State v. Bus

Citation135 Mo. 325,36 S.W. 636
PartiesSTATE ex rel. WALKER, Atty. Gen., v. BUS.
Decision Date30 June 1896
CourtUnited States State Supreme Court of Missouri

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 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 creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public." Mechem, Pub. Off. 1. The individual who is invested with the authority, and is required to perform the duties, is a public officer. The courts have undertaken to give definitions in many cases; and while these have been controlled more or less by laws of the particular jurisdictions, and the powers conferred and duties enjoined thereunder, still all agree substantially that if an officer receives his authority from the law, and discharges some of the functions of government, he will be a public officer. State v. Valle, 41 Mo. 30; People v. Langdon, 40 Mich. 673; Rowland v. Mayor, etc., 83 N. Y. 376; State v. May, 106 Mo. 488, 17 S. W. 660. Deputy sheriffs are appointed by the sheriff, subject to the approval of the judge of the circuit courts. They are required to take the oath of office, which is to be indorsed upon the appointment, and filed in the office of the clerk of the circuit court. After appointment and qualification, they "shall possess all the powers and may perform any of the duties prescribed by law to be performed by the sheriff." Rev. St. 1889 §§ 8181, 8182. The right, authority, and duty are thus created by statute. He is invested with some portions of the sovereign functions of the government, to be exercised for the benefit of the public, and is, consequently, a "public officer," within any definition given by the courts or text writers. It can make no difference that the appointment is made by the sheriff, or that it is in the nature of an employment, or that the compensation may be fixed by contract. The power of appointment comes from the state; the authority is derived from the law; and the duties are exercised for the benefit of the public. Chief Justice Marshall defines a public office to be "a public charge or employment." U. S. v. Maurice, 2 Brock, 96, Fed. Cas. No. 15,747. Whether a public employment constitutes the employé a public officer depends upon the source of the powers and the character of the duties. The constitution (article 14, § 6) requires ...

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