B. Altman & Co. v. Wall
| Decision Date | 10 April 1916 |
| Citation | 71 So. 318,111 Miss. 198 |
| Parties | B. ALTMAN & COMPANY v. WALL |
| Court | Mississippi Supreme Court |
March 1916
APPEAL from the circuit of Panola county, HON. N. A. TAYLOR, Judge.
Suit by B. Altman & Co. against Mrs. W. D. Wall. From an order sustaining defendants motion to quash a writ of attachment plaintiff appeals.
This is an appeal from an order of the circuit court sustaining a motion to quash a writ of attachment. The motion alleges that the mayor of the town, who acted as ex officio justice of the peace at the trial of the case, was at the time of the issuance of the writ of attachment a deputy sheriff of the county, and that the acceptance of the latter office, which belonged to the executive department of the state, forfeited his office as a justice of the peace, which belonged to the judicial department.
Reversed and remanded.
Geo. M Johnson, for appellant.
From the agreed statement of facts here before this court it is shown that the said T. J. Taylor was in lawful possession of the office of mayor of Sardis and discharged all the duties of said office during the full term and only surrendered this office to his successor and that during his term of office this attachment was issued and tried before him as mayor and ex officio justice of the peace. Such being the case his acts as between third parties are held to be valid as a de facto officer. (Section 3473, Code 1906.)
Could the said T. J. Taylor be an usurper of the office of mayor of town of Sardis and ex officio justice of the peace? It is the contention of the appellant that under the agreed statement of facts here before the court, that he could not be an usurper for an usurper of an office has been defined as one holding an office without even color of title. 8 Words and Phrases, page 7246 and cases cited thereunder.
The courts have held that an officer legally elected and qualified who enters upon the duties of his office and afterwards accept another office, but in good faith continues to publicly discharge the duties of the first office, his term of office not having expired and no successor having been appointed or elected nor any adjudication against his title, is an officer de facto. (Words and Phrases, page 1848 citing Oliver v. Jersey City, 44 A. 709-711, 63 N. J. Law 634, 48 L. R. A. 412, 76 Am. St. Rep. 228.)
L. L. Pearson, for appellee.
Upon the facts, two questions are presented for the consideration of this honorable court: (1) Did the acceptance by Taylor of the office of deputy sheriff vacate the office of mayor and ex officio justice of the peace, which office he had been holding and was entitled to hold rightfully and lawfully at the time he accepted, qualified, and entered upon the duties of the office of deputy sheriff?
(2) If the acceptance of the office of deputy sheriff by Taylor did in law vacate the office of mayor and ex officio justice of the peace, which he had prior to that time rightfully and lawfully held, then could he any longer exercise any power properly belonging to the duties of a justice of the peace, so as to give to his acts in the premises any force or effect whatever, or would not any such acts so performed be of no effect and absolutely void?
I contend that under the facts of this case, the duties and functions of the two offices make them incompatible, both under the common law and under the constitutional provision. State v. Armstrong, 91 Miss. 513.
It would be useless to argue, or cite authorities to support the contention that the acceptance by a person of a second office, the duties and functions of which are incompatible with an office then being held, operates in law to vacate the first office, and that therefore, such person can, after the acceptance of the second office, only be held to be rightfully and lawfully in the possession of that office alone. 29 Cyc., 1382, and long list of authorities there cited. State v. Armstrong, supra. (See also last paragraph of section 2, of Constitution, 1890, which is as follows: "The acceptance of an office in either of said departments shall, of itself, and at once, vacate any and all other offices held by the person so accepting in either of the other departments.")
It is the duties and functions of an office--the powers that must be exercised and the acts that must be performed by its incumbent--that distinguishes it and separates the office to the proper department of the government. More than this, under the constitutional provisions, two offices held by the same persons, are made incompatible by the mere fact that in the exercise of the functions and duties of both offices, he must at times exercise powers properly belonging to different departments of the government--a thing expressly and arbitrarily forbidden by the Constitution itself. Sec. 2, Const., 1890; State v. Armstrong, supra.
Under these tests it would seem altogether useless to argue or cite authorities to sustain the contention that the office of deputy sheriff is incompatible with any office carrying with it the duties and functions properly belonging to another department of government, in this case the duties and functions of a justice of the peace. State Bank v. Curran, 10 Ark. 142; Bamford v. Melvin, 7 Me. 14; Sec. 2, Const., 1890 (Miss.); 29 Cyc. 1382, and authorities cited.
Taylor was "ex officio a justice of the peace in and for the corporate limits" of the towns of Sardis, and "a justice of the peace of the county--justice of the peace for a certain district." Nickles v. Kendricks, 73 Miss. 711; Smith v. Jones, Trustee, 65 Miss. 276.
In the instant case, Taylor, in so far as his acts are complained of, was acting in the capacity alone of a justice of the peace--attempting to perform acts that the mayor, as such, had no authority to perform, and which acts in no sense "properly belonged" to the executive branch of the government, but acts that did belong properly and "distinctively" to the judicial department. State v. Armstrong, supra.
If the two offices were incompatible, then when Taylor accepted the office of deputy sheriff and qualified as such officer, he thereby vacated the office of mayor and ex officio justice of the peace, and was afterward only rightfully and lawfully in the possession and...
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