
    JUNE 3, 1802.
    N. Richardson v. The Justices, &c.
    
      Upon a motion for a Mandamus to be awarded him against the defendants commanding them to admit him to a seat as a justice of said county, or to show cause to the contrary.
    
    The 'officés of sheriff and justice of the peace arc, under the constitution, incompatible, and can not be filled by the same individual.
   It is stated by the justices as a reason why they refused to permit the plaintiff in this motion, to sit as a justice of the county court, that he has accepted the office of sheriff of the county of Franklin, subsequent to his appointment as a justice of the peace for the said county. The only question to be determined is, whether the office of sheriff and that of a justice of the jieace are incompatible. The first section of the first article of the constitution declares “that the powers of government shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy; those which are legislative to one, those which are executive to another, and those which are judiciary to another.” The second section states, “ no person or collection of persons, being of one of these departments, shall exercise any power properly belonging to either of the others, except in the instances herein expressly permitted.” Under which of these departments will these offices be classed, that of sheriff under the second, and that of justice of the peace under the last. If this be correct, it will follow that the two offices are rendered incompatible by the constitution, and moreover, by a law passed in 1792, it is declared that any person holding any office, who shall acceirt of anothex*, which by the constitution is incompatible with his former office, such former office shall be thereby vacated. The plaintiff, then, by his acceptance of the office of sheriff, has vacated his former office »of justice of the peace of Franklin county. Therefore, it is considered by the court, that the motion aforesaid be overruled.  