Commonwealth v. Pyle , 1852 Pa. LEXIS 88 ( 1852 )

The opinion of the Court, was delivered by

Black, C. J.

The defendant’s right to hold the office of notary public, to which he was appointed by the late governor, on the 13th of December last, is denied by the Attorney-General, on the ground that he (the defendant) is a stockholder of the Bank of Chester County.

The functions of a notary are so much more likely to be required by banks, and to be exercised in their favor and for their benefit, than for that of individuals, that such officers are not needed nor appointed in places where banks are not located. A notary has a sort of judicial power. His protests, attestations, and other official acts, certified under his hand and seal of office, are evidence of the facts therein certified. It is necessary, therefore, that he should not be interested in favor of the parties who are oftenest invoking his services. It is true that his certificate would not be received in evidence where he is so interested (2 Watts 141). But, in such a case, the party against whom it is offered, must be put to the trouble of proving his interest; or, if he is ignorant of it, may suffer from illegal evidence without knowing of the means to exclude it. This would be the consequence if a bank would habitually cause its protests to be made by an officer who is interested in the profits of its business. If it abstains from employing him, it is without the services which it needs every day. Such an officer, in short, must either do wrong, or do nothing. His appointment must either taint the stream of justice with at least the suspicion of impurity, or else break its current and turn it away.

For these good reasons, it is provided by the AcLof 14th April, 1840, that no stockholder in any bank shall hold, exercise, or enjoy the office of notary public. We have only to determine, from the facts here admitted, whether he is a stockholder in the Bank of Chester County, or not.

He held ten shares of the stock in his own right. But on the same day that his commission bears date, he transferred them to another person in good faith, for a valuable consideration. Where the constitution or a statute declares that certain disqualifications shall render a person ineligible to an office, he must get rid of his disqualification before he is appointed or elected. Such 'have been the decisions of Congress in the contests there. But if the law merely forbids him to hold or enjoy the office, or exercise its duties, it is sufficient if he qualifies himself before he is sworn. A man may hold one office after he has been chosen to another which is incompatible with it, without thereby forfeiting either of them, provided he resigns the first before he enters upon the duties of the last. Members of the state Senate have often sat in that body after their election as members of Congress; and judges of the Common Pleas have continued in the discharge of their functions as such after being commissioned as judges of the Supreme Court. By the Act of 1791, no judge can be an attorney or counsellor; but it never was heard of that the commission of a judge was void because the appointee did not cease to practise before its date. There is nothing, therefore, in this objection to the validity of the defendant’s commission.

But it is questioned on another ground. The defendant’s father died before the date of the commission, being, at the time of his death, the owner of one hundred and fifty shares of stock in the Bank of Chester County, which he bequeathed to the defendant and others, and appointed the defendant one of his executors. His portion of this stock was not transferred, and is not yet, for anything that appears in the case. It is in vain to say that this does not make him a stockholder. As executor, he has the legal control over it, may transfer it, may vote it at elections, and may maintain an action for the dividends. As a legatee h,e may apply the profits of it to his own use, or sell it and keep the proceeds, so that he takes no more than his proper share. The legal and equitable right, power, and dominion over it, have met in him; and if anvtiling more is required to make him a holder of it, I do not know what it is.

It is, therefore, considered and adjudged by the Court here, that the said Benjamin E. Pyle do not in any manner intermeddle or concern himself in or about the holding of or exercising the duties of said office of notary public, in virtue of the supposed commission granted to him by the governor, on the 13th of December, 1851; but that the said Benjamin E. Pyle be absolutely fore-judged and excluded from holding or exercising the said office; and that the Commonwealth recover her costs, to be taxed according to law.

Woodward, J., and Lowrie, J., concurred generally; Lewis, J., concurred on the last point.