delivered the opinion of the court.

*205The office of sheriff of the city and county of Denver is involved in this action.

The allegations of the amended complaint are in substance the same as the allegations of the amended complaint in People ex rel. etc. v. Alexander, No. 4976, so far as such allegations pertain to the office of sheriff.

The judgment of the court below was one of dis? missal against appellant, which judgment, for the reasons stated in the case of People ex rel. etc. v. Johnson, must be reversed, set aside and for naught held, and judgment rendered aud entered in this court in favor of appellant, Alexander Nisbet, and against appellee, Hamilton Armstrong, as prayed in the amended complaint, and that appellant have judgment for costs.

Judgment accordingly.

Decision en banc.

Mr. Justice Steele and Mr. Justice Gunter , dissent.