By the Court,
Cole, J.From the statement of facts agreed upon by the respective parties and filed in this case, it appears that on the 6th day of April, 1S58, at the annual election, held for the purpose of electing city and ward officers for the city of Watertown, the relator received nineteen votes for police justice, which were all the votes cast for any person for that office, and that the relator forthwith qualified according law; received from the city clerk a certificate of election ; and demanded from the respondent, (who was acting as police *706justice under a special election duly ordered on the 5th of January, 1858, to fill a (vacancy existing or supposed to exist in that office), the books and papers relating to said office which the respondent refused to deliver. It further appears that at the same election the relator was elected to the office of justice of the peace for the third and fourth wards of said city, duly qualified for the last mentioned office, and has been and still is acting as justice of the peace for the third and fourth wards of said city.
Assuming for the purposes of this case, so far as the rights of the relator are concerned, that the main proposition relied upon by him to establish his rights to the office is sound, to wit: that the term of office of Samuel Baird, who was first elected police justice, was fixed by Section 15, Art. 7, of the constitution, for two years, the same as that of a justice of the peace, and we are still of the opinion that judgment must be given against the relator. By the sixth section of the city charter, approved March 29th, 1856, as amended, (See Private Laws of 1856, Chap. 327, and Private Laws of 1857, Chap. 332,) it is, among other things, provided that the elective officers of said city shall be one justice of the peace, who shall be denominated a police justice ; one justice of the peace for the first and second wards ; one for the third and fourth wards, and one for the fifth and sixth wards, thus clearly indicating that it was the intention of the legislature to give to said city four justices, one of whom should be a police justice, and clothed with all the authority, powers and jurisdiction conferred upon that office by the charter of the city, and the acts amendatory thereof. Now it is to be observed that the relator was elected a justice of the peace for the third and fourth wards of the city, and is now discharging the duties of that office. Can he, while holding this office, also exercise and discharge the duties of police justice? We consider that the two offices are clearly incompatible with each *707other, and that one person cannot and should not hold both of them at the same time. In the plainest terms the charter gives the city four judicial officers of the grade of justice of the peace; while if the relator could make good his right to the office of police justice, it would in fact have but three. To show that the two offices were not incompatible, and could be held by the same person at the same time, we were referred to the case of Commonwealth against the sheriff and keeper of the jail of Northumberland county, 4 S. & R. 275, where it was decided that the offices of justice of the peace and associate judge of court of common pleas were not incompatible.
We do not think the two cases analagous, and therefore shall not go into an examination of the Pennsylvania case. (See Milward vs. Thatcher, 2 T. R. 81.)
This sufficiently disposes of the question as to the relators right to the office of police justice.
The information in this case, in conformity to chapter 126, R. S., not only sets forth that the relator is lawfully entitled to the office of police justice, but also alleges that the respondent has usurped and intruded into the same without lawful authority, and it therefore becomes necessary to pass upon the right of the respondent to this office. By the original charter, section 6, it is in effect provided that among the elective officers of the city, there should be a police justice, who should hold his office for one year and until his successor was elected and qualified. From this it is apparent that Samuel Baird, the first police justice elected in April, 1856, having only such civil and criminal jurisdiction as was conferred upon his office by law, at most, could exercise the duties and jurisdiction of his office for the time prescribed in the charter. He was inhibited from exercising this jurisdiction by the charter beyond the year, and until his successor was qualified. It was insisted upon the argument that a police *708justice was in fact nothing more than a justice of the peace, and that when the office was created by the charter, the constitution came in and fixed the term for two years. This argument, however, if pushed to its logical consequences, would go to the extent of showing that Baird was no officer under the constitution, and could not legally perform any judicial functions. Whether this was so or not, we shall not now stop to inquire. For, as already remarked, if Baird could exercise any judicial function whatever, under the constitution and charter, he could only do so for one year, the the period limited by the charter. By chapter 487, Private Laws, 1856, the charter was amended, and the term of office of the police justice was fixed at two years. Consequently there can be no doubt but that Gill, who was elected in April, 1857, was lawfully entitled to hold the office for two years. Whether he entered upon it as the successor of Baird, or the first rightful incumbent,. the consequence is the same, he could properly hold it for two years. He having resigned the office, the respondent was elected on the 5th of January last, to hold for the residue of the unexpired term of Gill.
Since the argument of this case, our attention has been called to the decision of this court in the case of O’Connor, (unreported,) in which case it is supposed we held that Baird was in fact nothing more than a justice of the peace for the city of Watertown. The case of O’Connor came before this court on a writ of certiorari to the county judge of Jefferson county, to determine the correctness of an order made by him, discharging on habeas corpus O’Connor from imprisonment, who had been duly convicted by Baird for selling liquor without license, under chapter 162, Session Laws 1851, and was committed for non-payment of the fine imposed on such conviction. The case was submitted to this court without argument or briefs, and no point was made as to the right of Baird to act as justice. We took it for granted *709that he was duly elected as justice, and qualified to act in matters arising under that law, and as the mittimus was regular and proper on its face, we reversed the order of the ' county judge, discharging O’Connor from imprisonment.
That was the extent of the decision in that case.
The conclusion to which we have arrived, is that judgment must he given against the relator, and establishing the respondents right to the office.