1842.

ing postmasters is pointed out in the first section of the gen- CALEDONIA, March, eral law. Postoffice Laws, 3. Here the law confers on the postmaster general the power of establishing and appointing postmasters at all such places as shall appear to him expedient on the post roads that are or may be establish- Balch et al. ed by law.

It is contended by the plaintiff that the appointment thus made does not come in purview of the prohibitory clause of the constitution of Vermont, $26, congress not making the appointment directly, neither as it regards the small offices, they being made as above stated, nor as it regards the large ones, they being made on the nomination of the President with the advice and consent of the senate. This construction presupposes that various officers of the United States government receive their appointment by the joint action of the two houses of congress, and that that constituted the authority of congress meant by the constitution. Such is not the fact. No officer is or ever has been so appointed by congress, except when the people have failed to elect a president or vice president. But, to give such a construction, the expression of the 26th section of the constitution is overlooked and the obvious intention of its framers disregarded, in fact, nullified. The expression is, nor shall any person holding any office ' of profit or trust under the authority of congress.' Here reference is unquestionably had to the authority creating and sustaining the office; and two powers are put in contradistinction the state, and the congress of the United States. If the office of postmaster is conferred by the authority of this state, then it is not incompatible with the office of justice, both emanating from the same source; but if it is not so conferred, it necessarily follows, the two powers being in contrast, that it must be under the authority of congress, with which the various clauses of the United States constitution and the post office laws, before cited, fully concur.

But although this may be an office under the authority of congress, other questions arise. Is it either an office of profit or trust? for if neither, the offices may not for other reasons be incompatible; but if either, being established under the authority of congress, the incumbent shall not hold an executive or judiciary office under this state.

In the second section of said act, page 4, it is provided

McGregor

v.

1842.

McGregor

CALEDONIA, that all persons employed in the care, custody or conveyance March, of the mail, shall previous to entering upon the duties assigned to them, or the execution of the trust, and before they shall be entitled to any emolument therefor, take and subscribe the oath prescribed. And the third section provides for the giving of bonds; and the fourteenth section points out the profits, varying from fifty to eight per cent., on the amount of letter postages received, &c.

v.

Balch et al.

As to the second question. Is a justice's office, when it has for its object the trying of causes, a judiciary office? The answer to this proposition seems too self evident to admit of serious argument to the contrary, more especially before the judices, the head of the judiciary. But as to the character of a justice's office we are not left to speculative theory to guide us as in an unexplored field, but have the judgment of the supreme court of the United States declaring it to be a judiciary office. Wise v. Wilkins, 3 Cranch. 335.

The justice, before whom the writ was made returnable, could neither de facto nor de jure hold and exercise the office of justice, the constitution, which is the paramount law of the land, not permitting such an union.

Our next inquiry is, can the defendant avail himself of the provisons of the constitution, or is that instrument, although by name the charter of our rights, to be a dead letter? If the constitution is to be a closed book to the court, as to one article, it must as to all, and if open as to one it is so as to all. But is there a question how they shall be made acquainted with it. In other words, is the court to set at nought the constitution unless the lawyer, by some particular mode, call their attention to it? In the oaths of office and allegiance the affiants swear that they will not directly or indirectly 'do any act or thing injurious to the constitution or govern'ment thereof as established by convention,' and that they 'will faithfully execute their office according to law.' If the constitution is to be disregarded under the solemnities of such an oath, it is but a rope of sand.

In the case of Marbury v. Madison, 1 Cranch, there is a full exposition of the binding powers of the constitution on courts as received by the supreme court of the United States. In claiming it to be the duty of the court to arrest the proceeding in the only way the party could reach it, in

March, 1842.

McGregor

D.

Balch et al.

the present suit, is not admitting but that the party may have CALEDONIA, other remedies if he fails here. But, to that, it is a sufficient answer that the other remedies would be attended with unnecessary expense. If the state's attorney, on proper affidavits, should move this court for leave to file an information, in the nature of a quo warranto, against Calvin Morrill, on account of his usurping and wrongfully using the office of justice of the peace, when he is a postmaster under the authority of congress, and praying to have him removed from the office of justice, I have no reason to believe the court would sustain the motion. It would seem to be a sufficient answer for the court to say, his term of office, as justice of the peace, will expire before we can try the information, therefore the motion ought not to be granted. 2 Johns. R. 184. Or the court might say, if any person be injured by his acts as a justice of the peace, he may be sued as a trespasser, and on this ground refuse the motion. Johns. R. 190. But, admitting that the injured party may have a remedy by filing an information, in the nature of a quo warranto, against this usurper of office, it does not follow that the injured party may not plead to the jurisdiction of this pretender and thereby prevent his trespassing any further. If the facts are sufficiently disclosed by the plea, the court can then judge whether he be a justice of the peace or not. These facts may be pleaded in abatement as well as the fact that he is related to one of the parties within the fourth degree of affinity or consanguinity.

2

The repeated animadversions of the council of censors and the practice of the legislature should have weight on this subject, with the court. In the last legislature there were several cases arising under this clause of the constitution, two of which are now in mind, the member from Moretown in the house of representatives, and senator Aikin, from Caledonia county, both of whom were deprived of their seats by reason of being postmasters; not that they had acted as such after being sworn and taking their seats in the legislature, but that they were so at the time of their election on the ground that the election itself was a nullity. It may be further remarked that the respective houses did not feel themselves trammeled by any rules, nor by an express statute law, which would govern them in an ordinary conVOL. XIV. W. R. IV. 55

CALEDONIA, tested election, that the person whose seat is contested

March, 1842.

McGregor

v.

Balch et al.

should have notice to be present at the taking of testimony a given period before the session.

As to the pleading to the jurisdiction, it is believed that this course is fully sustained by the following authorities.— 1 Saunders' Pl. & Ev. 1, and the authorities there cited. Richardson v. Denison, 1 Aik. R. 210. The People v. Judges of Madison, 7 Cowen, 423-4. Waters, qui tam, v. Day, 10 Vt. R. 487. State v. Bachelder, 6 Vt. R. 479. Putney v. Bellows, 8 Vt. R. 272. Gilman v. Thompson, 11 Vt. R. 647-8. Atkins v. Brown, 3 Cowen, 206. Latham v. Edgerton, 9 Cowen, 227. Borden v. Fitch, 15 Johns. R. 141. Mills v. Martin, 19 Johns. R. 33.

The opinion of the court was delivered by

WILLIAMS, Ch. J.-The question is whether this suit should be dismissed on account of the alleged constitutional ineligibility of the justice to exercise a judicial office.

The constitution declares "that no person, holding any 'office of profit or trust under the authority of congress, 'shall be eligible to any appointment in the legislature, or of ' holding any executive or judiciary office under this state."

In the first place, we have no doubt that the office of postmaster is an office both of profit and trust, under the authority of congress. The office itself is created by act of congress, and all the regulations in relation thereto, are made and established under the same authority. So that the question is so far divested of the doubt which has been sometimes entertained, whether other offices under the general government, for which no act or proceedings of congress were made or required, are or are not within the spirit or letter of the prohibition created by the constitution.

Neither can there be any doubt that a justice of the peace is a 'judiciary officer.' Most of his powers and duties are of a judicial nature and concern the administration of justice.

From these considerations it would result that any one was incapable of holding both these offices at the same time. There is, however, a marked distinction in the terms made use of, in relation to appointments in the legislature, and to executive or judicial offices. In the one case such person

v.

Balch et al.

is declared to be ineligible to any appointment in the legis- CALEDONIA, March, lature. Hence, if appointed to the legislature, while holding 1842. an office under the authority of congress, the appointment McGregor has uniformly been vacated. But the change of the phraseology, or of holding any executive or judiciary office,' necessarily creates this obvious difference ;-that such person may be eligible, or may be elected, to an executive or judicial office, but, in such case, if he accept the office under the authority of the state, he must abandon the one held under the authority of congress, and if he continues to hold the latter, he cannot, consistently with the provisions of the constitution, hold the former. The practical construction of this clause of the constitution has been to this effect. Whenever a person, holding such office under the authority of congress, has been elected to the legislature, his election has been declared void whenever the subject has been brought to their notice. On the contrary, both the people and the legislature have elected persons holding such offices, both to executive and judicial offices, repeatedly, considering them as eligible to such appointment, though incapable of holding and exercising both at the same time.

On this part of the case, we are all of opinion that Morrill could not, consistently with the requirements of the constitution, hold and exercise the offices of postmaster and justice of the peace at the same time. And although he might be eligible to the latter office, yet he must abandon the former, and could not hold them both.

It will follow, from this, that, either on a quo warranto, or in any suit to which Morrill was a party, where he attempted to act, or to justify his acts, by virtue of and under his commission as a justice of the peace, it might be replied that he was incapable of holding that office, and, as to him, he would be treated as having no authority whatever to act, or justify his acts, as such justice, while he held the office of postmaster under the authority of congress.

But a more important question still remains to be considered in this case, that is, whether, in this suit, between other persons, and to which he is not a party, his acts and authority can be called in question and decided.

The distinction between an officer, de jure, and de facto, is well known and well established, and the consequences