State ex rel. Little v. Slagle
115 Tenn. 336
Tenn.
1905
Check Treatment
Mr. Justice Neil

delivered the opinion of the Court.

The facts out of which the present controversy arose are as follows:

At the August election, 1904, Daniel W. Little was elected one of the constables for the Fourth district of Knox county, and duly qualified and entered upon his duties as such. In December, 1904, the sheriff of Knox county appointed Mr. Little one of his regular deputies, to serve process in the portion of the county in which the latter resided, being a section of the county remote from Knoxville. Mr. Little accepted the appointment and entered upon the discharge of the duties assigned him. Thereupon, at the January term, 1905, the county court of Knox county, without citation or notice to Mr. Little and without a trial summarily declared the office of constable, to which Mr. Little had been elected, vacant, and *338appointed the present defendant, William Slagle, to fill the vacancy. Mr. Slagle accepted the appointment and entered upon the discharge of its duties at once. Thereupon the present hill was filed, in the nature of a proceeding in quo* wararnto, to test the right of Mr. Slagle to hold the office. The chancellor dismissed the hill on demurrer.

The first question to be determined is whether the same person can hold the office of constable and that of deputy sheriff at the same time without violating article 2, section 26, of the constitution of 1870, which declares that no person in this State shall hold “more than one lucrative office at the same time.”

■ Is a deputy sheriff an officer, in the legal sense of that term? and, if so, is the office he holds a lucrative one in the constitutional sense?

Under our statutes (Shannon’s Code, section 448) the sheriff of a county may appoint as many regular and special deputies as he may see proper. It is to he deduced from the section of the Code referred to and from our decisions upon the subject that the sheriff may appoint his deputies for such length of time, within his own term, as he may desire, and the compensation for his services may he arranged by contract between the sheriff and his deputy; that process does not run to the deputy, but to the sheriff, yet the deputy may execute any process so directed that comes to his hands, and he has all of the powers of the sheriff himself in respect thereof, yet :if he'be guilty of any default, the recourse of the injured *339party is not upon Mm, but upon the sheriff, and the latter may look to the deputy for reimbursement. Glasgow’s Lessee v. Smith, 1 Tenn., 144, 152-155; Rose v. Lane, 3 Humph., 218-220; Vance v. Campbell, 8 Humph., 527; Robertson v. Lesson, 7 Cold., 160; Reves v. State, 11 Lea, 124. In the first of these cases it was said, arguendo, that the deputy was not an officer; in the last, it was held that he was an officer, in the sense of Code 1858, section 4750 (Shannon’s Code, section 6634), which allowed $50 to every officer prosecuting to conviction a certain class of offenders. In Robertson v. Glenn, 3 Baxt., 164, the right of a constable to accept a special deputation from the sheriff and to act thereunder was recognized; and in Lewis v. Nashville, 101 Tenn., 659, 49 S. W., 749, the right of a regular policeman of a city to hold the position of deputy sheriff was recognized, but in that case he has denied the right to compensation or fees as deputy sheriff, on special grounds appearing therein that do not affect the general question. In the constitution (article 10, section 1) it is provided that “every person who is chosen or appointed to any office or trust or profit shall, before entering upon the duties thereof, take an oath to support the constitution of this State and of the United States, and an .oath of office.” Sections 1073 and 1081 and 445 of Shannon’s Oode set out the contents of the oath of office referred to in the constitution. Section 1079 reads: “Whenever any officer is authorized or required to' appoint a deputy, such deputy^ before he proceeds to act, shall take the constitu*340tional oaths and oath of office, which shall be accompanied by the same certificate, filed in the same office, and 'with the same indorsement, as the oaths of his principal; but the provisions of this section do not apply to any deputy who may be employed in particular cases only.” Section 1080 reads: “If any officer or deputy required by law to take and file such oaths, enter upon the duties of his office without first taking and filing the same as presented, he is guilty of a misdemeanor.”

Notwithstanding the peculiarities of a deputyship under the high sheriff of a county, we think it quite clear from the last two sections of the Code which we have quoted, as well as from the case of Reves v. State, supra, that a general deputy, as distinguished from a special deputy assigned to a special case or transaction, is an officer in the sense of the law. Although he is appointed by the high sheriff, and holds to him the peculiar relations already mentioned, yet his rights, and powers are derived from the law, and his duties are those of an officer of the law. It was so held in State, ex rel., v. Bus (Mo.), 36 S. W., 639, 33 L. R. A., 616.

Is the office of deputy sheriff a lucrative one?' A lucrative office is one whose pay is affixed to the performance of its duties (State v. Kirk, 44 Ind., 401, 15 Am. Rep., 239); and, when the duties of the office are fixed by statute, it is immaterial that the compensation of the officer is fixed by some other board or officer (Chambers v. State [Ind. Sup.], 26 N. E., 893, 11 L. R. A., 613). In the case of a deputy sheriff in this State, if there be *341no contract between him and the high sheriff as . to compensation, he is entitled to the same fees that the high sheriff himself receives for the same kind of service;''if there.be a contract between .the .two. as to compensation, then for snch compensation as the contract.may,fix; but in either event the office is equally a lucrative one within the intent and meaning of the constitution.

Was it necessary that Mr. Little should have been cited before the county court, after he had accepted the office of deputy sheriff, before his office of constable could be legally declared vacant and a successor appointed?

The rule at common law is that, where one accepts a second office incompatible with one already held by him, the office first held is thereby ipso facto terminated without judicial proceedings of any kind (State v. Grace, 113 Tenn., 9, 18, 82 S. W., 485; State, ex rel., v. Bus, supra, and authorities cited); and the same rule obtains where the incompatibility arises from an inhibitory provision in a constitution against holding two offices (Id.). And see Calloway v. Sturm, 1 Heisk., 765; also, Foltz v. Kerlin, 105 Ind., 224, 4 N. E., 439, 5 N. E., 672, 55 Am. Rep., 197; Kerr v. Jones, 19 Ind., 351; State v. Brinkerhoff, 66 Tex., 45, 17 S. W., 109; cases cited in note to Attorney-General v. Marston (N. H.), 13 L. R. A., 670.

Of course, we are not dealing here with such rights as third persons may have acquired under such acts as Mr. Little may have performed as constable de facto> after his acceptance of the office of deputy sheriff. Oliver v. Jer*342sey City (N. J. Err. & App.), 44 Atl., 709, 48 L. R. A., 412, 76 Am. St. Rep., 228.

Í There was no error in the action of the conrt below in sustaining the demurrer to the bill, and the decree is affirmed, with costs. ,