Magie v. Stoddard

Hinman, J. The defendant in this case pleads in abatement, that the officer who undertook to serve the writ as a constable of New Haven, had, a few months previous to his election as such constable, been duly elected and qualified as a justice of the peace, and on this ground it is claimed that he could not by law hold the office of constable, and therefore his attempted service of the writ is no service, and the same should abate and be dismissed. The replication sets up the attempts of the officer to resign hi§ office of justice of the peace, in various ways, before he was qualified as a constable. But it is hardly necessary to discuss the question whether he really succeeded in divesting himself of his judicial functions, in any of the modes in which he attempted to do so; or whether he had a constitutional right to hold the office of constable, even if he was unsuccessful in attempting to resign; because, assuming that the statute which provides that no judge or justice of the peace, shall hold the office of sheriff or constable, is a valid act under the constitution, or that the two offices are so incompatible that the same person can not at the same time hold both of them, which amounts [568] to about the same thing, we still think that the acceptance of the office of constable would of itself be a surrender of the office of justice of the peace. In the case of Milward v. Thatcher, 2 T. R,., 81, it was held that accepting the office of town clerk vacated the office of jurat of the corporation of Hastings, although the office of clerk was inferior to that of jurat, the jurats sitting as judges in a court of record. This decision, which appears to us to be founded upon correct principles, is sufficient to dispose of the case. We omit therefore to discuss the question whether the service would not be good on the ground that the officer was a constable de facto, whose acts are good as between third persons, although he might himself be disqualified from holding the office. We advise the superior court to render judgment for the plaintiff. In this opinion the other judges, Storrs and Ellsworth, concurred. Judgment for plaintiff' advised.