
    State ex rel. Allen, v. Mason, etc., et al.
    
      Clerk in U. S. Pension oMce — Eligible to membership in General Assembly — Article 2, Section 4 of Ohio Constitution.
    
    A clerk in the United States pension agency, serving by appointment for -a period not exceeding three months, and compensated with money of the United States appropriated for that purpose by congress, having no duties defined by law nor discretion to act independently of the direction of the pension agent, is not “holding an office under the authority of the United States” within the meaning of Section 4 of Article 2’ of the constitution of the state which renders persons so holding office ineligible to membership in the general assembly.
    (Decided October 24, 1899.)
    IN MANDAMUS.
    In his petition the relator alleges that from and since the first Monday in January, 1898, he has been a duly elected and qualified and acting member of the house of representatives in the General Assembly of Ohio; that for the same time the defendant, Mason, has been the duly qualified and acting speaker of the house, and the defendant Guilbert, the duly qualified and acting Auditor of State; that the relator’s salary as such member, as fixed by law, is $600.00 per annum, and that his salary for the year 1899 became due and payable on the 16th day of February, 1899, and that an appropriation therefor had been made; that it was the duty of the speaker to issue to him a certificate for his said salary and the duty of the auditor to issue a warrant therefor on the Treasurer of State; that upon his demand said officers refused to perform the duties so imposed upon them by law, and he prays for a peremptory writ of mandamus to compel the performance of said duties.
    
      The cause is submitted on an agreed statement of facts which concedes the relator’s right to the writ unless it should be denied because, during the time for which he seeks compensation, and at the time of his demand therefor, he was “holding an office under the authority of the United States” within the meaning of section á of article 2 of the constitution of the State. The facts agreed upon and material to the question to be determined are in substance as follows: On September 1, 1898, the relator was appointed a clerk at the United States pension agency at Columbus, Ohio, for a period not exceeding three months, and has continued until now to occupy said position by virtue of successive reappointments for like periods, he being one of thirty-six clerks at the agency. His salary as clerk is $1,800 per annum, which is paid out of the money of the United States appropriated by- congress for clerk hire. He acts as confidential clerk to Mr. Jones, the pension agent, having no duties which are defined by law, nor has he discretion in any matter to act independently of the will of the agent. His duties are wholly such as are imposed upon him by the agent.
    
      David L. Sleeper, for plaintiff.
    1. Section 4, article 2 of the constitution of Ohio providing that “no person holding office under the authority of the United States shall be eligible to the General Assembly, does not include a position as is held by relator, of a temporary character and purely ministerial in its duties.
    2. That section 6, article 2 of the constitution of the State provides, “Each house shall be judge of the election, returns and qualifications of its own members,” and that the defendants have no right to expel relator, or to refuse his salary so long as he shall remain a member of the General Assembly; that until the House of Representatives shall have passed upon the eligibility of relator and excluded him from membership in the house, relator remains a member thereof, and is entitled to draw his salary therefor and no other officer, authority or court has a right to pass upon the question of his eligibility or refuse to pay his salary. •
    What is an “office,” under section 4, article 2 of the State constitution?
    The Century Dictionary defines it to be “A post the possession of which imposes certain duties upon the possessor and confers authority for their performance.” It must be permanent, continuing, durable and possesses independent power to control the property of the public or to perform public functions. It invests the occupant with certain discretion in the performance of his public duties within the limits of which he is not answerable to another. It possesses judicial, legislative or administrative powers. A position purely ministerial, possessing no right of independent action, dependent entirely upon the will and direction of another in its appointment and execution is not such an office as comes within the inhibition of said section 4. State v. Kendle, 52 Ohio St., 346; State ex rel. v. Brennan, 49 Ohio St., 37; King v. Burnell, Carthew, 478; United States v. Hartwell, 6 Wall., 385; Bradford v. Justices, 33 Ga., 332; Smith v. Lynch, 29 Ohio St., 261; State v. Anderson, 45 Ohio St., 196; Warwick v. State, 25 Ohio St., 21; State ex rel. v. Kennon, 7 Ohio St., 548; 20 Johns, 492; Lessee of Anderson v. Brown, 9 Ohio St., 151.
    In the proceedings against Gen. Joseph Wheeler and others, in the present house of representatives, it was sought to unseat them because they had accepted military commissions in the volunteer army in the late war with Spain. The federal constitution says: “And no person holding an office under the United States shall be a member of either house •during his continuance in office.”
    In the statement of Gen. Wheeler made on the floor of the house in his own defense, he says: “When I accepted the appointment as a major general of volunteers last May, I was requested by persons whose desires I could not disregard not to resign my seat in congress. I find that during the pres-■congress forty-three of its members had been appointed to offices and that none of them have resigned their seats in congress.
    “I have examined decisions and precedents on the ■subject and found that during the 110 years of the ■existence of our government hundreds and possibly thousands of members of congress had accepted offices during their terms, and that none of them holding a temporary office like mine have ever been unseated. I found that the decisions of the courts, even including four decisions quoted by General Henderson in his report took the ground that inhibitions found in constitutions with regard to offices referred to offices of a permanent character and not of a temporary character. I also found that the attorney general of the United States had rendered an elaborate opinion on this subject, in which he took precisely the same ground and held that an office in the volunteers was not such an office as was inhibited by the constitution.” 71 N. Y., 238; Hall v. State, 39 Wis., 79; Bun v. The People, 45 Ill., 397; McArthur v. Nelson, 81 Ken., 67.
    We maintain that the foregoing authorities clearly establish, our first claim. The office referred’ to in section 4, article 2 must possess the characteristics of permanency, duration, continuity, with independent power to control the property of the public or performance of certain public functions conferred by law.
    The position held by the relator possesses none of these characteristics. It is held by sufferance from day to day, subject to the will or caprice of his superior. He must do whatever he is told to do. and in the manner directed by the pension agent. The position confers no authority, trusts him with no public property, enjoins the performance of no' public functions. It invested him with no discretion as to what he shall do or how he shall do it.
    Eligibility and qualification are synonymous, terms.
    The relator still holds the office of representative. No action has been taken by the house upon the question of his eligibility. No other tribunal, officer or authority can pass upon that question. The jurisdiction of the house is exclusive. Dalton, Clerk, v. The State, 43 Ohio St., 652.
    The jurisdiction of each house to decide upon the election, returns and qualifications of its own members is supreme and exclusive. Cooley’s Con. Lim., 133; State v. Jarrett, 17 Md., 309; People v. Mahoney,. 13 Mich., 481; Throop’s Public Officers, section 500; People v. Greene, 5 Daily N. Y., 254; Sleigh v. U. S., 9 Court of Claims, 369; U. S. v. Saunders, 120 U. S., 126; Major Collins case, 15 Ct., of Cl., 22; State Auditor ex rel. v. Clark, 52 Mo., 508; Winston v. Mosley, Auditor, 35 Mo., 146; Board v. Benoit et al., 20 Mich., 176; 17 Iowa, 525; 23 Ind., 449; 5 Pick., 487.
    
      
      F. S. Monnett, Attorney General, and G. C. Blankner, Assistant Attorney General, for the defendants..
    Of a like public policy as expressed in the State constitutional provisions, we find in the federal constitution, showing the jealousy with which the law makers of the United States, which legislate for the-State of Ohio as well as the other states within their limitations, provide in article 1, section 6 (2), that “no senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created or the emoluments whereof shall have been increased during said time- and no person holding any office under the United States shall be a member of either house during the continuance in office.”
    Of like import is article 1, section 9, division 8,, which provides: “And no person holding any office of profit or trust under the United States shall accept of any present, emolument, office or title of any kind whatever from any king, prince or foreign: state.”
    To enforce the spirit and letter of the above state- and federal constitution, article 6 of the federal constitution provides: “That members' of the several state legislatures and of executive- and judicial officers both of the United States and of the several states shall be bound by oath or affirmation to support this constitution.”
    Hence, we call the court’s attention to the warning, and protests and safe-guards thrown about the legislative department both in the federal and state constitution to prevent their being influenced in performing the solemn and important governmental functions of legislating for the states in the state assemblies and of “legislating” for the states as a whole in the federal congress. That it violates the letter of the constitution as above cited, to-wit: Section 4, article 2, although the affirmative of the propositions is simply apparent in that particular section, viz.: “That no person holding office under the authority of the United States shall be eligible to have a seat in the General Assembly.” It would be a mere mockery of the solemn injunctions of the federal and state constitution to permit a member ■of the General Assembly to be open to employment by the State of Illinois or Germany or the United ¡States itself, for as to this particular test the United .States as well as Illinois may be a foreign state.
    It was the intent of the legislature not only to prevent any of the neighboring states, the United ¡States or any foreign government from tampering with our legislative bodies, but they even made it impossible for such an assemblyman to accept an ■office, reward or emolument from any state office that had accrued for at least one year after his term ■as such legislator had expired. The danger of using state positions, state emoluments, federal offices and federal positions to accomplish sinister results and to warp the will of the member from his natural ■choice in performing any of his duties by holding ■out any such rewards and offices, must be apparent to the court at first blush.
    The constitution, as well as the statutes, both State and federal, have indicated to the court what the federal and state public policy is, in this behalf. In addition to the bribery statute, we have the constitutional warning, which has made it forever impossible for a legislative officer to accept rewards, •emoluments or positions from the federal government, which is in the following language, viz.: “No person holding office under the authority of the United States shall be eligible to or to have (or hold): a seat in the General Assembly;” and has provided certain exceptions to this sweeping prohibition, viz. that of township officers, justices of the peace, notaries public and officers of the militia, any and all: other offices render them both ineligible as well as: forfeit their seat in the General Assembly. We believe the doctrine of expressio unius est exclusi© alterius applies. This doctrine has been so frequently interpreted by this court and the principles applied that we scarcely need cite the authorities. Bricker v. Bricker, 11 Ohio St., 240; Baker v. Cincinnati, 11 Ohio St., 534; State ex rel. v. Taylor, 15 Ohio St., 137; Courson v. Courson, 19 Ohio St., 454; Lowry v. Narrelli, 21 Ohio St., 325; Williams v. Welton, 28 Ohio St., 451; Mack v. Brammer, 28 Ohio St., 508; Wilkins v. Ins. Co., 30 Ohio St., 317; Sargent v. Railroad, 32 Ohio St., 449; McNeil v. Hagerty, 51 Ohio St., 255.
    An office is a public charge or employment, and the term seems to comprehend every charge or employment in which the public are interested. Platt v. Beach, 2 Benedict (U. S. D. C.)
    An office is a right to exercise a public or private* employment, and to take the fees and emoluments' thereunto belonging. Bowers v. Bowers, 26 Penn. St., 77.
    A position or station in which a person is employed to perform certain duties, or by virtue of' which he becomes charged with the performance of certain duties, public or private. People v. Tweed, 13 Abb. Pr. (N. Y.), 422.
    An office is simply an appointment or authority on behalf of the government to perform certain duties usually at and for a certain compensation. Smith v. Mayor, etc., 37 N. Y., 520.
    We take it that the idea intended to be conveyed by the words “duration, permanency and continuation” is that the position does not end with the change of administrations, with the discharge, resignation or death of the party elected or appointed to such position, but continues to exist after the change takes place. United States v. Maurise, 2 Broc. (U. S. C. C.), 103. Why take an oath and why give a bond if the relator is not an officer? Collins v. Mayor, 3 Hun., 680.
    Clerk in office assistant treasurer of the United States. United States v. Hartwell, 6 Wall., 385.
    Clerkship in treasury department and one in attorney general’s office. Talbot v. United States, 10 Court of Claim, 426.
    Clerk in office secretary of state. Vaughn v. English, 8 Cal., 39.
    Commission for construction of public highways. People v. Nostrand, 46 N. Y., 381.
    Commissioners appointed by governor to construct public buildings. People v. Comptroller, 20 Wend. (N. Y.), 595.
    The second contention of the relator is rather a novel one, viz.: that even though the court should •find the position which relator holds to be an office, yet the defendants have no right to expel him or ¡refuse him his salary so long as he is a member of 'the house, and that under section 6, article 2, the ■house is to be the sole judge as to whether or not he is competent to act as a member.
    We concede that the house has the exclusive power to determine which of two contestants for a seat in the General Assembly is entitled to admittance. If, during the interim in legislative sessions, some contingency arises, as in the case at bar, which makes it necessary to determine the rights of a member to longer serve in the capacity of a representative, and which involves the construction of the constitution or a law, is the house to be called together for the purpose of deciding what the law is and passing .judgment? We do not think so. The framers of our constitution never intended to confer such power upon the house.
    The defendants have not, and are not now seeking to expel the relator from the house. The position which relator now holds was accepted by him before the commencement of the present legislative year. If the court decides that the position now held by relator is an office, and they alone are to determine that question, then the relator has, by his own act, vacated, relinquished and forfeited his right to act as representative and his claim for salary and there is nothing for the house to pass upon. If the house of representatives possesses the unlimited power claimed for it by the relator, then it .was a waste of time to bring this action, for, according to relator’s contention, the decision of our supreme court in this case must be reviewed by the house.
    Where the holding of two offices at the same time which is forbidden by the constitution or the statutes, a statutory incompatibility is created similar in its effect to that of the common law, and as in the case of the latter, it is well settled that the acceptance of a second office of the kind prohibited, operates ipso facto to absolutely vacate the first. People v. Brooklyn, 77 Va., 503; Shell v. Cousins, 77 Va., 328; State v. Newhouse, 29 La., Ann., 824; State v. Arata, 32 La. Ann., 193; State v. Draper, 45 Mo., 355; Dickson v. People, 17 Ill., 191; Foltz v. Kerlin, 
      105 Ind., 221; Daily v. State, 8 Blackf. (Ind.), 329; Meecham on Public Officer Sec. 429; 2 Hill (N. Y.), 93; People v. Nostrand, 43 N. Y., 381; People v. Green, 48 N. Y., 394.
    Therefore, the moment the relator accepted the position of confidential clerk to the pension agent,, he ceased to be a member of the house and lost all right to claim the emoluments attached thereto.
   Bx the Court:

The attorney general contends that the relator,, upon the facts stated, is disqualified to be a member of the house of representatives by section 4 of article 2 of the constitution: “No person holding-office under the authority of the United States, or any lucrative office under the authority of this State,, shall be eligible to or have a seat in the General Assembly * * * * .”

We assume, without deciding, that the question before us is not affected by the provision of the sixth section of the same article that “each house shall be judge of the election returns and qualifications of its own members,” and that we may adjudge the relator disqualified, although the house has recognized him as qualified. Since the relator performs no duties except such as by law are-charged upon his superior, the pension agent, his position is not an office but merely an employment. The subject appears to be sufficiently discussed in State ex rel. v. Brennan, 49 Ohio St., 33, and State v. Kendle, 52 Ohio St., 346.

Peremptory writ allowed.  