
    The State ex rel., Leland v. Mason as Speaker of the House of Representatives, and Guilbert, as Auditor of State.
    
      Member of general assembly — By accepting appointment to federal judgeship —Becomes ineligible to seat in general assembly.
    
    A member of the general assembly, who has accepted an appointment to a federal judgeship, thereby, by force of section 4 of article 2 of the constitution, becomes ineligible to a seat in the general assembly and ceases to be a member of that body, and is not entitled to payment of salary thereafter.
    (Decided January 16, 1900.)
    Motion for an alternative writ of mandamus.
    Tlie cause was submitted on its merits on tbe hearing of tbe motion.
    In substance tbe petition avers that tbe relator, Charles A. Leland, was, on tbe first Monday of November, 1897, duly elected a member of tbe bouse of representatives of tbe state of Ohio, from Noble county, duly qualified, entered upon tbe duties of tbe office and has ever since occupied and performed tbe duties thereof.
    The defendant, Mason, is the speaker of tbe bouse of representatives, and tbe defendant, Guilbert, is tbe auditor of state.
    Tbe salary of tbe office of membér of tbe bouse was and is $600 during each year of tbe term. It became due to relator for tbe year 1899 on February 16, 1899, and there was duly appropriated out of tbe general revenue fund of tbe state tbe sum of $600, not otherwise appropriated, to pay tbe same, by which said sum was to be paid in one installment on and after February 16,1899.
    It was tbe duty of Mason, as speaker, upon demand, to issue a certificate to the auditor of state, certifying that said sum of $600 for salary as aforesaid was due relator, and the duty of said Guilbert as auditor, to issue a warrant upon the treasurer of state for said sum.
    In the month of October, 1899, the relator demanded of said Mason as speaker such certificate for his salary, which he refused and still refuses to issue.
    On November 16, 1899, the relator presented his claim for salary to the defendant, Guilbert, as auditor, and demanded that he issue his warrant on the treasurer of state for his salary, which he then refused and still refuses to do.
    On or about the........day of........, 1898, relator was appointed associate justice for the United States District court, fifth judicial district of the territory of New Mexico, accepted such appointment and then duly qualified as such justice, and now holds said position.
    There is money in the treasury of the state duly appropriated sufficient to pay said salary.
    On April 26, 1898, the general assembly, by joint resolution, adjourned sine die. Defendants have always been informed of the claim of relator, and that -he is the duly elected, qualified and acting member of the house of representatives from Noble county.
    A writ of mandamus is prayed for commanding said Mason, as speaker, to issue such certificate, and said auditor to issue his warrant.
    
      D. L. Sleeper, counsel for relator.
    Our contention is, that the relator having been duly elected, qualified and commissioned, is a member of the general assembly and remains such until the house by a two-thirds vote expels him.
    The whole question is for the house.
    Gen. Joseph Wheeler, in proceedings against him in the present house of representatives to unseat him and others because they had accepted military commissions in the volunteer army in the late war with Spain, stated that in the whole history of our government no member has ever been expelled or deprived of his seat in consequence of his having accepted an office except in a single case of Van Ness in 1802. Dalton’s case, 43 Ohio St., 652; Cooley Con. Lim., 133; State v. Jarrett, 17 Mich., 309; People v. Mahoney, 13 Mich., 481.
    The relator is a member of the general assembly and under section 40, Revised Statutes, “each member shall receive the sum of six hundred dollars for each year of the term of his office.”
    The statute is plain and no exception or qualification therein provides discretion to the auditor of state in the matter. It has been held by courts of the last resort over and over again that he who holds the commission is entitled to the emoluments of the office. State ex rel. v. Clark, Auditor, 52 Mo., 508; Winston v. Mosley, Auditor, 35 Mo., 146; Board v. Benoil et al, 20 Mich., 176; section 154, R. S.; Bryan v. Cattell, Auditor, 35 Iowa, 538; People ex rel. v. Schuyler, Auditor, 79 N. Y., 189; Leech v. Cassidy, 23 Ind., 449; People v. Head, 25 Ill., 325; State v. Auditor, 48 Mo., 213; State, Jackson v. Auditor, 34 Mo., 375; this case is affirmed in 36 Mo., 70; Beck v. Jackson, 43 Mo., 117; Court v. Sparks, 10 Mo., 117.
    Revised Statutes of Ohio, Sec. 6744, forbids the issuing of a writ of mandamus in a case where there is a plain anl adequate remedy in the ordinary course of the law.
    Revised Statutes, section 6760, provides for a writ of quo warranto against a person who usurps, intrudes into, or unlawfully holds or exercises a public office.
    The defendants cannot raise the question of the relator unlawfully holding said office in this action as a plain and adequate remedy at law is furnished by section 6760 by a writ of quo warranto.
    Revised Statutes, section 2988, directs the governor to call a special election to fill a vacancy in the general assembly.
    Seetion 37, Revised Statutes, provides that the resignation of a member shall not take effect when the legislature is in session until a majority of the house to which he belongs has consented thereto, and in vacation, until the governor has accepted the resignation. A member of the house cannot voluntarily resign and he will not be permitted to accomplish by indirection as by the acceptance of another office what he cannot do directly. Meecham on Pub. Officers, 421; Throop on Pub. Officers, Sec. 30, 411, 412.
    In Meecham on Public Officers, two exceptions are noted to the rule that the acceptance of an incompatible office vacates the first office, viz: First, where the officers are under different governments, as state and national, Sec. 430; .and second, where the incumbent cannot voluntarily resign. Sec. 421.
    
      F. S. Monett, Attorney General, for defendants.
    We believe that it is within the jurisdiction of the supreme court of the state, under section 1, article 4, to exercise judicial power over the subject matter set forth in relator’s petition. Article 4, section 1. Under section 2 said court has original jurisdiction in mandamus.
    The relator has recognized that there is a judicial question to be determined by invoking your jurisdiction.
    This general power, or authority, has no limitations so far as the supreme court is concerned, in mandamus unless it be found in the constitution. Because you receive your powers from the constitution for exercising this function; therefore it alone can take them away.
    The power of the legislature in article 2, section 1, is supreme, save and except where the constitution itself places limitations thereon, which limitations this court has been repeatedly called upon to define and to discover. 1 Ohio St., 77; Cass v. Dillon, 2 Ohio St., 608.
    If relator’s position be true, he must presume not only that all legislative and judicial power to determine the eligibility' of a member is provided for in section 6, but he must further presume that every member of each house will violate his oath of office by violating the constitution itself. Nay, more, he has invoked the jurisdiction of a court, created by the constitution, in asking them-to exercise that jurisdiction for the purpose of -violating article 2, section 4, of the constitution, when under article 15 it is their sworn duty to sustain the constitution.
    So likewise to have a seat in the general assembly if he is once elected and seated, he can terminate that relationship by either tendering his resignation and having it accepted while he remains in private life, or he can constitutionally vacate it by accepting a federal office, which, by the terms of the constitution, is the highest kind of a resignation, and it makes no exception to this rule other than those named therein, viz: the township officer, justice of the peace, notary public or officer of the militia.
    Counsel contend for the rule laid down in Meechem on Pub. Officers, section 430, that where the office is held under different sovereignties, does not apply. But in each of the following cases the court assumed jurisdiction and passed upon the matter. Dickson v. People, 17 Ill., 191; People v. Brooklyn, 77 N. Y., 503; 33 Am. Rep., 659; State v. DeGrass, 53 Texas, 367; State v. Buttz, 9 S.C., 156.
    We contend that the relator has forfeited his seat in the general assembly and the right to the emoluments thereof, by accepting the position of associate justice of the supreme court of the United States for the fifth judicial district of the territory of New Mexico. 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; Foltz v. Kerlin, 105 Ind., 221; Daily v. State, 8 Blackf. (Ind.), 329; 2 Hill (N. Y.), 93; People v. Nostrand, 46 N. Y., 381; People v. Green, 58 N. Y., 304.
    Rut why take up the time of this court discussing a proposition which has but recently been decided? State ex rel. Allen v. Mason, etc., 61 Ohio St., 62.
   By the Court :

The record presents the question whether or not a member of the general assembly who, during the first year of the term for which he has been elected, has accepted an appointment as associate justice of a district court of the United States, and entered upon the discharge of the duties of said office, is entitled to payment of salary as such representative for and during the second year of said legislative term, the legislature having appropriated funds for the payment of the salaries of the members?

Or, perhaps the question should be put in this form: Should this court, by mandamus, compel the payment of salary under the circumstances above stated?

In support of the relator’s claim the contention is that the case is controlled by sections 6 and 8 of article 2 of the constitution, which provide: “Each house shall be judge of the election, returns, and qualifications of its own members,” and may “with the concurrence of two-thirds, expel a member.” And that the relator, having been duly elected and qualified, became a member of the general assembly, and no action having been taken by the house of representatives to exclude or expel the relator, he remains a member and entitled to draw the salary. That is, the question is purely a legislative one, wholly within the control of the house of representatives. And no other officer, authority or court has power to pass upon the question of relator’s eligibility, or to refuse him his salary.

We cannot assent to this proposition. The sections-cited are to be construed with section 4 of the same article, which provides that'“No person holding office under the authority of the United States * . * * * shall be eligible to, or have a seat in, the general assembly.”

It is the duty of the court to give force to this mandate of the constitution, and though the general assembly does not act, the court cannot evade that duty. It must refuse its aid to one who assumes to hold office in violation of the constitution. No one doubts that the federal judgeship is an' office. The relator, when he accepted that office and became a federal judge, was no longer eligible to a seat in the general assembly, and is not entitled to payment of the salary claimed.

Motion overruled and writ refused.  