Justices of Spencer County Court v. Harcourt

• Decision Date: 06 May 1844
• Citation: 43 Ky. 499
• Parties: Justices of Spencer County Court v. Harcourt.
• Court: Kentucky Court of Appeals

43 Ky. 499

Justices of Spencer County Court v. Harcourt.

Court of Appeals of Kentucky.

May 6, 1844

Offices incompatible. Mandamus.

APPEAL FRON THE SPENCER CIRCUIT.

Harlan & Craddock for appellants.

OPINION

EWING CHIEF JUSTICE.

The case stated

THE Justices of the Spencer County Court made a rule on A Harcourt, to show cause why the Court should not make an order declaring that the office of Justice of the Peace, the duties of which the said Harcourt was then exercising, should not be vacated, upon the alleged ground that he was, before the issuing of his commission as Justice of the Peace, and ever since, holding the office and exercising the duties of Postmaster at Mount Eden, under the government of the United States. Harcourt appeared in Court and admitted the truth of the facts alleged. Whereupon the County Court made an order declaring his seat as a member of the Court vacant.

Harcourt obtained a rule from the Circuit Court against the Justices, to show cause why a peremptory mandamus should not issue to restore him to his seat on the County Court bench, and to his rights and privileges as a Justice of the Peace. The Justices responded to the rule, showing the above admitted facts, which were again admitted by Harcourt in the Circuit Court. Whereupon the Circuit Court made an order for peremptory mandamus against the Justices, and they have appealed to this Court.

1st. Will an appeal to this Court lie? The statute of 1796, (1 Stat. Law, 128,) authorizes an appeal where the judgment or decree of an inferior Court is final, and amounts, exclusive of costs, to thirty pounds, " or relates to a franchise or freehold." The office of Justice of the Peace, or the right to exercise the duties thereof, is a franchise; it confers on the Justice the right to try causes, and to receive the fees and emoluments of the office, and if qualified, according to seniority, to obtain the office of Sheriff, with all its fees and emoluments: (3 Jacob's Law Dictionary, 123.) The controversy before us " relates, " therefore, " to a franchise, " and an appeal will lie to this Court.

An appeal lies to this Court from the decision of the Circuit Court awarding a peremptory mandamus to the County Court, requiring them to restore to his seat on the bench of the County Court one whose seat they have declared vacant by their order.

2nd. It is the right and duty of the Justices of the County Court to recommend to the Executive a suitable person to fill the office of Justice of the Peace whenever the same is vacant and as incident to this power they must determine whether the...