Compatibility of the positions of justice of the peace or notary public and constable

MAINE STATE LEGISLATURE The following document is provided by the LAW AND LEGISLATIVE DIGITAL LIBRARY at the Maine State Law and Legislative Reference Library http://legislature.maine.gov/lawlib Reproduced from scanned originals with text recognition applied (searchable text may contain some errors and/or omissions) RICHARD S. COHEN ATTORNEY GENERAL S'l'EPHl.iN L. DIAMONIJ JOHN S. GLEASON JOHN M. R. PATliRSON RomlRT J. ST01.-r 79-13'-f DEPUTY ATTORNEYS GtNEHAL S·1wn: cw MA1N1•: Dl!:PAH.'l'Ml!:N'l' 01" 'l'Hl!: A'l"l'OU.Nl!:Y Gl!:NJ.rn.AL AUGUS'l'A, MAINE 04aaa Edmond L. Pelletier Chief of Police Greenville, Maine 04441 Dear Chief Pelletier: July 10, 1979 We would like to take this opportunity to respond to your written request, dated July 1, 1979, for an opinion f:rom this office regarding the compatibility of the positions of justice of the peace or notary public and constable. These offices have been held to be incompatible both by. courts, see, Pooler v. Reed, 73 Me. 129 (1082), and in opinions render.ad. by this office, Opinion of the Attorney General, March 15, 1968; oeinion of the Attorney General, March 25, 1966, copies of which opinions are enclosed herewith. The rationale behind such decisions and opinions is that the Constitution of tho State of Maine prohibits a member of one branch of government from holding a position in, and exercising the power of, another branch. See,~' Opinion of the Attorney General, September 4, 1974. Further, under principles of common law, it has been stated thut no one person can hold two governmental positions whose functions ur.o, or might be, inconsistent. See, Howard v. Harrington, 114 Me. 446 (1916). We hope this information addresses your concerns. If you huvo any further questions, please feel free to contact this office. SLD:mfe Enclosures Very truly yours, J ~ ·"). . L,) ~ STEPHEN L. DIAMOND Deputy Attorney General March 15,, 1968 Mr. Crcl'hum l!. ~all Buckfield Maine It has just boon called to the attention of this office that you aro attompting to hold tho offico~ of Notary ~ublic, Ju~tico of i:he Peace., and constable of the 'I'own of nuckfiold. 'l'lle positions o~ Notary l?Ublic and Justice of tho Poaco arc incom- patible with that of a constable. You c~not hold all throo offices. 'l'his f.:,.ct was estabJ.isho'1 by tllo case of Poolo):- v. Reed, 73 Me. 129. In ·that case the court said; . 11riis a.1;,i;-.ointxncnt to an acceptance of tlio oJ;f'ico of Just~ce of the Peace, after his election and qual- ification as constablo, must bo hold to boa ourron<lor of tho off;i.cf) of c;:onstable. Stubbs v. Loo, 64 Mo. l!.>5." , According to the recor'1s of tho Secretary of stato, you woro comro.iosicned a ~otacy Public and a Juutico of tho Pcaco on July 11, 1963. I understand that you were appointed and qualified au u con:ltablc in Juno., 1!;>66.; posoibl.y oarl.ior, but at loust you woro appointed. at. that time. Your appointment as a cont.itablo 1,avin9 come late~ t~an y~ur commission a:. a Notary Public and Just.ico of tho Poase means that you are auly qualified aa a con~tablo but are no longez: a 1'1ota.J;y 'Public or Just.ice of tllo l)oaco. You must ceaae from acting aa.a l.'lota;a;y J?ublic or Juot.ico of tho Peace. GCW;H cc: Doris Ha:,te~ • • George c. west Deputy Atto~noy Gonoral March 25 1 l~6G Mr,. Charles Althenn Wayno Maino Dear sir: :S:t hall jl.l.8t beon callecl to tho i.l.tt.ent.ion o-.C thi'-> of.{;J.co that you are attempting to hold both the office of Notary l?ublic and con~ta'ble. 'l'houe two poa:Ltion~ are incomi;,atibla and you cannot hold both of thein. This fact waa eatabli~hod by the case of Pooler v. Recd, 73 Me. 129. In tl1at cauo ·the court aaid; 0H~ appointment to an acccp·t"2.nco 0£ tl,o oJ.;.CJ.~c of .Justice of the Peace., after hiu election .:..ncl quill- ification as conutabl.e., mu'1t be liolQ. to 'bo a ctn:rcnctc:r of tl1.e office of con.ltable. St.l:.bbu v. r..uc., C>4 Mc. lQ~." According to the records of the Secretary of Stato, you qualifiecl aa a ~otary l?U,blic October C., l~~l. J:.L: you lH\VO boQn appointed conatal:>le .aince that elate., you are no longor a l.'JOl:.iu.:y Public and uhould not pe~form functions in that. cypacity. If., on the other hand., your appointment aw conutablo wi;l.u prior to that. date., tllen you ai:o no longer a conatablo und should not perform. duties of that offico. It is highly improbable that you would havo boon appointau c:>. conotablca prior to that date without having boon roappoint,ou. It would a.ppeai: that probably your arJl.:>Ointincnt and '-lualiJ.:icn.-t.:.ion as a constable waa ~ubsequent to October 6, l96l, tJO that p:cob- ably you are a duly qualified conatable but aro not a duly qualified ~otary Public. I Mr. Charles Althenn -2- March 25., 1966 :C :Colt l ahoul<l advioo you oo thilt you will not porform acts which might occasion troubles and problems for you. GCW;H Very truly yours, George c. west Deputy Attorney General