State ex rel. Tilley v. Slover
| Decision Date | 22 December 1892 |
| Citation | 20 S.W. 788,113 Mo. 202 |
| Parties | The State ex rel. Tilley v. Slover, Judge |
| Court | Missouri Supreme Court |
Affirmed.
Huston & Parrish, Pratt, Ferry & Hagerman and Edwards & Davison for relator.
(1) At common law offices are not incompatible unless their functions are such that one is subordinate to the other. People, etc., v. Green, 58 N.Y. 296; Rex v Pateman, 2 T. R. 777; Dyer's Case, Dyer, 158 Rex v. Patterson, 4 B. & A. 15; Rex v. Tizzard 9 B. & C. 421. (2) Incompatibility exists only where the nature and duties of the two offices are such as to render it improper from considerations of public policy for the incumbent to retain both. It does not necessarily arise because the incumbent for the time being places himself in a position where it is impossible to discharge the duties of both offices. Bryan v. Catlett, 15 Iowa 538; Page v. Hardin, 8 B. M. 648; Barnard v. Hoboken, 3 Dutcher, 412; State v. Goff, 15 R. I. 505; State v. Lusk, 48 Mo. 242. (3) There is nothing in the record in this case to show which was first made or which was first accepted. (4) The state constitution does not make any one office incompatible with another. (5) Nor is there any question of abandonment in this case. State v. Seay, 64 Mo. 87; State v. Baird, 47 Mo. 301. (6) The only remedy for the alleged violation by relator of the constitutional provision requiring him to devote his personal attention to the office is provided in Revised Statutes, 1889, secs. 7126-7. (7) The term "misconduct" as used in Revised Statutes, 1889, sec. 8233 has referrence to something done or omitted in discharging the functions of the office.
Karnes, Holmes & Krauthoff for respondent.
(1) Certiorari is not relator's proper remedy; an appeal lies in all cases where it is not expressly prohibited. McVey v. McVey, 51 Mo. 406; Colville v. Judy, 73 Mo. 651. Certiorari will not lie where the remedy by appeal or writ of error can be invoked. State, etc., v. Edwards, 104 Mo. 125; Throop on Public Officers, secs. 801, 802; 2 McQuillin's Practice, secs. 1347-8. (2) Numerous cases hold that, where the power of appointment to a given office is vested in a court, the authority is executive in its character. The particular court is pro hac vice the power of the state in a matter of administration, in the same sense that officers are appointed by the govenor or other officer. Upon this view it has been held that, where a court having power to appoint its own clerk enters an order removing its appointee and appointing another person to the vacancy thus decided to exist, the proceedings are not reviewable on certiorari, not being judicial in their character. Taylor v. Com., 3 J. J. Marsh, 401; Donahue v. Will Co., 100 Ill. 94; Stern v. People, 540. (3) When a deputy was presented whom the judge was not willing to receive, he had the right and was in duty bound to demand that the principal should attend. Throop on Public Officers, secs. 810 and 811. (4) Where the duties of each of two offices are personal the fact that both cannot be filled at the same time in such a manner as the statute creating them is found to have contemplated that they should be, makes them incompatible. State v. Lusk. 48 Mo. 242; 5 Bacon's Abridgment Title, Offices, K; Anderson's Law Dictionary, p. 532; Rex v. Tizzard, 9 B. & C. 148. (5) When Tilley accepted the Buchanan circuit appointment he at once renounced the Jackson county one and no judicial proceedings were necessary to establish the fact or to enforce a removal from the vacated office. State v. Draper, 45 Mo. 355; Throop on Public Officers, secs. 30-31. (6) Relator's answer to the citation was in view of the circumstances and in legal effect a resignation of his office in Jackson county. McCrary on Elections, secs. 238-9 and 253; Barbour v. United States, 17 Ct. of Claims Cases, 149; State v. Allen, 21 Ind. 510.
Certiorari.
This is an original proceeding by certiorari to review the action of the respondent as judge of division number 2 of the circuit court of Jackson county, in removing the relator from the office of stenographer of that division of said court in May, 1891, to which office he had theretofore been regularly appointed.
At the time the relator was removed he was assuming the right to exercise the functions of said office by deputy, he being absent in the circuit court of Buchanan county in the discharge of his duties there as stenographer of that court, to which office he had also theretofore been duly appointed.
I. Jackson is a county having more than one hundred thousand and less than three hundred and fifty thousand inhabitants. In such counties the law provides that the judge of each division of the circuit court shall appoint an official stenographer who shall be a sworn officer of the court, and shall hold his office during the term of the judge appointing him, "provided, however, that the judge shall, at any time, have power to remove such stenographer upon proper charges, entered of record, for incompetency or any misconduct in office, specifying such misconduct, and giving such stenographer an opportunity of being heard;" that it shall be the duty of such stenographer to attend the sessions of the court, and under the directions of the judge to take full stenographic notes of the oral evidence, etc. And further provides that such official stenographer "shall receive as per diem compensation the sum of ten dollars for each and every day in attendance upon the court for which he is appointed," and "may appoint one or more deputies to assist him in the discharge of his duties, but shall not be allowed any additional compensation on account of such deputies." Revised Statutes, 1889, ch. 153, art. 2.
The constitution of 1875 provides: "That no person elected or appointed to any office or employment of trust or profit under the laws of this state * * * shall hold such office without personally devoting his time to the performance of the duties to the same belonging." Art. 2, sec. 18.
We have been favored with the citation of numerous authorities, and elaborate and learned arguments pro and con upon several propositions, which we do not think it either necessary or profitable to determine in this case. In the light of the foregoing provision in the fundamental law of the state, it is immaterial whether the duties of stenographer of the circuit court of Buchanan county are so incompatible with those of the stenographer of division number 2 of the circuit court of Jackson county as that the acceptance of the former position by the relator would, at common law, have been held to have been such an abandonment of the latter as that the same became ipso facto vacant or not. The grave abuses that could, and did creep into the public service under that law, by which the honors and emoluments of an office could be accepted by one person and the performance of its duties "farmed out" to another, for convenience or profit, furnished a cogent and sufficient reason for this constitutional enactment. The wholesome doctrine that "public office is a public trust" was fortified by its provision, declaring it also a personal trust, and that no person should thereafter hold office in this state who did not personally devote his time to the performance of his official duties. That he may have deputies, who, under his supervision and control, may assist him in the performance of his official functions, does not dispense with, nor in any way lessen his obligation to personally devote his time to their performance. That this wise and salutary provision of the constitution may be enforced through the provisions of the statute under consideration as to this particular class of officers, we have no doubt.
When the constitution of 1875 was adopted, and when, in pursuance of this provision thereof, the...
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