it especially denies that it is indebted to the plaintiff herein in any sum whatever, but in event it should be determined that it is under any obligation to the said plaintiff, then this defendant would show that it has no legal means under the law whereby it could raise money to pay any such indebtedness, for the reason that the 5 per cent. debt limit has already been reached, as is hereinbefore alleged, and for that reason no judgment can be recovered against this defendant in this action. "Wherefore, premises considered, defendant prays that it go hence without any day, and that it recover its costs herein expended.'

Attached to said answer, and marked Exhibit A, is a copy of the same instrument as is attached to plaintiff's amended petition

and marked Exhibit D.

Thereafter plaintiff filed his demurrer to defendant's answer, which was overruled, and exceptions preserved. The plaintiff then filed his reply to the defendant's answer, which was a general denial. The plaintiff thereupon filed a motion for judgment on the pleadings, which motion is as follows: "Comes now the plaintiff, H. H. Sayre, and moves the court for a verdict on the pleadings in the above entitled cause, and as grounds for said motion states as follows, to wit:

"(1) Because the answer of the defendant filed herein admits every material allegation in plaintiff's petition, and under plaintiff's amended petition he is entitled to a verdict in this case.

"(2) Because, the office of city engineer under the law not being vacant by reason of the attempted discharge of this plaintiff, it is immaterial as to whether L. J. Meyers was appointed engineer or not, as this plaintiff was entitled to his compensation to the end of his term, and, if he was unlawfully deprived thereof, he is entitled to recover in this action.

"(3) Because the question of debt limit or the tax limit of the city of Ardmore has nothing whatever to do with this case, this not being an effort to recover by reason of a contract, and should not be considered in arriving at a verdict in this case.'

The motion was sustained, and judgment rendered for plaintiff in the sum of $1,500, as above stated, to which defendant excepted. Motion for new trial was overruled, exceptions preserved, and defendant brings error. Counsel for the city presents several assignments of error, but in his brief submits but two propositions, which are as follows: First. "The trial court erred, in overruling the defendant's demurrer to the plaintiff's petition." Second. "The court erred in sustaining the motion of plaintiff for judgment on the pleadings."

[6] The first contention of counsel under the assignment that the trial court erred in overruling defendant's demurrer to the petition is:

"That the petition does not disclose that H. H. Sayre was the qualified and acting engineer of the city of Ardmore."

This insistence cannot be sustained, for the reason that by reference to the petition we find it is alleged in paragraph 3 that:

"The mayor, on or about May 18, 1910, appointed this plaintiff city engineer of the city of Ardmore, and the said appointment was by the commissioners duly approved, as by the charter provided."

And in paragraph 7 it is alleged that: "Plaintiff was legally in possession of and exercising the functions of the office of city engi

neer under and by the provisions of the charter of the city of Ardmore."

This is certainly a plain allegation of appointment, qualification, and possession, and also an allegation of claim of right to hold the office. These allegations also answer the contention of counsel that:

"Before a person claiming to have been ousted from a public office can recover his damages, that is, loss of salary and emoluments of office, he must first establish his title to the office as provided by law."

What more would counsel want, or what more could he ask? Here is an allegation of appointment, qualification, possession, and performance of duty. Counsel states, and we think correctly, that:

"The law presumes that the rightful holder of an office, is in the rightful possession of the same, and entitled to the emoluments thereof."

Under the allegations above stated, which were duly verified, and not denied under oath, the plaintiff was the rightful holder, and in possession of the office, and entitled to the salary and emoluments.

Under section 4759, Rev. Stat. Okl. 1910, Ann., which was in force at all the times referred to herein:

"Allegations of any appointment of authority shall be taken as true unless the denial of the same be verified by the affidavit of the party."

Besides, it must not be overlooked that

the right to the salary of a public officer does not depend upon the performance of duty as such officer. If so, official salaries would be very uncertain.

As stated by Judge Dillon in his great work on Municipal Corporations (5th Ed.) § 425:

"In the case of officers the compensation-usually a salary-is attached to the office as an incident, and is not dependent upon the performance of actual service, while the salary or comation for services actually rendered." pensation of an employé is intended as remuner

As stated in Carroll v. Siebenthaler, 37 Cal. 195:

public office is incident to the title to the office, "The principle that the salary annexed to a and not to its occupation and exercise, was affirmed in Dorsey v. Smyth, 28 Cal. 21, and Stratton v. Oulton, 28 Cal. 44. The petitioner having been elected and qualified, and being ready and willing to enter upon the discharge of the duties of his office, became entitled to the salary attached to the office, and his right to the salary was unaffected by the fact that an usurper discharged the duties of the office."

Sections 4920 and 4925, Rev. Stat. Okl.

1910, referred to by counsel, have no bearing in this case. These sections refer exclusively to proceedings in the nature of quo warranto. This is plainly and solely an action to recover money due from the city to the plaintiff for salary as city engineer. The original petition evidently contemplated an action in the nature of quo warranto, but that proceeding was abandoned by the amended petition, and the cause based entirely upon an action against the city to recover money due for salary. No objection was made to this change of cause of action, nor to the

"If the officer is guilty of malfeasance or maladministration in office, it is within the power of the appointing power to remove him, unless expressly prohibited by law."

The same doctrine was announced in Ewing v. Turner, 2 Okl. at page 94, 35 Pac. 951.

The question now is: Does the charter prohibit the removal by the appointing power? We are of opinion that it does. The language of the charter is positive that "he shall hold his office for a term of two years, unless sooner removed as provided in this charter," and no provision for the removal is provided in the charter. This, to our mind, is a clear inhibition on the right or power of the mayor and board of commissioners to remove. It follows, therefore, as a natural corollary, that the action of the mayor and board in that behalf was not merely voidable, but absolutely void, and in consequence thereof their action in attempting to appoint an other city engineer was also void, and did not carry with it even a color of title to the office.

In Cameron v. Parker, supra, 2 Okl. at page 297, 38 Pac. at page 21, the court says: "As a matter of course, the court must necessarily be governed by the law conferring upon the Governor the power of removal. If the court should determine that the Governor had unlawfully exercised his power of removal, or possessed no such power under the law, it could not hold that the plaintiff had, under the law either an absolute or prima facie title; or, if the court should hold that the Governor had no power or authority to appoint an officer with out the advice and consent of the council, under the law it could not hold that the plaintiff had either an absolute or a prima facie title there

to."

It would seem from the foregoing that whatever Meyers may have done, he was acting simply as a usurper, and his rights, if involved, would be determined as such. Nor do we intend to intimate that he was acting in bad faith.

[5] Counsel further insists that, the city having paid Meyers for his services as city engineer, it is not liable to the plaintiff for his salary, and base their contention on the case of Stearns, Mayor, v. Sims, 24 Okl. 623, 104 Pac. 44, 24 L. R. A. (N. S.) 475, wherein the following language is used:

Where a de jure chief of police is, pending suit on charges against him in the district court, wrongfully suspended by order of the judge thereof at chambers, which said order is later set aside and said suit dismissed, and where said city pays a chief of police de facto, during his incumbency, the salary provided by law, said officer de jure, after obtaining possession of the office, cannot recover from the city the salary for the same period."

That case does not sustain the contentions

who held colore officii. In the instant case the pretended appointment, being absolutely void, made without even a color of power or right, was simply a nullity. As said by Justice Campbell, Wayne County v. Benoit, 20 Mich. 176, 4 Am. Rep. 387:

"There is a distinction taken by many authorities between an office held de facto, under color of title, and one usurped without any legal pretext."

The case of Stearns, Mayor, v. Sims, supra, is distinguished from the instant case in this: That in the case cited, holding that the de jure officer could not recover from the city where the salary had been paid to the de facto officer, the de jure officer had been suspended by the district court as provided by law, and the de facto officer appointed by the legal appointing power. There was no question of jurisdiction either in the power of the court to suspend nor the power to fill the vacancy during suspension. The temporary officer was clearly a de facto officer. It would certainly be extending the doctrine to a dangerous point to say that an officer could be displaced by a power or body without any colorable right or jurisdiction, and another person placed in the position, and the salary paid to the pretended officer, and thereby defeat the regular officer of his right to recover his salary from the paying body, especially where the pretended, wrongful removal is made by the same power that is responsible for the payment. The answer does not even allege that the full or regular salary was paid to Meyers. It simply says, in substance, that he received payment, but does not state the amount. But that is immaterial. He was not entitled to any of it. He could not possibly have taken the first step to recover it by establishing his title to the office. Judge Cooley, in his dissenting opinion in Auditors of Wayne County v. Benoit, 20 Mich. 176, 192, 4 Am. Rep. 382, having involved a somewhat similar question, uses the following language:

People v. Smyth, 28 Cal. 21, and there it was "The only case directly in point is that of held that the lawfully elected officer, who had been excluded by one coming in by color of title, might, after recovery of the office, maintain an action against the county for his salary during the usurpation, notwithstanding it had been previously paid to the usurper. This decision appears to me to be sustainable on the soundest reasons of public policy. A wrong is done to which the usurpation of a public office takes society and public order in every instance in place; and the rules of law ought to be such as to give the greatest possible discouragement to such a proceeding. The county authorities, in a case like this, ought not to be told that they may countenance the intrusion with impunity, and deliver over to a usurper the emoluments of an office to which he has neither a legal, nor a Such a rule encourages usurpamoral claim. tions, and tends to lower the standard of public morality. Public policy requires that municipal officers should be allowed to sanction or recognize the intrusion only so far as may be necessary to give the public the full benefit of protection which the rule regarding the acts of

(Okl.

PER CURIAM. Adopted in whole.

PETROLEUM TAX STATUTE "PROPERTY

2. LICENSES 1, 11 OCCUPATION TAX TAX." The gross production tax imposed by subdivision A of the act of March 11, 1915, is not a property tax, but, instead, is a tax on the business or occupation named therein, the amount of which is determined by the value of the gross production of petroleum and other commodities named, produced during the last preceding quarter annual period. Such tax the Legislature may provide for by section 12, art. 10, of the Constitution.

[Ed. Note. For other cases, see Licenses, Cent. Dig. 88 1, 18-21; Dec. Dig. 1, 11. For other definitions, see Words and Phrases, First and Second Series, Property Tax.] 3. TAXATION 200-OCCUPATION TAX-EXEMPTION-NATURE OF STATUTE.

That portion of the act which provides that the tax levied shall be "in lieu of any other taxes that might be levied and collected upon an ad valorem basis upon the equipment and machinery in and around any well producing natural gas or petroleum or other mineral oil, and used in actual operation of such producing well from which a gross production tax is collected as herein provided," is not an exemption from taxation as prohibited in sections 46, 46U, 50, art. 5, of the state Constitution, but a substitution of one form of taxation for another upon the conditions named in the act. [Ed. Note. For other cases, see Taxation, Cent. Dig. § 319; Dec. Dig. 200.

For other definitions, see Words and Phrases, First and Second Series, Exemption.]

-

4. TAXATION 4 SUBJECTS OF TAXATION -SELECTION BY LEGISLATURE-POWER. Section 13, art. 10, of the Constitution gives to the Legislature authority to select the subjects of taxation.

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 3-14; Dec. Dig.

4.]

5. TAXATION 42-CLASSIFICATION OF SUB

JECTS-REASONABLENESS.

that nothing therein shall be held or construed to prevent the classification of property for purposes of taxation and the valuation of different classes by different means or methods. [Ed. Note.-For other cases, see Taxation, Cent. Dig. 88 90-95; Dec. Dig. 42.] 6. TAXATION 42 CLASSIFICATION VIEW BY COURTS.

RE

To justify judicial interference, the right to classify being a legislative function, the classification adopted must be based on an invidious and unreasonable distinction with reference to the subject of the tax. Unless this appears, the court will not declare the classification void, though it may not approve its terms, or may question the wisdom of its enactment.

GROSS

40.] PRODUC

Cent. Dig. §§ 90-95; Dec. Dig. 42.] [Ed. Note.-For other cases, see Taxation, 7. TAXATION 40 UNIFORMITY PRODUCTION TAX. The act imposing a gross production tax equal to one-half of 1 per centum of the gross value of ores bearing lead, zinc, jack, gold, silver, or copper, or asphalt, 2 per centum of the gross value of the production of petroleum or omits to impose such production tax on coal, is other mineral oil or natural gas, and which not repugnant to section 5, art. 10, of the Constitution, providing that taxes shall be uniform upon the same class of subjects. Cent. Dig. 88 68-89; Dec. Dig. [Ed. Note.-For other cases, see Taxation, 8. TAXATION 42 TION TAX. based on the gross value of the production of The imposition of a gross production tax, petroleum or other mineral oil or natural gas, as provided by section 1 of subdivision A of the act of March 11, 1915, but which provides that, whenever the mining of said commodity is so carried on and conducted through a federal agency, the state has no authority to impose that property of those so engaged shall be taxed and collect therefrom such tax, and provides the gross production tax provided to be levied on an ad valorem basis, and not be subject to 10, of the Constitution, requiring that taxes in the act, is not in conflict with section 5, art. shall be uniform upon the same class of subjects.