powers. This is not one of the ordinary or common functions of such a body, but is an incident necessary to a successful prosecution of its duties and therefore frequently conferred upon it. As was said by Justice Winslow, in State v. Common Council, 90 Wis. 612, 64 N. W. 304:

"The better authority, however, is clearly to the effect that the power to remove officers for cause, though to be exercised in a judicial manner, is administrative, not judicial. It is a part of the power of the corporation which is very useful, in fact almost necessary, for the efficient performance of the corporate duties. State v. Hawkins, 44 Ohio, 98, 5 N. E. 228; Donahue v. Will Co., 100 Ill. 94; 25 Am. Law Rev. art. 'Removal of Public Officers,' pp. 206, 207; Throop, Pub. Off. pars. 345, 346."

In Fuller v. Ellis, 98 Mich. 96, 57 N. W. 33, Chief Justice Hooker, in speaking of the same subject, said:

"To the proposition that removing boards perform acts which are judicial in their nature, we readily assent. They must hear and determine when the power is limited to removals for cause. So must boards of review, auditing boards, highway and drain officers, pardon boards, and in fact nearly every officer who has duties to perform; and it is also true that the action of all of these is subject to review in courts of justice. None of them, however, belong to the judicial department of government, nor can they be called judicial officers, though all perform acts in their nature judicial. Their acts are administrative. Donahue v. County of Will, 100 Ill., 94; State v. Hawkins, 44 Ohio, 98, 5 N. E. 228."

[6] The city commission, not being a judicial body, but merely exercising judicial functions as an incident to the powers and duties which they mainly exercise and perform, and for which they were principally created, are not and should not be bound by the hard and fast rules in exercising the power of removal that ordinarily surround and influence a court whose functions are purely judicial. As was said in State v. Common Council,

wise require an ordinance or resolution, and, after the hearing, the judgment of the commission would have to be by ordinance or resolution and in each case inoperative until 30 days had expired after approval. And it is doubtful if, by declaring an emergency, a resolution or ordinance could be given immediate effect, for it seems that ordinances and resolutions, or many of them, must be published for at least ten days before operative. A mere statement of the procedure required to pass a valid ordinance or resolution is sufficient to convince one that such formality is not required in a proceeding by the commission to remove the city manager. The subjects treated by resolution and ordinances are usually broader than individual controversies-they reach the whole or an important part of the community. Private disputes in the nature of litigation, in which only the parties immediately concerned are interested, are characterized by motions, orders, and judgments, and not by resolutions or ordinances.

[8] The city commission did declare an emergency and pass an ordinance providing the procedure for the particular case. It is not contended or suggested by appellant that under this procedure he was not accorded an opportunity to have counsel, to make his defense, and also to cross-examine the witnesses for the prosecution. In other words, he had notice of the charges, was present during all the proceedings and accorded a hearing, and had his day in court. Notwithstanding, it is contended by appellant that the resolution or ordinance prescribing the procedure was inoperative at the time of the hearing, because it had not been published for at least ten days in the official newspaper of the city. Of course, some mode of procedure that would afford appellant fair opportunity to be heard on the charges was necessary, but we do not conceive that it would be any different whether this opportunity was accorded in the course of the trial as a feature thereof or whether it resulted from fixed and definite rules and regulations, previously passed by ordinance or resolution. The commission obtained jurisdiction of the subject-matter in controversy upon the acceptance and filing of the charges. It correctly exercised that jurisdiction and authority when it gave the appellant notice of the charges and an opportunity to appear and defend.

[9] The other two assignments of error, we think, may properly be considered together, that is, as to whether the court erred in refusing to order the return to the writ to be amended so as to include the transcript of the evidence that was stenographically taken upon the hearing. Our statute, paragraph 1498, Civil Coue, commands the party, to whom writ is directed, to certify fully to the court issuing the writ and annex

reviewed by the court. Thus it will be ween that it was contemplated that more than the record should be included in the return. The evidence is not part of the record ordinarily, but it is a part of the proceedings had and taken against which the writ is directed. It seems that the statute is broad enough in terms to cover the evidence taken in the course of the hearing.

As heretofore stated in this opinion, when the statute provides for the removal of a public officer for cause, it means a legal cause, and, while the commission may, in the first instance, be granted a liberal discretion as to what is sufficient cause, the courts of some jurisdictions will not hesitate to review their action and, for that purpose, look into the evidence and determine if, in fact, a legal cause exists or whether the removal is the result of passion, prejudice, or whim and without justification. In such jurisdictions

"it is held that the evidence may be brought up, not for the purpose of weighing it, to ascertain the preponderance, but merely to ascertain whether there was any evidence at all to sustain the decision of the inferior tribunalwhether it furnished any legal and substantial basis for the decision. While, in the exercise of this power of removal for cause, the proceedings of these bodies are quasi judicial and so reviewable by the court, still they are not courts, but essentially legislative and administrative bodies, whose action should be considered in view of their nature and the purposes for which they were organized, and not be tested by the strict legal rules which prevail in trials in courts of law. Therefore, if such a body has kept within its jurisdiction, and the evidence furnished any legal and substantial basis for its action, it ought not to be disturbed for any mere informalities or irregularities which might have amounted to reversible error in the proceedings of a court. To apply any other rule would be impracticable, and disastrous in the extreme to public interests." 5 R. C. L. 264.

[10] We believe that the court should have required a certification of the evidence taken upon the hearing as a part of the return not for "the purpose of weighing it to ascertain the preponderance, but merely to ascertain whether there was any evidence at all to sustain the decision of the inferior tribunal whether it furnished any legal and substantial basis for the decision," unless it be the showing made by appellant, in his petition for the writ, obviated that necessity. his petition, he alleges that:

commission,

*

*

In

"Said city commission of the city of Phoenix met at the city hall in said city, and proceeded to hear, and did hear, evidence in support of said charges, * and continued said hearings until the 2d day of March, 1915, and that, during said hearings had as aforesaid by said testimony was introduced in support of said charges and in defense of your petitioner to said charges, and that, upon the conclusion of the testimony introduced as aforesaid, * said commission took such testimony introduced as aforesaid under consideration and thereafter, to wit, on the 15th day of March, 1915, said commission 零 adopted a resolution removing your petitioner from the office of city manager incompetency."

158 P.-54

*

for

[11] This is a statement in effect that evidence was introduced on both sides of the controverted question-that for the prosecution showing the charges to be true or trustworthy; substantiated; vindicated; defended (Standard Dictionary, defining "support"); and that for the defense in refutation of the charges.

[12] If the rule be that the courts do not weigh the evidence to ascertain which way it preponderates, but will simply look into it for the purpose of determining whether there was any evidence in support of the charges or not, it would seem that the appellant, by his own allegations, has obviated the necessity of examining the evidence by the court, for he admits and states that there was evidence pro and con on the charges, and that it was considered by the commission and thereafter, based upon it, the decision was rendered. Nor do we think this admission and statement by the appellant in his petition is relieved of its probative force and binding effect by a subsequent allegation to the effect

*

*

*

"there was no evidence to show or prove, or tending to show or prove, that your petitioner was incompetent in any respect or particular, as attempted to be charged or that he was guilty of misconduct in office, or of neglect of duty, and that said city commission, in removing your petitioner as city manager, acted arbitrarily and without any evidence or proof of cause for his removal."

In view of the fact that he had previously stated that evidence was taken in behalf of the prosecution and also in behalf of his defense, we think these latter negative allegations must be construed as the conclusions of the pleader rather than statements of fact. If the allegation were that no evidence whatever was taken, heard, or introduced, it would be a statement of a fact showing irregularity in the exercise of the authority conferred upon the commission. But that is not this case; here it is shown that evidence was heard and passed upon by the commission, and, that being true, under the rule anfor the court to have examined the evidence nounced it would have been a useless thing in support of the charges or in defense of appellant; that duty, it appearing, having already been discharged by the city commission.

The extent of the power of the court to review upon certiorari is limited to a determination of the question as to whether the inferior tribunal, board, or officer has exceeded its jurisdiction and whether it has regularly pursued the authority of such tribunal, board, or officer. The court has no power to weigh the evidence and revise the judgment, if jurisdiction exists and the authority was regularly pursued. It may not substitute its judgment for the judgment of the inferior tribunal, board, or officer upon the merits of the controversy. The charges may have been unfounded, the evidence in support thereof slight, and the judgment rendered

Madden. This argument is based on the theory that this evidence tended to contradict the terms of the written contract for the sale of the land by the plaintiff to Madden. In this contract the notes were described, but nothing was said about the manner in which the notes were to be transferred to the plaintiff, or the obligation that would be incurred by Madden in such transfer. This contention is not good. The evidence did not concern the original written contract in any way. The evidence concerned the notes. The dispute was not over the original contract. It was over the notes. The evidence on the one side said the writing was on the notes when they were signed by Madden, and on the other side that it was not on the notes when signed by him. The evidence was competent for the purpose of determining that question. Madden first introduced evidence concerning the writing on the notes. If it was evidence to vary, contradict, or add to the terms of the written contract, Madden was the first one guilty of violating the rule; and he ought not now to complain. The plaintiff's evidence was in rebuttal of that introduced by Madden.

[2] 2. Another complaint is that the court rejected evidence concerning a certain written memorandum which Madden claimed to have received from the Tuckers when they sent him the new notes for his signature. The memorandum was not signed. The evidence did not show that the plaintiff knew anything about it, or ever saw it, or had anything whatever to do with it. It was properly excluded. The memorandum was not introduced on the motion for a new trial. It is not before us. The judgment cannot be reversed because of its exclusion. Scott v. King, 96 Kan. 561, 567, 152 Pac. 653. [3] 3. Another complaint is that the court erred in taking from the jury the question of whether or not the notes sued on were guaranteed by Madden as part of the purchase price for the land received from the plaintiff, and in rendering judgment that Madden did guarantee the new notes for that purpose. The court found that the indebtedness, $2,985, the amount of the judgment, was the balance of the obligation contracted by defendant Madden for the purchase of the real property, and rendered a simple personal judgment against Madden for that amount, with interest. The petition asked for personal judgment on the notes. Judgment was rendered as prayed for. The finding of the court on which complaint is made was correct and supported by evidence. [4] 4. It is next contended that the court erred in giving an instruction that the jury could not find that defendant Madden was discharged by the alteration of the original notes, if any was made, unless such alteration was made by the plaintiff or was made by his authority. There was no evidence to

show that any one other than the plaintiff, or some one under his direction, altered the notes, if they were altered. The instruction fitted the evidence. Another instruction was that it was not to be presumed that the plaintiff altered the notes, or that he caused such alteration to be made; that the burden of proof was on Madden to establish the alteration by a preponderance of the evidence. The instruction correctly stated the law.

[5] 5. It is finally argued that there was error in overruling a challenge to a juror for cause. It appeared in the examination of one of the jurors that he was a borrower from the plaintiff, and that his home was covered by a mortgage to secure the loan. Defendant Madden exhausted his peremptory challenges, and complains that this juror should have been excused for cause. The statute does not make this a ground of challenge. To the trial court is committed the responsibility of securing a fair jury under the rules laid down in the statute; and unless an abuse of discretion is shown, or unless it is shown that a prejudiced jury was obtained, the rulings of a court on the competency of jurors will not be disturbed. The judgment is affirmed. All the Justices concurring.

(98 Kan. 554)

WITT V. BOOTHE. (No. 20204.) (Supreme Court of Kansas. July 8, 1916. Rehearing Denied July 29, 1916.)

(Syllabus by the Court.)

1. FRAUDS, STATUTE OF 129(8)—CONTRACTS. A purchaser of real property under an oral contract, who pays a part of the purchase price, takes possession of the property under the contract, and retains possession until the commenceof the balance of the purchase price cannot dement of an action against him for the recovery feat that action by setting up the statute of frauds.

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 318-320; Dec. Dig. 129(8).]

2. VENDOR AND PURCHASER 212 - RIGHTS OF PURCHASER-PRIOR SALES.

The purchaser of a tract of land who obtains a deed therefor is entitled to receive the unpaid purchase money outstanding on a previous contract for the sale of the land by the grantor in the deed to a third person.

[Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 436-439; Dec. Dig. 212.]

3. VENDOR AND PURCHASER 318-ACTIONS -DEFENSES.

A personal judgment may be rendered in an action against a defendant whose wife is not a party, although the claim on which the judgment is rendered is one against which there is no homestead exemption.

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 938-942; Dec. Dig. 318.]