Telegram-herald., 1889-10-06
IS HE Az ALDERMAN?
Edward II. Stein Declared 70 Have
Vacated HIS once.
A PETITION 10 The COMMON COUNCIL
Residents OF the Fhlrd wArd s&y that
the Acceptance OF the once OF
school Trustee ts Equiv slent
10 kesignaloR-


Wlll be presented 10 tue Common Coun-
ca tomorrow evening
To the Honorable Mayor and Common Coua-
eli Of the city of Orand Rapids.
We. The umders gnt0, residents OF
the First ward ln said city, would re-
spectfuliy represent % your honorable
body that there j. vacancy IA the OF
ice OF alderman IA the FIRST ward OF
sand city, In consequence OF the elec-
ton OF Edward II. stein 10 the Office of
school trustee and hIs acceptance OF
that Office Whhe member Of your
honorable body.
We further represent that the Offices
of school trustee and alderman are ln-
compatible offices, and that the accept
ance OF such second Office yacates the
Office of alderman, thereby making 10
incumbent ou you 10 call a SPECIAL elec-
! ton 10 I'll such vacancy, as provided
IN title III, section -, OF the city char
ter.
We are induced 10 call your atten-
/ ton 70 this fact on account OF grow
/ ing belief among many residents OF the
ward that the functions OF these two
/ Offices can not be exercised, and never
were intended by the Legislature 10 be
exercised, by the same officer, but are
/ separate and distinct duties, yet de-
pendent upon each other, 80 there u
an Inconsistency IN one officer per-
| forming the duties of both offices.
We take this method OF bringing the
matter before your honorable body,
that you may give IT the investigation
that is necessary, and apply the proper
remedy.
An examination of this question viii
develop the fact that 1t j. by no means
new or novel and without authority.
The lnvarlaDle rule is not that an
Office becomes vacant only by the re-
slgnatOn of lis incumbent. An Office
may be impliedly resigned or vacated
by is incumbent being elected, and ac
cepting an Incompatible Office.
The rule" says Park Judge IN Rex
VS.. PattesOn a, Barnwell and AdOlphus,
page %, leading case upon the sub
| Ject,-"that where two Offices are III
/ compatible they cannot be held to-
gether, is founded on the plainest
| principle of public policy and has
| obtained from the earliest times" This
| principle applies not only where the
second Office is superior and more I'M
| pOrtant; also where IL Is not. The rule
! has generally been stated IN broad and
unqualified terms that the acceptance
of the incompatible Office by whomso-
/ ever the appointment or election might
! BE made absolutely determines the
original Office, leaving no shadow of
| title to It's possession and whose sue
cessOr may be Immediately elected.
Several authorities are, here buOtedl
| There are cases holding thatan officer
| of ii corporation can not resign ms
/ of xr~rfi 4.r.
part of the corporation; vet it is decided
! that If one holding an Office IN cor
poratiOn be, by thatcOrpOratiOn elected
to an incompatible Office. this of course
is a consent on the part Of the corpora
ton that the first office be vacated, and
if the second office be accepted the first
Office IS at once and ipso facto deter
! mined.
Dillon on municipal corporations,
sec. l65, and cases there cited. In the
case of the People ex. rec Kelley vs..
the Common Council OF BROOKLYN, re-
ported in Il, New York, SOB. The
| question before the court was: IF an
alderman during his term of Office was
| elected a Representative TO Congress
and accepted the office. that thereby
the office of alderman immediately be-
came vacant and ne was no longer
alderman de lure' or de facto. ,"
That no direct judicial proceeding was
| necessary 10 determine ms title. That
no direct judicial proceeding was nee
cessary TO determine his title. That
the Common Council were not charged
with a judicial duty to determine the
question, but II was their duty 10 order
a special election 10 fill the vacancy.
In that case Il was claimed that the
right 10 order a special election depend
ed on the title of O'Rilcy as alderman
ode factO" 10 said Otficc, and that the
same was 10 be considered.
Yet the court SAYS, THAT they are
charged with no such judicial duty
and in assuming il they meddled with
functions that did not belong 10 them.
Neither was there any force in the
argument that the title of O'Rley 10
the Office could not be detcTm ned eX-
cept by direct judicial proceedings, 10
which he was a party. The moment
he accepted the new Office an accept
ance of the one was an absolute
determination of MS right 10 the other
and left him no shadow of title. so that
QUO warrantO or any other proceed
ing was unnecessary.
The authorities are All harmonious
upon the question that If the two o.
fees are incompatible. then the in-
cumbent accepting the second thereby
vacatcs the first. leaving tins vacancy
/ absolute. Hence arises the question
"Are these two Offices incompatible
Incompatib.hty. The force OF the
word % Is application 20 this matter ls
that from the nature and relations each
10 the other OF the two places they
ought not % be held by the same per
son. that from the cOutraucty and
antagonsm winch would suit n the
attempt hv the one person 81 faithfully
and impartallv discharge the dutc.
of thconc toward thc incumbent of the
other.
supreme Court % Rhcde Island ro
ported in 2 Aiiantic Rep5rtsr. L26. ihs
court, IN discussing this question of n.
compatibility lu case where tae ln
cumhent was holding the judgesb.p o
a district and deputy sherH. saws o.
/ cases where lnc0mpat hIfv has ar ser
independent Of statute or consrfut ora
F provisions two r1Ies are recognized
First incompatbltv not % uhvgca
m8faty % engage n she d8f.es of fhi
two offices. as discussed tHe People
Fs. t7ro0u, 5 Daily -5i. lommauwea .tr
SIS. hfov. ilsn. aIl. second Tho
, the ie-i of nc3ufTpt a.lfv s tne char
. aetsr and relation cl the Offices =.
when one IS s4lor1 nate o. the other
. aud subject l0 some degree t0 ts ra
-orv power on where the functions 81
fhe two are inherently lne0n- stent an,
, repagnant