State v. Buttz , 1877 S.C. LEXIS 10 ( 1877 )

The opinion of the Court was delivered by

McIver, A. J.

This was an original proceeding, instituted in this Court by the Attorney General in behalf of the State to oust the defendant from the office of Solicitor of the First Circuit, upon the ground that he had “ vacated, surrendered and forfeited” his said office of Solicitor by accepting the office of Representative in the Congress of the United States. The facts in the case are all conceded, and are as follows: The defendant, on the 7tb day of November, 1876, was elected to the office of Solicitor of the First Judicial Circuit of this State for the term of four years, and, having duly qualified, was commissioned as such Solicitor on the 30th day of November, 1876, and thereupon entered upon the duties of his said office. That on the 7th day of November, 1876, the defendant was also elected to the office of Representative in the Congress of the United States for the Second Congressional District of this State for the unexpired term, to end on the 4th day of March, 1877, and on the 23d day of January, 1877, duly qualified and entered upon his duties as such Representative, and thereafter discharged such duties until the expiration of the said term. It is also alleged in the defendant’s anwer that “whilst the said defendant was discharging his duties as such Representative only one term of the Court of General Sessions was held in the First Judicial Circuit, that is to say, on the third Monday in January, 1877, for the County of Orangeburg, at which term the said defendant, with the concurrence and consent of the Circuit Judge of the said Court, failed to attend in person and prosecute, and the duties of the office were discharged in the name of the said defendant, as Solicitor, by an attorney appointed pro tempore by the Court according to law.” Whether these allegations are, in fact, true, we did not deem it necessary to inquire, as, for the purposes of this case, they may be conceded to be true; but we do not see how they can in any way bear upon the issue involved in the ease. The sole question is one of law, — whether the defendant, by accepting the office of Representative in Congress while he held the office of Solicitor vacated the office of Solicitor. It was very properly conceded in the able and ingenious argument of the counsel for the defendant; and the proposition is clearly demonstrated by the authorities cited in the briefs of counsel, that, at common law, where a person holding a public office accepts another public office incompatible with the first, such acceptance is an implied resignation of the former, and it is thereby vacated.

It is contended, however, that by the express terms of the Constitution of this State this rule of the common law has been abrogated, and that there is nothing to prevent one from holding at the same time two incompatible offices in this State. The provisions of the Constitution which are relied upon to support this proposition are Section 31, Article I, declaring that “ every inhabitant of this Commonwealth possessing the qualifications provided for in this Constitution shall have an equal right to elect officers and be elected to fill public office,” and Section 7, Article VII, declaring that “ every person entitled to vote at any election shall be eligible to any office which now is, or hereafter shall be, elective by the people in the County where he shall have resided sixty days previous to such election, except as otherwise provided in this Constitution or the Constitution and laws of the United States,” read in connection with various other Sections in which officers of the three great departments of the government — legislative, executive and judicial — are prohibited from holding other offices, viz.: Article I, Section 26; Article II, Section 28 ; Article III, Sections 3, 5 and 8 ; Article IV, Section 9; and other Sections declaring various disqualifications for office, viz.: Article I, Section 32, disqualifying any person who shall be engaged in a duel; Article II, Section 10, requiring a residence of three months in the County, instead of sixty days, before one shall be eligible to a seat in the House of Representatives, and requiring that Senators shall be at least twenty-jfwe, instead of twenty-one years of age ; Article IV, Section 10, declaring that no person shall be eligible to the office of Judge unless he is at the time of his election a citizen of the United States, of the age, at least, of thirty years, and a resident of the State for five years next preceding his election ; Article IV, Section 30, and Article IX, Section 15, disqualifying certain officers who may have been guilty of defaults in office or of embezzlement of the public funds; Article VIII, Section 2, disqualifying those who are disqualified by the Constitution of the United States until such disqualification shall be removed by the Congress of the United States, and also persons while kept in any alms house or asylum or public prison, and persons of unsound mind ; and Article XIV, Section 6, disqualifying every person “ who denies the existence of the Supreme Being.”

From these provisions it is argued that as the Constitution has declared every person entitled to vote eligible to any office elective by the people, with the exceptions above specified, that it necessarily follows that unless the person in question comes under some one or more of the exceptions named that his right to hold any office cannot be questioned, and the fact that he holds one office is no bar to his holding any other office, because, if it were, another qualification, not prescribed by the Constitution, would be added to those required by that instrument. One defect in this argument is that it assumes that the word “any,” in the seventh Section of Article VIII, means all, every, or any two or more, or something equivalent thereto, and that when the Constitution declares that a person possessing certain qualifications is eligible to “ any” office it means that he is eligible to all or at least any two or more offices at the same time. This construction does not seem warranted by any rule that we have been enabled to apply. A more serious objection, however, to this argument is that it fails to distinguish between the qualifications required for holding an office and those required for election to office. It is very manifest that the two things are entirely distinct and different. A person while sitting as a member of the General Assembly is eligible to the office of Judge, but he is incapable of holding both offices at the same time. The Governor of the State is eligible to the office of United States Senator, but he cannot hold both offices at the same time. Now, it is very clear, from the express terms of the two Sections under consideration, that they relate exclusively to eligibility for office and not to holding ah office. In Section 31 of Article I the language is “ shall have the right to elect officers and be elected to fill public office while in Section 7 of Article VIII the words are “ shall be eligible to any office.” So that, while it may be conceded that, under the provisions of the Constitution of this State, a person holding one public office is eligible to another public office incompatible with the former, the question would still remain as to what effect the acceptance of the latter would have upon the right to hold the former. It may have the effect of vacating the former without in any manner abridging the right secured by these Sections of the Constitution; for, as' we have seen, the only right secured is the right to be ehosen to office, and this right would not be interfered with by declaring that after he has been chosen to and has accepted the incompatible office he has thereby vacated the former.

Again, it is argued that whilst there is no provision in general terms restricting the right declared by Section 31, Article I, and Section 7, Article VIII, to a single office, there are several exceptions limiting the right to hold more than one office in particular instances, as appears by the various Sections above cited, and that under the maxim expressio unius exclusio alterius, the construction must be that in all but the particular instances named the right to hold two offices at the same time is guaranteed by the Constitution.

This argument, besides ignoring the distinction above pointed out between being eligible to office and holding an office, proceeds upon the assumption that the words “ except as otherwise provided in this Constitution” relate only to cases in which certain officers, viz., those of the great departments of the government — -legislative, executive and judicial — are prohibited from holding more than one office at the same time ; whereas it seems to us to be the proper construction that those words should rather be applied to those causes which are declared by the Constitution to constitute ineligibility for any office, e. g., atheism, dueling, embezzlement, unsoundness of mind, confinement in alms house or prison.

Again, this argument assumes that the Constitution, in the Sections referred to as containing exceptions to the general right guaranteed by Section 31, Article I, and Section 7, Article VIII, is dealing with the right to hold two incompatible offices, while in fact it is dealing with the right to hold any two offices, whether incompatible or not. Hence, to give full force to the maxim, the result would be that the Constitution, having declared that, in certain instances, it should not be lawful for a person to hold at the same time any two, not any two incompatible offices, in all other instances it left the rule as it stood at common law, to wit: that while any person might hold two offices at the same time which were not incompatible, he could not hold two offices at the same time which were incompatible. An expression of intention to change in one particular excludes the idea of an intention to change in any other particular. For, as remarked by Judge Cooley in his work on Constitutional Limitations, 60: “ Constitutions are to be construed in the light of the common law and of the fact that its rules are still left in force. By this we'do not mean that the common law is to control the Constitution or that the latter is to be warped and perverted in its meaning in order that no inroad, or as few as possible, may be made in the system of common law rules, but only that for its definitions we are to draw from that great fountain, and that in judging what it means we are to keep in mind that it is not the beginning of law for the State, but that it assumes the existence of a well-understood system, which is still to remain in force and be administered, but under such limitations and restrictions as that instrument imposes.” And in Potter’s Dwarris on Statutes and Constitutions, 185, we read that “ Statutes are to be construed in reference to the principles of the common law ; for it is not to be presumed that the Legislature intended to make any innovation upon the common law further than the case absolutely required. The law rather infers that the Act did not intend to make any alteration other than what is specified, and besides what has been plainly pronounced ; for if the Parliament had had that design, it is naturally said, they would have expressed it.” This, though a rule of statutory construction, may well be applied to the Constitution; for in the same book, at page 654, Judge Potter says: “ There is a striking analogy and generally an entire harmony between the rules of interpretation of constitutions and those of statutes,”

The framers of the Constitution of this State found that by the existing law, except as modified by the third Section of the Act of 1787, (5 Stat., 21,) a person might hold two offices at the same time, provided they were not incompatible, and by the provisions relied upon they proposed to make a change. What was the change intended? Certainly, not that the particular officers specified should not be allowed to hold at the same time two incompatible offices, for that would have been no change at all. It must then have been the intention to declare that, in certain specified instances, the same person should not hold at the same time any two offices, not any two incompatible offices, and that with regard to holding incompatible offices they left the law as they found it. These remarks will also dispose of the argument drawn first from the enactment and next from the repeal of the Act of 1787, above referred to, the language of which is “ that no officer heretofore elected or hereafter to be elected to any pecuniary office in this State, above one hundred and fifty pounds, shall hold any other office of emolument under this State or the United States.” This Act, it will be observed, applied only to a certain class of officers, to wit: those who were elected to offices of emolument exceeding a specified sum, and the prohibition was against holding, riot being eligible to any other office, not any other incompatible office. Hence the argument that the enactment of this statute might be regarded as an indication that in the absence of such a statutory provision there was no law to prevent one from holding at the same time two incompatible offices, or that its repeal afforded an indication of the legislative will that thereafter a person might at the same time hold two incompatible offices, loses all its force.

In reference to the argument drawn from the maxim expressio unius exclusio alterius, we find, in the same Section from which it is cited, (1 Story on Const., § 448,) that the distinguished author advises caution in the use of such maxims in construing the Constitution. Pie uses this language: “These maxims, rightly understood and rightly applied, undoubtedly furnish safeguards to assist us in the task of exposition ; but they are susceptible of being applied, and, indeed, are often ingeniously applied, to the subversion of the text and the objects of the instrument. The truth is, that in order to ascertain how far an affirmative or negative provision excludes or implies others, we must look to the nature of the provision, the subject-matter, the objects and the scope of the instrument. These, and these only, can properly determine the rule of construction. * * * * In relation, then, to such a subject as a constitution, the natural and obvious sense of its provisions, apart from any technical or artificial rules, is the true criterion.” These views of Judge Story are quoted with approval by Judge Potter in his edition of Dwarris on Statutes, pp. 674-5, and in Cooley on Constitutional Limitations, p. 83, we find similar views. Now, the various Sections of the Constitution referred to, in which certain officers are prohibited from holding more than one office, all relate to the heads of one or the other of the three great co-ordinate departments of the government; and as the framers of the Constitution were evidently impressed with the importance of keeping these departments separate and distinct from, and, as far as practicable, independent of each other, after first declaring, in general terms, by Section 26, Article I, that “in the government of this Commonwealth the legislative, executive and judicial powers of the government shall be forever separate and distinct from each other, and no person or persons exercising the functions of one of said departments shall assume or discharge the duties of any other,” they very naturally, when they came to prescribe the qualifications for office in the heads of these several departments, applied to each the general principle, previously declared applicable to all, so that, as far as possible, no room for construction should be left. Especially was this desirable in reference to the legislative department, in which each house is made the “judge of the election returns and qualifications of its own members”' — -judges in their own case, as it were. Hence, perhaps, the difference in the phraseology used in reference to this department, for we see that, while one may be eligible to the office of Governor or Judge whilst he holds another office, though he is prohibited from holding any other office while Governor or Judge, with certain unimportant exceptions in regard to the Governor the language in reference to the legislative department is different. “No person shall be eligible to a seat in the General Assembly whilst he holds any office, &c. * * * * And if any member shall accept or exercise any of the said disqualifying offices he shall vacate his seat.”

Now, looking “to the nature of the provision, the subject-matter, the object and scope of the instrument,” as we are advised by Judge Story to do, it seems to us much more natural to suppose that the framers of the Constitution, in the provisions relied upon. intended merely to put into practical operation the fundamental idea that the three great departments of the government were to be kept separate and distinct, rather than that, by declaring that a Judge or a member of the General Assembly should not hold any other office,'they intended to convey the idea that every other officer should be at liberty to hold at the same time as many offices as he could succeed in obtaining, either by election or appointment, whether such offices were compatible or incompatible; especially when, by such construction, the rule of the common law would be abrogated by implication merely. We must, therefore, conclude that the provisions of the Constitution relied upon for the purpose do not abrogate the rule of the common law in this particular.

The only remaining inquiry, then, is whether the offices of Solicitor and Representative in Congress are incompatible. It seems to be supposed that, in order to render two offices incompatible, there must be some such relation between them as that of master and servant — that the one must have “ controlment of the other,” or that the one must be charged with the duty of auditing or supervising the accounts of the other, or that the one must be chosen by or have the power of removal over the other. Now, while authorities have been cited to show that offices bearing such relations to each other have been held to be incompatible, they merely afford instances of incompatible offices, and do not furnish, nor do they pretend to furnish, definitions; and therefore it does not by any means follow that these are all the instances in which offices can be said to be incompatible. For example, the case of Rex vs. Jones, 1 B. & Adol., 677, (20 E. C. L. R., 467,) is cited apparently for the purpose of introducing what is called “a definition” of incompatible offices by Lord Tenterden. But it is apparent, not- only from the context, but from the very phraseology quoted, that his remark was not intended as a definition but merely as an instance or an illustration of what would be incompatible offices. The question in the case was whether the offices of Town Clerk and Common Councilman of the borough of Carmarthen were incompatible. The only ground upon which it was claimed that the two offices were incompatible was that the Town Clerk was required to keep minutes of the proceedings of the Common Councilmen, and it was held that “there is nothing inconsistent in one member of a body noting down the acts of the body.” In discussing the case Lord Tenterden uses the language cited: “Where different persons filling two offices would be in the relation of master and servant to each other, those offices cannot be held by the same person which is obviously used as a mere illustration, for he proceeds to say: “Thus, if the Common Council had the power of fixing the Town Clerk’s salary or of removing him, the offices would be incompatible; but here there is no power of amotion.” As well might the language just quoted be cited to show that Lord Tenterden’s definition of incompatible offices is where one has power to fix the salary of another or where one has the power to remove the other from office. In this very case another one of the Judges, (Taunton, J.,) delivering a separate concurring opinion, gives another instance or illustration of incompatible offices ; for says he: “ Verrior vs. The Mayor of Sandwich, (1 Sid., 305,) Milward vs. Thatcher, (2 T. R., 81,) and Rex vs. Pateman, (2 T. R., 777,) are clearly distinguishable from the present case. The offices of Mayor’, of Jurat and of Alderman, in these cases, were judicial, and therefore incompatible with that of Town Clerk,” implying plainly that he considered the offices incompatible, not because the one was subordinate to the other, but because the one was judicial while the other was ministerial.

In Rex vs. Tizzard, (9 B. & C., 418,) Bayley, J., gives still another instance of incompatibility, when he says : “ I think that the two offices are incompatible when the holder cannot in every instance discharge the duties of each.” By which he probably means that when the duties of the two offices are such that the performance of the duties of the one necessarily involves the neglect of the duties of the other, then the two offices would be incompatible. Turning to the cases in this country, we find that in Magil vs. Stoddard, (25 Conn., 565,) the office of Constable of a town was held incompatible with that of Justice of the Peace. In 3 Maine, 486, the Supreme Court of that State, in answer to the Senate, says “that the office of Justice of the Peace is incompatible with that of Sheriff, Deputy Sheriff or Coroner.” And in Stubbs vs. Lee, (64 Maine, 195,) reported also in 18 Amer. Rep., 251, the office of Trial Justice was held incompatible with that of Deputy Sheriff. It appears, therefore, that the books furnish us with other instances of incompatible offices besides those cited in the argument. What, then, does constitute incompatibility in offices ? In 5 Bac. Abr., Title Offices, K, we find the rule laid down, upon the authority of Lord Coke, in these words : “ Offices are said to be incompatible and inconsistent, so as to be executed by the same person, when, from the multiplicity of business in them, they cannot be executed with care and ability; or when their being subordinate and interfering with each other it induces a presumption they cannot be executed with impartiality and honesty.” And in Dillon on Municipal Corporations, in a note to Section 166, it is said that “incompatibility in'offices exists where the nature and duties of the two offices are such as to render it improper, from considerations of public policy, for one incumbent to retain both.” Apply either one of these definitions to the case in hand and it is very manifest that the two offices in question are wholly incompatible. It certainly needs no argument to show that “ the multiplicity of business ” in each of these offices is such as to render it not only impossible for the same person to perform the duties of both “ with care and ability,” but impossible often, and very often too, to perform them at all. It is equally certain that the nature and duties of these two offices are such as that every consideration of public policy renders it improper for one incumbent to retain them both, and it is none the less certain that the duties of the two offices are such that the performance of the duties of the one necessarily involves the neglect of the duties of the other. The fact that in this particular case the defendant accepted the office of Representative in Congress for an unexpired term, which happened to be of very short duration, and the fact that the public suffered no immediate detriment in this particular instance, cannot alter the principle applicable to the case.

Without considering in detail the various duties of the two offices, the briefest examination of some of these duties will be amply sufficient to demonstrate the propriety of the foregoing observations. Here are two offices held under two distinct governments; the duties of the one are to be performed in Washington, while those of the other are to be performed in this State. To perform the duties of the one the officer must be in Washington, while to perform the duties of the other he must be in this State, and that, too, at the very time when the duties of the other call him to Washington; for we are bound to know, judicially, that the sessions of Congress cover the same time as that appointed by law for the sessions of some, and, it may happen, of all the Courts of the First Circuit. The Constitution of the United States requires the one to be in Washington for a large part of the time, and at all times to be subject to the call of the proper authorities there, while the Constitution of the State requires the other to “reside in” his circuit, not merely to be a resident of his circuit, — the former phrase being considered by some Courts as more significant of an intention that the officer should continuously remain in his circuit than the latter. See State vs. Allen, 21 Ind., 516. And so important was this regarded that the Legislature, by the Act of 24th March, 1876, (16 Stat., 151,) specially declared “ that in case any Circuit Solicitor shall cease to reside in his circuit his office shall be deemed and taken to be vacant.” By an Act of the Legislature of this State (Gen. Stat., Chap. XVI, Title V, § 41, p. Ill,) the Solicitor is “specially charged with the prompt and vigorous prosecution” of certain offenses, and is made liable to arrest, trial and conviction for a failure to perform this duty, which he must necessarily fail to perform if he perform his duty as a member of Congress. But, under the provisions of the Constitution of the United States, (Art. 1, § 6,) he would be, as a member of Congress, exempt from arrest during his attendance upon Congress and while going to and returning from the same for an offense of this kind. So that by reason of his obligations as an officer of the State government he may become liable to arrest and imprisonment, and at the same time by reason of his privileges as an officer of the Federal government he would be exempt from such arrest and imprisonment. As was well said by the Attorney General in his brief, “The one office prevents him from performing the duties of the other and shields him from punishment for such non-performance.” By the laws of the State the Solicitor is required to attend the sessions of the Courts in his circuit, while by the Constitution of the United States a member of Congress is not only required to attend the sessions of Congress, but such attendance may be enforced in a very summary manner. In this very case, if the defendant had chosen to neglect his duties as member of Congress instead of those as Solicitor (for he necessarily had to neglect one or the other) aod had attended the Court in Orangeburg at the January Term, 1877, the Sergeant-at-Arms of the United States House of Representatives might have arrested him in the very presence of the Court, while engaged in the most important duty, and carried him to Washington. His oath as a member of Congress required him to be in Washington, while at the same time his oath as Solicitor required him to be in Orange-burg. He could not comply with the obligations of the one without at the same time violating the obligations of the other. It will not do to say that a person in either of these offices may appoint a deputy and thus avoid the difficulties which have been, and many others which might be, suggested.

It has not been and will not be pretended for a moment that a member of Congress can perform his duties by deputy, nor do we think that it can be successfully contended that a Solicitor can, without special authority given by an Act of the Legislature, (and there is now no such Act) perform his duties by deputy. Indeed, in view of the provisions of Section 29, Article IV, of the Constitution of this State, declaring that “in all cases where an attorney for the State, of any circuit, fails to attend and prosecute according to law the Court shall have power to appoint an attorney pro tempore,” it may be doubted whether even the Legislature could confer such a power upon a Solicitor after the Constitution had conferred that power upon the Court, but this is a question which we are not now called upon to decide. It seems that the Congress of the United States has thought it neceásary, by special statute, to confer such a power upon the District Attorney, an analogous office to that of Solicitor, and in this State the Legislature by the Act of 1786-87, (Stat., 204,) specially authorized the Attorney General to appoint a deputy; and again upon the establishment of the District Court system a special clause was inserted in the Act, authorizing the Attorney General or Solicitor to conduct prosecutions in that Court by deputy. — Act of 1866, 13 Stat., 388.

This certainly warrants the inference that, without such special authority, such a power was not supposed to exist; and when we consider the nature of the duties incident to the office, requiring for their proper performance a high degree of skill and knowledge, and involving the exercise of the largest discretion, even in the gravest of issues, it is very obvious that the office of Solicitor is one of the highest personal trust and confidence, and that it does not belong to that class of offices in which the holder may appoint a ■deputy.' — -5 Com. Dig., Title Office, 56; 1 and 2 Jac. Law Die., Title Office, 251-2. We are, therefore, of opinion that the offices of Solicitor and Representative in Congress are wholly incompatible, and that the defendant by accepting the latter vacated the former office.

In accordance with these views judgment of ouster has heretofore been entered against the defendant.

Willard, A. J., concurred.