43 Ky. 224 | Ky. Ct. App. | 1843
delivered the opinion of the Court.
This was an action of trespass brought by Rodman against Harcourt and Carico, for taking and carrying away the horse and divers sheep of the plaintiff. Carico, by his separate plea, justified the taking as Constable, and under an execution against the plaintiff foi $50, &c. issued by Harcourt, an acting Justice of the Peace ; and Harcourt justified as a Justice of the Peace, showing that as such, he had issued a warrant against the plaintiff, at the suit of Harrison’s administrator,, pronounced judg. rnent and issued the execution against him. To each of these pleas the plaintiff replied in substance, that when and before Harcourt issued the execution and rendered the judgment and received the commission of a Justice of'the Peace, he was in the enjoyment and exercise of the office and profits of a Post-master, under the government of the United States, and was exercising„and holding said office. Demurrers to each of the replications were sustained, and judgment having been rendered against the plaintiff in favor of each of the defendants, he prosecutes a writ of error.
It being admitted by the demuners, that Harcourt, who had rendered the judgment and issued the execution Ull1 ° der which the plaintiffs property was taken by Carico
By the section of the constitution referred to, it is dedared that “no person holding or exercising any office of trust or profit under the United States, or either of them, or under any foreign power, shall be eligible as a member of the General Assembly of this Commonwealth, or hold or exercise any office of trust or profit under the same,” There can be no doubt that a Postmaster, acting as such under the government of the United States, holds an office under that government, which by the above quoted dause of our constitution, is incompatible with the office of a Justice of the Peace of this Commonwealth; and the constitution, as applied to his case, expressly prohibits his holding or exercising the latter office, while he holds and exercises the former. What then is to be the effect of his acts, done in the character of a Justice of the Peace? Is he rightfully a Justice of the Peace? Can he protect himself against liability for forcible acts done under his command, by saying he commanded them in virtue óf his office as a Justice? And will his precept protect the Constable who has obeyed it?
These are grave, and so far as we know, entirely novel questions, occurring as they do in consequence of the incompatibility of two offices exercised by the’ same person, under commissions emanating from two distinct, and in this respect, independent governments.
It is not denied that these two offices are incompatible, but it is contended that the legal consequence of that incompatibility is, that by the acceptance of the .office of
If an office, incompatible with one previously held, be accepted by an individual who admits or knows the incompatibility, the acceptance of the second implies a renunciation of the first; and if the two offices emanate from the same government which declares them to be incompatible, the acceptance of the second may be regarded as, ipso facto, a vacation of the first, since the government having power over both offices, can and will enforce the renunciation implied in that act, by regarding the first office as vacated, by prohibiting or even punishing any attempt further to exercise it, or by filling it with another at its pleasure.
The common law principle which declares the first office vacated by the acceptance of another, which is incompatible with it, is applicable to cases where the two offices are held under the same authority or under authorities of which one is in strict subordination to the other. For in other cases, and especially in the present, however consonant the conclusion that the first office is vacated by acceptance of the second, may be with reason and good conscience, still as mere reasoning cannot vacate an office, the only practical effect of admitting the conclusion that the first office is vacant because the second has been accepted, when in point of fact the first is still held and exercised as it was before, and as must be presumed, with the approbation of that government which alone has the power of effectually determining whether it is or is not vacant, is to permit both offices to be exercised
The right of Iiarcourt to hold and exercise the office of Postmaster does not depend upon the constitution and laws of Kentucky, but upon the constitution and laws of the United States, and they establish no incompatibility. By those laws, and by the will and confidence of the constituted authorities of that government, he is allowed to hold and exercise the office of Postmaster, notwithstanding his acceptance of an office incompatible with it by the constitution of this State. There is no power in Kentucky to enforce the implied renunciation or vacation of the office of Postmaster, if there be, under the circumstances, any such implication from the acceptance of the appoiniment as Justice of the Peace. She has no power to punish or prevent the continued exercise of the former office, or effectually to treat such continued exercise as illegal, or to put another into the office. The declaration, therefore, by her or by her judicial tribunals, that the office of Postmaster was vacated by the acceptance of that of Justice of the Peace, is worse than nugatory, if it be made as the basis of the legal conclusion that, therefore, the holding and exercise of the office of Justice of the Peace, is lawful, though the incumbent still, in fact, holds and exercises that of Postmaster. The effect of such a course of reasoning would be to allow the same person to hold and exercise the two incompatible offices in direct violation of the constitutional prohibition, and without any means left for its enforcement. For if it be admitted that he lawfully holds and exercises the office of Justice, notwithstanding his continuance to hold and exercise, (though unlawfully as the argument assumes,) the office of Postmaster, there could be no just ground for punishing him, by impeachment or otherwise, for his exercise of the former office, since that, (according to the argument,) would be lawful under our constitution and laws, and there is no power to punish him for the exercise or alledged usurpation of the latter, since the legality of
The people of Kentucky could not say in their constitution, that no person who accepts a commission of. Justice of the Peace from them, and, acts as such, shall hold or exercise the office of Post-master under the United States, because they have no right to say what shall be the qualifications for the latter office, or by whom or on what terms it shall be held or exercised. But they could say that no person holding or exercising the office of Postmaster under the United States shall be appointed a Justice of the Peace, or shall hold or exercise that office, because they have a perfect right to determine the qualifications for this office, and the terms or conditions on which it shall be held and exercised. If, therefore, this was a question upon the construction of the clause of the constitution which has been quoted, whether the prohibition applied to the office of Postmaster or to that of Justice of the Peace, we should feel bound to declare, even if upon the word’s of the clause it were doubtful, that it applied to the office over which the State had power, and not to that over which it had fio power. But there is no such question nor any room for it. The constitution has not attempted to prescribe a disqualification for tbe office of Postmaster, but has unequivocally and peremptorily established a disqualification for holding or exercising the-office of Justice of the Peace. The circumstances of disqualification.are ii&ed upon Hareourt by the. averments
We do not mean to say that because Harcourt was Postmaster he could not be appointed a Justice or accept and swear to the commission. But if he intended to actas a Justice of the Peace it was his duty to give up the office of Postmaster, and to cease performing its duties, as soon at least as a successor could be appointed and installed. Perhaps he could not properly have qualified as Justice until he had actually ceased to act as Postmaster. Perhaps upon his continuing to exercise that office after he Was commissioned as Justice, another might lawfully have been commissioned to the latter office. It is not necessary, however, to decide, and we do not mean to decide whether Harcourt ever was, constitutionally, a Justice of the Peace, nor if he was, when he ceased to be so, nor whether, if he has now ceased or should hereafter cease to actas Postmaster, before another is appointed to the same office of Justice of the Peace, he may lawfully act under his commission as justice. The constitution not only prohibits the holding of the two offices by tbe same person, but declares that while he holds or exercises the office of Postmaster be shall not exercise that of 'Justice. And we are of opinion that as, when he rendered the judgment and issued the execution against the plaintiff, he was both- holding and exercising the office of
But the question as io. Carrico, who, as Constable, obeyed the mandate of the execution issued by Harcourt, stands upon different grounds. There are many cases in which a Justice of the Peace, de facio and de jure, may
In the case of Keiser, &c. Commissioners vs McKissan, (2 Rawle, 139,) the plaintiffs, suing for the benefit of the public, were allowed to maintain the action, though it was objected, that they had not taken the oath , &c; and in Kidde vs the County of Bedford, (7 Sergeant & Rowle, 386,)
Now in this case Harcourt appears to have been exercising the office and authority of a Justice of the Peace, publicly and without any public question of his right to do so. He exercised that office too under a regular commission, and therefore by color, of title. The execution under which Carrico acted, was regular on its face, issued by one thus publicly acting as a Justice, under a regular commission to that office; and neither that writ nor any other part of the proceeding to which it belonged, disclose his want of authority to act under the commission which he had received, But the facts which disqualified him from acting under his commission and render his attempt to do so unconstitutional and therefore illegal, were facts de hors the record, as.in the case of Morgan vs Hughes; and the Constable and other strangers not being bound or presumed to know them, oughtnottobe affected injuriously by them. Upon the authority of the case of the People vs Collins, it may be at least questionable whether, if he had known then, he would have had a right, or at any rate, whether he would have been bound to judge the acts of Harcourt and decide them null; and especially after the defendant in the execution, (plaintiff in this action,) had, by submitting to have his case tried and adjudged by him, apparently acknowledged his authority. Upon these grounds, and as the fair result of the authorities relating to the acts of officers, de facto, coming in by color of title, and to the duty of ministerial officers acting under process apparently void, and the protection
Wherefore, the judgment against the plaintiff in favor of Carrico is affirmed, but the judgment in favor of Harcourt is reversed and the cause remanded, with directions to overrule Harcourt’s. demurrer to the plaintiff’s replication to his plea, and for further procéedings. '