Stubbs v. Lee ( 1874 )

Appleton, C. J.

The defendant, being a trial justice, was subsequently appointed and sworn as a deputy-sheriff. The question presented for determination is whether the acceptance of the last is a resignation of the first office.

The offices in question must be regarded as incompatible. “I think,” remarks Bailey, J., in The King v. Tizzard, 9 B. & C., 418, “that the two offices are incompatible when the holder cannot in every instance discharge the duties of each. . . The acceptance of the second office therefore vacates the first.” . . . “So a man shall lose his office, if he accepts another office incompatible; as if one be under the control of the other; as, if the remembrancer of the exchequer be made a baron of the exchequer.” 5 Com. Dig., Tit, “Officer,” (1L, 5.) The appointment of a person to a second office, incompatible with the first, is not absolutely void ; but on his subsequently accepting the appointment and qualifying, the first office is ipso facto vacated. The People v. Carrique, 2 Hill, 93. A vacancy may arise in an office from an implied resignation ; as by the incumbent’s accepting an incompatible office. Van Orsdale v. Hazard, 3 Hill, 243. The acceptance of the office of constable of a town by a person holding at the time the office of justice of the peace, is of itself a surrender of the latter office. Magie v. Stoddard, 25 Conn., 565. In 3 Maine, 186, this court, in their answer to the senate say, “that the office of justice of the peace is incompatible with that of sheriff, deputy-sheriff or coroner.”

Where one has two incompatible offices, both cannot be retained. The public has a right to know which is held and which is surrendered. It should not be left to chance, or to the uncertain and fluctuating whim of the office-holder to determine. The general rule, therefore, that the acceptance of and qualification for an office incompatible with one then held is a resignation of the former, is one certain and reliable as well as one indispensable for the protection of the public.

The defendant having been appointed and sworn as a deputy-sheriff must be regarded as having accepted that office. By that acceptance he surrendered the office of trial justice, a judicial office incompatible with that of a deputy-sheriff. His judicial authority, therefore, as a trial justice was at an end.-

The case to stand for trial.

Dickerson, Yirgin, Peters and Libbey, JJ., concurred.-