20 N.J.L. 689 | N.J. | 1846
The opinion of the court was delivered by
This case presents two questions for consideration. 1st. Are these offices incompatible with each other, or can they subsist in one and the same person at the same time. 2dly. If incompatible, is the acceptance of the office of Attorney General a surrender of that of Prosecutor ? As to the first question : there is no express provision, either in the late or present constitution of this state, nor any legislative enactment declaring these offices incompatible; yet it does not follow, for that reason, that they are not so. There are many cases, where two offices cannot be held by the same person ; although neither the constitution, nor the statutes have provided against it. Where there is no express
Let this case be tested by the principles I have cited The Attorney General and Prosecutor of the Pleas for the respective counties in this State, are officers recognized by the constitution and laws. The former is the law officer of the state, with power to prosecute the criminal pleas in every county; whilst the power of the latter is confined to the county, for which he is appointed. Previous to the year 1812, the practice was for the Attorney General to prosecute the pleas in those counties, where he did not attend in person, by deputies of his own appointment, who held their respective offices during his pleasure. In that year an act was passed, reciting that doubts had arisen respecting his power to appoint deputies; and authorizing him to make such appointments in those counties, where he might be unable in‘person to attend^ and imposing upon deputies so appointed, an oath for the faithful execution of their offices. In 1822 the legislature vested the appointment of Prosecutors for the respective counties, in the Justices of the peace of each county. In the following year, an act was passed, providing that the Legislative Council and General Assembly, in Joint Meeting, should appoint a prosecutor for each county, to perform the duties of the Attorney General in such county, in case of his absence. It was
If these offices then are incompatible, as I take them to be, it remains for us to inquire, whether the defendant’s acceptance of that of Attorney General is a legal surrender or avoidance of the other. The general principle undoubtedly is, that the acceptance of a higher incompatible office, ipso facto, vacates the inferior one, if held by the same person. Com. Dig. Tit. “ Office.” And in Milward v. Thatcher, 2 Term R. 81, it was adjudged, that the acceptance of an inferior office was a surrender of the superior. And the same doctrine is laid down by C. J. Kirkpatrick, in the State v. Parkhurst, 4 Hal. R. 427; and, as appears by a note to the case, it was unanimously affirmed by the Court of Errors. But the counsel for the defendant, not denying the rule, insists that it is applicable only where the offices emanate
Upon both questions therefore I am of opinion that judgment should be rendered against the defendant.
Judgment against the defendant.
Whitei-iead and Randolph, J. J. concurred. Hornbloaver, C. J., and Carpenter, J. did not hear the argument, and expressed no opinion.
Cited in State v. Gummersal, 4 Zab. 531; Atty. Genl. v. Del. & B. B. R. R. Co., 9 Vr. 285.