Virginia free press & farmers' repository. [volume] (Charlestown, Va. [W. Va.]) 1827-1832, 1831-08-18

GENERAL COURT.
JrLr rERN, 1851.

JrLr rERS, 1851.
me Commonwealth Adjourned case Of the
~ Superior Court Of Law
csAaIss TATE. Sfor Warrington Co.
A Rule was made, by the Superior
Court Of law Tor Washington county.
at the instance Of the Attorney for the
Commonwealth, against Charles Tate,
OF that county, TO shew cause, why an
information, in the nature of a writ of
quo srarro',fo. should not be filed against
him, for acting as justice Of the peace
tor said county, after having acted as
. deputy sheriff Of the same, since he
qualified a such justice. On the re-
turn Of the rule, the following facts
were agreed: That the said Charles
Tate. on the Goth July, 1902. qualified
a. justice Of the peace, and acted as
such; that on the 18th March, 1905,
he qualified and acted as deputy she
rim ot the county for one year, and az
ter his term Of service was out, resum-
ed his seat on the bench; and SO con-
tinued to act, alternately, in the one or
the other character, at various inter
walls until the Gath March, 1891, at
which time he was admitted. qualified
and acted, as a deputy sheriff of the
county, under John Houston the high
sheriff, until the 18th Of March, 1898,
since which TO the time of obtaining the
rule, he had acted as a justice Of the
peace under his old commission and
qualification Of 1909, That under his
last appointment he continued To act
TOR the two years, without qualifying
or giving new bond Ia his principal, at
the commencement Of the second wear,
he having farmed the office from Hous-
ton, and he entered into bond and Sc
curity in the first instance, for the
whole term Of his continuance in Office:
that Houston himself was not csmmis.
stoned. and did not qualify as high
sheriff tue second year, but gave bond
for the collection Of the taxes only for
the second year under the first com
mission.
On this state Of facts the superior
court adjourned the following questions
to this court for novelty and ditfic ulty {:
I. Is the acting Of the defendant the second wear
OF John Houston's shcriffalty such an acceptance
OF the office OF deputy sheriff IN vacatc his Office
OF justice OF the peace, that he could not act
therein without the authority Of new commits
sou
passed the 26th of February, IS22, entitled, AN
act concerning the dislualiicatons Of justices of
the peace, was the said Charles late disquaific,
from acting a. justice of the peace for Washing
ton county, after having repeatedly accepted the
appointment Of deputy sheriff
BY THE CouRr:
AS 10 the first question, taking IL 10
refer to the operation OF the act of Fc-
bruary, 1922, upon the facts agreed,
large majority Of the judges are Of
opinion, that the defendants acting
the second year rs deputy sheriff, IN
der contract made the first year with
the high sheriff for the whole term,
was not such an acceptance Of office,
after the passage of that act, as, under
II, vacated his office of Justice of Peace.
He continued in Office after the date
OF that act, but il was under the old
contract; and the court thinks. that
there should have been some distinct
act vt acceptance, by taking new
oath, giving a new bond, making a new
contract, or otherwise, in order to
bring him within the terms Of that law.
II therefore answers the first question
in the negative.
Upon the second question. there has
been a great difference Of opinion a
mong the judges, both at The last and
present term; the court then being
equally divided, and there being now
a division of ten judges to eight. Eve
~ one agrees. that at common iosO,
the two Offices are total incOmpati-
BILE, aud that the acceptance Of the one
vacates the other. The case Of Amory
rs. the Justice Of GIocesier, IN this
court, decides this principle in the
case Of deputy clerk by the Unani-
nous opinion of the judges; and that
Of deputy sheriff. who ~ recognized
by the lzw as y public officer. and who
~ directly responsible 10 the county
court for the due discharge Of many Of
his duties. H. still stronger. The point
Of difference does not lie here, but
arises out Of other considerations. -
Thus, II ~ said. that the Office 1T high
sheriff -. by the express provisions Of
the act concerning sheriff, to be filled
from the county court bench; that "a
could never have been the intention of
the legislature To- make the acceptance
Of that office, 'aosie the other office
which constituted the very quslilica-
ton Of the one accepted; that such q
construction would weep away the
whole bench of justices. and render
what was intended az reward Tor SER
vices. a disqualification for 'he Office
IN hich those services were rendered.
That the act alluded Co has always