on condition that the person employed could be discharged at will, was no defense under the facts in this case.

The power of a general agent cannot be restricted by secret instructions of his principal so as to affect a party dealing with such agent without notice of the covert instructions: Scales v. Parrie & Co., 13 Neb., 521.

Tested by the foregoing rules of law, and under the facts of the case presented by the record, the appellee undoubtedly had a right of action against appellant at the time of commencing his suit. But, testing the complaint by the same rules, we cannot pronounce it sufficient to sustain the judgment rendered therein. There is not averred a sufficient cause of action to either inform the defendant of the precise ground upon which recovery was sought, and which the defendant was called upon to defend, or to warrant the rendition of a judgment for either of the two causes of action, to wit: wages due for actual services rendered, or damages for breach of the contract. Since the facts established by the evidence in the case show that nothing was due plaintiff as wages for services actually rendered prior to the commencement of the suit, on the twenty-second day of October, 1880, it may perhaps be fairly presumed that the object of the suit was to recover damages for breach of the contract. But no breach is sufficiently set out. The averment that "the defendant neglects and refuses to keep and perform its said agreement, to the damage of the plaintiff," etc., is insufficient. Did the pleader intend by this averment to allege a breach of the contract to pay the certain wages stipulated, or the contract to employ for a year? Or, was it intended to cover both?

As we have seen, the servant can have but one action: either for wages due, or for damages; he cannot have both: Howard v. Daly,

supra.

In the case before us, the cause of action of the plaintiff was clearly not for wages, but damages for breach of the contract. The defect in the complaint is not cured by the mere abolition of forms of action under the code practice. The allegation of the very cause of action is wanting. The code requires that the complaint shall contain a statement of the facts constituting the cause of action." The facts constituting the breach should have been alleged, not the evidence of those facts, but simply a clear and concise statement of such facts. Ultimate, not evidential facts, must be pleaded. In other words, if the breach consisted in a wrongful discharge of the plaintiff by the defendant, before the end of the term of employment, such wrongful discharge, as a breach of the contract, should have been averred as the fact constituting the cause of action.

Clearly, a breach must be stated, or there is no cause of action shown; the essential facts must be stated in unequivocal language, and not left to be inferred:" Moore v. Bresse, 30 Cal., 570.

The case of Van Schaick v. Winne et al., 16 Barb., 90, presents a question which is on all fours with the one we are considering. There the only averrment of a breach was that the defendant "failed

to fulfill his obligations by virtue of said instrument." The court held this wholly insufficient, and that it was a mere conclusion of law, to be derived from the facts, when they are made to appear, and was not an issuable fact.

The court say further: "The plaintiff should have stated such facts as if controverted, he intended to prove, to show a breach of the agreement. *** To say that he has failed to fulfill his obligations, is no more than saying that he has broken his contract, or that the plaintiff is entitled to judgment. It involves no question of fact. It is merely the plaintiff's inference from a state of facts which he has not thought fit to disclose." The same rule is laid down by Mr. Bliss in his work on code pleading, section 210.

The plaintiff is not at liberty to make out his case by proving facts not alleged in his complaint: Bristol v. R. & S. Ry. Čo., 9 Barb.,

158.

So in the case at bar; here was no answerable fact pleaded, and the denials of the answer put the case to trial upon an immaterial issue, or rather no issue, as to the cause of action.

Judging from the specific sum claimed in the complaint, to wit.: one thousand and ninety dollars, and the sum for which judgment was rendered, viz.: one thousand and fifty dollars, and also looking to the instructions of the court given on the trial, it would appear that the verdict and judgment were based on some exact computation of wages due under the contract-for both actual and constructive services for a specific time, including the services which the plaintiff testified that he rendered after the commencement of the suit, and hence, such judgment is in violation of the rules of law herein laid down as governing such cases, and cannot be allowed to stand.

Had the case been tried upon proper issues, we do not think the assignments of error which go to the evidence allowed by the court on behalf of the plaintiff would be well taken.

The judgment will be reversed and the cause remanded.
Judgment reversed.

PEOPLE v. OSBORNE.

Filed October 31, 1884.

STATE INDUSTRIAL SCHOOL-BOARD OF CONTROL OF-HOW APPOINTED.-The board of control of the state industrial school, as established by the act of February 12, 1881, are not officers created by the constitution. The legislature has power to provide for the manner of making original appointments to such offices, the terms of office, how all vacancies shall be filled and when the time of an incumbent appointed to fill a vacancy shall expire.

THE SAME VACANCY IN-POWER OF GOVERNOR TO FILL.-A person who has been ap pointed to fill a vacancy in the board of control of the state industrial school, caused by the resignation of one of the members thereof, is entitled to hold such office in the same m inner and for the same time that his predecessor might have held it, and until his successor shall be elected and qualified. While such incumbent so holds such office there is no vacancy, within the meaning of section 2 of the act of February 12, 1881, which the governor is authorized to fill without the consent of the senate.

ERROR to the district court of Jefferson county. The opinion states the facts.

D. F. Urmy, Attorney-General, Markham, Patterson & Thomas, and J. H. Brown, for the plaintiffs in error.

A. J. Sampson and A. H. De France, for the defendant in error.

BECK, C. J. The legislature of 1881 passed an act establishing a state institution to be styled the state industrial school. The second section of the act provides that, "Sec. 2. The general supervision and government of said industrial school shall be vested in a board of control, who shall be appointed by the governor, by and with the advice and consent of the senate, the members of which board shall hold their offices for the respective terms of two, four and six years from the first day of March, A. D. 1881, and until their successor is appointed and qualified; and whenever any vacancy shall occur in said board, by death, resignation or otherwise, the governor shall fill the same by appointment, and the appointee shall hold only for the unexpired term of the person whose place he is appointed to fill:" Session Laws Col., 1881, p. 132.

The act was approved on the twelfth day of February, 1881, and on the next day the legislature being in session, the governor of the state, by and with the advice and consent of the senate, appointed one A. L. Emrigh a member of the board of control of said industrial school for the term of two years, to hold and occupy said office from the first day of March, 1881.

The appointee qualified, and performed the duties of the office up to the thirteenth day of November, 1882, when he resigned, and the defendant in error, Osborne, was appointed by the governor to fill the vacancy. The term of office to which the said Emrigh had been appointed, expired on the first day of March, 1883, but through oversight, no nomination for a successor to the then incumbent, Osborne, was sent to the senate, which convened in the month of January, 1883; consequently no successor was appointed at that session. After the adjournment of the general assembly, to wit, on the fourteenth day of June, the governor appointed the relator, C. P. Butler, a member of said board of control, in place of said Osborne, on the theory that the term of the latter had expired, and that a vacancy existed by reason of the failure of the governor and senate to appoint a successor.

Butler qualified and demanded the office, but Osborne refused to surrender the possession thereof, and the present action is brought to test the question, who is entitled to exercise the functions of said office.

A demurrer was filed to the complaint, alleging that it did not contain facts sufficient to constitute a cause of action. The district court sustained the demurrer, and dismissed the complaint.

The pleadings present two principal questions for our consideration, viz: 1st. Do the provisions of the constitution, concerning appointments to office and appointments to fill vacancies in office,

control in the present case, or do the provisions of the statute establishing the industrial school control such appointments? 2d. Did a vacancy exist in the office in question at the time of the appointment of the relator, C. P. Butler?

Section 6 of article IV of the constitution is as follows: "The governor shall nominate and, by and with the consent of the senate, appoint all officers whose offices are established by this constitution, or which may be created by law, and whose appointment or election is not otherwise provided for, and may remove any such officer for incompetency, neglect of duty or malfeasance in office. If, during the recess of the senate, a vacancy occur in any such office, the governor shall appoint some fit person to discharge the duties thereof until the next meeting of the senate, when he shall nominate some person to fill such office. If the office of auditor of state, state treasurer, secretary of state, attorney-general, or superintendent of public instruction, shall be vacated by death, resignation or otherwise, it shall be the duty of the governor to fill the same by appointment, and the appointee shall hold his office until his successor shall be elected and qualified in such manner as may be provided by law. The senate, in deliberating upon executive nominations, may sit with closed doors, and the vote shall be taken by ayes and noes, which shall be entered upon the journal."

A comparison of the foregoing provisions of the constitution with those of sec. 2, supra, of the statute, shows that, while an officer appointed to fill a vacancy by virtue of the provisions of the statute, holds the office for the unexpired term of his predecessor, one appointed under the provisions of the constitution holds only until the next meeting of the senate.

It is evident, then, that if the offices in question had been created by the constitution, the statutory provision for the filling of vacancies would be in conflict with the constitutional provisions on the same subject, and to the extent of the variance the statute would be void. But these offices were not created by the constitution, but by the statute, nor can it be said that the constitution has provided either for original appointments to fill the offices, or for appointments to fill vacancies in said offices, since both events are "otherwise provided for" by the statute. This being so, the fundamental principle obtains, that the legislature has unlimited power in regard to legislation, save only as to restrictions imposed by the constitution: Thorpe v. Rutland & Burlington R. R. Co., 27 Vt., 140, 142; Cooley's Constitutional Limitations, p. 107.

There being no constitutional restrictions imposed in this instance, it was entirely competent for the legislature to provide, as it has done, the manner of making original appointments, the terms. of office, how all vacancies shall be filled, and when the term of an incumbent appointed to fill a vacancy shall expire. This view of the subject is in harmony with the rule announced by this court in the case of People, etc. v. Rucker, 5 Col., 455.

We proceed now to the second inquiry: Did a vacancy exist in the office in question at the time of the appointment of Butler?

This inquiry involves a construction of sec, 2 of the statute establishing the industrial school.

This section provides that the members of the board of control shall be appointed by the governor, by and with the advice and control of the senate during the session of the general assembly, the appointees to hold their offices for the respective terms of two, four and six years, from the first day of March, 1881, "and until their successors shall be appointed and qualified." This provision covered the case of Emrigh, who was appointed for the term of two years.

The following provision covers the case of Osborne, his successor. "Whenever a vacancy shall occur in said board by death, resignation or otherwise, the governor shall fill the same by appointment, and the appointee shall hold only for the unexpired term of the person whose place he is appointed to fill."

What is the meaning of the clause," and the appointee shall hold only for the unexpired term, etc?"

Counsel for the relator say this is a limitation imposed upon incumbents appointed to fill vacancies, restricting them to the unexpired terms, simply thus denying to this class of incumbents the constitutional extensions vested in original appointees by the words: "and until their successors shall be elected and qualified."

Counsel for defendant in error say this construction is unwarranted, and argues that Osborne, upon his appointment and qualification, became entitled to hold the office in the same manner and to the same extent of term that his predecessor might have held it, including the conditional extension mentioned.

In our judgment the latter view is the correct one. It is sustained both by the words of the statute, taken in their obvious and ordaining signification and import, and by the evident intention of the framers as collected from the context.

It is a fundamental rule of interpretation, that every law is adopted as a whole, and a clause which standing by itself might seem of doubtful import, may yet be made plain by comparison with other clauses or portions of the same law: Cooley's court lim's,

p. 70.

The intent and purpose of a law is to be considered in its interpretation, and this intent may be ascertained from the words employed and by viewing and comparing together the whole and every part of the act: 1 Kent, 462.

Viewing the act in the light of these familiar principles, the purpose and meaning of the phrase, "and shall hold only for the unexpired term of the person whose place he is appointed to fill," is plain and unambiguous.

The terms of the first incumbents were made to consist of different periods, so that one term would expire every two years dating from the first day of March, 1881. All terms thereafter were to be six years. This arrangement made it the duty of the governor, by