Compatibility of the offices of 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) (</-135 -......0- RICHARD S, COHEN ATTORNEY GENERAL David Cole Town Manager China, Maine 04926 Dear Mr. Cole: S·t'A'l'E Ol~ MAINE DC:l'AH.'l'MC:N'l' 01" '!'UC: A'r1·ou,NC:Y GC:NC:1(.AL AUGUS'l'A, MAINE 04333 July 10, 1979 STlll'HllN L, 01AMONU JOHN S. GLEASON JOHN M. R. PATERSON ROBERT J, STOLT DEPUTY ATTORNEYS GENERAL We would like to take this opportunity to respond to your oral request for an opinion from this office regarding the compatibility of the positions of notary public and constable·. You should note that ordinarily this Office would not issue a formal legal opinion on a request such as yours because it does not• fall within the statutory provision under which we are authorized to issue such opinion. 5 M.R.S.A. § 195. We have, however, researched this question a number of times and thus are able to supply you with the requested information. The offices of notary public and constable have been held to be incompatible both by courts, see, Pooler v. Reed, 73 Me. 129 (1882), and in opinions rendered by this office, Opinion of the Attorney General, March 15, 1968; Opinion 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 Muina prohibits a member of one branch of government from holding u po~;;L tion 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 that no one person can hold two governmental positions whose functions are, or might be, inconsistent. See, Howard v. Harrington, 114 Me. 446 (1916). We are,• of course, aware of the limited way ln wh.Lch you exercise your cunstabulary power; that is, only for the posting of the warrant for the town meeting pursuant to 30 M.R.S.A. § 2052. A similar argument was made to the court and rejected in the case of Stubbs v. Lee, 64 Me. 195 (1874), in which the court found that tho offices of deputy sheriff and "trial justice" were incompatible. Page 2 Hence, even in light of your limited use of your powers as a constable, we remain of the opinion that tho offices of notary public and constable are incompatible. It should be noted, for your information, that 30 M.R.S.A. § 2052, the statute dealing with the requirements of the warrant for a town meeting, contains an alternative provision allowing the warrant to be directed "to any person ,by name • • • " and allowing that named person to post the warrant. 30 M.R.S.A. § 2052(3), (4). Hence, you need not be a constable in order to post tho warrant, so long as it designates you by name as the person who is to notify the voters. We hope that this information addresses your concerns. If you have any further questions, please feel free to contact this office. SLD:mfe Enclosure Very truly yours, . ..-..,I STEPHEN L. 'DIAMOND Deputy Attorney General •, March lS,. 1968 Mr. Grc:1'hum 1'!. Zoll Uuckfiold. Maine It has just b0en called to the attention of this office that you aro at.tompt.ing to hol.cl tho officos of Notary l?ublic, Ju.otico of i:.he J?C;)ace., and Constable of tlle '.L'own of Buckfield. Tho positions of Notary J?ublic and Justice of tho Poaco are incora- patiblo with that oJ; a cont..table. You CiU'lnot. l,old all tllrou offices. This fact was establl.liihed by the case of Pooler v. need,. 73 Me. 129. ~n that case the court said: . "l;(i::; ar:\point.mcnt to an accoptc;mco of tho off ico of Just~ce of the Peace., after his election and qual- ification as constablo,. must be held to boa ourrondor of the offj.cfl of c::onstablo. Stubbs v. Leo,. 64 Mo. l~5. •• , According to the records of the secretary of stato, you woro commissioned A ~otary PUblic and a Justice of tho ~oaca on July 11, l963. I understand that you were appointed imd qualifiod ao a con::.tablc in Juno,. l966,; posoibly earlior .. but at loust you wo.):'o appointed at. that t.iw.e. Your appointment as a con~tablo l1avin9 come lat~~ t:.an y~u.r commission aa a ~otary Public and Justico of the l?oase means tbat you are duly qualified aa a conotablo but are no louse~ a Notary'l?Ublic or Justice.of the ~oaco. ~ou must cease f.-oin acting aa·. a :tilotary Public or Juotico of the l?eace. GCW:B cc; Doz-is Haye:;:. • . . Vory truly youru,. Geori;;o C. Wost Deputy Attornoy Gonoral Mr. Charles Althenn Wayne Mai110 Dear Sir: It hae juut been calleo. to tho attention of tl1ia of.fico that you are attempting to hold both the office of Notary l?ublic and constable. 'l'hoae two (.)()~ition~ a.i;e incompat.iblo and you cannot hold both of th~n. This fact wao establi~hod J' by the case of Pooler--v. Reed,. 73 Me. 129. In that caue ·t.he court aaid: "His appoin'bnent to an acccptar,cc of tl10 oJ.;.C.l.~c of Ju:3tice of the l?eace., after his election .:.nd quill- ification as con~table., must be hola to boa currcn~cr of tl1e: office of con.stable. stubba v. Lee., G4 Mc. l':)!.>." According to the records of tho Secretary of LJtato., you qualified aa a Notary l?Ublic Octobor 6., l9(il. l.C you l1avo boon appointed constable aince that clat01 you are no longor a No'l~i.u:y Public and uhould not pe.-form functions in that capacity. J:f., on the othe. hand., your il.ppointment ai;; conotalilo w.,.u prior to that date., tl1en you are no longer a conotabla u.n<l ohould not perform dutiea of that office. · It is hi<Jhly imp;i;obable thi>.t you would lli>.VO boon appointo<l a constable prior to that date without having boon roappo~ntca. It would appear that probably your apt'X)intmont anu quali£ication as a constable was ~ubaequent to October 6., l96l., uo t.l1at prob- ably you are a duly qu~lified conetable but are not~ uuly qualified Notary Public. Mr. Charles Althenn March 25, 1966 l folt J: should advioo you oo that you will not porform acts which might occasion troubles and problems for you. GCW:H Very truly yours, George c. west Deputy Attorney General ) I I i; ,, j': ,, ·, i I ', I I I' I