Rodman v. Harcourt, & Carico
| Citation | 43 Ky. 224 |
| Court | Court of Appeals of Kentucky |
| Decision Date | 17 October 1843 |
| Parties | Rodman <I>vs</I> Harcourt & Carico. |
THIS was an action of trespass brought by Rodman against Harcourt and Carico, for taking and carrying away the horse and divers sheep of the plaintiff. Carico, by his separate plea, justified the taking as Constable, and under an execution against the plaintiff for $50, &c. issued by Harcourt, an acting Justice of the Peace; and Harcourt justified as a Justice of the Peace, showing that as such, he had issued a warrant against the plaintiff, at the suit of Harrison's administrator, pronounced judgment and issued the execution against him. To each of these pleas the plaintiff replied in substance, that when and before Harcourt issued the execution and rendered the judgment and received the commission of a Justice of the Peace, he was in the enjoyment and exercise of the office and profits of a Post-master, under the government of the United States, and was exercising and holding said office. Demurrers to each of the replications were sustained, and judgment having been rendered against the plaintiff in favor of each of the defendants, he prosecutes a writ of error.
It being admitted by the demurrers, that Harcourt, who had rendered the judgment and issued the execution under which the plaintiffs property was taken by Carico was a Postmaster under the United States' government, at the time he received a commission as a Justice of the Peace of this Commonwealth, and that he continued to hold and exercise that office and enjoy its profits after he received the commission, and when he rendered the judgment and issued the execution. The plaintiff relies upon the 17th Section of the 6th Article of the Constitution of Kentucky, as rendering void his commission or acceptance of the office of Justice of the Peace and all his acts done in that character; and contends that consequently both Harcourt, who issued the execution directing the seizure of his property, and Carico, who obeyed it, are trespassers and liable to this action.
By the section of the constitution referred to, it is declared that "no person holding or exercising any office of trust or profit under the United States, or either of them, or under any foreign power, shall be eligible as a member of the General Assembly of this Commonwealth, or hold or exercise any office of trust or profit under the same." There can be no doubt that a Postmaster, acting as such under the government of the United States, holds an office under that government, which by the above quoted clause of our constitution, is incompatible with the office of a Justice of the Peace of this Commonwealth; and the constitution, as applied to his case, expressly prohibits his holding or exercising the latter office, while he holds and exercises the former. What then is to be the effect of his acts, done in the character of a Justice of the Peace? Is he rightfully a Justice of the Peace? Can he protect himself against liability for forcible acts done under his command, by saying he commanded them in virtue of his office as a Justice? And will his precept protect the Constable who has obeyed it?
These are grave, and so far as we know, entirely novel questions, occurring as they do in consequence of the incompatibility of two offices exercised by the same person, under commissions emanating from two distinct, and in this respect, independent governments.
It is not denied that these two offices are incompatible, but it is contended that the legal consequence of that incompatibility is, that by the acceptance of the office of Justice of the Peace under this government, the incompatible office pieviously held, is, ipso facto, vacated, and that on this principle, Harcourt is rightfully a Justice of the Peace, and exercises the office of Postmaster wrongfully, and that consequently, his lawful acts and rights as a Justice should not be affected by his wrongful acts as a Postmaster. But will this argument satisfy the constitution, which in effect declares, that no person who holds or exercises the office of Postmaster under the United States shall hold or exercise the office of Justice of the Peace under this State? Does it not, on the contrary, involve an absolute surrender of the prohibition declared by our constitution?
If an office, incompatible with one previously held, be accepted by an individual who admits or knows the incompatibility, the acceptance of the second implies a renunciation of the first; and if the two offices emanate from the same government which declares them to be incompatible, the acceptance of the second may be regarded as, ipso facto, a vacation of the first, since the government having power over both offices, can and will enforce the renunciation implied in that act, by regarding the first office as vacated, by prohibiting or even punishing any attempt further to exercise it, or by filling it with another at its pleasure.
The common law principle which declares the first office vacated by the acceptance of another, which is incompatible with it, is applicable to cases where the two offices are held under the same authority or under authorities of which one is in strict subordination to the other. For in other cases, and especially in the present, however consonant the conclusion that the first office is vacated by acceptance of the second, may be with reason and good conscience, still as mere reasoning cannot vacate an office, the only practical effect of admitting the conclusion that the first office is vacant because the second has been accepted, when in point of fact the first is still held and exercised as it was before, and as must be presumed, with the approbation of that government which alone has the power of effectually determining whether it is or is not vacant, is to permit both offices to be exercised by the same person, notwithstanding their incompatibility; and thus in effect to annihilate the constitutional prohibition or leave its vindication to another government which makes no such prohibition and acknowledges no such incompatibility.
The right of Harcourt to hold and exercise the office of Postmaster does not depend upon the constitution and laws of Kentucky, but upon the constitution and laws of the United States, and they establish no incompatibility. By those laws, and by the will and confidence of the constituted authorities of that government, he is allowed to hold and exercise the office of Postmaster, notwithstanding his acceptance of an office incompatible with it by the constitution of this State. There is no power in Kentucky to enforce the implied renunciation or vacation of the office of Postmaster, if there be, under the circumstances, any such implication from the acceptance of the appointment as Justice of the Peace. She has no power to punish or prevent the continued exercise of the former office, or effectually to treat such continued exercise as illegal, or to put another into the office. The declaration, therefore, by her or by her judicial tribunals, that the office of Postmaster was vacated by the acceptance of that of Justice of the Peace, is worse than nugatory, if it be made as the basis of the legal conclusion that, therefore, the holding and exercise of the office of Justice of the Peace, is lawful, though the incumbent still, in fact, holds and exercises that of Postmaster. The effect of such a course of reasoning would be to allow the same person to hold and exercise the two incompatible offices in direct violation of the constitutional prohibition, and without any means left for its enforcement. For if it be admitted that he lawfully holds and exercises the office of Justice, notwithstanding his continuance to hold and exercise, (though unlawfully as the argument assumes,) the office of Postmaster, there could be no just ground for punishing him, by impeachment or otherwise, for his exercise of the former office, since that, (according to the argument,) would be lawful under our constitution and laws, and there is no power to punish him for the exercise or alledged usurpation of the latter, since the legality of his acts in that office and his right to hold it, depend upon the laws of another government, to which belongs exclusively the power of determining whether they are broken and of vindicating their breach. A course of argument which thus leads to a conclusion that would render the State of Kentucky powerless for the maintenance of her own constitution, as to a matter in regard to which she has the undoubted right to prescribe a rule binding upon herself and her citizens, must be radically defective; and the defect consists in attempting to point the force of the rule against the holding of an office over which she has no power, and pretends to none, instead of directing it against the exercise of that office which is of her own creation, and over the qualifications for, and terms of holding which, she has complete and undisputed power.
The people of Kentucky could not say in their ...
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