State ex rel. Walker v. Bus

• Decision Date: 30 June 1896
• Citation: 36 S.W. 636,135 Mo. 325
• Parties: The State ex rel. Walker, Attorney General, v. Bus
• Court: Missouri Supreme Court

36 S.W. 636

135 Mo. 325

The State ex rel. Walker, Attorney General, v. Bus

Supreme Court of Missouri

June 30, 1896

Judgment of ouster denied.

R. F Walker, attorney general, and C. H. Krum for relator.

(1) The rule that two incompatible offices can not be held by the same incumbent is founded on the plainest principles of public policy, and has obtained from very early times, and when one has two incompatible offices both can not be retained. The public has a right to know which is held and which is surrendered and it should not be left to chance or the uncertain or fluctuating whim of the officeholder to determine. The rule, therefore, is "that the acceptance of and qualification for an office incompatible with one then held is a resignation of the former and the acceptance of the latter ipso facto vacates the former." And where a man accepts an office under the state he vacates another held under the same sovereignty. Mechem on Pub. Offices, secs. 420 to 426; Throop on Pub. Offices, secs, 30, 31; Dillon on Municipal Corp., secs. 225 to 227; Moore v. Lusk, 48 Mo. 242; State v. Draper, 45 Mo. 355; Howard v Shoemaker, 35 Ind. 111; Cotton v. Phillips, 56 N.H. 220; People v. Hanifan, 96 Ill. 420; Stubs v. Lee, 64 Maine, 195; Shell v. Cousins, 77 Va 328. (2) Let us now see what is the character of the office of deputy sheriff, held also by the defendant. It is in some senses considered to be a municipal office. Britton v. Steber, 62 Mo. 370; State ex rel. v. Dillon, 90 Mo. 229; Charter of city of St. Louis, sec. 1, art. 4. Considering the office of sheriff to be a municipal office defendant can not hold it and at the same time retain his seat on the board under section 1, Acts 1845, page 182. (3) In view, however, of the nature, duties and history of the office of sheriff, the better view is that it is a state office. State ex rel. v. Finn, -- Mo.App. 347; State ex rel. v. Mason, 4 Mo.App. 397. And it is certainly so intended by sections 10, 11 of article 9 of the constitution which provides for the office. (4) Conceding it to be a state office, it is incompatible with that of school director under the provisions of section 18, article 9 of the state constitution. It is difficult to conceive how the defendant can hold the two important offices of school director and deputy sheriff, and personally at all times perform the duties of each as required by law. No matter from what light the picture is viewed, the latter office is incompatible with the former and by accepting the latter he vacated the former. Having then usurped, intruded himself into, and held and executed the former office and being still doing so, under the provisions of sections 7390 and 7394, Revised Statutes, he should be ousted.

Ford Smith for respondent.

(1) Neither the sheriff of the city of St. Louis nor his deputies hold office under the city of St. Louis. Nor are they city officers. Constitution of Mo., art. 9, sec. 10; State ex rel. v. Rombauer, 101 Mo. 499; State ex rel. v. McKee, 69 Mo. 504; State ex rel. v. Dillon, 87 Mo. 487; State ex rel. v. Dillon, 90 Mo. 229; State ex rel. v. Mason, 4 Mo.App. 377; State ex rel. v. Finn, 8 Mo.App. 341. (2) A deputy sheriff is not an officer at all. He is a mere employee of the sheriff. He is removable at the pleasure of the sheriff. He gives no bond. He is not commissioned by the governor, as all officers must be. Portman v. State Board, 50 Mich. 258; Attorney General v. Cain, 84 Mich. 223; People v. Hills, 1 Lans. 202; State v. Champlin, 2 Bailey (S. C.), 220; Darley v. The Queen, 12 Clark & Finnelly, 520. (3) He is not prohibited from holding the positions of member of the school board and deputy sheriff at the same time by section 18, article 9, of constitution. The school board is not a municipality. State ex rel. v. School Board, 112 Mo. 213; Heller v. Stremmel, 52 Mo. 309; State ex rel. v. Leffingwell, 54 Mo. 458; Anderson's Law Dic., title, Municipality; Kilgore v. Magee, 85 Pa. St. 401; Philadelphia v. Fox, 64 Pa. St. 169; Dillon on Municipal Corp. [4 Ed.], secs. 19, 20, 22, 24, 58, 183, 184; Beach on Public Corporation, sec. 59. (4) There is no question of two incompatible offices involved. Even if the employment of deputy sheriff should be held to be an office, still it is not incompatible with the office of school director. The Queen v. Parham, 18 L. J. Rep. (N. S.) 281; People v. Green, 58 N.Y. 295; State v. Feebleman, 28 Ark. 424; Commonwealth v. Kent, 2 Cush. 577. (5) As respondent does not now hold the position of deputy sheriff, and did not when the information herein was filed, a judgment of ouster could remedy no wrong -- accomplish no good purpose. It would simply entail upon the school board the expense of a special election to fill the vacancy. In such a case the courts will not interfere. State v. Fisher, 28 Vt. 714; Morris v. Underwood, 19 Ga. 559; Commonwealth v. Reigart, 14 S. & R. 216; State v. Schnierle, 5 Rich. L. Rep. 299.

OPINION

In Banc.

Quo Warranto.

Macfarlane J.

On the seventh day of November, 1893, respondent was elected a director of the public schools of St. Louis for a term of four years from that day.

The public schools of St. Louis are managed and controlled by a corporation under the name of "the Board of President and Directors of the St. Louis Public Schools." Its territory is coterminous with that of the city of St. Louis, and its powers are vested in a board of twenty-one directors elected for terms of four years by the qualified voters of the city.

Respondent at the time of his election, and at the time of the commencement of this proceeding, possessed all the qualifications necessary to make him eligible to take and hold the office of director.

In January, 1895, he was appointed deputy sheriff of the city of St. Louis, and continued to hold that position and perform its duties until April 10, 1895, when he resigned, and has not since held the position or exercised any of the duties of such deputy. After his appointment, acceptance, and qualification as deputy sheriff, respondent continued to act as such school director.

This is a proceeding in quo warranto, commenced April 14, 1896, against respondent, the purpose of which is to oust him from the office of school director, on the ground, as alleged in the information, that by his acceptance of the position of deputy sheriff the office of director at once became vacant.

The charter of the public school corporation has this provision: "No member of the board of aldermen, or board of delegates, or any person holding office under the city of St. Louis, whether elected or appointed, shall be a member of the board of school directors of the city of St. Louis." Acts of 1845, sec. 1, page 182.

Section 5 of the same act provides that any person violating section 1 shall be guilty of a misdemeanor, and shall, moreover, be disqualified from holding a seat in said board, or acting as one of its officers.

The state constitution has this provision:

"In cities or counties having more than two hundred thousand inhabitants, no person shall, at the same time, be a state officer and an officer of any county, city, or other municipality; and no person shall, at the same time, fill two municipal offices, either in the same or different municipalities." Sec. 18, art. 9.

I. The rule at common law is well settled that one who, while occupying a public office, accepts another which is incompatible with it, the first will, ipso facto, terminate without judicial proceeding or any other act of the incumbent. The acceptance of the second office operates as a resignation of the first. State ex. rel. v. Lusk, 48 Mo. 242; Mechem, Pub. Offices, secs. 420-426; Throop, Pub. Officers, secs. 30, 51.

The rule, it is said, is founded upon the plainest principles of public policy, and has obtained from very early times. King v. Patteson, 4 Barn. & Adol. 9.

"The rule has been generally stated in broad and unqualified terms, that the acceptance of the incompatible office, by whomsoever the appointment or election might be made, absolutely determined the original office, leaving no shadow of title in the possessor, whose successor may be at once elected or appointed, neither quo warranto nor a motion being necessary." 1 Dill. Mun. Corp. [4 Ed.], sec. 225; People ex rel. v. Brooklyn, 77 N.Y. 503.

Where the holding of two offices by the same person, at the same time, is forbidden by the constitution or a statute, the effect is the same as in case of holding incompatible offices at common law. In such case, the illegality of holding the two offices is declared by positive law, and incompatibility in fact is not essential. In each case the holding of two offices is illegal; it is made so in one case by the policy of the law, and in the other by absolute law. In either case the law presumes the officer did not intend to commit the unlawful act of holding both offices, and a surrender of the first is implied. State v. Draper, 45 Mo. 355; 19 Am. and Eng. Encyclopedia of Law, 562u, and cases cited; Mechem, Pub. Offices, secs. 429-431; People ex rel. v. Brooklyn, 77 N.Y. 503.

"An exception is made to the general rule in those cases in which the officer can not vacate the first office by his own act, upon the principle that he will not be permitted to do indirectly what he could not do directly." Mechem, Pub. Offices, sec. 421.

Whatever doubt may exist in some jurisdictions as to the right of a public officer to resign his office without the concurrence of the officer or body which has the power to act upon it, all doubt is removed in this state by a constitutional recognition of the right. The constitution (sec. 5, art. 14) declares:

"In the absence of any contrary provision, all officers now or hereafter elected or...