| Ark. | Jan 15, 1840
delivered the opinion of the court:
The pleadings in the case present but a single question for our consideration and decision, which is, can the defendant at one and the same time exercise the powers and duties of the office of Justice of the Peace, and of Treasurer of the State? The examination and decision of this question involves the construction of the Constitution of the State, and the relative powers of the different departments of the government as organized and established by that instrument.
The Constitution declares that “ the powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confined to a separate body of magistracy, to wit: those which are Legislative to one, those which are Executive to another, and those which are Judicial to another;” and that no “person, or collection of persons, being of one of those departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.” See Art. 3.
The evident design and intention of these provisions was to separate and divide the sovereign will of the community into three distinct departments of government, and to distribute that will amongst three separate sets of agents or public functionaries, and to assign to each a peculiar sphere of duties, and ,to make it supreme within the circle of its constitutional action. Tins wise and invaluable principle lies at the very foundation, and constitutes the ground work of all the American Constitutions, and is their chief excellence and characteristic distinction. All the great and essential rights of life, liberty, and property, depend for their protection and preservation principally, if not exclusively, upon the separation and division of all the powers of government into three distinct departments, whose functions and duties are required to he exercised and performed by three distinct or separate sets of agents. The union or concentration of the powers of .three separate departments into the same hands, be they few or many,, is the essence of tyranny, and constitutes the means by which every species of oppression and injustice can be practised with impunity. The action of each department must necessarily be sovereign and supreme within, its constitutional orbit, or it cannot be independent of the other departments, and it is uncontrolable so long as it acts within the circle of its constitutional jurisdiction. The moment any one department passes beyond its prescribed and ordained authority, its action is placed under the supervision and control of other departments and of the people. The joint and united action of three departments represent and constitute the sovereign will of the State, as created by and embodied in the Constitution. Their action is not wholly independent of, or disconnected from, each other, but they are joined and blended together in their united agency for the purpose of protecting and upholding the rights of the citizen and the government, while their constitutional jurisdiction and powers are carefully marked out and widely separated from each other. It is the duty of the Legislature to make and ordain the laws, of the Courts to expound and interpret them, and of the Executive to see that they are faithfully •executed. These principles may be regarded as political axioms in the theory and science of all just and free governments, and they furnish the standard or criterion by which the different departments are contra-distinguished from each other, their respective duties ascertained and determined.
The Legislative department of our government is vested in the General Assembly, which is made to consist of a Senate and House of Representatives. See Art. 4, of the Const.
This provision of the Constitution certainly excludes in express terms the office of Justice of the Peace and of Treasurer of the State from that department; for all Legislative power whatever is exclusively given to the Senate and House of Representatives, as a constituent department of the government. No rule of interpretation then can include the offices of Justice of the Peace and of Treasurer of the State, either by express grant, or necessary implication within the Legislative branch or division of power: besides the Constitution itself has assigned them to the other departments. The Constitution creates the office of Governor, and makes him the supreme Executive officer of the State, and the head of that department of power; it makes it his duty to take care that the laws are faithfully executed, and to aid him in the performance of this duty it establishes other Executive officers and assigns them to the Executive department. See Art. 5. Among them is the office of Secretary of State, of Treasurer, Auditor, Sheriff, Coroner, Constable", and Militia officers: all these officers strictly belong to the Executive department, for the Constitution assigns them to that division of power, and makes all their duties necessarily of an Executive character. They constitute the agency or means by which the Executive will is carried into effect, and the laws of the land executed and enforced. As the Executive cannot perform personally all the duties of his department, these offices are established by the Constitution to aid and assist him in the discharge of his legal and constitutional obligations.
These principles are unquestionably established as well by the formation and organization of the offices themselves as by the nature and character of the duties prescribed to be performed, and they rest upon the highest weight of authority, and upon the clearest deductions of reason. The Supreme Court of Maine have declared upon a case involving the construction of the Constitution of that State, in regard to the division and separation of the three departments of the government, that “ the Governor, Secretary of State, and Treasurer, were respectively a part of the Executive department, and so also were Sheriffs and Coroners; that the Treasurer was an Executive officer, because he was named in the Constitution, and his election provided for under the article concerning the Executive department, and because he aids the Governor in causing all the State taxes to be collected and paid into the Treasury for the public use,” and they further decided “that Justices of the Peace were a part of the Judicial department, and that the office of Justice of the Peace was incompatible with that of Sheriff, Deputy Sheriff, or Coroner, and that no person could of right at the same time exercise the office of Justice of the Peace, and also the office of Sheriff, Deputy Sheriff, or Coroner.” 3 Greenleafs App. 484. See also debates upon the Constitution o-f the United States. Federalist.
It follows, from the principle above laid down and established, that the office of Treasurer of the State is an Executive office, and that all its powers and duties belong strictly to the Executive department.
It only now remains to be seen to what department, under our form of government, the office of Justice of the Peace rightfully belongs. This point is clearly and conclusively settled by the Constitution itself, for it declares that “the Judicial power of this State shall be vested in one Supreme Court; in Circuit Courts* in County Courts, and in Justices of the Peace,” and that “„the General Assembly may . also vest such jurisdiction as may be deemed necessary in Corporation Courts, and when they deem it expedient may establish Courts of Chancery.” Art. 6, sec. I.
Sections third, ninth, and fifteenth, of the sixth article as above quoted, define and limit the constitutional jurisdiction of Justices of the Peace, and they are all perfectly explicit in showing the office to be exclusively judicial, and that all its duties strictly appertain ‘ to that department of power.
The office, of Justice of the Peace is as much a judicial office as the office of Supreme Judge, or Circuit Judge, for its power and being are derived from the same source, and stand precisely upon the same constitutional provision or enactment. ‘ If the conclusions to which the court have arrived be true, and that they are seems to our minds to be almost a self-evident proposition, then the office of Justice of the Peace belongs exclusively to the Judicial, and that of Treasurer of the State to the Executive department; and this being the case the Constitution forbids, in express terms, any person or collection of persons from exercising the powers and duties of these two offices at one and the same time. See Art. 3.
The enquiry next is, as the defendant cannot exercise and hold both offices at one and the same time, which of them is vacated and annulled. Is it the office of Justice of the Peace or Treasurer of the State?
Every citizen has the unquestionable right of filling either of these offices, provided he brings himself within the constitutional requisites or qualifications. To fill either office legally, and constitutionally, it requires the joint action of the electors, and his acceptance of the office. When both these acts concur, then the office is rightfully filled. The commission of the Governor is evidence of the incumbent’s right to the office, and of his authority for its exercise. In the selection of an incumbent to fill any office the electors’ right to choose is wholly unrestricted except in the manner pointed out by the Constitution or by the laws, and consequently they can elect any individual they please. Their right to vote for him cannot be questioned if he possess the legal and constitutional requisites for the office; and if this be the case, it would render that right nugatory, or of no effect, if the person chosen did not possess the right to accept the office. To give to the electors the authority for selection, and at the same time deprive the incumbent of the power of acceptance would be virtually to annul the right of suffrage itself. This would be giving a right and taking away all the means by which it could be enjoyed, which involves such manifest absurdity and contradiction that it is impossible for it to be true. If the person voted for has an unqualified right of acceptance of the office to which he is elected, the moment he determines his will or election in regard to it and accept the office, that instant of time he of course resigns or vacates any other office ho holds incompatible with the one he accepts. This is strictly true in regard to all offices whose duties are inconsistent with each other, and belong to separate departments of the government. The authorities are so clear and conclusive on this point we deem it unnecessary to add any thing moré in support of the principle except merely to refer to them. Johnstone vs. Margetson, I Henry Blackstone, 260; Milward vs. Thatcher, 2 T. R. 81.
The pleadings in this case admit the fact that the present defendant, John Hutt, is in the full possession and enjoyment both of the office of Justice of the Peace, and of Treasurer of the State. This being the case, of course he is constitutionally ineligible to hold and exercise both these offices at one and the same time, because they belong to separate and distinct departments of the government. It therefore necessarily follows that his election to and acceptance of the office of Treasurer of the State wholly vacated and annulled his office of Justice of the Peace of the county of Pulaski.
The application of these principles to the question raised upon the demurrer and the replication, conclusively demonstrate that the former is fatally defective, and the latter fully sufficient to invalidate the warrant that the defendant has shown in his plea for the exercise of the office of Justice of the Peace.