Howard v. Harrington

• Citation: 114 Me. 443,96 A. 769
• Parties: HOWARD v. HARRINGTON. DUNCAN v. KEEP.
• Decision Date: 01 March 1916
• Court: Supreme Judicial Court of Maine (US)

96 A. 769

114 Me. 443

HOWARD

v. HARRINGTON.

DUNCAN

v. KEEP.

Supreme Judicial Court of Maine.

March 1, 1916.

Petitions by Philip Howard against Charles M. Harrington and by Lucius H. Duncan against Herbert W. Keep to determine results of an election. Petitions dismissed, with costs.

Argued before SAVAGE, C. J., and SPEAR, CORNISH, KING, BIRD, HALEY, HANSON, and PHILBROOK, JJ.

Philip Howard, of Rockland, for petitioners. A. S. Littlefield, E. K. Gould, and M. W. Weymouth, all of Rockland, for defendants.

SAVAGE, C. J. These petitions are brought under the provisions of Revised Statutes, c. 6, § 70, to determine the results of the election, March 1, 1915, in the city of Rockland, so far as concerns the mayor and one alderman.

I. The Howard Petition.

The petitioner and the respondent were both candidates for the office of mayor. The respondent was declared elected. The petitioner claims that a majority of the legal ballots were cast for him, but that the counting officers refused to count ballots, on the ground that they were defective, that should have been counted for him, and counted defective ballots for the respondent, which should not have been counted. The case is also concerned with some ballots which were cast by men who, it is claimed, were paupers, and so disqualified, and with the ballot of one man claimed to have been illegally registered. There is also a controversy as to the number of ballots actually cast for each party in ward 1. The conclusion we have reached makes it unnecessary to consider any of these questions.

It is admitted that the petitioner was appointed judge of the police court of Rockland by the Governor March 17, 1915, that the appointment was confirmed, that a commission issued to him March 24, 1915, and that since then he has been legally holding that office and performing its duties. And the respondent sets up in his answer and now contends that the offices of mayor of Rockland and of judge of the police court of Rockland are incompatible, both under the Constitution and at Common law, and that the petitioner, even if elected mayor, vacated his election ipso facto by being appointed judge of the police court and accepting that office. He therefore contends that the petitioner has now no right, title, or interest in the office of mayor, and for that reason is not entitled to prosecute this petition.

It is well settled that one person cannot hold two incompatible offices, and that the acceptance of the latter office vacates ipso facto the prior one. In this state the question was first discussed in the Opinions of the Justices, 3 Me. 484. It was there considered that the offices of sheriff and justice of the peace were incompatible, on the ground that sheriffs belong to the executive department of the state, and justices of the peace to the judicial, and that for one person to hold both of these offices would be in violation of the Constitution, article 3, § 2, of which provides that:

"No person or persons, belonging to one of these departments [legislative, executive and judicial], shall exercise any of the powers properly belonging to either of the others, except in cases herein expressly directed or permitted."

In Bamford v. Melvin, 7 Greenl. (7 Me.) 14, the offices of deputy sheriff and justice of the peace were held to be incompatible, for the reason given in 3 Me. 484, supra. In Stubbs v. Lee, 64 Me. 195, 18 Am. Rep. 251, this court said:

"Where one has two incompatible offices, both cannot be retained. The public has a right to know which is held and which is surrendered. It should not be left to chance, or the uncertain and fluctuating whim of the office holder to determine. The general rule, therefore, that the acceptance of and qualification for an office incompatible with one then held is a resignation of the former, is one certain and reliable, as well as one indispensable for the protection of the public."

And the court in that case held that an acceptance of the office of deputy sheriff was a surrender of the office of trial justice. See, to same effect, Pooler v. Reed, 73 Me. 129.

That the judge of the police court of Rockland belongs to the judicial department of the state cannot be questioned. The court was created under that provision of the Constitution (article 6, § 1) which declares that:

"The judicial power of the state shall be vested in a Supreme Judicial Court, and such other courts as the Legislature shall from time to time establish."

Whether a mayor of a city belongs to the executive department of the state we think is a question which need not now be expressly decided. It has been pointed out that a distinction may exist between a municipal officer, whose functions relate exclusively to local concerns of the particular community, and one whom the law vests with powers and charges with duties which concern the general public. Atty. Gen. ex rel. Moreland v. Detroit, 112 Mich. 145, 70 N. W. 450, 37 L. R. A. 211; 1 Dillon, Mun. Corp. § 58. In this state the duties of a mayor are not limited to the performance of mere municipal functions and attending to the municipal business. As will be seen hereafter, he is charged by the Public Statutes with certain duties which concern the public interest He is required specially to enforce certain criminal statutes enacted for the general public good, and which are a part of the general machinery adopted to suppress crime and promote the public well-being. We think there is much ground for holding that he is a part of the executive department of the state, within the meaning of the Constitution. But it is unnecessary in this case to decide that question. We prefer to place our decision upon another ground.

The answer to the question before us does not necessarily depend upon constitutional or statutory provisions. The doctrine of the incompatibility of offices is bedded in the common law, and is of great antiquity. At common law two offices whose functions are inconsistent are regarded as incompatible. The debatable question is: What constitutes incompatibility? This question has been answered by the courts with varying language, but generally with the same sense. We cite a few examples:

"Two offices are incompatible when the holder cannot in every instance discharge the duties of each. The acceptance of the second office, therefore, vacates the first." The King v. Tizzard, 9 B. & C. 418.

This language is cited with approval by this court in Stubbs v. Lee, supra.

"Incompatibility * * * must be such as arises from the nature of the duties, in view of the relation of the two offices to each other." Bryan v. Cattell, 15 Iowa, 538.

Incompatibility arises "where the nature and duties of the two offices are such as to render it improper, from considerations of public policy, for one person to retain both." Abry v. Gray, 58 Kan. 148, 48 Pac. 577.

"Incompatibility between two offices" exists when there "is an inconsistency in the functions of the two." People ex rel. Ryan v. Green, 58 N. Y. 295.

"The functions of the two must be inconsistent, as where an antagonism would result in the attempt by one person to discharge the duties of both offices." Kenney v. Goergen, 36 Minn. 190, 31 N. W. 210.

"The test of incompatibility is the character and relation of the offices, as * * * where the function of the two offices are inherently inconsistent and repugnant." State v. Goff, 15 R. I. 505, 9 Atl. 226, 2 Am. St. Rep. 921.

"The true test is whether the two offices are incompatible in their natures, in the rights, duties, or obligations connected with or flowing out of them." State ex rel. Clawson v. Thompson, 20 N. J. Law, 689.

The foregoing cases may also be cited in support of the doctrine that acceptances of the latter of two incompatible offices vacates the former. See, also, Cotton v. Phillips, 56 N. H. 220; People v. Carrique, 2 Hill (N. Y.) 93; Van Orsdall v. Hazard, 3 Hill (N. Y.) 243; Magie v. Stoddard, 25 Conn. 565, 68 Am. Dec. 375; 3 Com. Dig. tit. Officer (K. 5); Mechem on Public Officers, § 420. An office holder is not at common law ineligible to appointment or election to another and incompatible office, but the acceptance of the latter vacates the former.

Now, to apply those principles to the present case: The police court of Rockland has a civil and a criminal jurisdiction. It has exclusive jurisdiction under its charter over all such offenses committed within the limits of the city of Rockland as are cognizable by trial justices. P. & S. Laws of 1909, c. 368. It has jurisdiction of violations of any statute where the offense is not of a high and aggravated nature. R. S. c. 133, § 4. It has exclusive jurisdiction of all offenses against the ordinances and by-laws of the city of Rockland. P. & S. Laws 1903, c. 114, § 3. It has jurisdiction of all offenses against the prohibitory liquor statute, except for keeping drinking houses and tippling shops and for being common sellers of intoxicating liquor. R. S. c. 29, § 60. It may, on complaint, cause to be arrested all persons charged with felonies, offenses, and misdemeanors, and, when an offense is found to be one not within its jurisdiction for trial, it may cause the offender to recognize with sufficient sureties to appear before the Supreme Judicial Court. R. S. c. 133, § 5.

The charter of the city of Rockland (P. & S. Laws 1905, c. 122) provides as follows:

"Sec. 3. The mayor of said city shall be the chief executive officer thereof; it shall be his duty to be vigilant and active in causing the laws and regulations of the city to be executed and enforced; to exercise a general supervision over the conduct of all subordinate officers, and cause violations or neglect of duty to be punished."

"Sec. 5. The executive powers of said city generally, and the administration of police and health departments, * * * shall be vested in the mayor and aldermen."

The statutes of this state (chapter 29, § 65) provide that:

"The mayor and aldermen, *...