DeTurk v. Commonwealth

Opinion, Me. Justice McCollum: Section 2 of article XII. of the constitution of Pennsylvania provides that “ 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 general assembly may, by law, declare what offices are incompatible.” Samuel G. DeTurk was on November 8, 1887, duly elected a commissioner of Schuylkill county, and on the first Monday of the following January executed the required bond, took the oath, and entered upon the duties, of that office. At the time of his election he was holding, by appointment, the office of postmaster at DeTurkville, in said county; and he continued to discharge its duties until November 18, 1888, when he resigned, and his successor was appointed. On October 24,1888, upon the suggestion of the district attorney of said county that DeTurk was then holding the office of county commissioner, an office in this state to which a salary is attached, and the office of postmaster, an office of trust and profit under the United States, a writ of quo warranto was ordered, requiring the said Samuel G. DeTurk to appear and show by what authority he claimed to exercise the office of county commissioner in the said county of Schuylkill. An answer was filed December 3, 1888, admitting the foregoing facts, but denying that the offices were incompatible, within the intent and meaning of the constitution and the act of May 15, 1874, P. L. 186. To this answer a demurrer was filed on January 10, 1889, and upon the issue thus joined the cause was heard, and on January 14, 1889, a judgment of ouster was entered against the defendant. [160] The contention of the plaintiff in error embraces three propositions : (1) These offices are not incompatible, because the legislature has not yet declared them to be so; (2) if they are incompatible, an acceptance of the second office is an implied resignation and vacation of the first; (3) an express resignation of the first office, before answer and hearing, is a sufficient compliance with the constitutional provision. The constitution plainly prohibits any person holding an office of trust or profit under the United States from holding at the same time an office in this state to which a salary is attached ; and it as plainly provides that the legislature may by law declare what offices are incompatible. The prohibition and the permission or direction are contained in the same section, but in separate sentences of it. Is the former inoperative by reason of the latter ? Does the section, as a whole, mean that no person can hold these offices at the same time, if the legislature shall declare them incompatible ? We cannot so construe it. The prohibition may be enforced without legislative aid, and no action or inaction of the legislature can destroy it. This construction does not render the last sentence of the section useless, because that relates to offices not within the constitutional prohibition, and authorizes the legislature to declare them incompatible: Commonwealth v. Ford. 5 Pa. 67. We next inquire whether DeTurlr forfeited and created a vacancy in the office of postmaster by accepting and entering upon the duties of the office of county commissioner. In considering this question, regard must be had to the fact that the former is an office under the government of the United States, and the latter an office under the state government. If the titles to these offices were derived from a common source, it might well be held that an acceptance of the second office was an implied resignation and vacation of the first. This is the common law rule, and the current of authority in this country sustains it. But the state cannot, declare the federal office vacant, nor remove the incumbent from it. It may, however, enforce the constitutional provision by proceedings to test his title to the office he holds under its laws, and it may remove him from that office, if he does not surrender the office he holds under the government of the United States. It follows from these views that at the time of the institution of this suit [161] DeTurk liad not an indefeasible title to the office of county-commissioner, because he was then in actual possession, and exercising the functions, of an office of trust and profit under the United States. Did his formal resignation and complete surrender of it, before answer, place him in accord with the constitution, and perfect his title to the office of county commissioner? By accepting it, and entering upon its duties, he elected to hold it. This election was confirmed by his express resignation of the office of postmaster, and the appointment of his successor, before issue was joined. When he appeared, in obedience to the mandate of the writ, he was not holding an office of trust or profit under the United States. The judgment of ouster, therefore, rests on an alleged forfeiture resulting from a prior holding of the two offices at the same time. But, as the acceptance of the second office was an implied resignation of the first,— an election to hold the former and to surrender the latter, — it did not forfeit respondent’s title to the office which he so elected to hold and exercise. This case depends entirely upon the construction of the constitutional provision against the holding of incompatible offices, as it is not covered by any statute. The constitution makes these offices incompatible; but it does not prescribe a penalty, or declare a forfeiture. We are of opinion that when issue was joined in this case the respondent had a valid title to the office of county commissioner, and that it was error to enter judgment of ouster. Commonwealth v. Pyle, 18 Pa. 519, is not in conflict with this conclusion. It merely decided that a stockholder in a bank could not hold the office of notary public, because, by the act of April 14, 1840, the legislature had so declared. What was there said with reference to incompatible offices was not necessary to the determination of the question before the court. Judgment reversed.