
    Territory of Oklahoma, on the relation of W. C. Stevens, County Attorney of Comanche County v. Warren H. Brown, as Probate Judge of Comanche County.
    
    (Filed September 3, 1904.)
    MANDAMUS — Dismissed, When. Where in an original proceeding in mandamus in this court it appears from the petition of the relator and the verified answer and return of the respondent that a disputed question of fact must be tried, and the respondent is entitled to a trial by jury, a peremptory writ of mandamus will be denied, and the petition dismissed.
    (Syllabus by the Court.)
    
      Original in the Supreme Court.
    
    
      J. C. Pollerts, Attorney General, and W. C. Stevens, for plaintiff.
    
      H. E. Howard and C. B. Am.es, for defendant.
   Opinion of the court by

Hainer, J.:

This is an original proceeding in mandamus, brought by the Territory of Oklahoma on the relation of W. C. Stevens, county attorney of Comanche county, against Warren H. Brown, as probate judge of the county of Comanche, Territory of Oklahoma, to ■ compel the said defendant, as such probate judge, to report to the board of county commissioners all fees received and collected by him in entering townsites and conveying the same to the occupants thereof under and by virtue of the federal statute, and at the same time to require him to pay into the county treasury all fees received by him in such matters in excess of tbe amount allowed him by the statutes of this Territory, as his annual salary, as probate judge of said county.

The respondent has filed an answer and return, duly verified, which traverses all the material allegations contained in the petition of the relator, and clearly raises an issue of fact upon which the respondent'is entitled to a trial by jury-

This case falls clearly within the rule announced by this court in the cases of Territory ex rel Crosby v. Crum, 13 Okla. 9, 73 Pac. 297; and Finley v. Territory, 12 Okla. 621, 73 Pac. 273. The petition for a peremptory writ of mandamus is therefore denied, and the case is dismissed.

Burford, 0. J., and Burwell, J., dissenting; all the other Justices concurring.  