We think that the writ should be denied, and that the first proposition involved is correctly treated by the Court of Appeals (82 So. 660).
As to the second proposition, we do not take issue with the Court of Appeals that the acceptance of one office vacates the older when the holding of both is prohibited; but we think that the bailiff in question did not hold two offices as prohibited by section 280 of the Constitution. As a deputy sheriff, he was the mere agent or employé of the sheriff, paid by the sheriff and removable at his will. As such, he was not paid by the state or county from public funds, and was not therefore within the terms of section 280 of the Constitution, which prohibits holding two offices of profit. Nor is he, as a deputy sheriff, governed by the impeachment provision of the Constitution, being removable from office at the will of the sheriff. Of course, to a certain intent and purpose a deputy sheriff is an officer within certain provisions of the law, such as resisting an "officer," etc., but he is not such an officer as is dealt with by section 280 of the Constitution, unless, perhaps, he be a deputy in Montgomery or such other counties as compensate the deputy sheriff from the public funds.
ANDERSON, C. J., and McCLELLAN, MAYFIELD, GARDNER, and THOMAS, JJ., concur in the opinion.
SOMERVILLE, J., dissents as to the holding of the Court of Appeals on the first proposition, but concurs in the holding that a deputy sheriff is not an officer as covered by section 280 of the Constitution.