agree to and with the party of the second part that they will file for record a duly authenticated plat of Stander's first addition to Oklahoma City, Oklahoma; the party of the second part to bear all the expenses incident to the survey, mapping and record of said plat.

"III. The parties of the пrst part agree to and with the party of the second part to accept the sum of eighty-seven 50-100 dollars ($87.50) for each of said lots and the price as hereby fixed as to sum to be paid to the parties of the first part, provided that in any event the total sum to be paid to the parties of the first part shall not exceed the sum of seven hundred dollars ($700.00) per acre, and said sum of seven hundred dollars ($700.00) per acre is to be the full payment to the parties of the first part for said property, but it is expressly agreed that the party of the second part may sell each and all of said lots for a sum in excess of eighty-seven 50-100 dollars ($87.50) per lot and that the excess of said eighty-seven 50-100 ($87.50) or seven hundred dollars ($700.00) per acre shall be the property of the party of the second part and shall be accepted by him as full compensation for all that he may do in effecting the sale of said lots and otherwise promoting the sale of Stander's first addition to Oklahoma City, Oklahoma, and any other additions that may be platted and dedicated in pursuance of this contract out of or contained in said quarter section.

"IV. The parties of the first part hereby agree to and with the party of the second part, his heirs and assigns, that in advancing and promoting the sale of said property, the party of the second part shall have the right to do all such grading, laying of sidewalks, tree planting and cultivating as are calculated to add to the value and beauty of said Stander's first addition to Oklahoma City. Oklahoma, and any subsequent additions that may be platted and dedicated in pursuance of this contract.

"V. The parties of the first part hereby require, and it is made an essential condition of this contract, that the party of the second part shall pay to the party of the first part not less than twenty-five thousand dol lars ($25,000.00) in cash and notes secured by first lien on said property, within six months from the date hereof, and provided. further, that if said payment of twenty-five thousand dollars ($25,000.00) in cash and notes is not made within the time provided in this paragraph. then this contract, at the option of the first parties, is to become null and void.

"VI. The parties of the first part hereby agree to and with the party of the second part that the lots in said addition may be sold on a contract executed by the party of the second part as agent of the parties of the first part, to purchasers, and the parties of the first part hereby constitute, appoint. and empower the party of the second part

their attorney in fact for that purpose, as though the parties of the first part had signed said contract in person, hereby ratifying and confirming any and all such contracts made by the party of the second part in accordance with the conditions of this contract. This provision is understood by the parties of this contract to be made for the purpose of making Edward Croak the attorney in fact for Maggie P. Stander and T. A. Stander, wife and husband, for the purpose as expressed in this paragraph. Said contract above referred to, to require a payment in cash of not less than 20 per cent. of the value of each lot at the time of sale, providing that out of said cash payments, the first parties are to receive one-half, or 50 per cent. of the cash so received, and the balance of the purchase price due to the first parties on said each lot so sold to be evidenced by notes as due under each of said contracts of sale, said notes not to run longer than six, twelve, and eighteen months, to bear interest at not less tnan 8 per cent. per annum and to be equal in amount, or as nearly so as it is practicable to make them.

"VII. The parties of the first part further agree to and with the party of the second part that upon the request of the party of the second part so to do, they will execute and deliver warranty deeds to purchasers of said lots when said purchasers shall have paid the full amount for said lot or lots."

This contract is the only evidence offered by the defendants as to the authority of Edward Croak to make the agreement to substitute the notes of their purchasers for those of defendants, and there was no evidence as to the authority of Trentman to act in the matter. It will be seen from an examination of this contract that the only authority delegated to Edward Croak by the plaintiffs was to sell the lots embraced in their addition, and to deliver to the plaintiffs one half of the cash by him received and notes secured by liens upon the real estate sold for the balance unpaid up to the amount of the price agreed upon by plaintiffs and Croak for said addition. This contract nowhere gives to Croak authority to do anything further with the notes received for deferred payments, except to deliver them to the plaintiffs. Croak had no further control over the notes executed for the purchase price of this realty, and it does not even appear that he had authority to collect the same.

One seeking to charge another with the acts of a purported agent has the burden of establishing such agency. Gast v. Barnes, 44 Okla. 107, 143 Pac. 856.

The defendants having wholly failed to show the agency of Croak to make the substitution upon which they rely, we conclude that the court committed no error in sus

taining objections of plaintiffs to evidence tending to show agreements and conversations between defendants and Croak to carry into effect the substitution of the notes.

Finding no reversible error in the record, the judgment of the court below should be affirmed.

By the Court: It is so ordered.

COOK, Mayor, v. BOARD OF EDUCATION OF INDEPENDENT SCHOOL DIST. NO. 15 OF ATOKA COUNTY. No. 8270-Opinion Filed Oct. 24, 1916. (160 Pac. 1125.) Mandamus-Subjects of Relief-Acts of Officers.

Section 20, art. 6, c. 219, session Laws of Oklahoma of 1913, clothes the mayor of cities of the first class located in any independent school district wrth ministerial duties only; and under such section it is the duty of the mayor, upon the request of the board of education of such school district, to forthwith call an election, as provided in said section, and in the event of his failure or refusal so to do mandamus will lie to require the performance of such duty.

(Syllabus by Edwards, C.)

Error from District Court, Atoka County; J. H. Linebaugh, Judge.

Action by the board of education of Independent School District No. 15 of Atoka county against I. L. Cook, as mayor of the city of Atoka. Judgment for plaintiff, and defendant brings error. Affirmed.

Humphreys & Cook and J. G. Ralls, for plaintiff in error.

J. W. Clark, M. C. Haile, Baxter Taylor, W. H. Parker, and Robert M. Rainey, for defendant in error.

Opinion by EDWARDS, C. This is an action in mandamus, wherein the board of education of independent school district No. 15 of Atoka county, filed its petition in the district court of said county praying for a writ of mandamus to require I. L. Cook, as mayor of the city of Atoka, to issue a proclamation for an election to be held in said city for the purpose of raising funds to purchase a school site and to erect or purchase and equip a school building, and setting out that the board of education by resolution had decided to call such election, and that W. A. McBride, Sr., secretary of said board,

and authorized by the board for such purpose, had requested the said mayor to call an election, which request had in writing been refused by the mayor, a copy of such refusal being attached. Upon the filing of such petition an alternative writ of mandamus was issued ordering the issuance of a proclamation for such election, or that the said I. L. Cook appear before the court and show cause for his refusal so to do.

The defendant filed his return to said alternative writ, setting out his reasons for refusing to issue the proclamation for the calling of an election at great length, most of which is irrelevant, and, among other things, alleging that the petition or motion of the plaintiff was not sufficiently verified; that the money sought to be raised by the board of education was unnecessary; that no certified copy of the proceedings of the board of education was furnished the defendant, informing him of the action of such board; that McBride. as secretary of the plaintiff, was without authority to make request for the issuance of the proclamation; that a previous election had been held in said school district, which had rejected a similar proposition, and the calling of an election would be a useless and unnecessary proceeding and expensive to said school district; that the board of education is seeking to have such election held on a contention that the former election was not fairly held, but that such was a subterfuge and an attempt to evade a contest of said former election; that the bond issue contemplated would raise the indebtedness of said district to an amount in excess of the amount of indebtedness authorized under the Constitution of the state, and would therefore be void; that the defendant is authorized to investigate and determine for himself whether or not such proceeding was legal and would serve any useful purpose; that such school district already has sufficient grounds, buildings, and school facilities; that the demand for the proclamation was not properly made and was too full, in that it specified the voting places and the names of election officers, thereby usurp ing the functions of the defendant as mayor; that the board of education is not the real party in interest, but that the real party in interest is a bond buyer to whom said bonds if issued have been contracted to be sold; that defendant is entitled to a trial by jury.

Upon said cause coming on for hearing the plaintiff moved for a peremptory writ, which was by the court granted, and a peremptory writ issued, to which judgment and order the defendant excepted, and brought the case to this court by transcript. The question for

determination is: Do the provisions of section 20, art. 6, c. 219, Session Laws of Oklahoma of 1913, vest the mayor with any discretion in the calling of an election as therein provided? The section is as follows:

"Section 20. It shall be the duty of the mayor of each city governed by this article, upon the request of the board of education, forthwith to call an election, to be conducted in all respects as are special elections for city officers in the same city, except that the returns shall be made to the board of education for the purpose of taking the sense of such district upon the question of issuing such bonds, naming in the proclamation of such election the amount of bonds to be voted on and the purpose for which they are to be issued; and he shall cause to be published in a newspaper of general circulation published in the said district the time and place of such election, such notice to be given at least ten days before such election."

A mere reading of the section would seem to be a sufficient answer to this question, as its meaning is so evident that no construction is necessary, and the brief of the plaintiff in error does not contend that the defendant is given any discretion under the section of the statute just quoted. The only grounds argued in the brief for a reversal are, first, that the petition was not properly verified. The verification attached to the petition is as follows:

"State of Oklahoma, County of Atoka-ss.: W. A. McBride, Sr., being first duly sworn, makes oath and states that the facts stated in said petition are true"

-which affidavit is signed and sworn to. The statute authorizing the issuance of a writ (section 4911, Rev. Laws 1910) provides that the motion for writ must be made upon affidavit. But this objection, even if well taken, would go only to the issuance of the alternative writ, since at the time the peremptory writ was issued the defendant had made his appearance in court by filing his return to the alternative writ, thereby entering a general appearance, and it would then be immaterial whether the petition were verified at all. In 26 Cyc. 431, it is stated:

"If the complaint or petition is not verified, the proper practice is to move to reject it. If the opposite party takes issue of law or fact thereon, the objection is waived."

See, also Pallady et al. v. Beatty, 15 Okla. 626, 83 Pac. 428. The remainder of the brief of plaintiff in error is taken up with a discussion of what is admitted by the mo tion of the plaintiff for the peremptory writ; it being contended that all the various matters set out in the answer are admitted; such as the allegation that the funds sought to be

raised by the school district were unnecessary; that a former election had been held in said district, and that it would be useless and unnecessary to hold another election; that the bonds, if issued, would have been void; that the board of education knew that it was not necessary to purchase additional grounds or erect additional build. ings; and other matters hereinbefore ad verted to. The true rule of law is that a motion or demurrer does not admit as true immaterial allegations, matters which are not well pleaded, matters of opinion or conclusions of law. Laughlin v. Thompson, 76 Cal. 287, 18 Pac. 330; Story's Equity Plead. ing, 40; Bowen v. Mauzy, 117 Ind. 250, 19 N. E. 526; Kittinger v. Buffalo Traction Co., 160 N. Y. 377, 54 N. E. 1081; State v. School District No. 8, 76 Wis. 177, 44 N. W. 967, 7 L. R. A. 330, 20 Am. St. Rep. 41; Peake v. Buell, 90 Wis. 508, 63 N. W. 1058, 48 Am. St. Rep. 946; Starbuck v. Farmers' Loan Co., 28 App. Div. 308, 51 N. Y. Supp. 8.

sue.

The return to the alternative writ by the defendant, construed as a whole, and disregarding the irrelevant matter, matters of opinion, and conclusions of law, amounts to no more than a statement that, in the judg ment of the defendant, the calling of the elec tion was unnecessary and useless, and for that reason the proclamation should not isThe statute, however, does not clothe the mayor with any discretionary power, and does not constitute him a judicial officer to determine the propriety or necessity of calling the election. His acts in the premises are simply ministerial, and it is expressly made his duty upon the request of the board of education forthwith to call an election to be conducted in all respects as are special elections for city officers in the same city. The necessity of calling the election or the issuing of the bonds, or whether the same, if issued, would be legal or otherwise, is not for his determination. Threadgill et al. v. Cross, 26 Okla. 403, 109 Pac. 558, 138 Am. St. Rep. 964.

It is his duty, when requested by the board of education, to issue the proclamation and call the election, and to cause a notice to be published in a newspaper as provided in sec tion 20, supra. If for any legal reason the proclamation presented to him by the board of education is unsatisfactory, he may pre pare another in conformity to the statute.

The return to the alternative writ failing to show any cause, the peremptory writ was properly ordered by the trial court.

The judgment is affirmed.

By the Court: It is so ordered.

FALLS CITY CLOTHING CO. v. SWEAZEA.

No. 7721-Opinion Filed Oct. 24, 1916.
(160 Pac. 728.)

1. Appeal and Error-Review-Questions of Fact-Findings by Court.

Where a jury is waived and a cause is tried to the court, a general finding of the court is given the same weight and effect as the verdict of a jury.

2. Same.

Where, in such cases, there is a conflict in the evidence on the issues joined, deter mination of the question of fact therein is for the court; and this court, on review, will not weigh the evidence, or determine as to the creditability of witnesses.

3. Same.

And where there is any evidence reasonably tending to sustain the judgment, it will not be disturbed on appeal.

Error

(Syllabus by Bleakmore, C.)

from District Court, Canadian County; Geo. W. Clark, Judge.

Action by the Falls City Clothing Com pany against Ira Sweazea. Judgment for defendant, and plaintiff brings error. Affirmed.

W. M. Wallace, for plaintiff in error.
James I. Phelps, for defendant in error.

Opinion by BLEAKMORE, C. This action was commenced in the district court of Can adian county by Falls City Clothing Com pany, as plaintiff, against Ira Sweazea and S. P. Moody, as defendants, to recover a bal ance due on an account for clothing alleged to have been sold to them as partners. Swea zea alone was served with process and answered. A jury was waived, and there was trial to the court resulting in a general find ing and judgment for the defendants, from which plaintiff has appealed.

The gist of the grounds for reversal urged by plaintiffs in its brief is that there was no evidence tending to support the judgment.

It appears from the evidence that Sweazea and Moody had been partners in the mercantile business at Portales, N. M.; that Sweazea had sold his interest in the partnership to one Reagan, and the business was thereafter conducted under the firm name of Reagan & Moody. The testimony of the witness on behalf of plaintiff strongly tends to establish the fact that the goods in question were ordered by Moody in October, 1911, and delivered to the firm of Sweazea & Moody in January and February, 1912, prior to the dissolution of that partnership.

The wife of Reagan, who succeeded Sweazea in the business, testified that the dissolution of such partnership occurred on February 15, 1912. Defendant's evidence is that the firm was dissolved in October, 1911, before the clothing was ordered; that Moody had no authority to order the same on the partnership account, of which fact the plaintiff and its salesman who obtained such order had been notified by defendant. This is denied by plaintiff's witnesses.

It will be observed that the evidence was in this respect confiicting on the material issues of fact, and there was some evidence reasonably tending to sustain the finding and judgment of the court. In such a case. the general finding of the court, on appeal, is entitled to the same weight and effect as the verdict of a jury. J. I. Case Threshing Mach. Co. v. Lyons & Co., 40 Okla. 356, 138 Pac. 167.

The rule is well established that, where evidence is conflicting, this court will not examine the same to determine where the weight lies; but, if there is any evidence reasonably tending to support the finding or verdict, it will not be disturbed on appeal. Sands v. Bradley & Co., 36 Okla. 649, 129 Pac. 732, 45 L. R. A. (N. S.) 396; Tulsa R. Co. v. Jacobson, 40 Okla. 118, 136 Pac. 410.

"Where there is a conflict in the evidence on the issues joined, the determination of the question of facts thereon is solely for the jury.

"(a) This court on review, where there is a conflict in the evidence on an issue in the trial court, will not weigh the evidence or determine as to the creditability of the witnesses; that, under the law in this jurisdiction, being solely within the province of the jury." C., R. I. & P. R. Co. v. Brazzell, 40 Okla. 460, 138 Pac. 794.

The judgment of the trial court should be affirmed.

By the Court: It is so ordered.

MIAMI TRUST & SAVINGS BANK v. BOTTS, County Treasurer.

No. 7385-Opinion Filed Oct. 24, 1916. (160 Pac. 727.) Taxation-Remedies for Wrongful Tax-Injunction.

Where a tax for the year 1913 is sought to be levied and collected upon that portion of the capital and surplus of a state bank then invested in public building bonds, under

section 7318, Rev. Laws of 1910, held that, in an action for injunction where no question is raised as to the legality or applicability of such statute, the tax should be enjoined.

(Syllabus by Burford, C.)

Error from District Court, Ottawa County; P. S. Davis, Judge.

Action by the Miami Trust & Savings Bank against A. R. Botts, county treasurer of Ottawa county, to enjoin the levy and collection of a tax. From a judgment for defendant, plaintiff appeals. Reversed, with directions.

A. C. Wallace, for plaintiff in error.

Opinion by BURFORD, C. The Miami Trust & Savings Bank brought an action for an injunction against the county treasurer of Ottawa county, seeking to enjoin that officer from extending upon the tax rolls or attempting to collect certain taxes about to be so extended on the tax rolls against said bank. The cause was tried upon an agreed statement of facts. The trial court denied the injunction, and plaintiff appeals.

The county treasurer has filed no brief. However, owing to the public nature of the question involved, we have carefully examined the record herein. The agreed statement of facts is as follows:

"It is hereby agreed by and between the parties hereto that the facts upon which the questions involved must be determined are as follows:

"It is agreed: That the plaintiff is a banking corporation, organized and existing under and by virtue of the laws of the state of Oklahoma, and that the defendant is and

was

county treasurer of Ottawa county, Okla., at all times herein mentioned. That the plaintiff was engaged in the banking business in Miami, Ottawa county, Okla., on the 1st day of January, 1913, and had a capital stock of $10,000 and a surplus and undivided profit of $981.31. That the $10,000 capital stock of said corporation was on the 1st day of January, 1913, invested in public building bonds of the state of Oklahoma, and that $395.96 of the surplus and undivided profit of said corporation was on said date invested in real estate, and that this item last above named was assessed to said corporation separately in the name of said corporation. That the plaintiff corporation was assessed for the year 1913 upon the sum of $587.36, the same being the sum total of the capital stock, surplus, and undivided profits of said corporation, less the amount of the capital stock, surplus, and undivided profit invested in real estate and public building bonds of the state of Oklahoma, and that the plaintiff paid taxes assessed against it for said year on the said sum on the 23d day of January,

1914, and the 26th day of June, 1914, in the sum of $20.51.

"It is further agreed that on the 10th day of March, 1914; the defendant, A. R. Botts, county treasurer of Ottawa county, Okla., caused to be served upon this plaintiff a registered notice setting forth that certain personal property of plaintiff nvested in furniture and fixtures to the value of $1,800 would be assessed to this plaintiff, on the 7th day of August, 1914, at the office of the county treasurer of Ottawa county, in the city of Miami, and county and state aforesaid, and that at the above time written objections might be made to the proposed listing and assessing. A true and correct copy of said registered notice is attached to this agreed statement of facts, marked 'Exhibit A,' and made a part hereof.

"It is further agreed: That the plaintiff appeared by its attorneys at the time and place mentioned in said notice and filed written objections to the proposed listing and assessment, for the reason and as ground for said objections stated that the plaintiff was a banking corporation under the laws of the state of Oklahoma, and could be assessed only upon its capital stock, surplus, and undivided profits, and further stated in said objection that the $10,000 capital stock of said banking corporation was on the 1st day of January, 1913, invested in public building bonds of the state of Oklahoma, and that said bonds were nontaxable, and that $395.96 of the surplus and undivided profit of said corporation was invested in real estate and assessed separately to the plaintiff, and that on the 1st day of January, 1913, it did not have $1,800 of its capital stock, surplus, and undivided profit invested in furniture and fixtures as set out in said notice. That said objections to said assessment as aforesaid, were by the defendant. county treasurer, overruled, and the county treasurer stated and threatened that he would forthwith assess said property as set forth in said notice, and place the same upon the tax roll of said county, and issue a warrant for the collection of the taxes due thereon. That pursuant to said threat the plaintiff herein procured from this court, and caused to be issued upon said defendant, A. R. Botts, a temporary restraining order, restraining said A. R. Botts from listing said property and collecting said taxes aforesaid, which said restraining order is now in full force and effect.

"It is further agreed: That the furniture and fixtures sought to be taxed by said defendant and of the value of $1,800 were used by said plaintiff on said 1st day of January, 1913, in its banking room in the conducting of its business as a banking corporation, and consisted of safes, counters, desks, etc., used in said banking business, and that the same was carried on the books of said bank as an asset, in the amount stated therein, and that said furniture and fixtures were carried on the books of said corporation and set forth in its published bank statement as furniture