The real issue in this case is whether, when Hunt was inducted into the military service, he then held a federal office of profit or trust within the meaning of section-12, art. 2, of our Constitution.
In view of the interpretation of New York, from which state we got our constitutional provision in question, and the interpretation of other states on similar provisions before the adoption of our Constitution, we admit that an officer in the United States Army, as distinguished from the army of the United States, holds an office of trust and profit with the United States Government and such an office was within the contemplation of the framers and adopters of our Constitution, and such an office falls within the purview of the foregoing section of article 2 of our Constitution.
We also admit, for the sake of argument, though the question is not here, that the acceptance of a commission in the United States Army, as distinguished from the army of the United States, and entry of service by reason thereof, would amount to a resignation from any state civil office of trust or profit held by the one so commissioned.
This being a case of first impression in this jurisdiction, the meaning and extent of the constitutional provision involved should be determined in the light of the reasons for its adoption, as well as from the language used. This gives rise to the query, against what persons and against what practices or conduct was the provision directed? Critchlow v. Monson,102 Utah 378, 131 P.2d 794. Was it directed against a citizen who, under the exactions of the United States Government, is called upon for the performance of the supreme and noble duty *Page 572 of contributing to the defense of the rights, the honor, and the very existence of our national government and our way of life? Certainly not.
At the time of adoption of our Constitution, military officers held commissions in the regular army. They were "professional soldiers," and their employment was permanent in nature. We then had no military officers holding temporary commissions terminable at the expiration of an existing national emergency. That there is a clear distinction between the two classes of officers is recognized in many of the old decisions from other states. Some of the decisions in other states do hold that a person holding a military commission holds an office of profit and trust under the laws of the United States within the meaning of constitutional or statutory provisions prohibiting dual office holding, but on examination of those cases it is disclosed that they involved officers in the regular or United States Army. See Kerr v. Jones (1862)19 Ind. 351; Oliver v. Jersey City (1899) 63 N.J.L. 96, 42 A. 782, and other cases annotated in 26 A. L. R. 143, et seq. There is a difference between an officer in the United States Army and an officer in the army of the United States. The one is a professional soldier pursuing a permanent profession. The other is merely in the armed forces on temporary active duty. This distinction is pointed out in State ex rel. McGaughey v. Grayston, 349 Mo. 701, 163 S.W.2d 335, a case which cannot be distinguished in principle from the instant case. Therein it is held:
"The constitutional prohibition against the holding of an office of profit under the United States and under the state at the same time does not apply to a militiaman who enters the service of the United States in time of emergency or war so as to effect a removal of a circuit judge who was ordered into federal service as a colonel of the Missouri National Guard."
And: "The members of the National Guard, the National Guard Reserve, the Officers' Reserve Corps, the enlisted Reserve Corps, the National Army and the Organized Reserves are primarily civilians and their units are distinct from the 'national army' and the fact that they leave their civil pursuits to take up arms for their country during the time of emergency or war does not make them 'professional soldiers.' "
Critchlow v. Monson, Secretary of State, et al., 102 Utah, 378, 131 P.2d 794, is a case which admittedly may not be distinguished from the instant case. Therein it is held:
"The constitutional provision that no person holding any office under the United States Government shall hold any office under the state government of Utah was designed to prevent practices which would tend to undermine the stability of the state government, and it was aimed at political office seekers, particularly those who might seek to draw two full time salaries from positions incompatible and impossible to perform simultaneously without neglecting performance of the duties of the state office."
And:
"The constitutional provision that no person holding any office under the United States Government shall hold any office under the state government of Utah has no reference to those who are called to military duty during time of war or national emergency, who plan to be absent from duties in the state no longer than the emergency reasonably requires."
And:
"The constitutional provision that no person, while holding any 'office' under the United States Government, shall hold any office under the state government, did not automatically forfeit state Supreme Court justice's position as justice when he was sworn into the army and was ordered to active duty as a reserve officer of the United States Army."
In Gullickson v. Mitchell, Secretary of State, 113 Mont. 359,126 P.2d 1106, it is held:
"Where regularly elected Attorney General was ordered to report for active military service at Washington, D.C., as a major in the Judge Advocate General's *Page 573 Department, before expiration of his term of office, the office was not 'vacated' by reason of constitutional provision that no officer mentioned therein, including Attorney General, shall be eligible to or hold any other public office during his term."
In McCoy v. Board of Supervisors of Los Angeles County et al., 18 Cal. 2d 193, 114 P.2d 569, it is held: "The constitutional provision that no person holding lucrative office under United States shall be eligible to any civil office of profit under state does not mean that state officer, on whom additional duties are imposed by President of the United States under Federal Constitution and laws in aid of raising and maintenance of army for prosecution of war, forfeits his office."
In State ex rel. Thomas v. Wysong (W. Va.) 24 S.E.2d 463, it is held:
"In determining the eligibility, of a person who is an officer in the United States Army, to hold a state office to which such person has been elected, court will distinguish between a temporary appointment as an army officer and a commission in the regular military establishment of the United States."
And:
"Provisions of Constitution that certain executive officers, including the Attorney General, shall not hold any other office during the term of their service, does not render persons ineligible to office of Attorney General, who, in time of war, was holder of temporary; commission as captain in the United States Army."
Other decisions to the same general effect are Re Advisory Opinion to Governor (Fla.) 8 So. 2d 26, 140 A.L.R. 1481; Re Advisory Opinion to Governor (Fla.), 9 So. 2d 172, 140 A.L.R. 1492; City of Lynchburg et al. v. Suttenfield, 177 Va. 212, 13 S.E.2d 353; Kennedy et al., Appts., v. Cook, 285 Ky. 9,146 S.W.2d 56, 132 A.L.R. 251; State v. Joseph, 143. La. 428, and Re Opinion of Justices, 307 Mass. 613, 29 N.E.2d 738. These courts hold generally that it was never the meaning, purpose, or intent of such provisions to deprive a citizen of a state civil office on account of his temporary active duty as an officer in the Army of the United States. As stated in State ex rel. Thomas v. Wysong, supra:
"The rights of a citizen to hold office is the general rule; ineligibility the exception. Courts are hesitant to take action resulting in deprivation of the privilege to hold office, except under clear and explicit constitutional or statutory requirements."
And:
"We would hesitate to impute to the framers of our Constitution an intent to deprive citizens of the emoluments and honors of a civil office on the ground that they are engaged temporarily in military service in time of war. No such result was intended or reached in the framing and adoption of our Constitution. . . ." The rule of these cases is formulated upon sound reasons and should be adopted. It is further submitted that the expression "office of trust or profit," as used in section 12 of article 2 of our Constitution, was never intended by the framers of that document or by the people in its adoption to include or mean a position held by the citizen-soldier as an officer of the Army of the United States serving temporarily during time of war, and that such definition was not then and is not now the plain, ordinary, natural, and commonly accepted and understood meaning of such expression.
Furthermore, the rule of these cases is in strict accord with the historical reason for the inclusion of such provisions in the Constitutions of the several states. That reason, as pointed out by some of the cases and found elsewhere in studies of government, was the desire on the part of the states to prevent the domination and administration of state government and affairs by the federal government by prohibiting the federal official from holding state office. Such reason was sound in policy and purpose. In fact, it is as sound today as it was in its inception. But it can hardly be claimed that a citizen temporarily in the Army of the United States as a commissioned officer during time of war, whose very purpose in such *Page 574 military service is to achieve a victorious peace as soon as possible, then retire from the army and resume his peace-time profession and vocation, was ever or is now within the historical reason for such rule. His commission, which constitutes him an "officer," is temporary; his term and tenure of service are temporary and indefinite. His civil right to hold office should not be suspended during this period of temporary service by a rule of law or constitutional interpretation when the very reason for the rule fails.
It should be pointed out at this point that all the evils that may attend our interpretation of our constitutional provision may be averted by the Legislature as has been done by many states. But we are not the legislative body and should not by judicial legislation pervert the intention of the people by reading into our constitutional provision an intention on the part of the people that has no foundation in reason. Such a strict and inelastic view or interpretation of the constitutional provision in question would lead to many unanticipated evils which could only be averted by a constitutional amendment.
Being of the opinion that there is no constitutional bar, it is necessary to determine whether the common law, which prohibits any person from holding two incompatible offices at the same time, would permit C.O. Hunt to serve as a member of the Board of Regents while on temporary active duty as a commissioned officer in the Army of the United States. This principle of common law has been supplemented but not displaced or supplanted by the constitutional provisions. State ex rel. Thomas v. Wysong, supra. Incompatibility, as here used in the correct legal sense, is such as arises from the nature of the duties, powers, and rights of the two offices. The early authorities are collected and the rule stated in a brief note in 23 Harvard Law Review, 231, is as follows:
"At common law one person can hold two offices unless they are incompatible. Preston v. United States, 37 F. 417. Offices are said to be incompatible when their duties are so numerous and exacting that the same person cannot perform them with ease and ability or when they are so related that a presumption fairly arises that they cannot be executed by the same person with impartiality and honesty. See 6 Beacon's Abridgments, Title, Offices (k). Incompatibility does not consist in the physical impossibility to discharge the duties of both offices at the same moment. People v. Green, 58 N.Y. 295. . . . But if one office is subordinate to the other, or if one is subject in some degree to the revisory power of the other, or if the functions of the two are inherently inconsistent and repugnant, they are incompatible. State v. Goff, 15 R.I. 505."
See, also, Bryant v. Cattell, Auditor of State, 15 Iowa 539, and the cases and annotations in 26 A.L.R. 142, 132 A.L.R. 254, 140 A.L.R. 1499, 141 A.L.R. 1525, 142 A.L.R. 1517, 143 A.L.R. 1528, 144 A.L.R. 1513, and 146 A.L.R. 1486. Applying this rule, it is obvious that the two offices here under consideration are not incompatible and that there is no such conflict in the nature of the duties, powers, and rights of the two offices which would constitute the holding of both offices incompatible with the public interest or sound public policy. As suggested by the court in Kobylarz v. Mercer (1943) 130 N.J.L. 44,31 A.2d 208, a different rule or conclusion might properly obtain where the holder of the civil office becomes a member of the regular army in permanent service as his profession.