Delaware gazette and state journal., 1896-01-16

upon this bench, vacancy would pc
created in the first Office, and yet the
statute certainly does not, in terms,
cover such case. So, ii the auditor
of the State should take the office OF
treasurer; and many other cases that
might be stated. Looking to
thec0mmon law, we are of the opinion
that the inapmpatibility must be such
as arises from the nature of the offices,
or their relations to each other. 1t
must be such as arises from the nature
of the duties, in view of the relation
of the two offices to each other.
These are the cases cited by counsel
in support of the proposition that no
person shall exercise two Incompatible
offices at the same time. They com
pletely refute it. They show the rule
of the common law TO be that no man
shall hold two incompatible offices,
and that il the Offices are incompatible,
the acceptance of the second vaeates
the fret. Mechem, in his work on the
Law of Public Offices and Officers,
Section 420, states the rule as follows;
"It is well-settled rule of the com
mon law that he who, while occupying
one Office, accepts another Incompatible
with the first, ipso facto absolutely
vacates the first Office and his title is
thereby terminated without any other
act or proceeding.
To this rule few offices in England,
which the incumbents could not re-
linquish without the consent Of tho
crown, formed an exception, But there
are no similar offices IN the United
States.
Paine, in his Treatise on Elections,
Section 156, correctly says that lat
common law the acceptance, by pub
lie officer, of second office, is an i'm
piled resignation of the first held, if
Incompatible with it.
In support of their second proposition
that under the American system,
executive and legislative offices ara
not in themselves incompatible, the
counsel state that it is undoubtedly
true that, in the American system of
government, the separation of powers
into three great departments, the
executive, tho legislative and the
judicial, is fundamental: but it is
wholly erroneous to suppose that this
principle is peculiar to our system.
Citations are made from Aristotle's
Politics, Montesquieus Spirit of Laws,
Book XI, Chapter 6, in support OF
this contention; and the counsel quote
at length from Madison in paper No, AZ
OF the Federalist. in defining the prin-
ciple on which our constitutions we're
formed. In defining the true test Of
incompatibility, the counsel say:
1t is apparent that the incompati-
bilty of offices does not in the absence
of some specific provision of the CON
! stitution or laws, grow out of the fact
that the offices are in different depart
ments of the government. We say in
the absence of some sresific provision
OF the constitution or laws" because
there are in all States, except Della
ware, Kansas, New York, North Da-
kota, Ohio, Pennsylvania, Washington
and Wisconsin, constitutional pro-
visions expressly separating the three
departments, and declaring that no
person exercising power in ono shall
exercise any power in either of the
others. Strictly speaking, these pro-
visions do noETinvolve the question of
incompatibilfty. They are simply
specific prohibitions of the collective
exercise of'certain powers.
Thus, the Constitution of Alabama
cart. LII. provides that the powers
of the, government of the State "shall
be Divided into three distinct depart
ments, each of which shall be confined
to separate body of magistracy, and
that mo person, or collection of per-
SONS, being of one of those departments,
shall exercise any power properly be-
longing to either of the others, except
in the instances hereinafter expressly
directed OF permitted. The same,
or a similar provision, may be found
in the Constitutions of Arkansas, Cali
fornia, Colorado and various Other
States. Tho Constitution of Maryland,
as well as the Constitutions Of certain
other States, makes the prohibition
absolute, without any excepting clause.
In tho Constitution of Delaware
there is no clause like those above
quoted. Tho Constitution of Deia
ware. like the Constitutions of New
York and six other States, merely pro
vides, in treating of each department,
that the Legislative power" of the
State ''shall be vested in Genera
Assembly, which shall consist of q
Senate and House of Representa-,
tives' Cart. ii, See. ~; that the
"supreme executive powers Of the
State shall be vested in a Governor
tArt III, Sec. ~; and that thu
judicial power Of the State shal
be vested in a court of errors and ap
peals," &c.
There is no doubt that this vestine
Of powers in three separate depart
ments operates as a general prohibition
of the usurpaton and exercise by on,
department of powers belonging Il
either of the other departments. THU
ii would, doubtless, violate the dis
tribntion of powers for the Legislature
to assume to take case out of thu
hands of court and pronounce judg
ment upon it, or for court 10 Sc
aside an act of the Legislature be
cause it deemed the law impolitic. Blu
it was not intended either to invest al
power of particular nature in any on
department. or to preclude the SAINT
person in every instance from exer
cising power in two or more depart
ments. Even in those States in which
unlike Delaware, the prohibition o
the exercise of powers in two depart
ments is made the general rule, ther
are exceptions of the greatest import
ance. In all or nearly all the variou
States in which there is Lieutenant
, Governor, that officer, member of thu
executive department, is the presiding
officer of the Senate, and in this ca
pacity can give deciding vote Il
some States he possesses, in the com
mittee of the whole, the right TO debate
! In most States the Governor has tn
power to make recommendations to th
Legislature and to veto its acts III
! may grant pardons and combinations
remit fines and forfeitures, and thu
temper the power of the courts. Th
Legislature, or one branch of it, ca
cit nc n nnnrt nf imneachment ral