whether the officer was guilty of the acts complained of.

We think it may safely be said that the power of removing an officer for specific cause is, as a rule, a judicial question and the exercise of such power by the courts is not an infringement on the executive department in a case of this character. State v. Linn, 49. Okla. 526, 153 P. 826; Bowles v. State, 90 Okla. 199,215 P. 934; State v. Frazier (N.D.) 182 N.W. 545; Atty. Gen. v. Crowley (N.H.) 109 Am. St. Rep. 725; State ex rel. v. Pritchard, 36 N.J.L. 114; People v. Stuart (Mich.) 16 Am. St. Rep. 644; McCram v. Gaul (N.J.L.) 112 A. 341; State v. Ballentine (S.C.) 150 S.E. 46; Tompert v. Lithgow, 64 Ky. 176; Speed v. Detroit (Mich.) 39 Am. St. Rep. 555; Black on Const. Law (2d. Ed.) 272; Christy v. Kingfisher, 13 Okla. 585,76 P. 135; Quick v. Fairview, 144 Okla. 231, 291 P. 95; State v. Chaney, 23 Okla. 788, 102 P. 133.

The state courts have held, almost without exception, that, in the absence of an express provision in their respective Constitutions to the contrary, legislative restrictions upon the power of a Governor to remove are valid when applied to one who holds a statutory office. A statement to this effect is found in note 5, in the case of Myers v. U.S. 71 L.Ed. 160. There it is said:

"State courts have uniformly held that, in the absence of express provisions in their Constitution to the contrary, legislative restrictions upon the power of removal by the Governor, or other appointing power, are valid as applied to persons holding statutory offices. Com. ex rel. v. Southerland, 3 Serg. R. (Pa.) 145-155; * * * Bruce v. Matlock (Ark.) 111 S.W. 990; People v. Jewett, 6 Cal. 291; Gray v. McLendon (Ga.) 67 S.E. 859; Dubuc v. Voss (La. Ann.) 92 Am. Dec. 526; State v. Cowen (Ohio) 117 N.E. 238; Atty. Gen. v. Brown, 1 Wis. 513; * * * Shira v. State (Ind.) 119 N.E. 833; State v. Henderson (Iowa) 124 N.W. 767; Markey v. Schunk (Iowa) 132 N.W. 883; State v. Martin (Kan.) 126 P. 1080; State v. Sheppard (Mo.) 91 S.W. 477; State v. Sanderson (Mo.) 217 S.W. 60; * * * State v. Ganson (Ohio) 50 N.E. 907; * * * State v. Hewitt (S.D.) 52 N.W. 875; State v. Kipp (S.D.) 74 N.W. 440; Skeene v. Paine (Utah) 90 P. 440; State v. Burke (Wash.) 36 P. 281; State v. Grant (Wyo.) 82 P. 2, 81 P. 795."

As an example of what the courts of the various states have held on this question, we take time to call attention to but one of them — Bruce v. Matlock (Ark.) 111 S.W. 990. In that case the Arkansas Supreme Court held that the Governor had no power to remove or revoke an appointment to an office created by the Legislature. It is there said:

"The members of the board having been appointed for a fixed term and as the statute does not confer upon the Governor the power of removal, the power does not exist. The right to remove public officers does not inhere in the chief executive of the state. Throop on Pub. Off., sec. 362; State v. Pritchard, 36 N.J.L. 101. Under our system of government, the executive enjoys no prerogatives in the sense in which that word is usually employed, but he exercises only such powers as are conferred upon him by the Constitution and statutes of the state. These do not authorize him to remove members of the board of public charities. The Governor has nothing to do with the management and control of the charitable institutions of the state further than to appoint the members of the board biennially. The Constitution contains an express command to the Legislature to provide by law for the support of institutions for the education of deaf mutes and for the blind and for the treatment of the insane. Pursuant to this authority, the lawmakers have placed the control and management of these institutions in a board of trustees composed of seven members, to be presided over by the State Treasurer as ex officio member of the board. The Governor is authorized to appoint these members, and there his power in this respect ends. If the Legislature had intended to confer greater or additional powers, it would have been so expressed in the statutes."

Under these authorities and under the provisions of our Constitution and statutes, we think the Legislature had power to prescribe the grounds upon which a commissioner could be removed from office, and to provide that a court of competent jurisdiction could hear and determine whether he was guilty as charged.

It is further urged that, in the absence of any valid provision of the Constitution to the contrary, section 2, C. O. S. 1921 [O. S. 1931, sec. 3522] is in full force and effect and has been since the adoption of the Constitution and that by virtue thereof the Governor has power to remove the defendant. It provides:

"The Governor shall have power to remove any officers appointed by him, in case of incompetency, neglect of duty, or malfeasance in office; and may then fill the same as provided in cases of vacancy."

This is a general statute relating to the Governor's power of removal generally and was in force long before the Highway Commission Act was passed. The act creating the Highway Commission provided therein how and under what conditions the commissioners could be removed. In other words, it was a special act relating to and applying only to the removal of the highway commissioners. This being true, under the well known rule of construction that a general act must yield to a subsequent special act, it follows that the special act is controlling and the Governor had no power of removal under the general act.

It is called to our attention that the defendant did not give bond and urged that section 6, chapter 48, S. L. 1923-24 [O. S. 1931, sec. 10084] authorized the Highway Commission to require bond from each member thereof. The provision is as follows:

"The engineer or any other officer or employee of the Commission, who has custody or control of property or funds of the state, shall give a good and sufficient bond, in an amount and with sureties satisfactory to the Commission, conditioned upon the faithful discharge of the duties of their respective offices and accounting for all property and funds coming into their hands by, through, or from such office. Any officer or employee who shall violate the provisions of this section shall be guilty of a misdemeanor, and shall be cause for impeachment."

Acting under this authority, the Highway Commission, on February 12, 1927, passed a resolution requesting bond from each member of the Commission in the amount of $25,000. It is admitted that this provision would not apply to members of the Commission, except for the last sentence which provides that, "any officer or employee who shall violate the provisions of this section shall be guilty of a misdemeanor, and shall be cause for impeachment."

Admitting, without deciding, that it is applicable to, a commissioner, there is nothing in the act which requires the giving of a bond before qualifying and taking the oath of office. By the agreed statement of facts, it is admitted that the defendant took and subscribed the required oath of office as a member of the Highway Commission and thereupon entered into possession of the office, exercised the functions, discharged the duties, and received the emoluments thereof, without molestation or hindrance until the issuance and filing of the executive order of removal on April 1, 1932.

It is further agreed that neither the defendant, S.C. Boswell, nor L.C. Hutson, the three members who composed the Highway Commission appointed by Governor Holloway by and with the advice and consent of the Senate, ever made any bond as such officers. The resolution with reference to bond did no more than request that it be given. It did not even require its execution.

Under these facts, the defendant undoubtedly became a de jure officer.

The order sustaining plaintiff's demurrer to the cross-petition is reversed. Judgment is here rendered upon the pleadings and agreed statement of facts, vesting title to the office and right of possession thereto in Lew H. Wentz; and Maude O. Thomas is restrained from interfering with defendant's possession of the office.

The clerk of this court is directed to issue a special mandate to the court below to award the necessary writs whereby the judgment here rendered may be enforced.

LESTER, C. J., and CULLISON, SWINDALL, McNEILL, and KORNEGAY, JJ., concur. CLARK, V. C. J., dissents. RILEY, J., specially concurring. ANDREWS, J., absent.