State ex rel. Owens v. Draper

• Decision Date: 31 January 1870
• Citation: 45 Mo. 355
• Parties: STATE ex rel. JAS. W. OWENS, Petitioner, v. DAN. M. DRAPER, State Auditor, Respondent.
• Court: Missouri Supreme Court

45 Mo. 355

STATE ex rel. JAS. W. OWENS, Petitioner,

v.DAN. M. DRAPER, State Auditor, Respondent.

Supreme Court of Missouri.

January Term, 1870.

Petition for mandamus.

King Brothers, for petitioner.

H. B. Johnson, Attorney-General, for respondent.

I. The two offices of circuit judge and State representative are made incompatible by our constitution. (Const., art. 4, § 11.)

II. These offices would be incompatible at common law. (Bryan v. Cattell, 15 Iowa, 550; Milward v. Thatcher, 2 T. R. 81; 17 Howell's State Trials, 846, note; Rex v. Tizzard, 9 B. & C. 418; Rex v. Geyer, 1 Burr. 245; Rex v. Lawrence, 2 Chit. 271; Rex v. Sir Wm. Trelawney, 3 Burr. 1615; Rex v. Pateman, 2 T. R. 777; Rex v. Bond, 6 D. & R. 333; Rex v. Patterson, 4 B. & Ad. 23.)

III. Where a person accepts an office incompatible with another office already held by him, the office previously held thereby becomes vacant. (Milward v. Thatcher, 2 T. R. 81; Rex v. Sir Wm. Trelawney, 3 Burr. 1615; 1 Kyd on Corp., ch. 3, § 3; 17 Howell's State Trials, 846, note; Rex v. Tezzard, 9 R. & C. 418; Rex v. Pateman, 2 T. R. 777; Rex v. Bond, 6 D. & R. 333; Rex v. Lawrence, 2 Chit. 371; Rex v. Geyer, 1 Burr. 245; Rex v. Patterson, 4 B. & Ad. 23; Cole on Crim. Jur. 54, Law Lib. 116; Stamland v. Hopkins, 9 M. & W. 178; People v. Provinces, 34 Cal. 520; Bryan v. Cattell, 15 Iowa, 550.)

WAGNER, Judge, delivered the opinion of the court.

The relator, who was formerly judge of the ninth judicial circuit, asks this court to issue a peremptory writ of mandamusagainst the respondent, who is State auditor, to compel him to audit his account for salary as judge, from the first day of January, 1868, to the 31st day of March in the same year. The auditor, in his answer, assigns as a reason for his refusal to audit the said account, that on the first day of January, 1868, the said Owens resigned the office of judge of the ninth judicial circuit, and did not hold or execute the duties of the office thereafter. And for a further answer he says that from the first day of January, 1868, to the 31st day of March, 1868, Owens held and exercised the office of representative in the house of representatives in the Missouri State Legislature, and that he has heretofore received a warrant for his services as such representative, which warrant has been duly paid by the State treasurer; and that the relator is not entitled to receive from the State payment for services in two capacities for the same time.

To this return there is a replication filed, in which it is denied that the relator resigned the office of judge of the Circuit Court, and it is also denied that he was a member of the Legislature from the first day of January, 1868, as stated in the return. But it is admitted that he was a representative in the lower house of the General Assembly from and after the 15th day of January thereafter.

The case is submitted on the pleadings, and they show that whilst Owens was a judge of the Circuit Court he was elected a representative to the Legislature, qualified, took his seat, and performed the duties and functions of that office. There does not appear to have been any resignation of the judgeship, and the question is whether he could legally hold the two offices and receive the pay appertaining to both at the same time. There has never been any doubt about the principle, so far as I am advised, that at common law, if a party accepts another office which is incompatible with the one he holds, the first one would become vacant.

Suppose Owens, instead of being elected to the Legislature, had been elected to a seat on this bench, and had qualified and entered on the discharge of its duties. It is perfectly clear to my mind that his seat on the circuit bench would have been thereby vacated. Or if the auditor should be elected treasurer, or the attorney-general secretary of State, their acceptance of the latter offices would necessarily...