
    *Thomas C. Amory v. The Justices of Gloucester.
    Justice of Peace — Deputy Clerk — Incompatible Offices 
      
       —The offices oí a Deputy Clerk of a County Court, and of Justice of the Peace of the same county are incompatible offices, so that they cannot both be held at the same time.
    Same — Acceptance of Office of Deputy Clerk — Mandamus. — Whether the acceptance of the office of Deputy Clerk vacates the office of a Justice of the Peace, or not, the Superior Court will not grant a Mandamus to compel the County Court to admit the Applicant to an office not belonging to him, if void, or which might be taken from him, if voidable.
    The Plaintiff being in the Commission of the Peace for the county of Gloucester, qualified as Justice in May, 1814, and continued to exercise the functions of the office until 1817, when he was duly qualified as Deputy Clerk of the County Court, and acted as such until January, 1826. In the following month, he was permitted to resume his seat as a Justice, the Court being then of opinion, that he had not vacated that office by acting as Deputy Clerk. He was, thereupon, nominated with two others, by the County Court, to the Executive, for the Sheriffalty, and he was the first named on the list. The Executive Council being of opinion that his office was vacated, refused to advise his being commissioned, and referred the nomination back to the County Court. That Court then decided that his office of Justice was vacated.
    The Plaintiff then petitioned the Superior Court of Gloucester, for a peremptory Mandamus, to be directed to the Justices of the County Court, commanding them to admit the petitioner to the exercise of the duties of his office, or to make a rule to shew cause why he should not be so admitted.
    The Superior Court adjourned to this Court the following questions:
    1. Are the offices of Deputy Clerk of the County Court, and of Justice of the Peace of the same county, incompatible?
    2. Does the acceptance of the office of Deputy Clerk of a County Court, vacate the office of a Justice of the Peace of the same county, held at the time of such acceptance?
    3. Ought the Court in this case to make a rule upon the Justices to shew cause why a Writ of Mandamus should not issue, commanding them to admit the petitioner to exercise *the duties of his office as Justice, or ought the Court at once to grant a peremptory Mandamus?
    It was argued by Leigh, on the part of the Plaintiff; 1. That whether the manner of this appointment, or the nature of the service be regarded, the office of Deputy Clerk can hardly be considered as a public office. He is appointed by the Clerk at his own pleasure; he acts in virtue of that appointment only; he need not be accepted or approved by the Court; the Court is bound to admit him when the Clerk names him, and the Clerk may dismiss him in spite of the Court. As to his service, the Clerk prescribes his duty; he receives his wages from his principal, not from the public; his acts are all performed in his principal’s name, and by bis authority only; he is responsible to his principal only, not to the public. Such a Deputy’s office, is in its nature a private office; an agency: the taking of an oath of office, does not make it a public office; an administrator, and many other private officers, are required to take an oath of office. It is not like the office of a Deputy Sheriff; he cannot be admitted without the approbation of the Court, and he is in many other respects recognized by Law as a public officer, directly' responsible for the due discharge of his duty. If the Deputy Clerkship be only a private office, surely the acceptance of it cannot vacate the higher, legal, public, freehold office of Justice of the Peace.
    2. That if the Deputy Clerkship were a public office, the duties thereof are not by any means necessarily incompatible with those of a Justice of the Peace. What the Deputy is to do as Clerk, depends on the order of his principal, or on the agreement between the Deputy and principal. If the Deputy transact office business only, and the Clerk perform the duty in Term time, there is no incompatibility. As the County Court has recommended him for the Shriev-alty, the presumption is, that the duties have not been in this instance, incompatible.
    3. The office of Justice in a freehold office, concerning the administration of justice; and, though such an office may be forfeited by abuser, by nonuser, or by refusal to discharge its duties, yet in order to determine the office, the officer must be convicted of the offence in a regular prosecution, and judgment of a motion pronounced against him. A Justice of the Peace continues Justice -de facto and de jure, until he be thus amoved. This results from *Magna Charta, which provides, that no man shall be dis-seised of his freehold, but by lawful judgment of his peers, or by the Daw of the land. 1 Rev. Code, ch. 166.
    On the part of the Defendants, it was argued by Robertson, Attorney General. He said it was a well-established principle, that the same individual shall not hold incompatible offices. There may not be a physical, but there surely is a legal, incapacity to execute at the same time, the duties of two offices, one of which is subject to the control of the other. Upon this ground, it has been settled, that the Chief Justice cannot be made Prothonotary of the same Court, or Clerk of the papers: (Vin. Abr. “Officer,” R. 7:) the Remembrancer of the Exchequer, Baron of the Exchequer: or a Town Clerk, Mayor, or Justice of the Peace, or Alderman of the same borough. (Com. Dig. “Officer,” K. 5.)
    He could not perceive in this respect, any sound distinction between the offices of Deputy and principal Clerk. Every man is said to be a public officer, who has any duty to perform concerning the public: he is not the less a public officer, where his authority is confined within narrow limits, because it is the duty of his office, and the nature of that duty, which makes him a public officer, and not the extent of his authority. The Deputy Clerk is appointed, not to take charge of his principal’s private affairs, bufas his aid and substitute in the performance of public official duties. He is recognized as an officer by the Legislature, who require him to take an oath for the faithful discharge of those duties, and impose on him a heavy penalty for presuming to act without taking such oath. He is bound to make such entries as the Court may direct, and entrusted with the care and preservation of the public records. It is true, that he is removable at the will of his principal, but this only serves to characterize the tenure, not to change the nature, of his office.
    As to the question, whether disqualification can attach until after regular trial, and judgment of a motion, he thought no such proceeding was necessary or proper in this case. The making a Justice of Common Pleas, Justice of the King’s Bench, it is said, determines his former office. (Vin. Abr. “Officer,” R. 3.) Acceptance of one office, (incompatible,) vacates the other. (Doug., 398; 2 Term Rep. 81.) If two offices, says Lord Mansfield, be incompatible, *the acceptance of the latter is an implied surrender of the former. (3 Burr. 1616.) In corroboration of this doctrine, it may be remarked, that the acceptance of an appointment under the Eederal Government, by an officer of the State Government, contrary to the Daw of the State, (1 Rev. Code, p. 71,) has always been considered as occasioning immediate disqualification, without the necessity of trial and conviction. He said that the Act of 1821, ch. 26, if to be considered as introductive of a new Daw, would not apply to this Case, but he thought it was merely declaratory of what the Daw then was, and was intended to remove doubts supposed to prevail in relation to the existing Law.
    
      
      Offices— Incompatible. — The principal case is cited in Com. v. Tate, 3 Leigh 804, which holds that, the office of deputy sheriff is incompatible with the office of justice of the peace, though by the statute law of Virginia the office of high sheriff is not so; and the acceptance of the office of deputy sheriff vacates the office of justice. See also, citing the principal case, Bunting v. Willis, 27 Gratt. 160.
    
    
      
      Mandamus. — See principal case cited in foot-note to Ex parte Morris, 11 Gratt. 292.
    
   The Court, after conferring on the subject, entered the following judgment:

“1. The Court are unanimously of opinion, and doth decide, that the offices of a Deputy Clerk of a County Court, and of a Justice of the Peace of the same county, are incompatible.
‘ ‘2. It is unnecessary to decide the second question, because the Court is unanimously of opinion, and doth decide, that, whether the acceptance of the office of Deputy Clerk of a County Court, vacates the office of a Justice of the Peace of the same county, or not, in this Case, the Superior Court ought not to make a rule on the Justices to shew cause why a Writ of Mandamus should not issue to admit the Plaintiff to execute the office of Justice of the Peace, and that the said Court ought not to grant a peremptory Mandamus.” (Chew v. The Justices of Spottsylvania, ante, p. 208.)  