Haley v. State ex rel. Mortimer

• Decision Date: 08 March 1915
• Docket Number: 17875
• Citation: 67 So. 498,108 Miss. 899
• Court: Mississippi Supreme Court
• Parties: HALEY v. STATE EX REL. MORTIMER, DISTRICT ATTORNEY

67 So. 498

108 Miss. 899

HALEY v. STATE EX REL. MORTIMER, DISTRICT ATTORNEY

No. 17875

Supreme Court of Mississippi

March 8, 1915

APPEAL from the circuit court of Leflore county. HON. F. E. EVERETT Judge.

Quo warranto by T. E. Mortimer, District Attorney, against J. L Haley. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

J. M Vardaman, for appellant.

The final contention of the state is that appellant vacated the office of member of the board of supervisors when he took the oath of office and qualified as a member of the board of levee commissioners.

This contention is urged by the state on the ground that the two officers are incompatible, the incompatibility being the fact that appellant as president of the board of supervisors approved his own bond as levee commissioner. This one act of appellant is the only instance in which counsel for the state can find any antagonism between the two officers. This contention is one, I submit, that will not hold good in the case before the court.

Since time immemorial the courts of this country and England have uniformly held that offices similar to the two before the court in this case are not incompatible and that the two offices may be held by the same person at one and the same time.

The earliest holding on this question in this country, and one of the leading cases, is the case of Commonwealth v. Sheriff (Penn.), 4 Serg & Rawles, 275, 276, in which case the court held that the office of justice of the peace and the office of justice of the common pleas court were not incompatible, though the incumbent, as judge, might be called upon to give judgment in the common pleas on a judgment rendered by himself as justice of the peace.

A later case on this same subject is the case of Peterson v Culpepper, 72 Ark. 230, 2 Am. & Eng. Ann. Cases, 378, in which case the court held that the offices of sheriff and chief of police were not incompatible. This case is reported in volume 2 of American & English Annotated Cases at page 378, and has very full annotations on the question of a person holding two offices. On page 381, supra, will be found a list of offices that the courts of this country have held to be compatible offices and I submit that the two offices before the court in this case come within that class and are compatible.

In conclusion, I wish to call the court's attention to the fact that the action of quo warranto is an extraordinary proceeding and one in which all doubts should be construed in favor of the office-holder, and should any doubts be raised by this record in the minds of your honors, I submit that they should be resolved in favor of appellant.

Gardner, McBee & Gardner, for appellant.

We submit that, with the one exception that appellant, as president of the board of supervisors, approved his bond as levee commissioner, there is not another objection of any kind whatever urged against the holding of these two offices. In this connection, we want to call the court's attention to the fact that appellant, in approving his bond as levee commissioner, acted as president of the board of supervisors.

This is not a suit directed against appellant as the president of the board of supervisors, in which capacity he acted when he approved the levee bond, but is a suit directed against him as a member of the board of supervisors. It is true, of course, that in acting as president he necessarily acted as a member of the board, and the point we make is that the objection, and only objection, urged is against appellant, not as a member of the board, especially, but against him as president of the board, an office which was given him not by his constituents, but by his fellow-members on the board of supervisors. We therefore submit that this objection is without merit and should be overruled.

O. L. Kimbrough, for appellee.

Again, the state relied upon the acceptance by the defendant of the office of member of the board of Yazoo-Mississippi Levee Commissioners, because said office is incompatible with and antagonistic and repugnant to the office of member of the board of supervisors.

This ground seems to be the only one considered by counsel for appellant in their brief. There is no constitutional or statutory prohibition in this respect, so far as I know, and, as stated by counsel for appellant in their brief, we are forced to go to the common law and decisions of other states for authority.

It is unnecessary, I take it, however, to cite any authority to establish the contention that no person can hold two or more incompatible offices at the same time; and that by the acceptance of one, incompatible with another which he holds, the latter is thereby ipso facto vacated.

The question then is, whether the two offices, member of the board of supervisors and member of the board of levee commissioners are incompatible.

Under the act incorporation the board of levee commissioners approved March 16, 1886, it is provided in section 1 that: "Each commissioner mentioned herein, shall, before entering the discharge of the duties of his office, and within thirty days from the date of his appointment, enter into bond in the penalty of five thousand dollars, with two or more...