Commonwealth v. Kirby , 56 Mass. 577 ( 1849 )

Dewet, J.

The warrant for the arrest of the plaintiff was well issued, unless the appointment of Edwards to the office of constable, and his acceptance of the same, disqualified him from subsequently acting as a justice of the peace. There is no statute disqualification of a justice of the peace, by reason of his appointment as constable; but the incompatibility of the two offices is supposed to arise from the provisions of the constitution of this commonwealth, as found in the thirtieth article of the first part: “ In the government of this commonwealth, the legislative department shall never exsrcise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise . the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”

The provisions of this article are general in their terms, expressive only of a principle, and not intended to mark with precision the incompatibility of different offices. The article must have been so understood by_the framers of the constitution, as in other parts of that instrument certain offices are enumerated and their incompatibility directly declared. It has never been supposed, that persons holding minor offices appertaining to the executive department of the government, such as deputy sheriffs, constables, or coroners, were thereby disqualified from holding seats in the legislature. The same was formerly true of the judges of the court of common pleas, who frequently held the office of senator or representative, while in commission as judges, and were only disqualified by the statute of 1820, c. 79, § 10, (repealed by St. 1821, c. 23, § 4,) and the eighth article of the amendments of the constitution, adopted in 1821.

No incompatibility, as to holding the two offices of justice of the peace and constable, being declared in direct terms by the constitution or by any statute of the commonwealth, we are not prepared to say, that the acceptance of the office of constable by a justice of the peace would vacate the latter office. A very different case would be presented, if the defendant had attempted to exercise the two functions of a justice of the peace, in issuing a warrant, and of a constable, in serving the same warrant.

The cases particularly relied upon, as judicial decisions favorable to the defence set up in the present case, are those of Chapman v. Shaw, 3 Greenl. R. 372; Opinion of the Justices, &c. 3 Greenl. R. 481; and Bamford v. Melvin, 7 Greenl. 14. The question arose there upon the constitution of the state of Maine, which differs somewhat from ours, being more direct in its terms, and applying the disqualifications to departments instead of offices.^*

Under our constitution, we think no such disqualification was intended by the provisions of the thirtieth article of the first part; and that individuals have been allowed to hold and exercise different offices, falling within different departments,where they were not specifically declared incompatible by other parts of the constitution, and where such individuals have not exercised both offices in reference to the same subject matter.

But, if this were more doubtful, and if in án action instituted against a justice of the peace, for issuing his warrant without authority, this ground of incompatibility of the two offices would avail, we are of opinion that Edwards, holding a commission as a justice of the peace, and having been legally qualified to act as such, and continuing to act in that capacity, with full' powers, unless for the objection now taken, he would, as respects third persons, be considered as a justice of the peace de facto, and his warrant would justify the officer to whom it was directed, in making service of the same. M’Gregor v. Balch, 14 Term. 428. The exceptions are therefore overruled.

The defendant has also filed a motion in arrest of judgment, for insufficiency of the indictment. The ground taken is, that it is not alleged in the indictment, that the defendant knew that Sanderson was a constable, at the time he is alleged to have delayed, hindered and opposed him in the due execution of his office. To sustain this motion, it would be necessary for the defendant to show, that no offence, which could be the subject of indictment, was properly described in this indictment. But, in the present case, if the general objection were well maintained, and we were to reject all that relates to the aggravation of this assault, as one upon an officer, on the ground that the aggravation was not technically charged, there would still remain a full and technical charge of an assault upon the person of Joseph Sanderson ; and, upon this charge, it would be competent to render judgment on this indictment for the offence of a simple assault. The only doubt, then, is, whether, upon this indictment, a judgment is to be entered and sentence awarded for a simple assault, or for an assault with the aggravation that it was made upon a constable while in the discharge of the duties of his office, and with the design of hindering and opposing nim in the due execution of such official duty. The precise objection taken to the indictment, as a charge of an assault with the aggravation stated, is, that there is no allegation of knowledge, on the part of the defendant, that Sanderson was a constable. We think this objection is not well founded, but, on the contrary, that such an allegation of knowledge is sufficiently set forth in the indictment, and with as much particularity as is required in such cases. The indictment alleges, that Sanderson was in the due execution of the duties of the office of constable, and that the defendant, “ while the said Sanderson was in the due and lawful execution of his said office, unlawfully, knowingly, and designedly, did hinder and oppose,” &c.

The court are of opinion, that the allegations are sufficient to authorize a judgment and sentence against the defendant, for an assault upon a constable while in the discharge of the duties of his office, and that the motion in arrest of judgment must be overruled.

* The following are the provisions referred to in the constitution of Maine, They constitute the third article of the first part: —

“ Sect. 1. The powers of this government shall be divided into three distinct departments ; the legislative, executive and judicial.

“ Sect. 2. No person or persons, belonging to one of these departments, shall exercise any of the powers properly belonging to either of the others, except in the cases herein expressly directed or permitted.”