Opinion.

"I think the acceptance of the latter does absolutely and ipso facto avoid the former, although the superior office, if they be incompatible; and if they be incompatible, the election to the latter office is good, because the acceptance of the second vacates the first office, and if two offices be incompatible the acceptance of the latter vacates the former." It is not necessary that there shall be a judgment of amotion when an office has been forfeited by removal, or the acceptance of an incompatible office. The acceptance of an incompatible office actually vacates any other office which the officer may hold. The rule has been stated in broad and unqualified terms that the acceptance of an incompatible office, by whomsoever the appointment or election might be made, absolutely determined the original office, leaving no shadow of title in the possessor, whose successor may be at once elected or appointed, neither quo warranto nor amotion being necessary. See Dillon on Municipal Corporations, section 164, and Barnwall & Creswell R. 893; 77 New York, 503; 2 Hill, 93, and Angell & Ames on Corporations, section 434. It does not matter that the party had and could have no legal title to the second office. If the acceptance of an incompatible office, to which the party elected has a good title, operates as a surrender or deprivation of the former office, the acceptance of an office to which he has no title will have the same legal effect. See the case of Rex v. Hughes, Barnwall & Creswell 893, upon the well-known principle that "a party shall never be permitted to take advantage of his own wrong."

The record shows that the office of sampler of tobacco was actually held, and afterwards, upon the institution of proceedings against him, actually resigned in the most formal way by a letter to the governor, which is in the record. The acceptance of the second office was entirely voluntary on the part of the sheriff; he chose the latter office, and by his own act gave up, in effect, impliedly resigned the first. "There cannot be a stronger instance of having made an option than the accepting

Opinion.

the office and acting under it. I have no doubt but that the intention of the said sheriff was to keep both offices. But if he be mistaken in law, and choose to accept the last office, he must abide the consequences, for it is his own act." See opinion of Butler, J., in Milward v. Thatcher, 2 Term Reps. 86. Nor does it affect the case that he (the sheriff) resigned the office of sampler on the 3d day of February. It was the acceptance of the incompatible office and holding the same for even so brief a space of time that forfeited the first office, and, as we have seen above, created an actual vacancy in the same, without any proceedings to remove him whatever, by quo warranto or otherwise; and if the office was thus vacant, and he absolutely out of it, he could in no manner affect the first office by what he did with the second, since resigning one office could not put a party in an office, nor could it restore him to one he had actually vacated. See Commonwealth v. Sherrard, 4 Leigh, 643. And if the office of sheriff was vacant, it was the duty of the judge under the law to fill such vacancy in the mode prescribed by law.

The third and last question to be considered is, Did the circuit court have any authority to award the writ of prohibition in this case? Mr. Blackstone says: "A prohibition is a writ issuing properly out of a superior court to an inferior court, commanding them to cease from the prosecution of a suit upon. a suggestion that either the cause originally, or some collateral matter arising therein, does not belong to that jurisdiction, but to the cognizance of some other court. This writ may issue either to inferior courts of common law, or to a justice or justices of the peace, if they hold plea of any matter above their jurisdiction." See also case of Miller v. Marshall, 1 Virg. Ca. 158. The subject matter involved herein was plainly and distinctly within the domain of the county court judge by the law. It is made his duty by statute to fill a vacancy in the office of sheriff, and if he erroneously exercised his jurisdiction, appeal to the higher court was the remedy. If he had any jurisdiction in the

Opinion-Judgment.

subject, a writ of prohibition will not lie to correct errors.

It is

not necessary to multiply authorities upon a proposition so well settled as this. In the case of Ellyson, ex parte, 20 Gratt. 10, Judge Joynes said: "If a county or corporation court has such jurisdiction in any case of a contested election, the petitioners have no right to a writ of prohibition. We cannot enquire whether the corporation court of Richmond had or had not such jurisdiction and authority in the particular case. That would be to connect the writ of prohibition, which proceeds upon an excess of jurisdiction, into a writ of error, which proceeds upon an error in the exercise of jurisdiction."

See also Hogan v. Guigon, Judge, 29 Grat. 707, where the last named case is cited with approval; Supervisors of Bedford v. Wingfield, Judge, 27 Grat. 334, and High on Ex. Rem., section 772; and as has been well said by a learned judge of this court, "this court will always discourage and put its seal of disapprobation upon every attempt to use the writ of prohibition to usurp the functions of a writ of error, and to employ it as a process to correct the error of inferior tribunals, instead of the regular modes by appeals and writs of error."

From these authorities it is clear, that the circuit court erred in awarding the writ of prohibition complained of herein, and its action is reversed and annulled.

The judgment is as follows:

This day came the plaintiff by his counsel, and the court having maturely considered the transcript of the record of the judgment aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the circuit court of Dinwiddie erred in awarding the writ of prohibition in this case, doth adjudge and order that the judgment of the said circuit court of Dinwiddie be reversed and annulled, and that the plaintiff in error recover against the defendant in error his costs in the said circuit court.

Judgment.

And this court, proceeding to enter such judgment as the said circuit court should have entered, doth adjudge and order that the said suit in the said circuit court be dismissed, and that the plaintiff in error recover against the defendant in error his costs expended in the prosecution of his writ of supersedeas here, which is ordered to be certified to the said circuit court of the county of Dinwiddie.

JUDGMENT REVERSED.

Syllabus-Statement.

Richmond.

BLANTON, COM'R, V. SOUTHERN FERTILIZING COMPANY AND ALS.

March 29th, 1883.

1. JURISDICTION—Circuit court of Richmond.-This court has chancery jurisdiction only in cases where it may be necessary or proper to make certain enumerated officers or corporations defendants. The commissioner of agriculture is not one of these.

2. JOINT SUIT -Such suit may be brought by two or more of a class, for benefit of all similarly affected. Bull v. Read, 13 Gratt. 86. By some decisions in other states such joint suit must be brought by such persons to avoid multiplicity of suits and irreparable damage. McClung v. Livesay, 7 West Va. 329.

3. JURISDICTION-Equity courts-Public officers.-Chancery has jurisdiction to enjoin illegal acts of an officer attempted colore officii. A suit against an officer is not necessarily a suit against the state-e. g., a suit to restrain one from doing unlawful acts under color of an executive office- such as any illegal acts of the commissioner of agriculture. 4. LEGISLATURE-Commissioner of agriculture-Tags.-Chapter 249, Acts 1876-7, establishing the department of agriculture and empowering the commissioner of agriculture to make all necessary rules and regulations for carrying out the intentions of the act, does not authorize him to levy a tax upon manufacturers and sellers of fertilizers for the purpose of raising money for the use of the department, in the shape of the charge on tags, as required by Rule No. 2, or of any charge on such tags. 5. IDEM-Idem-Tags without charge.-But the commissioner hath power to enforce the use of a tag to be attached to each package of fertilizer, showing that the same is registered in the department, without any charge therefor.

Appeal from decrees of the chancery court of the city of Richmond, rendered 4th August and 7th December, 1882, in the suit of the Southern Fertilizer Company, Allison & Addison, and A. S. Lee, suing for themselves and all other manufacturers