This is an original proceeding in this court, wherein it is sought 'by writ of mandamus to require the State Auditor to issue a warrant for the salary claimed by the relator as district judge for the period between the 9th and the 31st days of December, 1918, both inclusive, the relator’s claim for the amount which would be due and payable to one entitled to such salary for that period having been presented to and rejected by the Auditor.
The case was submitted upon a demurrer to the petition, but under an agreed statement of facts taking the place, for the purpose of the demurrer, of the original averments of the petition. The only question is whether the relator, who had been regularly elected to the office of Judge of the Seventh Judicial District at the general election in November, 1916, for the term of six years, and qualified and entered upon the discharge of the duties of the office, as provided by law, on the first Monday in January, 1917, vacated the office so as to deprive him of the right to the salary claimed for the period aforesaid by accepting an appointment as Major in the United States Army in the Department of the Judge Advocate General, and performing the duties of that office from September 23, 1918, when he took the oath required of officers in the United States Army, until December 6, 1918, when his resignation as such officer in the army was accepted and he was honorably discharged, notwithstanding
The relator was within Ithe age subject to the last draft under the Selective Service Act, and duly registered therefor on September 10, 19118', with the local registration board of his county. In June, 19'i8-, he had applied for a commission as Major in the Judge Advocate General’s Department, and on September 13, 1918, he was notified thalt a commission as Major in said department had been issued to him, and on the 14th dayt of that month he accepted the appointment. On that day also he made an order as district judge and caused the same to be entered upon the journal of the district court in each county of his district, -calling upon and authorizing the judge of the Fourth Judicial District to transact any and all business and perform any and all duties devolving upon the judge of the said seventh district, pursuant to which order Judge Burgess of the fourth district did transact the business of the judge of the seventh district during the relator’s absence.
Having thereafter received a telegram from the proper authorities directing him to report for service as Major, he took the required oath at Washington on September 23, 1918, and entered upon the performance of the duties of Major in said Department of the Army, and continued in the performance of such duties until his resignation was accepted on December 6, 1918, and during the period of such service received the pay of Major in said department.
The office of judge of said Seventh Judicial District has not been declared vacant, and no proceedings have been instituted to declare the same vacant, nor has the relator formally resigned the office or been removed therefrom. But he is the sole incumbent of the office and the only per
The relator, up to the time of the hearing of 'this case, had not received any paper or writing purporting to be a commission as Major, or any written evidence of a commission, but was informed that a commission had been prepared and was awaiting the signature of the proper officer.
The relator, prior to January 4, 1919, presented a claim for salary as district judge for the months of October, November and December, 1918', which claim was rejected by the auditor, and thereupon he presented his claim for salary for the period aforesaid, viz: From December 9 to December 31, 19x8, which was also rejected, and is the claim here involved. And while asserting in the petition in this case that he is lawfully entitled to the salary for the period of his said absence from the State, he expressly waives all claim and right thereto for said period by state- ■ ments to that effect in the petition and the agreed statement of facts.
It may be conceded that if relator’s acceptance of the office of Major in the United States Army created an immediate vacancy in the office of' judge of the seventh district, so that he was no longer tthe lawful incumbent thereof, he could not by his own act in resuming the discharge of the duties of the office reinstate himself therein, with the same effect respecting the title to the office as if such vacancy had not occurred. But, upon the facts, was such a vacancy created? It is contended on the part of the auditor that a vacancy was created which terminated relator’s right and title to the office. And that contention is 'based upon the rule of the common law that the acceptance of a second office incompatible with one already held ipso facto and absolutely vacates the first, without the necessity of any proceeding to determine the title thereto, and a provision of the Constitution of this State declaring, in effect, that an office of profit in this state and an office of appointment of trust or profit under the United States are incompatible. The provision
“No member of congress from this state, nor any person holding or exercising any office or appointment of trust or profit under the United States, shall at the same time hold or exercise any office in this state to which a salary, fees or perquisites shall be attached. The legislature may by law declare what officés are incompatible.”
There are other provisions of the constitution which must also be considered in determining the question. Section 4 of the same article (VI), and under the same subhead, “Elections”, reads as follows: “Every person holding any civil office under the state or any municipality therein shall, unless removed according to law, exercise the duties of such office until his successor is duly qualified, but this shall not apply to members of the legislature, nor to members of any board of assembly, two or more of whom are elected at the same time. The legislature may by law provide- for suspending any officer in his functions, pending impeachment or prosecution for misconduct in office.”
By Section 19 of Article V it is provided that each district judge shall be elected for the term of six years from the first Monday in January succeeding his election and until his successor is duly qualified. And Section 7 of Article IV provides: “When any office from any cause becomes vacant, and no mode is provided by the constitution or law for filling such vacancy, the governor shall have the power to fill the same by appointment.”
There are also- some statutory provisions seeming to be pertinent to the inquiry. It is provided by Section 2112, Comp. Stat. 1910, as follows: “Whenever it is alleged that a vacancy in any office exists, the officer, court or county board, whose duty it is to fill the vacancy by appointment or to order an election to fill such vacancy, shall have power to determine whether or not the facts occasioning such vacancy
Section 2084, prescribing that certain officers shall be elected at general elections to be held on the Tuesday next after the first Monday in each even numbered year, includes the following: “all state and district executive and judicial officers which are made elective by law, whenever there is a vacancy in any state or district executive or judicial office, * * * ; Provided, however, That whenever a vacancy in any state or district office as aforesaid shall occur less than twenty-five days prior to such election, then, in that case, at such election no person shall be elected to fill such vacancy.” And by Section 2090 it is provided that a vacancy occurring in the office of district judge, for any cause whatever, “shall be filled at the general election, when such vacancy shall be required to be filled by law or the constitution of this state.”
There being no other provision of law for filling a vacancy in the office of district judge, except by election when the vacancy occurs more than twenty-five days prior to a general election, the governor is authorized by Section 7 of Article
The generally accepted ground of the common law rule that an office is ipso facto vacated by the acceptance of another office incompatible with it is, that such acceptance of the incompatible office amounts to an implied surrender or resignation of the first office. In Rex v. Patterson, 4 Barn. & Adol. 9 (24 End. C. L. Rep. 15), decided in 1832, it is said:
“In the earlier textbooks and authorities, the ground upon which the acceptance of an incompatible office avoids another is not distinctly explained. In the cases, however, of Gage v. Peacock, Noy 12, and Verrior v. The Mayor of Sandwich, 2 Keb. 92, it appears to have been argued on the ground of an implied surrender; and in some more modern cases, where the first office is clearly avoided, the reason expressly stated is, that it operates as an implied surrender of the former office, or an amotion from it. In Rex v. Trelawney, 3 Burr. 1615, Lord Mansfield puts it on the former ground; and that opinion is adopted by Buller, J., in Milward v. Thatcher, 2 T. R. 87. Lord Kenyon in Rex v. Pateman, 2 T. R. 777, puts it on the latter. See also the opinion of Littledale, J., in Rex v. Plughes, 5 B. & C. 886.”
Eollowing which, the court, by P’arke, J., said: “If this view of .the subject be correct, it seems to follow that the acceptance of the second office will not absolutely avoid the first, unless it be made by, or with the privity of, that authority which has the power to accept the surrender of the first or to amove from it. Upon reference to' the authorities it will be found that in most, if not in all cases where the office has been held to be absolutely void, a surrender to and
And it was held in -that case that the general rule aforesaid, that the acceptance of an incompatible office absolutely avoids a former office, is not applicable under all circumstances, regardless of the authority appointing to the second office, “but that it must be limited and qualified, and that such acceptance (though it may be ground of amotion) does not operate as an absolute avoidance in those cases where a person cannot divest himself of an office by his own mere act, but requires the concurrence of another authority to his resignation or amotion, unless that authority is privy and consenting to the second appointment”; the court saying, immediately preceding the statement of the necessary limitation of the rule, that, “it would be an anomaly in the law, if a public officer who could not directly resign, or be amoved without the concurrence or privity of a superior authority, should be able to accomplish the same object indirectly by an acceptance of an incompatible office.” And the same principle limiting .the general rule as stated was again announced and applied in Worth v. Newton, 10 Exch. (Hurlstone & Gordon) 247, decided in 1854;. the court, again by Parke, J., after stating the fact that the appointment to the second office was not by the same authority that could accept a resignation of, or remove from, the former office, saying: “In this case, therefore, there is no implied amotion from the old by appointment to the new office for the authority appointing to that office could not remove; nor any implied surrender, because the same authority could not accept a surrender of the old office.” And it was pointed out that the statute provided that the incumbent of the office claimed to have been vacated shall continue' in that office
This exception to the general rule is also stated in Mechem on Public Officers (Sec. 421), wherein it is said: “But an exception is made to the general rule in those cases in which the officer cannot vacate the first office by his own act, upon the principle that he will not be permitted to thus do indirectly what he could not do directly,” and that such an acceptance (of an incompatible office) is held not to operate as an absolute avoidance in .those cases where to divest an incumbent of an office, requires the concurrence of another authority to his resignation or amotion, unless that authority is privy and consenting to the second appointment. Said exception is also recognized and stated on page 580 of 86 Am. St. Rep., in the elaborate note to the case of Attorney General v. Oakman. It was applied in State ex rel. v. Nobles, 109 Wis. 202; the exception 'being held decisive of that case, where the law expressly provided that the officer shall continue to hold his office until his successor is chosen and qualified, on the ground that the offiice would not become vacant by resignation until a successor had been chosen and had qualified, thus putting it out of the power of the officer to divest himself of his office by his own act.
In State v. Brinkerhoff, 66 Tex. 45, 7 S. W. 109, the general rule was applied in a qwo warranto proceeding to oust the respondent from an office claimed to have been vacated by the acceptance of another office incompatible with it, but it appeared that the respondent’s appointment to the second office was by the authority authorized to order an election to fill a vacancy in the first office, and it was said that such appointment was equivalent to an agreement to accept the resignaion of the other office held by the appointee, so that “upon his qualification under the appointment, the resignation has full effect, and the office formerly held becomes vacant in all cases in which- the two offices cannot be held by the same person.” B’ut in the case of Jones v. City of Jefferson, reported in the same volume of the Texas Reports (66 Tex. 576) it was held that the in
In declaring the above exception to the general rule, in Rex v. Patterson, and Worth v. Newton, supra, it is clear that the court had in mind the doctrine of the common law that a resignation of a public office is not complete until accepted by the proper authority. That principle of the common law was referred to by the Supreme Court of the United States in Edwards v. U. S., 103 U. S. 471, as follows : “As civil officers are appointed for the purpose of exercising the functions and carrying on the operations of government, and maintaining public order, a political organization would seem to be imperfect which should allow the depositaries of its power to throw off their responsibilir ties at their own pleasure. This certainly was not the doctrine of the common law. In England a person elected to a municipal office was obliged to accept it and perform its duties, and he subjected himself to a penalty by refusal. An office was regarded as a burden which the appointee was bound, in the interest of the community and of good government, to bear. And from this it followed of course that, after an office was conferred and assumed, it could not be laid down without the consent of the appointing power. This was required in order that the public interests might suffer no inconvenience for the want of public servants to execute the laws (citing cases). This acceptance may be manifested either by a formal declaration, or by the appointment of a successor. ‘To complete a resignation,’ says Mr. Willcock, ‘it is necessary that the corporation manifest their acceptance of the offer to resign, which may be done by an entry in the public books, or electing another person to fill the place, treating it as vacant.’ Wilcock, Corporations, 239.”
And, continuing, the court said: “In this country, where offices of honor and emolument are commonly more eagerly sought after than shunned, a contrary doctrine with regard to such offices, and, in some states, with regard ¡to offices in general, may have obtained'; but we must assume that the
The case thus referred to is the leading American case on the subject, and, in the absence of statute expressing or implying, a contrary intention, the rule best sustained by authority in this country seems to be that a resignation does
The limitation of the general rule vacating an office upon the acceptance of another incompatible with it by excepting-therefrom those cases where a person cannot divest himself of an office -by his own act, unless the authority that must concur therein is privy and consenting to the second appointment, appears to have been referred to in only a few of the cases in this country applying the. general rule, but the reason seems to-be that most of such cases did not involve facts making -the exception applicable. In the majority of the cases declaring and applying the general rule there had been an election or appointment to the office claimed to have been vacated, or -the proceeding was in quo warranto, or of that character, to determine the question of vacancy. In a New Jersey case, where the rule was applied, State ex rel. Clawson v. Thompson, 20 N. J. E. 689, the exception announced in Rex v. Patterson, supra, was referred to, but held not to be applicable to the facts in the case for the
And in a case much relied upon by the Attorney General, representing the respondent, State ex rel. v. Bus, 135 Mo. 325, 36 S. W. 636, 33 L. R. A. 616, the exception was stated but held inapplicable in that state for the reason that the constitution recognized an officer’s right to resign, without the concurrence of the officer or body having the power to act upon the resignation, the court saying: “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. The constitution (sec. 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’.”
The exception was mentioned also in State v. Butz, 9 Rich. S. C. 156, involving the title to the office of circuit solicitor upon the incumbent’s acceptance of a federal office, the court stating that the exception was not necessary in the United States, where everyone is free to accept or resign any office without the permission or acquiescence of the sovereign power. But that case was decided before the decision in Edwards v. U. S., supra, announcing a contrary doctrine, as to the right to vacate an office by resignation under statutes like those in this state.
In a more recent case in Kansas, involving similar facts, though the action was quo zvarranto to try the title of the special judge or judge pro tern., the court refused to declare vacant the office of the district judge, who had accepted an office in the military service of the United States, 'but held that the right of such judge to the office could not be challenged except by an appropriate action or proceeding instituted for that specific purpose; and that it could not be challenged in the proceeding then before the court against the judge pro tempore. The court said: “If Judge Rup-
The section of our constitution containing the provision prohibiting a person holding an office of trust or profit under the United States from holding at the same time an office or appointment under this state to which a salary, fees or perquisites are attached is identical with section 2 of article XII of the Constitution of Pennsylvania, and which was a part of the constitution of that state at the time the constitution of this state was adopted. While it cannot be said with certainty that the provision as found in our constitution was
Thus, since the provision “does not prescribe a penalty, or declare a forfeiture ’’ it was held that, although when the respondent took the office under the state and for several months while holding that office, he was holding and exercising an office of profit under the United States, he could rightfully continue to hold the state office, having resigned the federal office before his appearance was .required in an action challenging his title to the state office. And the fact is mentioned above that there is no provision of our constitution or statutes declaring the effect of the holding of incompatible offices generally, or of the holding at the same time of two offices prohibited as aforesaid by the constitution. But it was held by this court in State ex rel. v. Henderson, 4 Wyo. 535, 35 Pac. 317, 22 L. R. A. 751, that an office cannot be said to be vacant while any person is authorized to act in it, and does so act, and that a vacancy in an office exists only where there is no lawful incumbent occupying it.
We think there can be no doubt that under the several provisions of our constitution and statutes quoted above the common law rule requiring an acceptance of a resignation by proper authority before it can become effective so as to divest an incumbent-of a public office has not been abrogated in this state, though it might not, perhaps, apply to an officer not required or authorized to exercise the duties of his office until a successor is duly qualified. Of course under that rule an acceptance may be manifested by the election or appointment of a successor by the officer, board or body authorized by law to fill a vacancy in the office. And the statute expressly provides, as shown above, that resignation of elective offices shall be made to the officer, court or county board authorized by law to fill a vacancy in such office by appointment or to order an election to fill such vacancy. The general provision of the constitution that
The relator, therefore, could not divest himself of his office of district judge by his own act, but it required the concurrence of the authority vested with the power to accept a resignation. If his act in accepting and assuming the duties of the federal military office would have permitted the office of judge to be treated as vacant and a successor to be appointed or elected, a question which need not be decided, no such action was taken, and the relator is rightfully exercising and discharging the duties of the office. And, in our opinion, he is not merely judge de facto, but is the de jure judge of the seventh district, and was such judge during the period for which the salary is claimed in this proceeding.
It is unnecessary, therefore, to consider the other points urged by counsel for relator suggesting that if the provision prohibiting the holding of a state and a federal office at the same time should be strictly construed the effect might be to discourage voluntary service in the army in time of war, and that it should be construed and applied so that it may not in any way interfere with the full exercise of the powers granted to Congress by the 'Constitution of the United States to declare war, raise armies, and make all laws necessarry and proper to carry such powes into execution.
It follows that the relator is entitled to the salary claimed, and that the writ prayed for must issue directing the auditor to issue the proper warrant upon the treasurer for the payment of such salary. It will be so ordered.