STATE EX REL. CLIFFORD L. HILTON, ATTORNEY GENERAL v. HENRY M. SWORD

Minnesota Supreme Court1923-11-30No. No. 23,733

157 Minn. 263

Summary · law.co

Holding. The court affirmed the judgment of ouster, holding that the offices of school district treasurer and county commissioner are incompatible because their duties are inconsistent and antagonistic, requiring the incumbent to exercise conflicting loyalties to separate boards. The state is not estopped from enforcing this incompatibility by the attorney general's prior opinion, and the doctrine of practical construction does not apply.

The state sought a writ of quo warranto to remove Henry M. Sword from his position as treasurer of School District No. 6, claiming he forfeited that office when he accepted election as county commissioner in 1923. The court examined whether these two offices were legally incompatible—that is, whether their duties were so inconsistent that one person could not faithfully perform both. The court found that county board members and school district board members exercise administrative and legislative powers requiring independent judgment on matters that sometimes place the boards in direct opposition, such as boundary changes and property disputes. Because of these inherent conflicts, the offices were deemed incompatible.

Sword argued the state should be stopped from asserting incompatibility because he had received an opinion from the attorney general's office before his election stating the offices were compatible, and he relied on that advice. The court rejected this argument, distinguishing the case from prior instances where the state had acquiesced in irregular arrangements for extended periods or conducted business with irregularly organized entities. The court also rejected an argument based on practical construction of statute, finding that whether the offices are compatible is purely a question of law unaffected by past executive practice. The acceptance of a second incompatible office automatically creates a vacancy in the first.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether offices of school district treasurer and county commissioner are legally incompatible
Whether estoppel bars the state from asserting incompatibility based on prior attorney general opinion
Whether practical construction of statute regarding office compatibility applies

Procedural posture

The district court of Itasca County issued a writ of quo warranto on the relation of the attorney general to test Sword's title to the office of school district treasurer, and the trial court entered judgment of ouster, from which Sword appealed.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Dibele, J.

Writ of quo warranto issued by the district court of Itasca county on the relation of the attorney general to test the title of the respondent in the writ, Henry M. Sword, to the office of treasurer of School District No. 6 in Itasca county. From a judgment of ouster he appeals.

In 1922 Sword was the duly elected treasurer of School District No. 6 in Itasca county. In November, 1922, he was elected county commissioner. He qualified on the first Monday in January, 1923. The state claims that the two offices are incompatible and that by the acceptance of the second a vacancy was created in the first.

Public offices are incompatible when their functions are inconsistent, their performance, resulting in antagonism and a conflict of duty, so that the incumbent of one cannot discharge with fidelity and propriety the duties of both. Kenney v. Goergen, 36 Minn. 190, 31 N. W. 210; State v. Hays, 105 Minn. 399, 117 N. W. 615.

The duties of members of a county board and of members of a school district board are administrative and legislative in character. A member must exercise his best judgment in behalf of the board of which he is a part. The county board has to do with the organization of school districts; it. may change their boundaries; it proceeds upon notice to the school district; it hears evidence and exercises judgment; it apportions debts and property; and an officer of a school district may in certain cases appeal to the district court. G. S. 1913, §§ 2672-2680. A member common to both boards is not in a position to render such service as the law exacts. There is antagonism between the boards and an inconsistency in one officer acting for both. The antagonism is illustrated by Laws 1919, p. 232, c. 236, in force when this proceeding was instituted but repealed before its conclusion. There the school board was authorized to petition the county board for the annexation of land in a special instance. The offices of school district treasurer and county commissioner are incompatible. A number of cases are collected in L. R. A. 1917A, 211, 216.

The respondent in the writ claims that the state is estopped from asserting the incompatibility of the two offices, or if not so that the doctrine of practical construction has a like effect.

Before he became a candidate for the office of county commissioner he communicated with the office of the attorney general, received an opinion, referring to one given many years before, that the two offices were not incompatible, and he relied thereon.

The estoppel claimed is not at all like that sustained in State v. Village of Harris, 102 Minn. 340, 113 N. W. 887, 13 L. R. A. (N. S.) 533, 12 Ann. Cas. 260, where the state acquiesced for more than 16 years in the validity of a village incorporation. Nor is it like State v. School District, 85 Minn. 230, 113 N. W. 887, where the state recognized and did business with an irregularly organized school district. In each of these cases it was held in effect that the state had waived its right to insist upon the forfeiture of corporate franchises.

Nor can the respondent successfully invoke the doctrine of practical construction as determinative of his right. It is held, often to support a conclusion reached rather than as the basis of the conclusion, that a practical construction of a statute by the executive officers of the state in- which the public has acquiesced is forceful and may be controlling. In re Boutin, 149 Minn. 148, 182 N. W. 990, and cases cited; In re Thorne, 145 Minn. 412, 177 N. W. 638, and cases cited; 3 Dunnell, Minn. Dig. § 8952. There is no practical construction here. The legislature has said nothing about the compatibility of the two offices. It fixed the duties of each and stopped. Whether they are compatible is a question of law. There has been no general recognition by the executive officers of the state acted upon or acquiesced in by the public which prevents an interpretation unaffected by the doctrine of practical construction. The opinion of the attorney general upon questions properly submitted to him is entitled to and receives careful consideration and has weight. In its reply the state alleges that the opinion given to the respondent was recalled before he accepted the office of commissioner. The decision of the trial court was made on the state’s motion for judgment on the pleadings, so that the averment does not stand admitted. The attorney general now contends that the two offices are incompatible because of the duties cast upon the incumbent by both of the statutes which we have cited; and we concur in his view.

The acceptance of a second incompatible office works a vacation of tbe first. Hoffman v. Downs, 145 Minn. 465, 177 N. W. 669; 1 Dillon, Mnn. Corp. § 417; L. R. A. 1917A, 211, 225; 22 R. C. L. 418. Tbe respondent in tbe writ was properly ousted from tbe office of treasurer of tbe school district.

Judgment affirmed.