Nye

The appeal is from the judgment following an order sustaining a demurrer to the complaint. The demurrer was sustained on the ground that the complaint fails, to state facts sufficient to constitute a cause of action.

Prom the complaint the following facts appear: At the general state election held in November, 1906, J. N. Gillett was elected governor of California and E. P. Colgan was reelected controller for the same term. At this time George C. Pardee was the duly elected, qualified and acting governor of the state. On the twentieth day of November, 1906, and after he was elected to succeed himself, but before he had qualified for the succeeding term, and without having received notification of his election, E. P. Colgan died, and on November 23d thereafter Governor Pardee appointed respondent Nye to fill the unexpired term of the office of controller. Nye immediately qualified and took possession of the office on said date.

On Monday, the 7th of January, 1907, Governor Pardee issued a second commission to said Nye as controller “for the term prescribed by law, vice self and E. P. Colgan, deceased.”

On said date Mr. Nye, acting under said commission, again qualified according…