The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1877-01-11
Can IN Person Hold the Offices of
Member of the Legislature and
Justice of the Peace at
the Same Time?

Editors Clarion: A matter demanding
the i'm mediate attention of our Legislature
is, holding of judicial and other offices in
com patible to the office Of legislator by sew
eral members of the Senate and House of
Representatives? 1t is a relic of Radical
nisrule, which ought to be done away with
instanter. Through the columns of the
CLARION, would call the attention of the
Senate and House to recent decision by
Chief-Justice Appleton, of the Supreme
Court of Maine, as published in Ga NJ
Rep, 1876, and also in 16 American Rep
25l. The case was an action of trespass by
Wealthy G. Stubs against Lyman Lee, for
assault and imprisonment, December %
1868. Lee was trial justice duly commits
stoned and qualified On that day, he ac-
cepted the office of deputy sheriff of the
same county, and was duly sworn in and
qualified. He was re appointed deputy
sheriff in 1871, and again accepted and quail
flied fol that office. La 1872, still assuming
to act as trial justice, issued a warrant tor
the arrest OF Stubbs, who was arrested and
brought to trial before him, etc. In deliv-
ering the opinion Of the Supreme Court,
the Chef-Justice said:
''The defendant being trial justice, was
g subsequently, appointed and sworn as a
= deputy sheriff. The question presente d
e for determination is, whether the accept
{. ance of the last is resignation of the first
"office.
The offices Ia question must be regarded as
{" incompatible, | think,'' remarks Bigley, j.,
g in the King Us. Tiszard, 8 B and G AIS,
: that the two offices are incompatible when
:" the holder cannot, in every instance, dis
= charge the duties of each. The ac-
. ceptance of the second office therefore
vacates the first. So man shall
g lose his Office The accept another office in
& compatible; as If one be under the control
| : of the other; as if the remembrancer of the
eXchequer be made baron of the ex-
chequer, 5 Com. Dig. tit. Officers Ok s..
The appointment of person to a second
{" office, ineOm patible with the first, is not
absolutely void: but in his subsequently
accepting the appointment and qualifying,
$ the first office is ipso factO vacated. The
''people Us Carrique, Hill SO. A vacancy
may arise in an Office from an implied
- resignation; as by the incumbent's ac-
7" cepting an incompatible office. VGn Ors-
= dale Us, Hazard, 3 Hill, 243. The accept
lance of Office of constable of a town by a
" person holding at the time the Office Of
Justice of the peace, is OF itselfa surrender
of the latter office. Magic vs. Stodda,d, 2s
Conn. 565.
"Where one has two Incompatible offices
| : both cannot be retained. The public has q
right to know which is held and which is
:" surrendered. 1t should not be left to
& chance, or to the fluctuating whim of the
/" Office holder to determine The general rule
6 therefore is, that the acceptance of and quail
.fcation for an office Incompatible 10Th the one
6 then held is resignation of the former, is
one certain and reliable, as indispensable
g for the protection of the public. The de-
PENDANT having been appointed and sworn
. as deputy sheriff, must be regarded as
having accepted the office. By that ac-
ceptance he surrendered tile office of trial
Justice, a judicial office incom patible with
= that of deputy sheriff.
By the same general rule, a man cannot
be law maker, and a law expounder at the
same time. If a member of the Legislature
accepts and qualities for the office of Justice
of the peace, he certaialy vacates the for.
mer office
| Respectfully,
| LEX JR.