194 Wis. 34 | Wis. | 1927
The facts are not in dispute. So far as material to the issue they are: The appellant was elected to the office of second municipal judge of Barron county in April, 1923, for a four-year term, qualified, and assumed the duties of the office. At the same time he was elected to
The circuit court denied appellant’s claim, and entered judgment dismissing the writ, with costs to respondent. Appellant appealed.
It is the contention of appellant that respondent was illegally ' appointed and had no right to the office, on the ground that there was no vacancy in the office at the time. The statute creating the office fixed the term at four years and until a successor should be elected and qualified. The appellant’s counsel contend that this case is ruled by State ex rel. Wheeler v. Nobles, 109 Wis. 202, 85 N. W. 367, where it was held that a school treasurer could not vacate his office during his term, under a similar statute, by accepting an election to the office of school clerk. But the court there affirmed the general rule of the common law, as follows:
“There can be no doubt about the general proposition that he who, while occupying one office, accepts another incompatible with the first, ipso facto absolutely vacates the first office, and his title is thereby terminated without any other act or proceeding. This was the rule of the common law and has been recognized and accepted in many jurisdictions.” State ex rel. Wheeler v. Nobles, 109 Wis. 202, 204, 85 N. W. 367.
This court held in State ex rel. Johnson v. Nye, 148 Wis. 659, 135 N. W. 126, following the rule quoted from the
In the instant case the appellant attempted to hold two incompatible offices, contrary to public policy. Pie was at liberty to resign his office of municipal judge and accept the office of city attorney. He did not resign, but under the common-law rule he created a vacancy in the office of judge by accepting the incompatible office of city attorney. As soon as the vacancy was filled by appointment of the governor, and his successor qualified, he had no further claim to the office.
State ex rel. Wheeler v. Nobles, supra, must be considered as overruled.
By the Court. — The judgment of the circuit court is affirmed.