Dissenting Opinion.
Thaxter, J.I fully agree with the majority opinion to the extent that it holds that the two offices of mayor of the City of Biddeford and judge of the Biddeford Municipal Court are incompatible and cannot both be held by the same person at the same time.
The question in this case, involving as it does the purity of the ballot and the right to public office, is a very sensitive one, and I dislike to have to differ with my associates on a matter of this kind.
The law on this point has been clearly expressed by this court. The ban against holding incompatible offices whether it be by the constitution, by statute, or by the common law, ordinarily is not directed against one who seeks two incompatible offices but against the exercise of the duties of those incompatible offices. Thus, unless it is expressly forbidden, *512a person may run in an election for an office incompatible with one which he holds, or be appointed to such an office. Howard v. Harrington, 114 Me. 443. It is only when such person either expressly or by implication qualifies for the second that he is held to give up the first. Stubbs v. Lee, 64 Me. 195; 42 Am. Jur. 940. The principle is well stated by Justices Emery, Whitehouse and Peabody of our own court as follows:
“II. The Constitution, Art. 4, Sec. 11, does not declare that the holder of an office of profit under the state shall not be elected to the legislature,— shall not be eligible to an election, — but simply declares that he shall not ‘have a seat in either house during his continuing in such office.’ Hence he need not resign his office before his election to the legislature. It is enough if he resigns it at the time of taking his seat in the legislature, and such resignation may only be by taking his oath or seat. The right of the electors to elect whom they will to any elective office is to be construed liberally, as abridged only by the express terms of the constitution or statute and not by mere implication. Barker v. People, 3 Cowen, 688. Thus, it has been judicially held that one who is an alien at the time of his election may yet take the office if he be naturalized after his election. .....” Opinion of The Justices, 95 Me. 564, 586.
What does the majority say here? They concede that these general principles are good law, and that a person may be elected to an office incompatible with one he holds. He is all right until he qualifies or, in the opinion of the majority attempts to do so, for the new office. When however he seeks to enforce the right given him by his election, and to protect the rights of the people who elected him, he finds himself, in the opinion of the majority, unable to do so.
A person may do everything necessary to attain office, announce his candidacy, file primary nomination papers, con*513duct his campaign, tell the voters of his qualifications,— everything except to see that the votes are properly counted. When he takes the proceedings permitted by sections 85-90 of Chap. 5 of the Revised Statutes of 1944, protecting the integrity of elections, he is out of luck.
Such a doctrine does not to me make sense. The authorities cited to sustain it are not in point. This is particularly so in the case of General Blair. I have read the full record in this case with great care. He for more than a month voluntarily and deliberately failed to qualify for the office of representative to Congress from Missouri while he continued to serve as a major general in the Union army. How could we find a clearer intention than that to abandon the rights given to him by his election to Congress ? Here there was no intention by Mr. Lesieur to abandon his rights to his election as mayor of the City of Biddeford at all. Quite the contrary. He asserted those rights forcefully from the first in the manner in which the statute permitted him to do so.
This court must do one of two things. Either we must repudiate the doctrine which has always been held in this state, which has been for a long time set forth by some of our greatest judges such as Chief Justices Appleton, Emery and Whitehouse, or we must hold that Mr. Lesieur did not, because of service as judge of the Municipal Court, abandon his claim to have been honestly elected to the office of mayor of the City of Biddeford. There is no alternative. The gist of the opinion in Stubbs v. Lee, supra, certainly substantiates this; and in all the Maine cases which hold that acceptance of one incompatible office is an abandonment of the other we must remember that there was a voluntary election between the two.
Howard v. Harrington, supra, cited in the majority opinion, is a particularly instructive case. After having been elected mayor of Rockland, Howard was appointed by *514the governor judge of the police court of Rockland, an incompatible office with that of mayor, and was commissioned as such judge. By qualifying as judge the case holds correctly that he gave up his right to claim that he was elected mayor. How could he have more clearly shown that he waived his claim that he was elected mayor than by qualifying for his judgeship?
The majority seem to me to have been more concerned with the chronology of events than with what those events show to have been the intention of the parties.
By contesting his right to the office of mayor of the City of Biddeford, Mr. Lesieur would not thereby give up the office of judge of the Biddeford Municipal Court while the mayoralty contest was pending.
We must not forget the language of Chief Justice Appleton in Stubbs v. Lee, supra, at page 198, which states the general rule to be “that the acceptance of and qualification for an office incompatible with one then held is a resignation of the former.” It is not just the “acceptance” of an office which vacates another incompatible one, but the “qualification” as well as the “acceptance” which does so.
What I am trying to say is simply this: “If the appellee, Mr. Lesieur, had the right to run in the election for the incompatible office of mayor of Biddeford, he had the right to see that the votes were properly and fairly counted in that election when he ran for that incompatible office.”
I think that the appeal should be dismissed and that we should proceed in accordance with Sections 85-90 of Chap. 5 of the Revised Statutes to determine the result of the election. It is an onerous job to do so but I think such is our duty.
Sidney St. F. Thaxter