People v. Sanderson, 30 Cal. 160, 167; People v. Provines, 34 Cal. 520, 541; Foltz v. Kerlin, 105 Ind. 221 (55 Am. Rep. 197); Daily v. State, 8 Blackf. 329; Shell v. Cousins, 77 Va. 328; also Northway v. Sheridan, 111 Mich. 18.

From what is said, it is obvious that the respondent should not have refused to call an election, and, in view of the fact that an election is to be held in Detroit on the 5th day of April next, it is desirable, upon the ground of economy, that this vacancy be filled at that time, if it can be legally done. Counsel seem to agree that seven days' notice of the special election to fill this vacancy is sufficient, and there is ample time to nominate candidates at conventions which have been already or can yet be called. It is conceded by counsel for the respondent that primaries for a special election may be held after the time specified in Act No. 411, Local Acts 1895, if there be time to print the ballots. We are therefore of the opinion that the election can be lawfully held at that time.

The writ will be granted as prayed, requiring the respondent to take all necessary steps to hold such election at the time named. The other Justices concurred.

DETURK V. COMMONWEALTH.

Supreme Court of Pennsylvania. November, 1889.

GREEN, J.

129 Pa. St. 151.

The respondent in the case, being the postmaster of DeTurkville, in the township of Washington, was elected in the fall of 1887 a county commissioner; and having been duly sworn in, has occupied and filled the office of county commissioner since January, 1888. At the instance of E. W. Frehafer, the district attorney has instituted the proceeding by quo warranto, to try the right of the respondent to hold the office of county commissioner, on the ground that by the constitution he cannot be postmaster and commissioner at one and the same time. Prior to the filing of an answer by the respondent, he resigned his office as postmaster, which resignation was duly accepted by the proper authorities. These are the facts in the case and they are not disputed.

The second section 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."

A postmastership under the United States is undoubtedly an office of profit, for the law provides compensation for the officer. In the present case, it is an office of very small profit, indeed, for the compensation does not exceed the sum of thirty dollars annually; nevertheless it must be classed as an office of profit. The office of county commissioner is one to which a salary is attached, the law providing a per diem pay of two dollars and fifty cents. Under the plain reading of the law it would seem clear that the respondent cannot be both postmaster and county commissioner.

When the present case was before the court it was argued as though the main question was one of the incompatibility of offices, and that defendant might either hold both, so long as no law of the state declared them incompatible; or, if they were incompatible per se, then the acceptance of the second office raised the presumption of a resignation of the first, and that the act of May 15, 1874, P. L. 186, upon the subject, did not declare the offices held by the respondent incompatible. A great many authorities both English and American were cited upon the questions arising from the incompatibility of offices, and whilst the law as decided by the different courts seems to be uniform and in accordance with the contention of the defendant, yet it has no bearing upon the case before the court. It is not a question of incompatibility or the reverse. It is simply a question of constitutional prohibition. The cases have therefore no relevancy in deciding this case.

But what effect does the resignation of the respondent as postmaster, and its acceptance by the proper authorities, have upon the question? Has he thereby qualified himself to hold the county office?

It is true he was disqualified when he took upon himself the duties of the office and was sworn in, and also when the writ of quo warranto was issued, and why may he not make himself competent by a subsequent resignation? Having put himself in the

position of holding only one office, has he not conformed to all that the constitution requires, that he shall not "at the same time hold or exercise" the two offices. The law does not declare him ineligible because he held the office under the general government. It merely says he shall not hold both at the same time. If this question were one of first impression, my own inclination would be to hold that having removed the disqualification, he could retain the state office, because the requirements of the Constitution would have been complied with. But what few authorities I have been able to gather, seem to rule that the disqualification must be removed before the officer is sworn in and enters upon the duties of the second office. In the case of the Commonwealth v. Pyle, 18 Pa. 519, the opinion of the court was delivered by Chief Justice Black, and that eminent judge decided that "when the constitution or a statute declares that certain disqualifications shall render a person ineligible to an office, he must get rid of his disqualifications before he is appointed or elected. Such have been the decisions of Congress in the contests there. But if the law merely forbids him to hold or enjoy the office, or exercise its duties, it is sufficient if he qualifies himself before he is sworn. A man may hold one office after he has been chosen to another which is incompatible with it, without 'thereby forfeiting either of them, provided he resigns the first before he enters upon the duties of the last."

It would clearly follow from this that a resignation of the first office, long after entering upon the duties of the second, is too late, and will not cure the disqualification. Probably the law is so declared, in order to remove the temptation of illegal holding on to two or more officers at the same time as long as possible, and only relinquishing at the last moment by a resignation enforced by the fear of an ouster. The constitutions of all or nearly all the states contain provisions similar in their nature to our own. They are intended to carry out the well-defined policy of keeping distinct and separate the respective functions of national and state government. It is for the purpose of preventing any encroachments of the one upon the other, and particularly of the general upon the state government that these clauses are inserted in state constitutions; so that state officers shall have no divided, or perchance, no inconsistent or incompatible duties to perform. This is the general principle and we are bound to carry it out in the administration of the law, even though it hits so humble a personage as the postmaster of DeTurkville, in the county of Schuylkill. No objection is made to his competency or to his honesty; nor is it even hinted

that there is danger that the relations between the state and federal government are about to be disturbed by allowing him to retain both offices, or that the cause of free government may receive a shock by permitting one and the same person to handle the mails at DeTurkville, and at the same time act as a county commissioner. But the law is no respector of persons. All are subject to its mandates, and whether the office be great or small, there is no exception to limit it or control the operation of the general principles.

In the case of Privett v. Bickford, 40 Am. Rep. 301, the same principle is laid down as was decided by Judge Black in Commonwealth v. Pyle. It was there decided that "although one elected to an office may, at the time of election, be politically disqualified from holding the office, yet, if such disqualification be removed before the issuing of the certificate and taking possession of the office, he may legally hold it." See also Foltz v. Kerlin, 105 Ind. 231 (55 Am. Rep. 197) and 4 B. Mon. (Ky.) 224 and 499.

From what we have already said it seems clear that the Commonwealth is entitled to judgment in the present case with costs. It is but proper to say that this is the unanimous conclusion of the court.

And now, January 14, 1899. Judgment of ouster against the defendant, and that the Commonwealth recover her costs, to be taxed according to law.

This opinion, which is the opinion of the lower court set forth at length in the opinion of the Supreme Court was reversed on appeal to that court. It seems, however, to be supported by the greater weight of authority.

GRAY V. SEITZ.

Supreme Court of Indiana. January, 1904.

162 Indiana 1.

DOWLING, J. Appellant and appellee were opposing candidates for the office of county auditor of Brown county at the general election held in November, 1902. The appellee received 1,019 of the legal votes cast at the election, and the appellant 615 of such votes. The appellant within the time fixed by law, gave notice of his intention to contest the election of the appellee, and filed his

statement of the grounds of such contest in the office of the clerk of Brown county. The board of commissioners of said county was thereupon convened to try the cause and the appellee appeared to the action. On the motion of the appellee the proceeding was dismissed by the board on account of the insufficiency of the facts stated to constitute a cause of action. An appeal from this judgment was taken to the Brown Circuit Court, where the motion to dismiss was renewed. The court sustained the motion, and rendered judgment for the appellee.

The error assigned is upon the ruling on the motion to dismiss. The ground of contest was the alleged ineligibility of the appellee to the office at the time of the election, and at the time of the commencement of the term thereof.

The supposed acts of bribery consisted in procuring the withdrawal of Ross as an opposing candidate for the nomination for county auditor at a democratic primary election held November 15, 1901, and in entering into an agreement with Hanna and Tabor, electors of said county, by which they undertook to use their influence with the other electors of the said county for the said John B. Seitz as a candidate for the office of county auditor, and to discourage and dissuade any other elector of said county from becoming a candidate at said primary election for nomination to said office in opposition to said Seitz, in consideration of which withdrawal of said Ross and the said services of the said Hanna and Tabor, the appellee, on October 15, 1901, executed his promissory note for $300 payable to said Ross ninety days after its date.

It is insisted by the appellant that these proceedings rendered the appellee ineligible to the office of county auditor, to which he was elected, under § 6, article 2, of the Constitution of this State, and also under § 2327 Burns 1901, defining and punishing the offense of bribery at primary elections. The provisions of the Constitution, supra, is as follows: "Every person shall be disqualified for holding office during the term for which he may have been elected, who shall have given or offered a bribe, threat or reward to secure his election." And § 2327, Burns 1901, declares that, "Any person being a candidate for nomination to any office of profit or trust under the Constitution or laws of this State, or of the United States, before any convention held by any political party, or at any primary election, who loans, pays, or gives or promises to loan, pay or give any money or other thing of value