| Miss. | Mar 15, 1902
delivered the opinion of the court on the motion to dismiss the appeal.
We think the office of city assessor is within sec. 266 of the constitution. It is an office held “under the authority of the state.” This is expressly so decided, under a similar constitutional provision, in Packenham v. Harper, 66 Ill. App. Ct. Rep., at page 100.
It is well settled that in case of contest for an office, if the term of office expires pending an appeal, the appeal will be dismissed, since the court will not proceed with the case simply to determine the matter of costs. If an age limit were prescribed, one who had passed the age pending an appeal, could not ask the court to proceed to do the vain thing of determining whether he had been elected, when the suit is a contest for the office, and the judgment sought is one to put the relator in possession of the office. In such cases the disqualification is final and irremediable, so far as holding the office is concerned. Is this that sort of a case? What is the purpose of sec. 266 ? To prohibit the holding of the two incompatible offices at once — the exercising the functions and enjoying the rights of such two offices at the same time. Can one who is kept out of an office for which he is contesting, be said, in any just sense, to be “holding” that office ? In such ease, if upon winning his contest, he shall resign the incompatible federal office, as appellant swears he intends to do, will he not, at the time his “holding” of the assessor’s office begins, be qualified ? Is it a just construction of the meaning of this section that when the disqualification for holding the assessor’s office is one he may remove by resignation of the federal office before qualifying for the assessor’s office, he may not so remove it, but must be held to have vacated the assessor’s
In tbe first, De Turk was holding tbe office of postmaster, and was elected “a commissioner of Schuylkill county.” He qualified and entered upon tbe duties of that office. He was thus actually bolding the two incompatible offices at the same time. A quo warranto was brought to oust him from tbe county office. Before answer be resigned the postmastership, and tbe court held that be was entitled to bold tbe county office, not bolding tbe federal office at tbe time of answer. In tbe second, one who 'was bolding tbe office of inspector of a port, exercising its functions, but whose bond bad not been approved by tbe treasury department, was elected a state district judge, and it was held be was not “ineligible” to tbe elective office under tbe 21st section of the fourth article of tbe constitution of California (1862). The case of State v. Batz, 9 Bichardson (S. C.), at pages 177, 178, points out very clearly tbe distinction between “tbe qualification required for holding office, and that for election to office.”
It is true that when tbe bolding of two offices at tbe same time is forbidden by tbe constitution, it is well settled that the acceptance of tbe second office, ipso facto, operates an absolute vacation of tbe first, and that no judicial determination is needed to declare tbe vacancy. Mechem on Public Officers,, sec. 429; Tbroop on Public Officers, sec. 31. But whether tbe appellant’s acceptance of tbe federal office is an implied resignation of the office be is contesting for, depends on whether be has accepted tbe federal office intending to bold it permanently, or only till his right to tbe assessor’s office is established. The fact that he has accepted the federal office which be cannot bold conjointly with tbe state office, does not preclude him from resigning tbe
We think tbe actual bolding of tbe two incompatible offices at tbe same time is, and that only is, tbe thing sec. 266 prohibits.
Tbe strongest case cited by learned counsel for appellee, is Packenham v. Harper, 66 Ill. App. Ct. Rep., p. 96. But tbe marked distinction between that case and this is that in that ease tbe person elected tax collector in April, 1893, bad in December, 1893, accepted tbe postmastership and entered upon its duties, and bad also done all things necessary to enter upon tbe discharge of tbe duties of tax collector except to have bis bond approved, and was doing all be could to have that done, thus plainly manifesting bis intention to actually bold both offices. He made that purpose clear. Tbe decision in that case was right on its facts. On tbe contrary, in this case, so far as we have any evidence of intention, it is that appellant will resign this federal office before entering upon tbe other. We do not think “the rights” of tbe office which sec. 266 refers to, include tbe right to contest for tbe office, which be is now certainly not bolding; but to those rights be will be entitled to exercise should be be installed. We are of opinion on tbe facts here that this motion must be denied.
Motion overruled.