Laws 1895, ch. 449, and 1897, ch. 93, imposed the duty of road supervision in Warren County upon the county surveyor. The act of 1899, ch. 581, established a new system of road construction and supervision, general in its character, and embracing many counties, among them Warren County. It created for each of the counties (121) embraced in the act the new office of superintendent of roads.
The plaintiff, county surveyor, who has been discharging the additional functions of supervisor of roads, contends that the defendant, who has been elected superintendent of roads, is exercising a part of his office, and receiving emoluments to which he is entitled.
When, under the acts of 1895 and 1897, the duties of road supervision (under the system then in force) were laid upon the county surveyor, there was no office of supervisor of roads created, for if so the county surveyor could not have taken it. He could not fill two offices. Constitution, Art. XIV, sec. 7. The acceptance of the second office would *Page 73 vacate the first. The duties of road supervision were simply duties temporarily annexed to the office of county surveyor, and which the Legislature could take away at will. When in its wisdom it saw fit to establish a new system of road supervision with wider powers, requiring the entire attention of one person, and the creation of an office for the purpose, the Legislature could not be hindered in the discharge of that essentially governmental function by the fact that a previous Legislature, under a less extensive system of road management, had given its supervision to the county surveyor.
With these duties attached by former Legislatures lopped off, the plaintiff still remains county surveyor, with every duty and every right belonging to that office untouched. It does not appear in the record how much emolument the additional duties of road supervisor brought to the county surveyor. It is found by the jury that the office of county surveyor per se is worth but $5 per annum, and that the new office of superintendent of roads, with its broader duties, and presumably increased emoluments, is worth $406. Doubtless the incidental duties of road supervision of the old system cast upon the county (122) surveyor were worth much less, but whatever the amount of compensation the duties were merely incidental and no part of the office of county surveyor, and when taken off in the establishment of a new system of roads he is still county surveyor, with all the functions and emoluments of that office undiminished.
"Upon the admissions in the pleadings and issues found by the jury," the court below rendered judgment for the plaintiff. The issues were as to immaterial matters, not affecting the rights of the parties. Upon the admissions in the pleadings, judgment should be entered for the defendant.
Reversed.
(123)