Plaintiff was a member of the State legislature of 1939. In August, 1939, he accepted an appointment to fill a vacancy in the office of county school commissioner of Ontonagon county. Thereafter the defendants herein, as State officials, refused to pay plaintiff further per diem compensation as a member of the legislature, such refusal being on the ground that by accepting the office of school commissioner he had vacated or abandoned his office as a member of the legislature. Plaintiff seeks mandamus in this court to compel payment.
So far as pertinent here, the Constitution (1908), art. 5, § 7, provides:
"No person elected a member of the legislature shall receive any civil appointment within this State * * * from the governor * * * or any other State authority, during the term for which he is elected."
Plaintiff's appointment as county school commissioner was made by the county clerk, the probate judge, and the prosecuting attorney of Ontonagon county, in accordance with statutory provision. 1 Comp. Laws 1929, § 3369 (Stat. Ann. § 6.715). It has been very definitely decided in this State that plaintiff's official position as a member of the State legislature did not render him ineligible to the appointment *Page 688 or election as county school commissioner under the above-quoted constitutional provision. Lodge v. Wayne CountyClerk, 155 Mich. 426. See, also, Attorney General v. Lennon,86 Mich. 468.
The question then arises, whether the two offices are incompatible. If so, plaintiff's acceptance of the office of county school commissioner vacated the office which he previously held.
The office of county school commissioner is not a constitutional office, but instead is one created by the legislature. Eligibility to that office and the powers and duties of county school commissioners are fixed by legislative action. These may be increased or diminished by the legislature. The compensation of one holding that office might be fixed by the legislature, and in fact the minimum salary of county school commissioners is fixed by statute. The manner of electing one to the office and of filling a vacancy therein are likewise determined by legislative action. See 2 Comp. Laws 1929, § 7704 (Stat. Ann. § 15.802 et seq.); 1 Comp. Laws 1929, § 3369 (Stat. Ann. § 6.715); and Act No. 129, Pub. Acts 1937. Clearly the office of county school commissioner is subordinate to that of a member of the legislature. The former owes its creation and continuation to legislative enactment and is completely subject to legislative control. Further, as a matter of sound public policy, these two offices should be held incompatible. If a controlling faction in the legislature was composed of county school commissioners, it is conceivable that the legislature might materially increase salaries of county school commissioners, enlarge their powers, or diminish their duties.
"It is the universal rule that, when such incompatibility exists, the acceptance of the latter office vacates the first.State, ex rel. Metcalf, v. Goff, *Page 689 15 R.I. 505 (9 A. 226, 2 Am. St. Rep. 921), and authorities there cited. The authorities are in substantial agreement as to the rule of incompatibility, and Mechem states it as follows: 'This incompatibility which shall operate to vacate the first office exists where the nature and duties of the two offices are such as to render it improper, from considerations of public policy, for one person to retain both.' Mechem, Public Office, § 422. In State, ex rel. Metcalf, v. Goff, the test is thus stated:
" 'The test of incompatibility is the character and relation of the offices; as where one is subordinate to the other, and subject in some degree to its revisory power, or where the functions of the two offices are inherently inconsistent and repugnant. In such cases it has uniformly been held that the same person cannot hold both offices.' " Attorney General, exrel. Moreland, v. Detroit Common Council, 112 Mich. 145, 168 (37 L.R.A. 211).
Numerous authorities are cited in support of the text of 22 R. C. L. pp. 413, 414, §§ 55, 56, which in part reads:
"It is extremely difficult to lay down any clear and comprehensive rule as to what constitutes incompatibility of offices. * * * Sometimes it is said that incompatibility 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. * * * It is not an essential element of incompatibility at common law that a clash of duty should exist in all, or in the greater part, of the official functions. * * *
"One of the most important tests as to whether offices are incompatible is found in the principle that the incompatibility is recognized whenever one is subordinate to the other in some of its important and principal duties, or is subject to supervision by the other, or where a contrariety and antagonism *Page 690 would result in the attempt by one person to discharge the duties of both."
Without further citation of a mass of sustaining authorities, we hold that the two offices here involved are incompatible.
We are not in accord with plaintiff's contention stated in his brief as follows:
"Plaintiff denies defendants have any jurisdiction to pass upon his eligibility to continue as a member of the house of representatives or to withhold from him his per diem compensation as fixed by the Constitution and statutes of the State of Michigan."
In this connection plaintiff contends that the power to pass upon the election, returns and qualifications of its own members is vested exclusively in the house of representatives. See Const. 1908, art. 5, § 15.
Notwithstanding the foregoing, it still is clearly a duty incumbent upon defendants, as public officers, to perform faithfully the duties of their respective offices. They would be derelict in the performance of such duties if they were instrumental agencies or participants in the unlawful expenditure of public funds. When plaintiff sought by force of judicial writ to compel defendants to pay him money of the State to which they believed he was not entitled, it was clearly their duty to seek adjudication of plaintiff's alleged right in the forum to which they were brought by plaintiff.
Our decision in Lodge v. Wayne County Clerk, 155 Mich. 426, is not at all controlling of the instant case. That decision only holds that notwithstanding the constitutional provision (Const. 1908, art. 5, § 7) a member of the legislature may become a candidate for election to the local office of county *Page 691 auditor. It does not hold that if such candidate were elected he could continue to hold the public office as a member of the legislature, nor does the Lodge Case adjudicate in any way the question of compatibility or incompatibility between the two offices therein involved. Instead the court concluded its opinion with this suggestive statement: "The effect of the election to a county office, if it is held to be incompatible with the office of representative, would be to vacate ipsofacto the office of representative."
We conclude that plaintiff, by acceptance of the office of county school commissioner, vacated his former office as a member of the State legislature; and, therefore, he was not entitled to payment of per diem compensation as a member of the State legislature.*
The writ of mandamus is denied, but without costs.
SHARPE, C.J., and BUSHNELL and BUTZEL, JJ., concurred with NORTH, J.
* See Const. 1908, art. 5, § 9. — REPORTER.