Shell v. Cousins

Citations

• 77 Va. 328
• 1883 Va. LEXIS 62

Syllabus

<p>1. Constitution-Sheriffs-Incompatible offices.-Article seven, section six, provides that, “sheriffs shall hold no other office.” Therefore any other office is incompatible with that of sheriff.</p> <p>2. Sheriffs-Second office-Amotion-Vacancy.-The sheriff’s acceptance of a second office actually vacates the sheriffalty. And no judgment of amotion is necessary where an office has been forfeited by removal or by the acceptance of an incompatible office. When the office of sheriff is thus made vacant, it becomes the duty of the county court judge to fill the vacancy in the mode prescribed by law.</p> <p>3. Idem-Idem-Resignation.-Sheriff’s resignation of the second office, after by its acceptance he has vacated the first, cannot restore him, nor otherwise affect the first.</p> <p>4. Circuit Court-County Judge-Prohibition.-As the law makes it the duty of the county court judge to fill the vacancy in the sheriffalty, the circuit court has no authority to issue a writ of prohibition to restrain this exercise of his jurisdiction. If he exercises it erroneously, the remedy is by appeal. Prohibition lies only in case of transcending jurisdiction. This court has ever discouraged the employment of a writ of prohibition as a process to correct the errors of inferior tribunals, and thus usurp the functions of the writ of error.</p>