State v. Bus

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Macfarlane
• Citation: 135 Mo. 325,36 S.W. 636
• Parties: STATE ex rel. WALKER, Atty. Gen., v. BUS.
• Decision Date: 30 June 1896

36 S.W. 636 135 Mo. 325 STATE ex rel. WALKER, Atty. Gen.,
v.
BUS. Supreme Court of Missouri. June 30, 1896.

OFFICE AND OFFICER — INCOMPATIBLE OFFICES — DEPUTY SHERIFF — SCHOOL DIRECTORS.

1. At common law, the acceptance by one who holds a public office of a second public office, incompatible therewith, operates ipso facto as a resignation of the first.

2. The same rule obtains where the holding of two offices by one person at the same time is forbidden by constitution or statute.

3. The incumbent's subsequent resignation of the second office would not restore him to the original office vacated by his own act.

4. The offices of deputy sheriff and school director, in the city of St. Louis, are not incompatible.

5. Deputy sheriffs appointed by the sheriff, under Rev. St. 1889, §§ 8181, 8182, which require them to take the oath of office and to perform the duties prescribed by law to be performed by the sheriff, are public officers.

6. A deputy sheriff is not a "state officer," within the meaning of Const. art. 9, § 18, which declares that, in cities or counties having more than 200,000 inhabitants, "no person shall at the same time be a state officer and an officer of any county, city or other municipality."

7. Const. art. 9, § 18 (which declares that, in cities or counties having more than 200,000 inhabitants, no person shall at the same time be a state officer and an officer of any county, city, or other municipality, nor shall at the same time fill two municipal offices, either in the same or different municipalities), does not apply to a deputy sheriff of the city of St. Louis who also holds the office of school director in said city.

8. A deputy sheriff of the city of St. Louis does not "hold office under the city," within Acts 1845, p. 182, § 1, providing that no such office holder shall be a member of the board of school directors of said city.

In banc. Quo warranto, on the relation of the attorney general, to oust Henry Bus from the office of school director of the city of St. Louis. Judgment of ouster denied.

R. F. Walker, Atty. Gen., and Chester H. Krum, for relator. Ford Smith, for respondent.

MACFARLANE, J.

On the 7th 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 21 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,

36 S.W. 637

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 1845, p. 182, § 1. 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." Section 18, art. 9.

1. The rule at common law is well settled that where one, 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 v. Lusk, 48 Mo. 242; Mechem, Pub. Off. §§ 420-426; Throop, Pub. Off. §§ 30, 51. The rule, it is said, is founded upon the plainest principles of public policy, and has obtained from very early times. Rex v. Patteson, 4 Barn. & Adol. 9. "The rule has generally been stated in broad and qualified 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. § 225; People v. Common Council of City of 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. & Eng. Enc. Law, 562, and cases cited; Mechem, Pub. Off. §§ 429-431; People v. Common Council of City of Brooklyn, 77 N. Y. 503. "An exception is made to the general rule in those cases in which an officer cannot vacate an 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. Off. § 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. That instrument (section 5, art. 14) declares: "In the absence of any contrary provision, all officers now or hereafter elected or appointed, subject to the right of resignation, shall hold office during their official terms, and until their successors shall be duly elected and qualified." From what has been said, it follows that if the position of school director and deputy sheriff are incompatible public offices, or if the constitution or statute prohibits both positions to be held by the same person at the same time, then an acceptance of the office of deputy sheriff operated as a resignation of the office of school director. The subsequent resignation of the former office by respondent would not restore him to the latter. If the office of director became vacant, respondent "could not put himself back into it by his own act." State v. Goff, 15 R. I. 508, 509, 9 Atl. 226.

2. A public office is defined to be "the right, authority, and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the...