New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1873-07-11

claws OF 1883, al Section a. This enactment clearly
required the performance Of personal services by the
relstor the discharge OF his duties deputy clerk
His powers as well as duties were all derived from the
statute and IL nowhere, either expressly or by impca-
ton conferred the authority upon him Of providing
another person through whose agency his duties coud
be lawfully performed. For that reason the fact docs
not aid the present application which has been shown
by tue affidavit, and also by the certificate OF the
clerk that the REALTORS duties deputy clerk were
performed for him by another person whom ne en-
ployed and substituted for that purpose while ne nun
self WAS in the Legislature. The employment was not
lawful one aud IL could him for emitting 10
peorm the duties required from him by law "hen nc
wa. elected to the Legislature his situation was such
that he could not discharge the duties required Vi nun
in that capacity and still perform those ne was oounu "
perform as Deputy Clerk OF the Court OIL opeola oeS
sions The same individual might just as well under
take 10 perform the duties OF Senator and member Of
the Assembly at the time OF of the ofoe OF GOV
and member Of the Legislature, President and
senator or member OF the House Of Representatives, OF
Of Justice of this Court and sheriff, Clerk Of the
County OF NewYork In the nature OF things the du-
ties of both offices could not be performed by the same
person at the time. The consequence is that the
Offices Incompatible and the acceptance OF the aS
necessarily vacated the first
In the history Of our present form Of government
occasion has seldom arisen for the application OF TINS
principle but part Of the common law apphcaDie W
our institutions IL Is well sustained by authority III
Rawles Commentaries upon the Constitution he says
that the offices may be ncompatbei IN thelr n"slo
that the same person shall not be admitted 70 non" '
10th Ills rule OF general law that officer who ac-
cents another appointment inconsistent with the nrst
ia held to have reinqushed the first Qiawle on the
Con E1 1sl) This principle Is fuy wsrrAnteu oS ue
case of Mward agt Thatcher q Term, KEEP ell' ueciuo
in 1877 The case was very thoroughly argued Buter'
Justice IN the course of his opinion said thatn the
hta hpi
ection IN his election and II they be incompatible the
election 10 the latter office is good because the accept
anee of the second vaoates the first Office d 81 ASH
urt j. Yind) is not necessary for us TO decide IN
ths case whether those two offices be or be not lncom
patbe because il they be incompatible the acceptance
OF the latter vacaes the former though IT we're neces-
sary to decide questions should be OF the opinion
that they were Incompatible because one is ministerial
and the other udic,l officer 1t has been said tha the
plant not bound 20 in his judicial capacity De-
cause there is sufficient number Of jurats to constitute
court without him, but there may be cases IN whlch
would be absolutely necessary for hlm TO SIT IN 1a'
character as of the sickness OF the other mem
hers and II there be one possible which no might
DE called upon to act that is an answer 70 the srSu-
ment I'D. s6)
This reasoning Is particularly applicable TO the pres
ept case for the Clerk OF the Special Sessions had
been disabled in any manner so that he could not nave
discharged the duties required to be performed by him
self and the relator that would have rendered the
POWER OF the latter indpensaby necessary as an ohcer
of the Court whose Clerk he was. And even this con
tingency within the ruling quoted, would be sufficient
10 render the second officer Incompatible with the first
But this does not depend upon so close dsnctOn
81. that because the language OF the statute cOntem
plates the existence Of duties requiring the presence OF
both the clerk the deputy for their ehectua per
formante And that, certainly, sufficient 10 render
the reaOr incapable Of serving as deputy CLERK OF the
Court and at the time dschaFgng the duties re-
auired OF him as Member OF the Legislature OF the
state The duties office required his presence II
NcwYork CITY and Of the other in the City or Albany
and as they were 10 be discharged by him in person
the acceptance the latter vacated the former me
motion for the peremptOry mandamus must Tor tnls
reason Dc denied But the point on which the dena
"a placed al the argument the reatOr may, II nc so de
sirs take an alternative writ which will afford him an
oppOrtuny 20 be heard upon the question whether nc
vacated his Office OF deputy clerk by accepting that OF
Mptnhpr al tho Legislature.