finding and establishing of the said charges of malfeasance and neglect of duty, it is considered that said charges ought to be, and have been, sustained, and that the same are sufficient cause, as fixed by statute, for the removal of said J. H. Parker from office. Therefore, by the power vested in me by the organic act of the territory of Oklahoma, and the laws enacted thereunder, it is ordered that said J. H. Parker should be, and he is hereby, removed from the office of superintendent of public instruction and ex officio auditor of the territory of Oklahoma. In testimony whereof, I have hereunto set my hand, and caused the grand seal of the territory to be affixed at the city of Guthrie, this 21st day of February, A. D. 1894. William C. Renfrow, Governor of the Territory of Oklahoma.

"Attest: Thomas J. Lowe, Secretary."

"Exhibit B.

"William C. Renfrow, Governor of Oklahoma Territory, to All Who Shall See These Presents-Greeting: Know ye that, reposing special trust and confidence in the ability and integrity of Evan D. Cameron, I have appointed and do hereby commission him superintendent of public instruction and ex officio auditor of the territory of Oklahoma, and do authorize and empower him to execute and fulfill the duties of that office according to law, and to have and to hold the said office, with all powers, privileges, and emoluments thereunto appertaining, unto him, the said Evan D. Cameron, to fill the unexpired term of J. H. Parker, removed. In testimony whereof, I have caused these letters to be made patent, and the great seal of the territory to be hereunto affixed. Given under my hand, at the city of Guthrie, the 21st day of February, in the year of our Lord one thousand eight hundred and ninetyfour and of the independence of the United States of America the one hundred and eighteenth. By the Governor, William C. Renfrow. Thomas J. Lowe, Secretary of the Territory.

"I, Thomas J. Lowe, secretary of the territory of Oklahoma, do hereby certify the above and foregoing to be a true and correct copy of the commission of Evan D. Cameron as superintendent of public instruction and ex officio auditor of the territory of Oklaho

territory; that I have duly qualified as such official by filing the bonds and subscribing the oath of office required by law, and demand is hereby made on you for the possession of all the books, records, files, seal, property, and effects of every kind or character belonging or pertaining to said office of superintendent of public instruction and ex officio auditor. E. D. Cameron, Superintendent of Public Instruction and Ex Officio Auditor."

“Territory of Oklahoma, Oklahoma County-ss.: Evan D. Cameron, of lawful age, on his oath says that on the 21st day of February, 1894, at the city of Guthrie, Logan Co., territory of Oklahoma, he delivered to J. H. Parker, in person, a true and correct copy of the above and foregoing notice and demand. E. D. Cameron.

"Subscribed and sworn to before me, this 23rd day of February, 1894. W. H. Ebey, Clerk District Court 3rd Dist., by Ollie E. Cramer, Deputy. [Seal.]”

"Exhibit D.

"To Hon. J. H. Parker, Territorial Superin. tendent of Public Instruction and Ex Officio Auditor-Sir: You will please take notice that the accompanying charges and specifications against you have been filed with the undersigned, as governor of the terri tory of Oklahoma, and that you will be giv en an opportunity to answer or explain the same at the governor's office, in the city of Guthrie, on the 29th day of August, 1893, at 2 o'clock p. m. W. C. Renfrow, Govern

or."

"By agreement of attorneys, made in open court, this 3rd day of March, 1894, the above notice was filed, and made 'Exhibit D' to the alternative writ issued in the case of Cameron vs. Parker, pending in the supreme court of the territory of Oklahoma."

On the 1st day of March, 1894, the plaintiff filed a motion to set aside and quash the alternative writ of mandamus, assigning therefor the following reasons: First, because the court had not jurisdiction to grant the relief prayed for; second, because said writ fails to state facts sufficient to entitle the plaintiff to the relief sought; third, because said writ did not state facts sufficient to constitute a cause of action against the defendant in favor of the plaintiff; fourth, because, as shown on the face of said writ, and upon the allegations and statements. therein contained, said plaintiff has a plain, speedy, and adequate remedy at law. This motion the court overruled, and thereupon the defendant, on the 3d day of March, 1894, filed the following return to the alternative writ, which, omitting caption, reads as follows, to wit:

"Comes now J. H. Parker, defendant in the above-entitled cause, and, for his return to the alternative writ of mandamus heretofore issued therein, respectfully states to the honorable court: First. That he denies each

and every allegation, averment, and statement made and contained in said alternative writ of mandamus and the exhibits thereto attached not hereinafter specifically admitted. Second. For second and further return to said alternative writ, the said J. H. Parker respectfully says that heretofore, to wit, on the third day of February, 1893, the Hon. A. J. Seay, then governor of the territory of Oklahoma, nominated, and by and with the advice and consent of the council of the territory of Oklahoma, then in session, appointed him superintendent of public instruction and ex officio auditor of the territory of Oklahoma for the term of two years, and duly and legally issued to him a commission as such officer, and from that time until the present has exercised the functions of said office, and in all things honestly, conscientiously, and properly discharged his official duties; and therefore, that on the 21st day of February, 1894, he was the duly qualified and acting superintendent of public instruction and ex officio auditor of the territory of Oklahoma; that during all the time aforesaid, as such superintendent of public instruction and ex officio auditor of the territory of Oklahoma, he has had and retained the exclusive possession of, and continues to retain in his custody and control, all the property and effects belonging to said office, consisting of office furniture and fixtures, safe, books, records, files, seal, and other paraphernalia belonging to said office of superintendent of public instruction and ex officio auditor of the territory of Oklahoma; that on the 21st day of February, 1894, in the city of Guthrie, county of Logan, and territory of Oklahoma, Evan D. Cameron, mentioned in said alternative writ and the exhibits thereto attached, served upon him, by delivering a true copy thereof, the alleged notice and demand, marked 'Exhibit C,' and made a part of said alternative writ; and this defendant refused, and still refuses, to deliver to the said Evan D. Cameron the possession of all the books, records, files, seals, property, and effects of every kind and character belonging to or pertaining to the said office of superintendent of public instruction and ex officio auditor of the territory of Oklahoma, or to deliver to him any part thereof, for the reason, as defendant avers, that the said J. H. Parker now is, and during all the time herein aforesaid has been, superintendent of public instruction and ex officio auditor of the territory of Oklahoma, having at no time resigned as such officer or died, or in any legal manner or by any competent authority been removed, and for the further reason that the said Evan D. Cameron has not at any time been legally appointed to such offices by any competent authority, and for the reason that, this defendant's commission to said office not having expired, and being in active discharge of his duties as such officer, he is entitled to retain the possession of all the property and insignia of v.38p.no.1-9

said office, and the said Evan D. Cameron, not holding such offices, is not entitled to the possession of said property, or any part thereof. The defendant further respectfully avers and admits that on the 21st day of February, 1894, there was delivered to him the alleged notice of removal, of which Exhibit A to said writ is a copy; that heretofore, to wit, on the 4th day of September, 1893, and subsequent thereto, by amendment, certain charges and specifications were preferred against him as such officer, charging him with malfeasance in office and neglect of duty by allegations thereof, setting forth specific matters in supoprt of such allegations, all of which were filed with his excellency, W. C. Renfrow, then governor of the territory of Oklahoma, a copy of which said charges and specifications, as well as the amended and supplemental charges and specifications, were served upon him, together with a notice of the filing of the same as aforesaid, and giving him time thereafter to appear thereto by answer or other explanation; that afterwards, on the day of

1893, he, the said defendant, by his attorneys, appeared at the office of his excellency, the governor, and presented and filed his written demurrer and objection to the power, authority, and jurisdiction of his excellency, the governor, to examine into said matter, or take any cognizance thereof or action thereon, which demurrer and objection was overruled, and this defendant granted time to file an answer and explanation in writing to such alleged charges and specifications, which he thereafter, on or about the day of September, 1893, did. And defendant avers that from the time he filed said answer and explanation, up to the 21st day of February, 1894, he had no notice of any further action or proceedings being taken or had in relation thereto, and therefore avers that at no time had he a hearing upon said alleged charges and specifications before his excellency, the governor, or any opportunity to appear and present evidence or defend himself against the same, and that, if any hearing was had thereon, it was without notice to him, and without any opportunity whatever having been given him to appear at such hearing; and he specifically denies that, as such officer, he ever illegally and wrongfully audited and allowed certain accounts for mileage and expenses of the board of regents of the Oklahoma Agricultural and Mechanical College, or audited and wrongfully allowed certain accounts of said regents for per diem and mileage, or audited and wrongfully allowed certain accounts of the State Capital Printing Co., for the printing of the laws of the last session of the legislative assembly of the territory of Oklahoma, beyond the maximum or the amounts fixed and allowed by law, or that he has at any time been guilty of neglect of duty as such officer, or that the allegations of neglect of duty contained in charge number two to

have been fully made out or sustained, or that he has at any time been guilty of malfeasance in office or neglect of duty as such officer. He therefore says that he ought not to be deprived of his possession of the property and insignia of his said office. Wherefore he prays that the prayer of the plaintiff herein be denied, and for all other and proper relief. J. H. Parker.

"Sworn and subscribed before me, this 28th day of February, 1894. Alfred S. De Witt, Notary Public. [Seal.] Com. expires Jan. 22, 1895."

The case was thereupon taken by the court, upon briefs and oral argument. Peremptory writ of mandamus awarded.

C. A. Galbraith, Atty. Gen., Green & Strang, and Wisby & Horner, for plaintiff. Harper S. Cunningham and S. L. Overstreet, for defendant.

SCOTT, J. (after stating the facts). This is an original action in mandamus, commenced in this court on the 23d day of February, 1894, by Evan D. Cameron, as superintendent of public instruction and ex officio auditor of the territory of Oklahoma. On the same date an alternative writ of mandamus issued returnable to the full bench on the 1st day of March, A. D. 1894. On March 3, 1894, the return was filed, and, after disposition of dilatory questions, the matters in issue were thereupon properly before us for determination. The facts as pleaded are quite voluminous; as alleged, established, and admitted, and as shown in the statement of the case, are, substantially, that on the 3d day of February, A. D. 1893, the defendant, J. H. Parker, was nominated for the position of territorial superintendent of public instruction and ex officio auditor of the territory of Oklahoma, by A. J. Seay, governor of said territory, and thereafter was duly confirmed by the territorial council as provided by law. Subsequently, William C. Renfrow, governor, the successor of Gov. Seay, on the 21st day of February, 1894, after due notice to the defendant of the filing of the charges against him, and after a hearing and determination of said charges, issued an order removing said defendant, J. H. Parker, from such office, and on February 23d, of the same year, appointed the plaintiff, Evan D. Cameron, as defendant's successor. In pursuance of said appointment, plaintiff filed his bond, took and subscribed the oath of office, and in all respects duly qualified as superintendent and ex officio auditor, as provided and required by law, and, upon receipt of the governor's commission to him, made formal demand for the possession of the books, records, muniments, insignia, paraphernalia, and belongings of said offices. Charges and specifications were preferred against the defendant, and a hearing had thereon in the executive office, and upon these the governor made the following findings of fact: "Certain charges

and specifications having been preferred against J. H. Parker, superintendent of public instruction and ex officio auditor, charging malfeasance and neglect of duty, and duly filed in this office, and afterwards certain amended and supplemental charges were filed, and a copy of said charges and specifications, as well as the amended and supplemental charges and specifications, having been served on said J. H. Parker, together with a notice of the filing of the same in this office, and the said J. H. Parker was given until the 29th day of August, 1893, to file his answer or any other explanation he might desire to make to said charges and specifications, on the 29th day of August, 1893, said Parker appeared at this office, in person and by his attorneys, and presented his written objection to the authority of the governor to examine into this matter, which objection was overruled, and the said Parker asked for further time to prepare and file a written answer to said charges and specifications, which request for time was granted; and on the 6th day of September, 1893, said J. H. Parker appeared in person and by his attorneys, and filed his answer and explanation in writing to said amended charges and specifications. After carefully examining and fully investigating said answer and explanation, and said matter coming on this day to be further considered, and it appearing that said charges and specifications filed against said Parker as said superintendent of public instruction and ex officio auditor of said territory, and the evidence submitted in support thereof, and also the answer of said Parker and his explanation of said charges, I find that the allegations of malfeasance in office contained in charge No. 1 and specifications thereunder have been fully made out and sustained, in this, to wit: That said Parker, as such superintendent and auditor, illegally and wrongfully audited and allowed certain accounts for mileage and expenses of the board of regents of the Oklahoma Agricultural and Mechanical College, and also audited and wrongfully allowed certain accounts of said regents for per diem and mileage, and also audited and wrongfully allowed certain accounts of the State Capital Printing Co., for printing the laws of the last session of the legislative assembly of the territory of Oklahoma, beyond the maximum fixed by law; and I further find that the allegations of neglect of duty contained in charge No. 2 to have been fully made out and sustained; and, no further investigation or hearing and no exercise of judicial power being necessary to the finding and establishing of the said charges of malfeasance and neglect of duty, it is considered that said charges ought to be, and have been, sustained, and that the same are sufficient cause, as fixed by statute, for the removal of said J. H. Parker from office. Therefore, by the power vested in me by the orgame act of the territory of Oklahoma, and the laws enacted

thereunder, it is ordered that said J. H. Parker should be, and he is hereby, removed from the office of superintendent of public instruction and ex officio auditor of the territory of Oklahoma."

The defendant, after removal, upon de mand, as above stated, refused, and still refuses, to give up the effects and belongings of the office, and the question for us to determine is whether the peremptory writ shall issue compelling him to do so.. The determination of this controversy, incidentally, if not primarily, involves the question of the power of the executive to remove an officer once appointed by him, and confirmed by the council, as required by law; and this the defendant vigorously assails as the trial of the title to such office by mandamus. The vital point at the outset for our determina tion is whether the questions, presented as they are, involve a trial of the title to this office to such an extent that mandamus will not lie, or whether mandamus is a proper remedy for the relief sought, or has the plaintiff a plain and adequate remedy at law. The office of this writ is not materially changed from its functions at common law, and, in treating of it as applicable to this case, we are not circumscribed by any stat utory provisions. The writ of mandamus is of very ancient origin. It was a preroga tive writ, issued in the king's name from the court of king's bench. It was directed to any person, corporation, or inferior court, commanding some particular action or thing in said writ set out, which the court had de termined to be consonant with right and jus tice. Blackstone (book 3, p. 110) says: "It is a high prerogative writ, of a most exten. sively remedial nature, and may be issued in some cases where the injured party has also another more tedious method of redress, as in case of admission or restitution to an of fice; but it issues in all cases where the party hath a right to have anything done, and hath no other specific means of compelling its performance." Anciently, it was issued for the delivery of public books, papers, and records; to oblige bodies corporate to affix their seal; for compelling the restoration of a party to a public office, etc. The court of king's bench had a general supervision of the inferior courts, and this writ grew out of the necessity of compelling the inferior courts to exercise those judicial and ministerial powers invested in them, by not only restraining their excesses, but also in preventing their negligence and restraining their denial of justice. The writ, however, never issued to restrain judicial discretion, except where greatly abused. The usual use of the writ was to restrain inferior tribunals, and keep them within their lawful bounds. Blackstone further speaks of the office of the writ thus: "This writ is grounded on a suggestion, by the oath of the party injured, of his own right, and the denial of justice below; whereupon, in order to more fully sat

isfy the court that there is a probable ground for such interposition, a rule is made (except in some general cases, where the probable ground is manifest) directing the parties complained of to show cause why a writ of mandamus should not issue; and, if he shows no sufficient cause, the writ itself is issued, at first in the alternative, either to do thus or signify some reason to the contrary, to which a return or answer must be made at a certain day; and, if the inferior judge or other person to whom the writ is directed returns or signifies any insufficient reason, then there issues, in the second place, a peremptory mandamus, to do the thing absolutely, to which no other return will be admitted but a certificate of perefect obedience and due execution of the writ. If the infe rior judge or other person makes no return, or fails in his respect and obedience, he is punishable for his contempt by attachment." The organic act (section 9, p. 44, St. 1893) provides: "The supreme and districts courts of said territory and the respective judges thereof, shall and may grant writs of mandamus and habeas corpus in all cases authorized by law." Section 4595, St. 1893, reads: "The writ of mandamus may be issued by the supreme court or the district court, or any justice or judge thereof, during term or at chambers, to any inferior tribunal, corporation, board or person, to compel the performance of any act which the law specially enjoins as a duty, resulting from an office, trust or station; but though it may require an inferior tribunal to exercise its judgment or proceed to the discharge of any of its functions, it cannot control judicial discretion." Section 4596, Id., reads: "This writ may not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law. It may be issued on the information of, the party beneficially interested." Section 4597, Id., reads: "The writ is either alternative or peremptory. The alternative writ must state concisely, the facts, showing the obligation of the defendant to perform the act, and his omission to perform it, and command him that immediately upon the receipt of the writ, or at some other specified time, he do the act required to be performed or show cause before the court whence the writ issued 'at a specified time and place, why he has not done so; and that he then and there return the writ with his certificate of having done as he is commanded. The peremptory writ must be in a similar form, except that the words requiring the defendant to show cause why he has not done as commanded, must be omitted." Section 4598, Id., reads: "When the right to require the performance of the act is clear and it is apparent that no valid excuse can be given for not performing it, a peremptory mandamus may be allowed in the first instance; in all other cases the alternative writ must be first issued." Section 4599, Id., reads: "The motion for the writ must be