114 Me. 443 | Me. | 1916
These petitions are brought under the provisions of Revised Statutes, chapter 6, section 70, to determine the results of the election, March 1, 1915, in the city of Rockland, so far as concerns the mayor and one alderman.
I. The Howard Petition.
The petitioner and the respondent were both candidates for the office of mayor. The respondent was declared elected. The petitioner claims that a majority of the legal ballots were cast for him, but that the counting officers refused to count ballots, on the ground that they were defective, that should have been counted for him, and counted defective ballots for the respondent, which should not have been counted. The case is also- concerned with some ballots which were cast by men who, it is claimed, were paupers, and so disqualified, and with the ballot of one man claimed to have been illegally registered. There is also a controversy as to the number of ballots actually cast for each party in Ward 1. The conclusion we have reached makes it unnecessary to consider any of these questions.
It is admitted that the petitioner was appointed Judge of the police court of Rockland by the Governor, March 17, 1915» that the appointment was confirmed, that a commission issued to him,
It is well settled that one person cannot hold two incompatible offices, and that the acceptance of the later office vacates ipso facto the prior one. In this State, the question was first discussed in the Opinions of the Justices, 3 Maine, 484. It was there considered that the offices of sheriff and justice of the peace were incompatible, on the ground that sheriffs belong to the executive department of the State, and justices of the peace, to the judicial, and that for one person to hold both of these offices would be in violation of the Constitution, Art. Ill, sect. 1, which provides that “no person or persons belonging to either of these departments [legislative, executive and judicial] shall exercise any of the powers belonging to either of the others, except in cases herein expressly directed or permitted.” In Bamford v. Melvin, 7 Maine, 14, the offices of deputy sheriff and justice of the peace were held to be incompatible, for the reason given in 3 Maine, 484, supra. In Stubbs v. Lee, 64 Maine, 195, this court said: “Where one has two incompatible offices, both cannot be retained. The public has a right to know which is retained and which is surrendered. It should not be left to chance, or the uncertain and fluctuating whim of the office holder to determine. The general rule, therefore, that the acceptance of and qualification for an office incompatible with one then held is a resignation of the former, is one certain and reliable, as well as one indispensable for the protection of the public.” And the court in that case held that an acceptance of the office of deputy sheriff was a surrender of the office of trial justice. See to same effect, Pooler v. Reed, 73 Maine, 129.
That the Judge of the police court of Rockland belongs to the judicial department of the State cannot be questioned. The court
The answer to the question before us does not necessarily depend upon constitutional or statutory provisions. The doctrine of the incompatibility of offices is bedded in the common law, and is of great antiquity. At common law two offices whose functions are inconsistent are regarded as incompatible. The debatable question is, what constitutes incompatibility? This question has been answered by the courts with varying language, but generally with the same sense. We cite a few examples. “Two offices are incompatible when the holder cannot in every instance discharge the duties of each. The acceptance of the second office, therefore, vacates the first.” The King v. Tizzard, 9 B. & C., 418. This language is cited with approval by this court in Stubbs v. Lee, supra. “Incompatibility must be such as arises from the nature of the duties, in view of the relation of the two offices to each other.” Bryan v. Cattell, 15 Iowa, 535. “Incompatibility arises where the
Now to apply these principles to the present case. The police court of Rockland has a civil and a criminal jurisdiction. It has exclusive jurisdiction under its charter over all such offences committed within the limits of the city of Rockland, as are cognizable by trial justices. P. & S. Laws of 1909, ch. 368. It has jurisdiction of violations of any statute where the offense is not of a high and aggravated nature. R. S. ch. 133, sect. 4. It has exclusive jurisdiction of all offenses against the ordinances and by-laws of the city of Rockland. P. & S. Laws, 1903, ch. 114, sect. 3. It has jurisdiction of all offenses against the prohibitory liquor statute, except for keeping drinking houses and tippling shops and for being common sellers of intoxicating liquor. R. S., ch. 29, sect. 60. It may, on complaint, cause to be arrested all persons charged with felonies, offenses and misdemeanors, and when an offense is found to be one not within its jurisdiction for trial, it may cause the
The charter of the city of Rockland, P. & S. Laws, 1905, ch. 122, provides as follows: Sect. 3. “The mayor of said city shall be the chief executive officer thereof; it shall be his duty to be vigilant and active in causing the laws and regulations of the city to be executed and enforced; to exercise a general supervision over the conduct of all subordinate officers, and cause neglect of violations of duty to be punished.”
Sect. 5. “The executive powers of said city generally, and the administration of police and health departments . . . shall be vested in the mayor and aldermen.”
The statutes of this State, ch. 29, sect. 15, provide that the mayor and aldermen ... in every city . . . shall make complaint and prosecute all violations of the chapter, [the prohibitory liquor law] and promptly enforce the laws against drinking houses. For wilful neglect or refusal, after being furnished with written notice of a violation signed by two persons competent to be witnesses in civil suits, containing the names and residences of the witnesses to prove the offence, to institute proceedings therefor, he shall be fined not less than twenty nor more than fifty dollars.”
The municipal officers, of whom the mayor is one, R. S., ch. 1, sect. 6, par. XXV, are specially required by statute promptly to enforce the laws against houses of ill-fame, R. S., ch. 125, sect. 9, and against gambling rooms, R. S., ch. 126, sect. 1, and in each case “to make complaint against any person within their respective municipalities, where there is probable cause to believe such person guilty of a violation” of the statute. It is made the duty of the mayor “forthwith to proceed to sue” for an election bet or wager made, as soon as he has the proper evidence, R. S., ch. 6, sect. 97. We think it is unnecessary to go further in this direction.
In many instances in the statutes the mayor, either alone, or as one of the municipal officers, is charged with the performance of duties, and for neglect or refusal to perform the same is made liable to fine or forfeiture, criminally or civilly. And the police court of Rockland has exclusive jurisdiction upon complaint to try the mayor for such neglect or refusal in some classes of cases, and may hold the offender for the Supreme Judicial Court in others.
Discussion cannot make the situation clearer. As mayor it would be the duty of the petitioner to prosecute certain classes of offenses, if any have been committed, in the police court. As Judge of the police court it is his duty to hear and determine complaints for offenses which come within these classes. He cannot do both. He cannot be both prosecutor and Judge. The duties are repugnant. He can only perform the duties of one office by neglecting to perform the duties of the other. It is not for him to say in a particular instance which he will perform and which he will not. The public has a right to know with certainty. Stubbs v. Lee, supra. Thence it is that two such offices must be held to be incompatible. And we are all of opinion that when one who has the office of mayor of Rockland, or one who has the right of office, accepts the incompatible office of Judge of the police court, he thereby abandons, surrenders and vacates ipso facto, such election, or right of election, as he had to the office of mayor.
Since the petitioner has vacated and surrendered his right to the office of mayor, we think that he cannot maintain this petition. The ultimate purpose of the petition is to oust the respondent, by showing that the petitioner is entitled to the office. And it is only when a petitioner “is entitled by law to the office claimed by him,” R. S., ch. 6, sect. 71, that the Justice hearing the case may issue an order to the party unlawfully claiming or holding said office, commanding him to yield up said office to the officer who has been adjudged to be lawfully entitled thereto. Sect. 73. The petitioner has now no interest in the proceeding. Heald v. Payson, 110 Maine, 204; Libby v. English, 110 Maine, 449; Murray v. Waite, 113 Maine, 485. II. The Duncan Petition.
The petitioner and the respondent were both candidates for the office of alderman in Ward 1, and the respondent was declared elected.
Upon the question whether this ballot should be counted for the respondent, the Justices are evenly divided in opinion. Therefore it cannot be counted.
On two ballots the voters erased the name of the respondent, and wrote underneath “L. H. Duncan.” Under the rule laid down in Bartlett v McIntire, 108 Maine, 161, we think these ballots should be counted for the petitioner.
On one ballot the voter placed a petitioner’s sticker upon and partly covering the name of the respondent. He also wrote underneath the name of the petitioner in full. We think under the rule in Crosby v. Libby, 114 Maine, 35, this ballot should be counted for the petitioner. Upon the ballots before us, then, the petitioner holds the three disputed ballots already counted for him in the tie vote, and the respondent loses one, which so far gives the petitioner one majority.
However, another question is presented. There is evidence offered by the respondent that at the count of the ballots in Ward 1, at the close of the election, there were 97 straight ballots for each party, that is, the petitioner had 97 straight ballots, and the respondent 97. At the time the ballots were counted in court, April 16, 1915, the straight ballots for the petitioner were only 94 in number, and those for the respondent were 99. And as we understand the record, it was upon these ballots, with the addition of split ballots,
III. Procedure.
We think these cases are not properly before the Law Court on report, and were it not for the fact that the term of the offices in dispute is drawing towards the end, and that the shortness of the time will probably not permit the cases to go through the statutory channels before the end, the proper course would be to remand them for hearing before a single Justice. Although by reason of the exigency thus disclosed, we have persuaded ourselves with much reluctance to consider the cases on their merits, we cannot let the occasion pass without calling attention to the correct procedure.
The statutes provides for a hearing by a single Justice and an appeal from his decision and judgment to the remaining Justices. It requires the appellant to cause copies of the petition, pleadings, findings and testimony, upon which such judgment is rendered, approved by the Justice before whom the hearing is had, to be printed and transmitted to the Chief Justice within twenty days after such appeal is taken with written argument thereon. Section 72. In these cases there has been no decision and judgment. There has been no appeal. The cases have not been transmitted to the Chief Justice. They have not been printed. But the cases have been sent before us on report, and are entered on the law docket.
We think that the Law Court as such has no jurisdiction of these cases. The statute provides that on appeal, the Justices of the court “shall consider said cause immediately, and decide thereon, and transmit their decision to the clerk of the county where the suit is pending, and final judgment shall be entered accordingly.”
A petition to determine a contested election is not an action at law. It is not a bill in equity. It is a special, statutory proceeding which confers upon a single Justice, and upon the other Justices on appeal, jurisdiction to inquire into and determine contested election cases. The evident purpose of the statute is to provide a simple, inexpensive and prompt remedy for one who has been unlawfully deprived of the fruits of an election. It takes the place of quo warranto to oust an officer who has not been legally elected, to be followed by mandamus to instal the rightful claimant.
It is true that the statute says that the petitioner “may proceed as in equity,” but that does not make the petition a bill in equity, nor make an election contest one of equitable jurisdiction. In Bartlett v. McIntire, 108 Maine, 161, this court holding that the findings of the single Justice do not on appeal have the same force as in appeals in equity, said: “The procedure is somewhat anomalous. It is true that section 70 of chapter 6 provides that the claimant “may proceed as in equity” by petition returnable before any Justice of the Supreme Judicial Court, but it does not say he shall bring a bill in equity, and the subsequent proceedings bear slight resemblance to those required by the equity rules. Moreover section 72 provides that an appeal from the decision of the single Justice shall set forth the reasons therefor. This is not required in an
And it may be questioned whether the immediate parties by consenting to this procedure have effectively waived the requirements of the statute. Certainly waiver cannot confer jurisdiction upon the Law Court. Besides, the question of the validity of an election to public office affects public interests as well as private ones, and it may be doubted whether under such circumstances, a party should be permitted to waive. However this may be, despite the fact that these cases are irregularly before us on report, rather than on appeal, they have been argued in writing as the statute provides, and have been considered by all the Justices, as the statute contemplates.
The order in each case will be,
Petition dismissed with costs.