Such is the law today, and is found in Sections 138 and 146 of Volume 1 of Howell's Annotated Statutes. The force and weight to be given to this legislative construction upon a constitutional question like the one under consideration, cannot be too greatly valued. From this review of the different provisions of the constitution, when read in the light of the elementary principles of law which I have referred to, and the authorities, there is no escape, in my opinion, from the conclusion reached, that the absolute power of appointment, for the entire residue of the unexpired term of the office in question, does not reside in the Governor, and that the office should be filled at the coming election. Yours respectfully, FRED A. MAYNARD, Attorney General. Compatibility of two Offices-Justice of the Peace and Captain of the Thirty-Third Michi gan Volunteer Infantry. Under the provisions of the State constitution (Sec. 5, Art. VII), and the Michigan statutes (Sec. 649, How.), a person does not lose his residence by engaging in the service of the United States army or forfeit the office of justice of the peace; and, in accordance with the law, the two offices are compatible. CAPT. FRANK P. GRAVES, Benton Harbor, Mich.: MY DEAR SIR-Your letter of 28, inst., at hand, and contents noted. As I understand the matter, the facts upon which you desire my opinion are these: In 1896, you were elected to the office of justice of the peace in and for the city of Benton Harbor, for the term of four years from and after the fourth day of July, 1896, and duly qualified, and entered upon the discharge of the duties of said office. On the eighteenth day of May, 1898, you accepted a commission as captain of the 33rd regiment of Michigan Volunteer Infantry, and soon thereafter left the State in company with your regiment, returning to Benton Harbor about the fourth day of September, 1898, and at this time are about to be mustered out of the service of the United States; that prior to your leaving the city of Benton Harbor you notified the city authorities that you did not intend to vacate or abandon the office of justice of the peace, but would return at the earliest possible moment and resume the duties thereof; that upon the twenty-second day of September, 1898, the common council of the city of Benton Harbor attempted to declare the office of justice of the peace, to which you had been elected, vacant by reason of the fact that you had accepted such commission in the service of the United States army. In the light of these facts, you wish to know whether or not, as a matter of law, a vacancy was created in your office by reason of the fact that you accepted a commission as captain in the United States Volunteer army. The only provision in our State constitution that has a bearing on the matter, is Sec. 5, Article VII, which provides: "No elector shall be deemed to have gained or lost a residence by reason of his being employed in the service of the United States or of this State," etc., and this provision of the constitution does away with any question that could be raised on the theory of your having removed from the State or the city of Benton Harbor. Act 215 of the Public Acts of 1895, being the charter for cities of the fourth-class, of which Benton Harbor is one, does not provide for the removal of justices of the peace from office, and I am therefore of the opinion that this question rests entirely with the general laws of the State, but said charter does provide in Sec. 15 of Chapter V that a removal from the city vacates the office, but this question is not in this case, as I have pointed out, by reason of the constitutional provision which is quoted above. Sec. 649, Howell's Annotated Statutes, provides as follows: "Every office shall became vacant, on the happening of the following events, before the expiration of the term of such office: 1. The death of the incumbent. 2. His resignation. 3. His removal from office. 4. His ceasing to be an inhabitant of this State, if the office be local, of the district, county, township, city or village, for which he shall have been elected or appointed, or within which the duties of his office are required to be discharged. 5. His conviction of any infamous crime, or of any offense involving a violation of his oath of office. 6. The decision of a competent tribunal, declaring void his election or appointment; or, 7. His refusal or neglect to take the oath of office, or to give or renew any official bond," etc. As none of the events above enumerated have happened in the case in question, it is plain that no vacancy exists that is recognized by the statutory law of the State. There remains to be considered this one question of law, viz.: is the office of captain in the United States Volunteer Army incompatible with that of justice of the peace in and for the city of Benton Harbor in the State of Michigan? If, under the common law rule, these two offices are incompatible, then the acceptance of the latter office vacates the first, but if no incompatibility exists, then the acceptance of the second office does not vacate the first, and you would be entitled to hold your office of justice of the peace until the expiration of the term for which you were elected, and qualified. What then, is meant by the word "incompatibility?" Mechem on Public Officers, Sec. 422, defines it as follows: "This incompatibility which shall operate to vacate the first office. exists where the nature and duties of the two offices are such as to render it improper, from considerations of public policy, for one person to hold both. It seems to be well settled that the mere physical impossibility of one person's performing the duties of the two offices as from lack of time or the inability to be in two places at the same moment, is not the incompatibility here referred to. It must be an inconsistency in the functions of the two offices, as judge and clerk of the same court, claimant and auditor, and the like." "Where one office is not subordinate to the other, nor the relations of one to the other such as are inconsistent and repugnant, then there is not," says Folger J., "that imcompatibility from which the law declares that the acceptance of the one is the vacation of the other." "The force of the word, in its application to this matter is, that from the nature and relations to each other, of the two places, they ought not to be held by the same person, from the contrariety and antagonism which would result in the attempt by one person to faithfully and impartially discharge the duties of one toward the incumbent of the other. Thus, a man may not be landlord and tenant of the same premises. He may be landlord of one farm and tenant of another, though he may not at the same hour be able to do the duty of each relation. The offices must subordinate, one to the other, and they must, per se, have the right to interfere, one with the other, before they are incompatible at common law." In the case of State v. Goff, R. I. 9 Atlantic Reporter, 226, the court uses this language: "In cases where the question of incompatibility of offices has arisen independently of statutory or constitutional provisions, two rules are generally recognized: First, That incompatibility does not depend upon the incidents of the offices, as upon physical inability to be engaged in the duties of both at the same time. Second, The test of incompatibility is the character and relation of the offices, as where one is subordinate to the other, and subject, in some degree, to its revisory power; or where the functions of the two offices are inherently inconsistent and repugnant." This common law rule is again clearly defined in the Am. & Eng. Enc. Law, 562w, as follows: "The incompatibility which will operate to vacate the first office must be something more than the mere physical impossibility of the performance of the duties of the two offices by one person, and may be said to arise when the nature. and duties of the two offices are such as to render it improper, from consideration of public policy for one person to retain both." This language was quoted as establishing, beyond question, the rule at common law, in the case of Abry v. Gray, Kansas, 46 Pac. Rep. 577. One of the leading cases in this country defining the common law rule, is the case of People ex rel. Ryan v. Green, 58 N. Y. 295, and is cited by Mr. Mechem in support of his position, as above stated. In this case, Ryan was holding the office of deputy clerk of the court of special sessions of the city and county of New York, and also member of the legislature, and the incompatibility of the two offices was considered by the court. I desire to quote from the opinion of the court in this case, as follows: "Nor is the office of a member of assembly, in the legal sense of the word, incompatible with that of the deputy clerk of the court of special sessions of the city and county of New York. It may be granted that it was physically impossible for the relator to be present in his seat in the assembly chamber, in the performance of his duty as a member of that body, and at the same time at his desk in the court doing his duty as deputy clerk thereof. But it is clearly shown in those opinions, (opinions delivered in the court below) that physical impossibility is not the incompatibility of the common law, which existing, one office is ipso facto vacated by accepting another. Incompatibility between two offices, is an inconsistency in the functions of the two; as judge and clerk of the same court, etc., where one office is not subordinate to the other. nor the relations of the one to the other such as are inconsistent and repugnant, there is not that incompatibility from which the law declares that the acceptance of the one is the vacation of the other. The force of the word, in its application to this matter is, that from the nature and relations to each other, of the two places, they ought not to be held by the same person, from the contrariety and antagonism which would result in the attempt by one person to faithfully and impartially discharge the duties of one toward the incumbent of the other. Thus, a man may not be landlord and tenant of the same premises. He may be landlord of one farm and tenant of another, although he may not at the same hour be able to do the duty of each relation. The offices must subordinate, one to the other, and they must per se, have the right to interfere, one with the other, before they are incompatible at common law." The case of Bryan v. Cattell, 15 Iowa, 538, is a case somewhat similar to the one under consideration. Bryan was elected to the office of district attorney for the fifth judicial district for four years from and after the first day of January, 1859. In July, 1861, he was commissioned cap tain in the 1st Iowa Volunteer Cavalry for three years or during the war. His salary was paid him until the first of January, 1862. Sometime after receiving his commission as captain he left the State of Iowa, and was engaged in the military service of the United States for a long period of time, during which he did not discharge any of the duties of the office to which he was elected. Prior to the year 1862, the laws of the State of Iowa were practically the same as they are in this State today, in declaring what events, the happening of which, would create a vacancy in any civil office, but in the year 1862 a law was passed and took effect April 2, 1862, whereby the acceptance of a commission to any military office, either in the militia of the State or the service of the United States, whereby the incumbent was required to be absent from the state for more than sixty days, would vacate a civil office. Bryan instigated proceedings to collect his fees as district attorney from and after the first day of January 1862, and the court allowed his pay up to the first of April, 1862, at which time it was held the new law went into effect and created a vacancy which had been filled by the Governor. In discussing the question of incompatibility of these two offices, the court used this language: "But what is meant by incompatibility? Does it cover every case where the incumbent places himself in such a position that he cannot, for the time being, discharge the duties of the first office? Or does it embrace those cases where the nature of the duties of the two offices are such as to render it improper, from considerations of public policy, for him to retain both? Looking to the common law, we are of the opinion, that the incompatibility must be such as arises from the nature of the offices or their relation to each other." Again: "And that incompatibility, as here used, must be such as arises from the nature of the duties, in view of the relation of the two offices to each other, seems to have its foundation in reason." It would be possible for me to quote at great length from the many cases laying down this doctrine as the common law rule on the question of incompatibility, but the rule as above stated is so well and firmly established that I cannot see how it would be possible to seriously question it, and in the absence of any constitutional or statutory provisions in this State, whereby the rule at common law is changed, and our constitution expressly stating than an elector shall not gain or lose a residence by reason of his being employed by the State or in the service of the United States, I am of the opinion that a vacancy does not exist in the office of justice of the peace for the city of Benton Harbor to which you were elected and qualified. Sec. 1222 of the Revised Statutes of the United States, which is as follows: "No officer of the army on the active list shall hold any civil office, whether by election or appointment, and every such officer who accepts or exercises the functions of a civil office shall thereby cease to be an officer of the army and his commission shall be thereby vacated," is an army regulation of the United States, and pertains to the Regular United States Army, and has absolutely nothing whatever to do with creating a vacancy in a civil office in this State. Yours respectfully, FRED A. MAYNARD, Game law-Entering upon premises of another in open season to kill game. MR. G. E. COLEMAN, Gaskill, Mich. : ATTORNEY GENERAL'S OFFICE, ) MY DEAR SIR-I am in receipt of your letter of recent date, requesting my opinion on the following question: "Can I enter upon the premises of another person in the open season and kill game, and would a person be a trespasser and liable to prosecution for hunting on premises containing a notice prohibiting hunting," etc. Act 199 of the Public Acts of 1877 makes it a misdemeanor punishable by fine and imprisonment to enter upon the enclosure of another to hunt, without the consent of the owner-and the owner would have a right of action for trespass for such act. From such examination as I have been able to give the matter, I have not been able to find any statute prohibiting Sunday shooting. Yours respectfully, FRED A. MAYNARD |