Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1870-09-03

eidsd, 'sthe Judge OF = Court OF Common
Pleas loses his Office on becoming q Judge
Of the Kings Bench;" Dyer, ,I59, a.
quoted ia Pesensdorf, vol. IL, page 5; the
original I have not seen.
IN Rex vs.. T~relawney, 3 Burrows Re-
ports 1918, decided l765, there was a mo-
ton for sn information VS.. Sir George
Trelawney, for holding two Offices that
| were incompatible; the information was
not granted, Lord Mansfield remarking
| that sR these two offices Of Stewart and
Capital Burgess we're Incompatible, tie
G~cceptdace OF Ae latter would imply a sur
reader Of The former" sna
In the case OF Johnson vs.. Margetson,
1 Henry Blackstone 26l, decided BY Lord
Loughborough N 1883, and in which the
| plaintid,.. as Commodore on the Lisbon
station, was sueing for prize money, the
Court held the action must fail, because
at the time OF the capture Of the prize,
whence the priZ5 money came, the plain
tiff had accepted a commission 20 cruise
on another Station and thu resigned
his position on the Lisbon station.
In Milward vs.. Thatcher, Lord Mans
field presiding, il is said q resident cot
the corporation of Hastings may be
elected town clerk Of the corporation
but the two offices are Incompatible, and
he acceptance OF the latter, though an
inferior office, will Yacats the former"
this decision was made in 1877, and will
be found I'd Durnford & East, 81.
Ashgrst says II the two Offices be ''in-
compatible, the acceptsncs Of the latter
vacates the former"
In King vs.. Goodwin, decided in 1880 by
/ Lord Manifold, and reported in Douglass,
la a note TO page 39S, marginal page 3S3, it
is said "'if the W Offices are incOmpat-
IDLE, then the acceptance Of the higher Of
the two IpSo 6GctO vacated the other.'
ThH HnrfngTnlaaU ~ tho EnU1foh aCrNrfu
have been adopted and acted upon in the
| United s ates, as will be seen in the case
of the people VS.. Carrique, ID Hill, and
the cases cited, and the author referred to
in that case. In that case Carrique was in
possession of n Office, and was acting
under it; he then accepted another in
compatible Office, and qualified, and en-
tered on the duties of that; and this pro-
cesding was an infOrma ion charging him
with ~"usurping" the second office; and
it was insisted, inasmuch as he continued
to act in the first office, "this was rather
an election to hold his first office, not
w~ithstanding his accepting, taking the
oath, and entering IN the duties
of the second :" ''tha contrary says
Judge COwen, 'is entirely settled, and
the effect directly opposite TO that
which is supposed to have followed
it is said in the book already cited,
angel and Ames on Corporations 2J5)
that a resignation by implication may
take place by being appointed to and ac-
cepting a new ofieeincOmpatible with the
former: and it is added in a note mote Al
tina this is an absolute determination of
the original Office, and leaves no shadow
of title To- the pOsses5Or, so that neither
QltO UnTranfO nor @ motion is necessary
before any other may be elected and n
Judgment was rendered for the defend
ant: that is, that he was not an usurpsr
- H. - - -
vacated by the acceptance of the second,
and he was r~ightfully in possession of the
second: this brings me to the last decision
so far as I know in this country; l refer
to the case in the matter of General
J. G.. Martin" reported in North Caro-
lima; LIST Winston's Law, l5S, and
decided, if I recollect, in 1868. Gem
eral Martin was the Adjutant General
of North Carolina, and, so holding that
office, he accepted the Office of Brigadier
General, under the Confederate States of
Americas; and ON proceedings had before
the Supreme Bench of North Carolina,
it was adiudged that the acceptance of the
Office of B~rigadier General, vacated the
ofire of Adiutant General, and left il
open. This case not only affirms the de-
eisiOns already alluded to, but shows fur-
ther that it makes no difference in prin-
ciple; that one office is held under one
Government and the other under another;
and all these cases in regard to implied
designations show, in my opinion, the
unqualified right which a public officer
has to throw up his Office at his pleasure.
Satisfied that Judge Hudson has the ab-
sOlute right of ~resigning the office he now
holds, at his wi viii and pleasure; that
the acceptance of the office now contested
for would vscate his present office; and
finding in the Code no qualification re-
quired tor a contestant, save that he was
"a candidate, Sec. 900, I am constrained
to hold that Judge Holden, notwithstand-
ing he held at the time of election, and
now holds, the Office of District Attorney
for the United States for b District
of West Tennessee, is entitled to contest
the election of Judge Flippin. This de-
Tense is Overruled, and the cause must
proceed. R. r. HEATH.
August 81, 1870.