Montana Attorney General Opinion 15-127

Opinion No. 127 Shetiffs-Police Officers-Compatabil- ity of Offices-Cities and Towns. HEIJD: A county sheriff iliay not also serve as cbief of police officer of an incorporated city "ithin his county at one and the same time. lVIarch 31, 1933. You have requested an opinion from this office as to wbether a sheriff of a county may also serve as a chief of police or a police officer of an incor- pora ted city "i thin his county, atone and the same time. "At common law the holding of one office does not of itself disqualify the incumbent from holding another office at the same time, provided there is no inconsis- tency in the functions of the two of- fices in question." 46 C. J. 941, !)42. The common law, insofar as it does not con- flict "i th the Constitution of the Unit- ed States, the Constitution and statutes of this sta te, has been adopted. (Sec- G672 R C. lVI. 1921. "Incompatibility of office * .. .. exists only as prescribed bv the con- stitution or laws or by rea'son of in- compatibility of duties". Coleman v. Hurst, 11 S. w. (2) ]33. There is no constitutional nor statutory provision in this state prohibiting the sheriff of a county from serving at the same time as chief of police of a city in the same county. This reduces your proposition to the question of whether or not "in- compatibility of office" is involved. "The offices must be subordinate, one to the other, and they must, per se, ha "e the ri~ht to interfere, one with the other, hefore they are incompati- ble at common law". People y. Green. 58 N. Y. 2!)5. "Offices nre incompati- hie * * * when the nature and duties of the two offices are such as to render it improper, from considera- tions of public polic~', for one person to retain both". State v. Wittmer. 50 ~Iont. 22. In the above case 'Wittmer while a member of the city council: was appointed by the council to the I)Osition of Imrchasing agent of the cit~·. As councilman he would have more or less supenision o"er the pm'chasing agent and authority to pass upon and a!low claims of the latter against the cIty. That was clearly an instance of incompatibility as weB as a case flgainst public policy. The case of Stfl te Y. Bobst. 218 X. W. 25.g (Iowa) rather closely applies to the question you submit. The court sflid in that case: "Gathering its ideas from the eflrlv forms of government in America, thi's state adopted the township and city ~rS!el~lS as sepflra te and di;;tinet jlll:- IschctlOns for the administra tion of justice and the presen'ation of peace. * • * Within the purview of the legislative purpose under the enact- ments referred to, is a dty marshall, in addition to two constables. * * " Less thfln three was not contem- plated. Morem'er, it is part of the theory that each court should hare an officer immediately at its command all the time * .. *. Perhaps at the same moment dril writs or crim- inal warrants from hoth courts would demand sen-ice at the identical time. Answer to this pl'Oposition does not exist in the assertions that under the authorities cited mere physical ah- sence does not create the incompati- bility. As a matter of fact bodily the appellant in this instance' is pres: eut "ithin the dty and townShip, but OPI:\"IO:\"S OF THE .ATTOH~EY GENERAL 97 he cannot serve the justice court be- cause he owes allegiance to the may- or'" court. PermL'>Sion for him to do this means minimization of the public "en'ice, abrogating of the statutory requirements, and departure from our original governmental forms. Public policy, and not physical absence, causes the incompatibility", The Supreme Court of 10lya based its decision upon Section 5657 defining the duties of a city marshal and Sec- tion 10629, defining the duties of a con- staule, (1924 Iowa code.) Nothing in either of said sections re- fers to either of the incumbents hold- ing any other office, uut each merely outlines the respective duties, and no refel'ence is made in the decision to any other constitutional or statutory provision, Because of the pressing necessity of economy under present conditions, our na tural inclina tion bas been to try to find convincing authority to authorize the shedff of ~'our county to act as chief of police of the city of Bane at the same time, but the authorities are to the contrary.