Gallalee v. Calvert

Lewis, P., delivered the opinion of the court. It appears by the record that at the time of the petitioner’s appointment as registrar for the fourth ward of the city of Portsmouth, he was in the employment of the United States in the Gosport navy yard; that he has since continued in that employment, and has regularly received for his services a stipulated compensation. Where no provision is made for that purpose by the constitution, the legislature is empowered to declare the cases in which any office shall be deemed vacant. Constitution, art. Y; sec. 22. And by an act approved February 22, 1884 (Acts of Assembly 1883-84, p. 181), it is declared that any person holding any post of profit, trust, or emolument under the government of this state, or any town, city or county thereof, who shall receive in any way from the United States any emolument whatever, or who accepts any post of profit, trust or emolument, or employment; in any capacity, under the government of the United States, shall ipso facto vacate his post under the government of the state, town, city, or county, as the case may be ; and it is made the duty of the proper authorities of the commonwealth to take such action as may be necessary to fill' the vacancy so created whenever the fact of such vacancy shall be brought [563] to then- attention. The petitioner must, therefore, be held to have waived his right to the office of registrar by his continuance in the employment of the United States, and consequently that office must be deemed to be vacant. The rule is discharged. Richardson, J., dissents.