ular session of the Legislature which began in January, 1924, and a proper opening and counting of these votes by the speaker of the House in the presence of the members of the House, and that it was there found that defendant had received a majority of all the votes, and he was declared to be elected to this office for the term beginning January 21, 1924. A copy of the resolution declaring Henry elected is attached as an exhibit to the plea. The plea then alleges that Henry was eligible to hold the office, and that on January 17, 1924, he took and filed the oath of office as required by law, and executed a proper and legal bond for this term in the proper penalty with a surety company as surety, which company was authorized to do business in this state and to execute this bond; that the bond was a legal and valid bond, conditioned in accordance with law; that this bond was tendered to Governor Russell to be approved; that, the Governor knowing that the bond was a good and solvent bond in the proper penalty and properly conditioned, as required by law, that the surety was qualified to make a bond in this state, nevertheless he refused to approve the bond, for the alleged reason that the defendant was ineligible to hold the office of insurance commissioner, although the defendant was eligible; that the Governor did not find either that the bond was insufficient or not in proper form or penalty or that the surety was not solvent or possessed of the proper capital required by law; that the Governor did not notify Henry to appear and give a new bond with other sureties. Defendant then avers that he did everything required by law of him to do to qualify as insurance commissioner, but that the Governor arbitrarily refused to approve the bond. The defendant then averred that Governor Russell's term of office expired at noon January 22, 1924, and that he was succeeded by Governor Whitfield at that time; that immediately after Whitfield became Governor he approved the defendant's bond and issued to him a commission.

The plea further alleges that after the attempted appointment of Broom by Governor Russell the Governor notified the Senate then in session of this appointment, but that the Senate did not confirm Broom.

There was a demurrer to this special plea. The demurrer was overruled, the appellant declined to plead further, and judgment final was entered in favor of appellee. From which judgment this appeal is here prosecuted.

It is the contention of the appellant that one of the necessary steps in qualifying to hold the office is the approval of the bond by the Governor; that this is a condition precedent, and must be complied with, and that the tender of a good and sufficient bond is not such a compliance, unless and until it is approved by the Governor; that, because of the

failure of the Governor to approve the bond, the election was avoided, and that the failure to qualify created a vacancy in this office, which vacancy under our law the Governor had the right to fill by appointment, and did fill by the appointment of the appellant; that it is not necessary for the Senate to confirm the appointment of the Governor under these conditions; that the Governor exercised his judgment and discretion in refusing to approve Henry's bond, and that the judicial department has no jurisdiction to review this action of the Governor.

To sustain these contentions the appellant relies principally upon section 2797, Hemingway's Code (section 3459, Code of 1906); Swann v. Gray, 44 Miss. 393; Andrews v. Covington, 69 Miss. 740, 13 South. 853; Shotwell v. Covington, 69 Miss. 735, 12 South. 260; Railroad v. Lowry, 61 Miss. 102, 48 Am. Rep. 76.'

Section 2797, Hemingway's Code (section 3459, Code of 1906), is as follows:

"If any person elected to any office shall fail to qualify as required by law, on or before the day of the commencement of his term of office, or if for any cause an officer should hold over after his regular term of office expires under the authority given him to hold over until his successor is elected and qualified, a vacancy in such office shall occur thereby, and it shall filling vacancies in such offices, unless the failbe filled in the manner prescribed by law for ure to qualify arises from there being no officer to approve the bond of such officer elect, and except the Governor-elect, when the Legislature fixes by resolution the time of his installation."

The cases of Swann v. Gray and Shotwell v. Covington, supra, both hold that the act of the officer in approving or disapproving an official bond is quasi judicial, and, however arbitrary or unjust this, officer may act, his action cannot be controlled by manda

mus.

The case of Railroad v. Lowry, supra, holds that the Governor of the state cannot be compelled by mandamus to perform any act.

In this case there was no attempt by either party to compel the Governor to act or to refrain from acting. Both Governors have acted in this matter, and the question here presented is the legality of these acts. We might say, in passing, that we thoroughly agree with the rules announced in the above cases which preserve the independence of the three departments of government.

While the judicial department cannot in any way compel the Governor to act or refrain from acting, yet, when he has acted, this court has also uniformly held, as is in accord with the overwhelming weight of authority, that the legality of the act is a judicial question for the courts. Brady v. Howe, 50 Miss. 607; Colbert v. State, 86 Miss. 769, 39 South. 65.

"But relator's petition was also subject to demurrer. He shows by it that he has not qualified himself (if otherwise competent) to enter into the discharge of the duties of the office by having given an official bond approved by the proper authorities, as the law requires. The law requires that one desiring to enter upon the offices named in the petition shall, as a condition precedent thereto, execute and have approved by certain officials designated an official bond for each office. The tender of a good bond, if rejected by the approving officer, cannot be held to be a compliance with this statutory condition. Nothing short of what the law requires is sufficient."

This record presents only questions of law. By the pleadings it is admitted that the appellee, Henry, was duly elected to this office, and so declared by the House of Representatives; that he subscribed to the oath of office, and executed a legal and valid bond, which was tendered to the Governor for approval; that Henry was eligible to the office, but that the Governor declined to approve the bond, because he thought Henry was a defaulter, and therefore not eligible to hold the office. The Governor, because of his failure to approve Henry's bond, thought Henry for this reason had failed to qualify as insurance commissioner, and that a vacancy existed, and he therefore appointed appellant, Broom, to fill this vacancy in accordance with Section 6822, Hemingway's Code (section 4188, Code of 1906), which provides that, when a vacancy occurs in a state office which is elective, the same shall be filled by appointment by the Governor for the unexpired term. Broom immediately qualified as such officer. After this, and that same afternoon, Governor Whitefield approved Henry's bond.

It is of vital importance to consider what authority is vested in the Governor by our statutes relating to the approving of official bonds by him. Is his authority limited to the question of merely passing upon the sufficiency of the bond both in form and substance, or has he the right to consider the eligibility of the officer elect? If his authority is merely limited to the sufficiency of the bond, then should he fail to approve, necessarily it can only be for one reason, viz., that the bond is insufficient. In considering this question it is necessary to consider the Constitution and the statutes relating to this matter in order to ascertain the general scheme of our government in relation thereto. Section 140 of our Constitution states how the Governor is chosen. Section 143 requires that other state officers be chosen at the same time and in the same manner as is the Governor. Under these sections the speaker of the House of Representatives opens and

Section 268 of the Constitution prescribes that all officers elected or appointed shall, before entering upon the discharge of their duties, take and subscribe a certain oath.

Under these sections of the Constitution the House of Representatives declares what officers are elected. It then becomes the duty of the officers to take this oath.

Certain sections of the Code provide that certain officers execute bonds. Section 3462, Code of 1906 (section 2800, Hemingway's Code), requires certain state officers to execute these bonds to be approved by the Governor and the commissioner of insurance, and, when so approved, the same shall be filed and recorded in the office of the secretary of state, except that the bond of the secretary of state, when recorded by him, shall be filed with the clerk of the Supreme Court.

That part of Section 2551, Code of 1906 (Section 5015, Hemingway's Code), relating to the insurance commissioner, which is material, is as follows:

"Before entering upon the discharge of his duties the commissioner shall take the oath of office required of state officers, and give a bond in favor of the state in the penalty of ten thousand dollars, with some guarantee company or companies authorized to do business in this state, to be approved by the Governor, conties of said office during his term, which bond ditioned for the faithful performance of the duand oath of office shall be filed with the secretary of state."

Section 3463, Code of 1906 (section 2801, Hemingway's Code), provides that a failure to observe the form of the bond prescribed by statute does not vitiate the bond, and that all official bonds are valid, whether approved by the proper officer or not approved by any.

Section 3469, Code of 1906 (section 2807, Hemingway's Code), is important, and reads as follows:

"In case the sureties, or any of them, of any state or county officer shall permanently remove out of the state or become insolvent, or if, from any cause, an official bond shall be found insufficient, the Governor in the case of a state officer, and board of supervisors in the case of a county officer, shall notify such offiwithin ten days thereafter, to give a new bond cer to appear, at a day and place to be named with other sufficient sureties, in a penalty equal to that of the former bond and with the like condition, or show cause why the same should not be required; and if such officer fail or neglect so to do, within a time to be designated, his office shall thereby become vacant, and he of; and, if a state officer, the Governor shall shall cease to discharge any of the duties therecause the vacancy to be filled as in other cases; and, if a county officer, the vacancy shall be filled as in other cases of vacancy in county offices. From proceedings under this section there shall be no appeal; and if the officer to

(156 La.)

No. 26413.

KINCHEN et al. v. REDMOND et al.

In re KINCHEN et al.

(Supreme Court of Louisiana. March 10, 1924. Rehearing Denied by Whole Court June 7, 1924.)

(Syllabus by Editorial Staff.)

1. Certiorari 42(6)—Affidavit to petition for certiorari held sufficient.

Under rule XVI, section 2, affidavit on petition for certiorari should contain allegations that facts set forth are true and correct, but, where affidavit was accompanied by other proofs of compliance with the rule, affidavit, "to the best of affiant's knowledge and belief," held sufficient.

On Motion to Dismiss.

DAWKINS, J. [1] Counsel for defendants, respondents in this application, has moved to dismiss the appeal for the reason that the affidavit made by D. B. Kinchen, one of the plaintiffs, was "that all the allegations of fact therein contained are true and correct to the best of affiants' knowledge and belief.” (Italics ours.)

Section 2 of rule XVI of this court provides:

Sale by widow of land constituting an asset of the community does not divest heirs of deceased husband of title to their undivided interest.

3. Adverse possession 71(1)-Prescription; sale under private signature held sufficient basis for claim of title by prescription.

A sale of land under private signature, under which purchaser took and continued to exercise possession, held sufficient basis for plea

of title by prescription, under Civ. Code, art.

3486.

4. Deeds 26-Sales; effect of sale not altered by erroneous belief of parties as to facts necessary to conveyance.

Erroneous belief of parties to sale of land

as to what was or was not necessary to con

veyance of same would not alter legal effect of their agreement which in fact transferred title. 5. Deeds 6-Sales; transaction held valid sale under private signature.

Transaction between parties, evidenced by a receipt, held a sale under private signature of land, valid and sufficient to transfer same under Civ. Code, art. 2440. 6. Adverse possession

85(5)-Prescription; proof of contents of lost document evidencing sale of land held sufficient to support plea of title by prescription.

Proof of contents of lost document, evidencing sale of land under private signature, held sufficient to serve as basis for plea of title by prescription under Civ. Code art. 3486.

Action by D. B. Kinchen and others against J. E. Redmond and others. Judgment for defendants, and plaintiffs apply for writ of certiorari or review. Judgment affirmed.

M. C. Rownd, of Springfield, and Charles Elliott, of Amite, for relators.

Shelby S. Reid, of Amite, for defendants.

By Division B, composed of DAWKINS, LAND, and LECHE, JJ.

"Section 2. The petition for the writ of certiorari or review to a Court of Appeal shall be verified by the affidavit of the petitioner, or, in case of his absence from the parish in which the judgment sought to be reviewed was rendered, then by his attorney; and the fact of such absence shall be shown by the affidavit, which shall also show that an application for peal; that the rehearing has been refused; with the date of the refusal, and, that the applicant has filed in the clerk's office of such court, a notice addressed to the parties to the suit, of his intention to make the application to this court; and the petition shall be accompanied by an assignment of the errors complained of, by copies of the original petition and answer and other pleadings to which the application may relate, of the reasons assigned by the Court of Appeal for its judgment, of the petition for rehearing and brief in support thereof, and of the reasons, if any there be, for, and the judgment, refusing the rehearing."

While it would be better for the applicant in all cases to swear that the allegations of fact set forth in his petition "are true and correct," yet in this particular case he has attached to the application for certiorari certified copies which show that the application for relearing was made, that it had been refused, the date of its refusal, and that the applicant filed with the clerk notice of intention to make said application. We think this supplied sufficient evidence, when considered in connection with the affidavit as made, to show that the law and rule of this court have been complied with. The motion to dismiss is therefore denied.

On the Merits.