On November 7, 1938, plaintiff was duly elected, and thereafter qualified, as representative in the State house of representatives from the Ontonagon district, and served in such capacity during the entire legislative session of 1939. Since August 31, 1939, plaintiff has acted as Ontonagon county school commissioner, having received this office by appointment to fill a vacancy on or about that date.
Defendants have refused to issue vouchers for payment of plaintiff's per diem compensation as State representative since December 15, 1939, on the ground that plaintiff, by his acceptance of the *Page 694 appointment as county school commissioner, disqualified himself as representative, and, ipso facto, vacated such office; and is, therefore, no longer entitled to the compensation provided therefor.
Plaintiff filed an application in this court for an order to show cause why a peremptory writ of mandamus should not issue to defendants to compel them to issue the necessary vouchers for compensation. Such order was issued, to which the defendants, by the Honorable Thomas Read, attorney general, made due return, denying that plaintiff was entitled to per diem compensation, for the reasons heretofore stated, and setting forth that the office of State representative and county school commissioner are incompatible, and that plaintiff's acceptance of the office vacated the office of State representative to which he had been previously elected. The succeeding attorney general, Honorable Herbert J. Rushton, thereafter gave as his opinion to defendants that the two offices were not incompatible, and that plaintiff was entitled to per diem compensation as State representative; but the auditor general, because of a contrary opinion received in the administration of the previous attorney general, refused the issuance of the vouchers without a determination of the question by this court.
Plaintiff rests his contention on the ground that, inasmuch as each house of the legislature is the judge of the qualifications, election, and returns of its members (Const. 1908, art. 5, § 15), defendants improperly held that the office of representative from Ontonagon was vacant; and that defendants wrongfully attempted to assume the right of passing upon his qualifications as such representative; that the question of the incompatibility of the two offices in question is not here involved; that he is *Page 695 entitled to the per diem compensation attached to the office of State representative; and that, because of the foregoing reasons, the writ of mandamus should be granted.
The attorney general denies that defendants wrongfully attempted to exercise the right of passing upon the qualifications, election, and return of plaintiff as a State representative; but, on the theory that the offices are not incompatible, agrees that plaintiff is entitled to the compensation sought.
It is contended that one who, while occupying one office, accepts another office incompatible with the first, ipso facto vacates the first office. Northway v. Sheridan, 111 Mich. 18;Attorney General, ex rel. Moreland, v. Detroit Common Council,112 Mich. 145 (37 L.R.A. 211); Attorney General, ex rel.Dust, v. Oakman, 126 Mich. 717 (86 Am. St. Rep. 574);Lodge v. Wayne County Clerk, 155 Mich. 426; and that such rule applies even where the title of the second office is invalid.People, ex rel. Stephen, v. Hanifan, 96 Ill. 420; Shell v.Cousins, 77 Va. 328. If plaintiff vacated the first office in this manner, it would be the same as though he had resigned. Defendants, in recognizing such a vacancy, would not be passing upon the qualifications of a State representative. Plaintiff answers that it may be that, when a person who is elected a member of the legislature receives an appointment from certain officers or authorities, such an appointment may be void (Const. 1908, art. 5, § 7); but that the question of the invalidity of his appointment as county school commissioner is not before this court. It is, therefore, claimed that, as a result of accepting the appointment of county school commissioner, plaintiff is faced only with a controversy as to the validity of such appointment; and that, in any event, even upon a holding that such appointment *Page 696 was void, he would not thereby have vacated the office of State representative.
The arguments made with regard to this proposition are interesting, but are unnecessary to our determination. If the office of school commissioner is not incompatible with the office of State representative, then under the only legal questions and the facts and circumstances as here presented, plaintiff is entitled to the compensation claimed; and it is unnecessary to discuss any of the various questions raised relating to the Constitution of 1908, art. 5, § 7.
We are of the opinion that the two offices in question are not incompatible. Incompatibility between two offices is an inconsistency of the functions of the two. Where one office is not subordinate to the other, nor the relations of one to the other such as are inconsistent and repugnant, there is not that incompatibility from which the law declares that the acceptance of one is the vacation of the other. Before they are incompatible at common law, the offices must subordinate one to the other, and they must, per se, have the right to interfere, one with the other. See People, ex rel. Ryan, v. Green, 58 N.Y. 295.
In the accompanying opinion it is held that the two offices are incompatible for the reason that the office of county school commissioner is one created by the legislature and eligibility to that office and its powers and duties are fixed by legislative action, as well as the fact that the compensation for such office and the manner of election and filling a vacancy are likewise so determined. We are of the opinion, however, that the functions of the two offices are not inconsistent, and that this is the chief criterion on the question of incompatibility. We cannot say that the office of county school commissioner is subject *Page 697 to the supervisory power of the legislature, except in the sense that all citizens are subject to laws passed by the legislature, within the Constitution.
In 46 C. J. p. 942, it is said:
"Where the functions of two offices are inconsistent, they are regarded as incompatible. The inconsistency, which at common law makes offices incompatible, does not consist in the physical impossibility to discharge the duties of both offices, but lies rather in a conflict of interest, as where one is subordinate to the other and subject in some degree to the supervisory power of its incumbent, or where the incumbent of one of the offices has the power to remove the incumbent of the other."
In Lodge v. Wayne County Clerk, 155 Mich. 426, in mandamus proceedings to compel the clerk of Wayne county to place relator's name upon the county election ballot as a candidate for county auditor, where relator was, at the time, a member of the State legislature, the writ was granted; and this court, in its opinion, said:
"It is to be noted that the office was not created while the relator was a member of the legislature, and the duties of the office are purely local in their character, referring entirely to the affairs of the county."
We refer to the above case to indicate the apparent opinion of the court that the function of an office is the controlling element in considering questions of incompatibility of offices.
Between the offices of State representative and statutory duties imposed upon county school commissioners, we are in agreement with the contention of the attorney general that there is no conflict of interest, and that there exists between these offices no inherent inconsistency or repugnancy. One is *Page 698 not subordinate to the other, and there is no power of supervision or removal of one officer by another. We concur also in the view of the attorney general that there is no consideration of public policy that renders it improper for one person to occupy the office of county school commissioner and the office of State representative.
The writ of mandamus should be granted, without costs.
CHANDLER, J., concurred with McALLISTER, J.