Concurring in Part. — In this case an alternative writ of mandamus was issued out of this court, directed to the defendant, from which, barring a clerical omission, we learn in substance that James "Withycombe, the duly elected and inaugurated governor of the state, died March 3,' 1919, at which time the petitioner, Ben W. Olcott, was the duly elected, qualified and acting secretary of state and has since then continued to hold the latter office. It is further recited that on April 1, 1919, the secretary of state issued a warrant in favor of Ben W. Olcott for $336, in payment of the salary due him for service as governor of the state from March 7 to March 31, inclusive, 1919, which warrant the petitioner herein has presented to the defendant as state treasurer and the latter fails and refuses to pay the same although there is money in his hands applicable to the payment of the salary of the . governor. By the writ, the defendant was required to show cause why he had not paid the warrant. On the return day the defendant demurred, not to the petition for the writ, but as the statute requires (L. O. L., § 618), to the writ itself, on the ground that it does not state facts sufficient to constitute a cause of action against the defendant.
The sole question presented is whether the defendant is right in refusing to pay the warrant in question. We have nothing to do with the petition. It has per*514formed its office in securing the issuance of the writ, for, as shown in Sections 618, 619 and 620, L. O. L., the pleadings in a proceeding by mandamus are the alternative writ, the demurrer or answer to the same and the demurrer or reply to the answer, and none others are allowed. They are to “have the same effect and to be construed and may be amended in the same manner-as pleadings in an action.”
Admitted, as it is, that the regularly elected governor died during his incumbency in office and that the petitioner here was at the time the duly elected, qualified ' and acting secretary of state, we are not at present concerned about whether he is performing the duties of the office of governor as de facto or de jure governor, or merely by virtue of the authority vested in him as secretary of state, or, in other words, as an alternate upon whom the Constitution imposes the functions of governor in case of the death of the latter officer. So far as public interests are concerned or the rights of the people are involved, it matters not in which of the two suggested capacities the duties and the authorities of the executive office are exercised, so they are performed. It is said in the writ:
“That under and by virtue of Section 8, Article Y of the Constitution of Oregon, the office of governor and the duties thereof devolved upon the secretary of state, and that on the 7th day of March, 1919, petitioner, Ben W. Olcott, took the oath of office, and that since that time he has been and now is the governor of the state of Oregon.”
This states but a mere conclusion of law and presents no' issuable fact. Neither is it directly averred that the petitioner has performed any of the duties or exercised any of the powers of governor. It is presumed, however, that official duty has been regularly *515performed, -whether it he that of the secretary of state or that of a successor to a deceased governor. Indeed, it may well be doubted whether an auditing officer can assume to pass upon the amount or quality of service of any individual upon whom official duties have been cast by operation of law.
Coming to the precise question of whether the petitioner is entitled to the salary which otherwise would have been paid to the elected governor had he survived, the rule is well stated in Preston v. United States (D. C.), 37 Fed. 417, 418, thus:
“If there be no incompatibility between the respective duties of the two offices or employments and the functions of each are separate and distinct, he is entitled to recover two compensations.”
Article Y, Section 8, of the Constitution reads thus:
“In case of the removal of the governor from office, or of his death, resignation or inability to discharge the duties of the office, the same shall devolve upon the secretary of state; and in case of the removal from office, death, resignation or inability, both of the governor and secretary of state, the president of the senate shall act as governor until the disability be removed, or a governor be elected.”
Whatever view may be taken of this clause of the fundamental law, as to the capacity in which the petitioner shall administer the duties of the chief executive, it is plain that by force of the Constitution itself the duties of the two offices are not incompatible with each other, however separate and distinct they may be. In other words, the Constitution itself casts- the performance of the duties of both offices upon the same individual under certain circumstances, with the result that they are constitutionally compatible with each other. Under such circumstances, the extra duty hav*516ing been performed, as we must presume it has been, the petitioner is entitled to the compensation which the law provides for such service. As stated by Mr. Chief Justice Bigelow in State ex rel. v. La Grave, 23 Nev. 216 (45 Pac. 243, 35 L. R. A. 233):
“Another reason that may be- offered for this conclusion is that it is a general principle of justice and right that when one regularly performs the duties of an office he should be entitled to the emoluments thereof. ’ ’
In United States v. Saunders, 120 U. S. 126 (30 L. Ed. 594, 7 Sup. Ct. Rep. 467), the claimant drew a salary as clerk of a committee of Congress and likewise as clerk in the President’s office. The duties of the two were held not to be incompatible and hence his claim was allowed for both salaries. In State v. Roddle, 12 S. D. 433 (81 N. W. 980), the defendant was a secretary of state and likewise was made by a statute a member of the state committee on brands and marks, carrying with it an additional compensation, and it was held that he was entitled to both emoluments. Similarly, in State ex rel. v. Walker, 97 Mo. 962, the individual who held the office of secretary of state and was also a member of the board of equalization was allowed pay for both positions. In Scranton School District v. Simpson, 133 Pa. St. 202 (19 Atl. 359), and in McCauley v. School District, 133 Pa. St. 493 (19 Atl. 410), the occupant of the office of city treasurer, who was ex-officio treasurer of the school district, was allowed the statutory compensation for both positions. The same doctrine is taught in United States v. McDaniel, 7 Pet. 1 (8 L. Ed. 587); United States v. Ripley, 7 Pet. 18 (8 L. Ed. 593); United States v. Felleborn, 7 Pet. 28 (8 L. Ed. 596), and in Milnor v. Metz, 18 Pet. 221 (10 L. Ed. 943). In Love *517v. Baehr, 47 Cal. 364, the attorney general, to whom was allowed by law a statutory salary, was also made a member of the board of examiners, carrying with it a special additional compensation, and he was sustained in his claim for both emoluments. In re Conrad, 15 Fed. 641, is a case where the same individual was claiming fees as chief supervisor and as a United States commissioner, and his claim was sustained; and in Smith v. Waterbury, 54 Conn. 174 (7 Atl. 17), the city attorney had a salary allowed to him by law and a statute allowing him certain fees for special services was sustained. In other words, the common-sense principle is that he who performs services enjoined upon him by law is entitled to the compensation provided by the same law for those particular services, in the absence of anything restricting the emolument to a single office.
It is true that Article II, Section 10, of the organic law declares that:
“No person holding a lucrative office or appointment under the United States or under this state shall be eligible to a seat in the legislative assembly; nor shall any person hold more than one lucrative office at the same time, except as in this constitution expressly permitted.”
This must be read in connection with Article Y, Section 8, already quoted. If the latter section be construed to invest the petitioner with the office of governor both de facto and de jure, it would constitute an exception within the meaning of Section 10 of Article II. On the other hand, if it be held that he is merely exercising functions of the office of secretary of state visited upon him on account of the death of the elected governor, he would not be holding more *518than one lucrative office within the meaning of the latter section.
This disposes of the question presented hy the pleadings for our consideration. All else respecting the length of time the petitioner shall perform the' •duties of governor or whether he has authority to resign the office of governor or resign the office of secretary of state and continue to hold as governor, or whether he can obstruct the order of succession provided by Section 8 of Article V by appointing a secretary of state to succeed himself, is not presented by the instant record, and any attempt to dispose.of these matters in this proceeding would be gratuitous dictum. The only excuse for discussing those questions is found not in any allegation even of the petition itself and much less in the writ which is the primary pleading, but only in the last clause of the prayer of the petition, as follows:
“And this petitioner particularly prays that this court will define his duties and powers in relation to the office of Governor.”
Nowhere in the record does the petitioner intimate any desire for advice or decision about his right to resign any office or concerning the length of time he will be required or permitted to exercise its functions. As already pointed out, the petition is no part of the pleadings: McLeod v. Scott, 21 Or. 111 (26 Pac. 1061, 29 Pac. 1); Elliott v. Oliver, 22 Or. 44 (29 Pac. 1); Shively v. Pennoyer, 27 Or. 33 (39 Pac. 396). The clause of its prayer, if indeed we may consider it at all, amounts simply to a request for the court to give counsel to the petitioner on a question not presented by the record. It does not call for any decision. It is said in Section 957, L. O. L.:
*519“Any judicial officer may act as an attorney in any action, suit or proceeding to which he is a party or in which he is directly interested. A judge of the county court or justice of the peace, otherwise authorized by law, may act as an attorney in any court other than the one of which he is judge, except in an action, suit or- proceeding removed therefrom to another court for review; but no judicial officer shall act as attorney in any court, or otherwise, other than as in this section allowed. * * ”
In effect, at least, if we undertook to advise the petitioner concerning “his duties and powers in relation to the office of governor” we would violate this provision of the statute. Moreover, as declared in Chapter 196, Laws of 1915, it is the function of the attorney general when requested to do so by any state official, to give his opinion in writing upon any question submitted to him in which the State of Oregon may have an interest, and he shall, when requested, give legal advice to any of said officials, boards or commissions. For this court or its members to give such counsel as the petitioner in his /prayer requests would be to usurp the functions of the attorney general in contravention of Section 1 of Article III of the Constitution, dividing the powers of government into three separate departments, the legislative, the executive, including the administrative, and the judicial, and forbidding any person charged with official duties under one of these departments to exercise any of the functions of another. All we are called upon by the record before us to decide is the issue of law presented by the demurrer to the writ. All beyond that would be unwarranted and would not bind anyone. We could not compel the petitioner to resign either the office of secretary of state or of governor, nor could we restrain him on the record from doing either of those acts, any *520more than we could direct him in the. care of his children or the investment of his money. It would present a situation thus described in 3 Words & Phrases, 2052:
‘ ‘ The mere dictum of a judge is not the decision of a court. There is nothing authoritative in a case except what is required to be decided to reach the final judgment, and what, by the judgment, becomes res adjudidata between the parties as to the subject matter of the suit. Love v. Miller, 53 Ind. 294 (21 Am. Rep. 192). ‘An obiter dictum is a gratuitous opinion, an individual impertinence, which, whether it be wise or foolish, right or wrong, bindeth none, not even the lips that utter it. Old Judge’ — taken from the title page of a work on ‘Obiter Dicta,’ published by John D. Allen; New York, 1885: Hart v. Stribling, 25 Fla. 433, (6 South. 455, 456.)”
For these reasons I concur in the direction that a peremptory writ issue commanding the state treasurer to pay to the petitioner the amount of the warrant in question; [but I object to the gratuitous statement in the opinion of Mr. Justice Johns about the length of time the [petitioner may discharge the duties of the chief executive of the state, as not within the issue presented by the record and not even requested by either party.