
    *DECEMBER TERM 1832.
    JUDGES PRESENT.
    
      Smith, Scott,
    
    
      Daniel, Leigh,
    
    
      Field, J. B. Brown,
    
    
      R. B. Taylor, Fry.
    
    The Commonwealth v. Sherrard.
    December, 1832.
    Justice of Peace — Disqualification—Incompatible Office —Effect of Resignation Thereof. — By the statute of 1821-3, ch. 26, if a justice, of the peace is appointed to and accepts an office under the government of the U. States or any other incompatible office, he thereby vacates his office of justice of the peace; his resignation of the incompatible office will not restore him to the office of justice of peace; nor can he ever lawfully exercise this office, without a new commission.
    Case adjourned from the circuit superiour court of Hampshire. At October term 1831, a rule was made upon Sherrard, to shew a cause why an information in the nature of ■ quo warranto, should not be filed against him for exercising «the office of justice of the peace of the county of Hampshire, without any legal warrant or authority. The rule was enlarged till October term 1832, when Sherrard appearing to shew cause, the following facts were agreed:
    That Sherrard was duly appointed and commissioned a justice of the peace for the county of Hampshire, in October 1818, and was duly qualified, by taking the oaths required by law, in March 1819; that he had, thenceforth, continued to act as justice of the peace, till the present time: that, in October 1828, he was duly appointed by-the government of the U. States, assistant post master at Sherrard’s store in Hampshire, and took the oaths prescribed by the laws of the U. States for assistant post masters; and his appointment of assistant post master was placed on file at the general post office at Washington : and that he resigned his office of assistant post master, before the rule upon him to shew cause why the information should not be filed, was made:
    Whereupon, the circuit superiour court, with the defendant’s consent, adjourned the following questions to this court: Whether, upon the facts agreed, leave ought to be granted to file the information? and whether the defendant’s acceptance of the office of assistant post master had, under the circumstances of the case, incapacitated him from holding the office of justice'of the peace?
    
      
      Justices of Peace. — See generally, monographic note on Justices of the Peace" appended to Wallace v. Com., 2 Va. Cas. 130.
    
    
      
      Public Officer — Disqualification—Incompatible Office-Effect of Resignation Thereof. — where a public officer accepts an incompatible office, he thus forfeits the first office and creates an actual vacancy in the same; and he can in no manner affect the first office by what he does in the second, and therefore a resignation of the incompatible office cannot restore him to the first office, or in any other manner affect it. Shell v. Cousins, 77 Va. 332. and Bunting v. Willis, 27 Gratt. 162, both citing the principal case as their authority.
    
   PER CURIAM.

The second section of the statute of the 26th February 1822, concerning the disqualifications of justices of the peace, seems to remove all difficulty on this subject. That statute provides, “that the acceptance of any office under the government of the U. States, or of deput3r sheriff in any county within the commonwealth, or of any other office incompatible with that of justice of the peace, agreeably to the existing laws, except the office of high sheriff of any county, shall in like manner vacate the commission of the justice so accepting such office, and he «shall thereafter be disqualified to-act as a justice of the peace, unless under the authority of a new commission.” There can be no question, that an assistant post master holds an office under the government of the U. States; and it is of no consequence, that the defendant had resigned that office, before this prosecution was commenced ; for by the acceptance of it, his commission as a justice was absolutely vacated, and he became forever disqualified to act as such, unless under the authority of a new commission.

Therefore, this court is unanimously of opinion, that upon the facts agreed and stated in the record, leave should be granted to file an information in the nature of a quo warranto against the defendant, to remove him from his office of justice of the peace: and that the acceptance of the office of assistant post master by him, under the circumstances, did incapacitate him from holding the office of justice of the peace, unless under the authority of a new commission. 
      
      Sess. Acts of 1821-2, ch. 26, Supp. to Rev. Code, ch. 114, p. 175.
     