§ 417 (225). Implied Resignation; Incompatible Office. An office may be impliedly resigned or vacated by the incumbent being elected to and accepting an incompatible office. The rule, says Parke, J., in a leading English case on this subject, that where two offices are incompatible they cannot be held together, is founded on the plainest principles of public policy, and has obtained from very early times." The principle applies not only where the second office is the superior and more important one, but also where it is not. The rule has been generally stated in broad and unqualified terms, that the acceptance of the incompatible office, by whomsoever

the appointment or election might be made, absolutely determines the original office, leaving no shadow of title in the possessor, whose successor may be at once elected or appointed, neither quo warranto nor amotion being necessary.1

§ 418 (226). Same Subject; Acceptance of Resignation. The doctrine just stated is undoubtedly true where the acceptance of the second office is 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; but "such acceptance does not operate as an absolute avoidance, in 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." If one holding an office in a corporation be by that corporation elected to an incompatible office, this, of course, is a consent on the part of the corporation that the first office be vacated; and if the second office be accepted, the first is at once and ipso facto determined. But, until acceptance, the former office is not vacated.3

§ 419 (227). Incompatible Public Offices. The rule under consideration is not limited to corporate offices, but extends, both in its principle and application, to all public offices. Thus, if a judge of

1 Gabriel v. Clerke, Cro. Eliz. 76; Verrior v. Sandwich, 1 Sid. 305; Milward v. Thatcher, 2 Term R. 87; Glover, 329; Willc. 240, pl. 617; Shell v. Cousins, 77 Va. 328, 331, citing and adopting text. Where a resignation is to take effect at a future day the council may fill the vacancy before that day. Leech v. State, 78 Ind. 570; supra, $414, note. In Pennsylvania, it is held that if a statutory prohibition is merely against the holding two offices, and does not affect eligibility for election or appointment, a person holding two incompatible offices has the right to elect which he will retain. If he make such election, the court, in quo warranto proceedings, will enter judgment of ouster in accordance with the election. If he neglects or refuses to elect, judgment will be entered in accordance with the demand of the relator. Commonwealth v. Haeseler, 161 Pa. 92; De Turk v. Commonwealth, 129 Pa. 151.

2 Parke, J., Rex v. Patteson, 4 Barn. & Adol. 9; 1 Nev. & Mann. 612.

3 Ib.; Milward v. Thatcher, 2 Term.

R. 87; Rex v. Patteson, 4 Barn. & Adol. 9; 1 Nev. & Mann. 612; Wille. 243, pl. 623; Arkwright v. Cantrell, 7 Ad. & E. 565; Queen v. Bangor, L. R. 18 Q. B. Div. 349, 362. Acceptance necessary. See also State v. Ferguson, 31 N. J. L. 107; Fryer v. Norton, 67 N. J. L. 537; De Turk v. Commonwealth, 129 Pa. 151, 160. See Lewis v. Oliver, 4 Abb. Pr. 121. Acceptance of an incompatible office, even under a void election, puts an end to the first office; and the officer, on being ousted from the second office, cannot be restored to the first. Rex v. Hughes, 5 B. & C. 886; Rex v. Bond, 6 D. & R. 333. In State v. Brinkerhoff, 66 Tex. 45, it is said that the appointment of the incumbent of an office to another office by the same power that is authorized to fill a vacancy in either office, is equivalent to an agreement to accept the appointee's resignation of his former office; and, upon his qualification under the appointment, his resignation has full effect, and the office formerly held by him becomes vacant.

the Common Pleas accepts an appointment to the King's Bench, the first office is vacated, since it is the duty of the one to correct the errors of the other.' Whether offices are incompatible depends upon the charter or statute, and the nature of the duties to be performed.2 The same man cannot be judge and minister in the same court, and hence the offices are not compatible. Where the recorder is an adviser to the mayor, the two offices cannot be held together. So a representative in Congress holds a public office, within the meaning of a charter which prohibits an alderman from holding "any other public office"; and upon his election to, and acceptance of "such public office," during his term as alderman, his office as alderman immediately becomes vacant. The proper proceeding is, by mandamus, to compel the common council to order a special

election to fill such vacancy, and not by quo warranto to try the title to such office, such representative being neither a de facto nor de jure officer.

1

§ 420 (228). Abandonment of Office. An office may be vacated by abandonment. A voluntary enlistment by a civil officer in the military service of the United States for three years, or during the war, vacates the civil office, being a constructive resignation by abandonment. So where residence within the corporation is necessary in order to be eligible to hold an office, permanent removal from the municipality may undoubtedly be taken as evincing an intention to resign, and as an implied resignation.3

§ 421 (229). Legislative Control of Compensation of Municipal Officers. We have had occasion to discuss the complete supremacy of the legislature over public corporations, limited only by constitutional restraints. Its authority over public offices, which are created or authorized solely for the public convenience, is equally great, and may be conferred upon municipal corporations with respect to municipal offices. The legislature, in the absence of constitutional limitation, may create and abolish offices, add to or lessen their duties, abridge or extend the term of office, and increase, diminish, or regulate the compensation of officers at its pleasure. But after the

1 Willc. 238; State v. Allen, 21 Ind. 516; Baker v. Wambaugh, 99 Ind. 312, 314; Osborne v. State, 128 Ind. 129; Relender v. State, 149 Ind. 283, 288. In People v. Hanifan, 96 Ill. 420, the refusal of an alderman to attend council meetings was held to be an abandonment of the office.

2 State v. Allen, 21 Ind. 516. But see Bryan v. Cattell, 15 Iowa, 538.

3 Willc. 238; ante, § 371; Curry v. Stewart, 8 Bush (Ky.), 560; People v. Ballhorn, 100 Ill. App. 571; Yonkey v. State, 27 Ind. 236; Relender v. State, 149 Ind. 283; Prather v. Hart, 17 Neb. 598.

Ante, chap. iv.

5 Ante, chap. iv.; State v. Douglass, 26 Wis. 428 and note. As to special constitutional restrictions, ante, §§ 97, 103.

Ante, chap. iv.; and see also Conner v. Mayor, &c. of New York, 5 N. Y. 285; Warner v. People, 7 Hill (N. Y.), 81; People v. Morrell, 21 Wend. (N. Y.) 563; Phillips v. Mayor, &c. of New York, 1 Hilt. (N. Y.) 483; Bryan v. Cattell, 15 Iowa, 538, 553,

per Wright, C. J.; Coffin v. State, 7 Ind. 157; People v. Mahaney, 13 Mich. 481; Turpen v. Tipton County Com'rs, 7 Ind. 172; Oregon v. Pyle, 1 Oreg. 149; Bird v. Wasco Co., 3 Oreg. 282; Cowdin v. Huff, 10 Ind. 83; Cooley, Const. Lim. 276; Butler v. Pennsylvania, 10 How. (U. S.) 402; Smith v. New York, 37 N. Y. 518; Swann v. Buck, 40 Miss. 268; Collins v. Russell, 107 Ga. 423; State v. Hyde, 129 Ind. 296; Downey v. State, 160 Ind. 578; Kenny v. Hudspeth, 59 N. J. L. 320; s. c. 59 N. J. L. 504; Nichols v. MacLean, 101 N. Y. 526, 533; Koch v. Mayor, &c. of New York, 152 N. Y. 72; Commonwealth v. McCombs, 56 Pa. 436; Commonwealth v. Weir, 165 Pa. 284; Foster v. Jones, 79 Va. 642; State v. Kalb, 50 Wis. 178; State v. Trustees of Policemen's Pension Fund, 121 Wis. 44. An officer holding over and continuing to discharge his official duties until his successor was qualified, was held to be entitled to compensation for the time without an express provision to that effect. Robb v. Carter, 65 Md. 321.

services are rendered there is an implied (if not express) contract to pay therefor at the rates fixed by the ordinance or law in force, at the date when the services were rendered, which contract cannot be impaired by subsequent legislation. Hence, where the law in force at the date when a county district attorney rendered services, provided for the levy of taxes for county purposes at a specified maximum rate, and after the services were rendered a constitutional provision was adopted restricting the limit of taxation, it was held that such restrictive provision impaired the obligation of the plaintiff's contract pro tanto, and was, to that extent, void, and that the plaintiff was entitled to a mandamus to the county officers, to levy and collect a tax under the law on this subject which was in force when the services were rendered.2

There are also many cases holding that while the legislature, unless specially restrained, may at pleasure abolish public offices which it has created, it cannot even as to such offices, unless the power to do so has been reserved, remove persons holding office under a fixed tenure or for a fixed term other than by an act actually, and not merely nominally, abolishing the office. This line of decisions is well illustrated in a recent important case relating to the city of Memphis, which distinctly holds that it is beyond legislative competency "to leave the office standing and yet abolish the officer. He has a property interest in his right to the office and its emoluments as long as the office exists and his term continues." A new or

A vacancy, on being filled, entitles the occupant to the emoluments of the office till the next election. Wright v. Jacobs, 12 Okla. 138; Territory v. Jacobs, 12 Okla. 152. A constitutional amendment prohibiting the legislature from increasing the compensation of a public officer during his continuance in office refers only to his holding under one appointment. Smith v. City of Waterbury, 54 Conn. 174. The same provision was declared to render illegal a vote of a city council to pay a joint standing committee for services rendered, though the office of councilman had no compensation attached to it. Garvie v. Hartford, 54 Conn. 440, 441. A salary may be reduced during an official term. Harvey v. Rush County, 32 Kan. 159. An ordinance of a city is not a "law" within the meaning of the Constitution of Pennsylvania providing that "no law shall extend the term of any public officer or increase or diminish his salary, &c., after his election."

Baldwin v. Philadelphia, 99 Pa. St. 164. Statute authorizing the common council to increase compensation of police justices for additional duties imposed upon them, was held to authorize only one increase, and a second increase was held to be invalid. Cox v. New York, 103 N. Y. 519.

1 The officer is entitled to the salary or compensation which is incident to the office, and he cannot be deprived of it so long as he holds the office. Grieb v. Syracuse, 94 N. Y. App. Div. 133; Hoke v. Henderson, 4 Dev. (N. Car.) 1; Cotten v. Ellis, 7 Jones (N. Car.), Law, 545.

2 Fisk v. Jefferson Parish Police Jury, 116 U. S. 131; Jefferson Parish Police Jury v. United States, 23 U. S. App. 10. Limit of taxation fixed when debt was created cannot be exceeded unless the limit has been enlarged by subsequent statutes. Stewart v. Jefferson Police Jury, 116 U. S. 135.