State v. Goff

• Decision Date: 05 March 1887
• Citation: 9 A. 226,15 R.I. 505
• Parties: STATE ex rel. METCALF, Atty. Gen., v. GOFF.
• Court: Rhode Island Supreme Court

9 A. 226

15 R.I. 505

STATE ex rel. METCALF, Atty. Gen.,

v. GOFF.

Supreme Court of Rhode Island.

March 5, 1887.

Quo warranto.

Charles E. Gorman and J. Osfield, Jr., for relator.

Frederick N. Goff, respondent, pro se ipso.

STINESS, J. The respondent became justice of the district court of the Eleventh judicial district, July 1, 1886. He was appointed and qualified as a deputy-sheriff in the county of Providence, July 21, 1886. The question before us is whether he vacated his office as justice of the district court by accepting the office of deputy-sheriff. It is well settled that, when a person accepts an office incompatible with one which he then holds, he thereby impliedly resigns or vacates his former office. State v. Brown, 5 R. I. 1; Cotton v. Phillips, 56 N. H. 220; State v. Buttz, 9 Rich. 156; People v. Carrique, 2 Hill, 93; Magie v. Stoddard, 25 Conn. 565; Stubbs v. Lee, 64 Me. 195; People v. Nostrand, 46 N. Y. 375.

We have to inquire, then, whether these two offices are incompatible. In deciding this question, we are not much aided by the cases cited on the relator's brief, for about all of those cases rest upon some constitutional or statutory provision. Thus in Connecticut a statute declared that no judge or justice of the peace should hold the office of sheriff or constable. In Maine the constitution provided that no person belonging to either one of the three departments of the government should exercise any of the powers belonging to another. The opinion of the justices (3 Me. 484, 486) held that the offices of justice of the peace and sheriff were incompatible because of this provision; the former office being judicial, the latter executive. In New York the constitution prohibits a sheriff from holding any other office, and upon this rests the case of the People v. Nostrand. In Virginia and Louisiana, also, there are constitutional limitations.

In cases where the question of incompatibility of offices has arisen independently of statutory or constitutional provision, two rules are generally recognized:

First. That incompatibility does not depend upon the incidents of the offices, as upon physical inability to be engaged in the duties of both at the same time. For example, in People v. Green, 5 Daly, 254, it was held that the office of member of the legislature and clerk of the court of special sessions might be held by the same person, even though attendance upon one office prevented, for the time being, the performance of the duties of the other.

This point was approved on appeal. People v. Green, 58 N. Y. 295. These opinions contain an elaborate review of the early cases, and clearly point out the tests by which the question of incompatibility is to be determined. So, too, in Com. v. Kirby, 2 Cush. 577, 580, the court says: "It has never been supposed that persons holding minor offices appertaining to the executive department of the government, such as deputy-sheriffs, constables, or coroners, were thereby disqualified from holding seats in the legislature. The same was formerly true of the judges of the court of common pleas, who frequently held the office of senator or representative while in commission as judges, and were only disqualified by the statute of 1820, and the eighth article of the amendments of the constitution, adopted in 1821."

Second. The test of incompatibility is the character and relation of the offices, as, where one is subordinate to the other, and subject, in some degree, to its revisory power; or where the functions of the two offices are inherently inconsistent and repugnant. In such cases it has uniformly been held that the same person cannot hold both offices. In Hex v. Pateman, 2 Term R. 777, it was declared that, where a town clerk acts ministerially under the aldermen, who are judicial officers, one cannot hold both offices. Much stress is laid upon the fact that the accounts of the clerk were subject to the revision and control of the aldermen. Rex v. Tizzard, 9 Barn. & C. 418, is to the same effect. In Cotton v. Phillips, 56 N. H. 220, where one was chosen a member of the prudential committee and also an auditor in a school-district, it was held he could not hold both offices. The court says: "If the same person could hold both offices, he would in fact sit in judgment on his own acts." In England a sheriff's duties are ministerial, and, to a limited extent, also judicial. While these peculiar...