State v. Jefferis

• Decision Date: 07 March 1919
• Docket Number: 966
• Citation: 178 P. 909,26 Wyo. 115
• Parties: STATE v. JEFFERIS
• Court: Wyoming Supreme Court

178 P. 909

26 Wyo. 115

STATE v. JEFFERIS

No. 966

Supreme Court of Wyoming

March 7, 1919

ORIGINAL proceedings for mandamus by the State of Wyoming on the relation of Ernest C. Raymond against I. C. Jefferis State Auritor of the State of Wyoming.

Lacey &amp Lacey, Lafleiche & Diefenderfer, and Kinkead & Henderson, for relator.

Relator is the de jure judge of the Seventh Judicial District of Wyoming and entitled to the salary and perquisites thereof. A resignation of a public officer is not complete unless accepted and an appointee has qualified to fill the vacancy. Acceptance by relator of a federal appointment did not ipso facto create a vacancy in the office, but was merely an implied resignation, which, not having been accepted by the governor and no appointment made to supersede the relator, he is still de jure judge. Relator having been discharged from the army and resumed the office of judge before his implied resignation was accepted, such resignation was withdrawn and cannot be relied upon to work a forfeiture of the office. Primary jurisdiction being vested in the governor to determine whether a vacancy exists, it is incompetent for an inferior officer to declare a vacancy and refuse the issuance of a salary warrant earned by such officer, until a vacancy has been lawfully declared and acted upon, it is not only the right of the incumbent to perform the functions of the office, but his duty to do so is mandatory. The foregoing propositions are sustained by the common law rule and a fair construction of our Constitutional provision. The acceptance of an incompatible state office does not work a forfeiture of the first office, unless the vacancy be declared filled by proper authority. (Const., Art. VI, Sections 4, 7; also Art IV, Section 7, and Art. V, Section 19.) The provisions of the Statute are applicable, Section 2112 Comp. Stats. 1910. After an office has been assumed, it cannot be laid down without the consent of the appointing power. (People v Green, 58 N.Y. 304; State v. Anderson, 155 Ia. 271, 136 N.W. 128.) The term "unless removed according to law" means removal by some process provided by the Constitution or statute. (Trumble v. People, 34 P. 981, 41 A. S. R. 236; United States v. Irwin, 127 U.S. 125; Badger v. United States, 93 U.S. 599; Rex v. Patterson, 24 Eng. Com. Law 15.) Resignation does not take effect so as to create a vacancy until such resignation is accepted by authority. (Reiter v. State, 51 Ohio State ___, 23 L. R. A. 681; United States v. Justices, 10 F. 460; United States v. Green, 53 F. 769; State v. Herman, 11 Mo.App. 43; Edwards v. United States, 103 U.S. 471, 26 L.Ed. 314; State v. Clayton, 27 Kan. 442; Hoke v. Henderson, 4 Dev. 1; State v. Henderson, 4 Wyo. 535; DeTurk v. Comm., 129 Pa. St. 151.) The following authorities sustain the principle that even where the Constitution or statute provides that upon the happening of a certain tenure or failure to do a certain thing within a particular time, there shall be a vacancy, such requirements are directory only and if in the interim, no appointment has been made, the omission may be cured by the officer subsequently qualifying. (Chic. v. Gage, 95 Ill. 593; People v. Hawley, 12 Wend. 481; State v. Churchill, 41 Mo. 41; State v. Porter, 7 Ind. 204; Ross v. Williamson, 44 Ga. 501; State v. County Court, 44 Ga. 230; Kearney v. Andrews, 10 N.J. Eq. 70; Cronin v. Gundy, 16 Hun 520; State v. Toomer, 7 Rich 216.) The governor as a coordinate branch of the government may not be required by the judiciary to declare a vacancy in an office. (Sutherland v. Governor, 29 Mich. 320.) Inasmuch as Art. VI, Section 7, of the State Constitution is involved, attention is invited to Art. 1, Section 37, of the Constitution declaring Wyoming to be an inseparable part of the federal union and the Constitution of the United States the supreme law of the land. Congress is vested with power to declare war. The relator was commissioned a major in the Judge Advocate General Department, while the government was engaged in war. A question arises as to whether Section 7 of Art. 1, State Constitution, applies in time of war. Relator did not forfeit his office when he enlisted, for the reason that under the Selective Service Law of May 18, 1917, he was subject to draft. In such an emergency the common law doctrine of forfeiture and the decisions relating thereto do not apply. The Selective Service Law has been declared constitutional. The regulations promulgated thereunder have been sustained by the courts. (Ex parte Beck, 245 F. 967; United States v. Casey, 247 F. 362.) A war emergency requires the enactment of laws that may come in contact with State laws and constitutions and in that event the acts of congress must prevail. (State v. Burton, 103 A. 962.) Inasmuch as a Selective Service Law has pressed the sheriffs and clerks of counties into the service as draft officers, it would be absurd to say that the acceptance and performance of such service operated to vacate their offices. The Selective Service Act provides (section 14) that all laws in conflict are sustained during the period of the war emergency. It may be fairly contended that Section 7 of Art. VI, of the State Constitution comes within this class and should not be literally construed. Louisiana has a similar provision in its constitution. In the case of State v. Jos., 78 So. 663, the question was raised as to the eligibility of a jury commissioner who had become a member of a local draft board and where it was contended that the latter service ipso facto vacated his office. The court in passing upon the question held that the ground of jury challenge was not well taken. The principle was recognized in the case of In re. Landous Estate, 171 N.Y.S. 981, which involved the purchase of liberty bonds by testamentary trustee in violation of the provisions of a will in respect to investment.

W. L. Walls, Attorney General, and D. A. Preston, of Counsel, for respondent.

The Constitution, Art. V, Section 27, renders judicial officers ineligible for other than judicial offices during the term for which elected. Under this provision a judge who accepts an office other than a judicial office during his elective term ipso facto vacates the first. A person holding an office, to which a salary, fee or perquisite is attached, who accepts an office of trust or profit under the United States ipso facto vacates the first office. (Art. V, Section 7 State Constitution.) And this is the common law rule. When an officer holding an office accepts and has been inducted into a second office incompatible to the first, his title to the first terminates and cannot be renewed by his subsequent resignation of the second. After the first office becomes vacant, the former incumbent cannot be restored to it by his own act, and the rule applies whether the offices are incompatible, or not, if the Constitution forbids the same person to hold both at the same time. (Mechem on Pub. Off., Secs. 420-429-431; Atty. Genl. v. Oakman (Mich.) 86 Am. St. Rep. 574; State S. C. v. Buttz, Vol. 9, S. C. 156; State, ex rel. Buttz v. Comptroller General, 9 S.C. 259; Shell v. Cousins, 77 Va. 328; State ex rel. v. Thompson, 122 N.C. 493; State ex rel. v. Bus, 135 Mo. 325; State of Nevada ex rel. v. Sadler, 25 Nev. 131; Oliver v. Jersey City, 63 N.J.L. 96-632; State v. Goff, 15 R. I. 505; Beincourt v. Parker, 27th Tex. 558; People ex rel. v. Brooklyn, 77 N.Y. 503; Campbell v. Hunt, 162 P. 88; In re. Martin, 1st Winton N. C. 153; People ex rel. Marshall v. Leonard, 73 Cal. 230; Bishop v. State, 149 Ind. 223; Ryan v. Cottell, 15th Iowa 538; State v. Joseph, 78 So. 663; Selective Service Act, May 18, 1917, with supplementary and amendatory acts and resolutions thereto.) A de facto officer cannot recover a salary or compensation. (Mechem on Public Officers, Pg. 221.) While the acts of the de facto officer are valid as to third persons, he cannot himself acquire rights based on his defective title. (22 R. C. L., Sec. 321; Peterson v. Benson, 112 P. 801; Rasmussen v. Commissioners, 8 Wyo. 207; State v. Comptroller, 9 S.C. 259.) Counsel for relator advanced the startling assumption that Section 7, Art. VI, of the State Constitution is suspended in war time. As well might it be contended, that the entire instrument is suspended during the war emergency. The contention is absurd for the reason that the integrity and force of state laws and constitutions is certainly of as much importance and necessity as the Selective Draft Act, of which so much has been said. On the one hand, it is claiming for relator that he is willing to lay down his life to maintain constitutional government and on the other that he should not be bound by the principles of constitutional government. Nor can the argument of brief tenure of service in the army logically affect the question, or have anything to do with the case. If the contention of relator's counsel that the resignation of a holder of office does not go into effect until his successor is elected or appointed be accepted as sound, we would seem to be placed in a strange predicament, since we have a constitution making the holding of office unlawful on one hand and a law compelling the holding of an office by the person whom the constitution forbids to hold it, on the other hand. Relator admits that he held an office of trust and profit under the United States from September 14th to December 6th, 1918, and is here claiming that he held and still holds an office in this state of trust and profit to which a salary attached during the same period. He thus brings himself directly within the class of things and persons prohibited by the Constitution. The authorities are uniform in holding that one who while lawfully occupying one office, who lawfully...