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The provision as to these officers and as to the town offices are parts of the same system. The resignations may be made to and accepted by the officers named; but, to become perfect, they depend upon and must be followed by an additional fact; to-wit, the appointment of a successor and his qualification. When it is said in the statute that the resignation may be thus accepted, it is like to the expiration of the term of office. In form the office is thereby ended, but to make it effectual it must be followed by the qualification of a successor.

Thus justices hold for four years, supervisors and constables for one year; and should there be created or found to exist a town officer, and no provision be made as to the duration of his office, this section is intended to meet the case by fixing one year as such term. It has nothing to do with the case before us, further than it reiterates the rule everywhere found in the statutes of Illinois, that such person shall serve not only for one year, but until his successor shall qualify.

In People v. Hopson, 1 Den. 574, and in People v. Nostrand, 46 N. Y. 382, it was said, that when a person sets up a title to property by virtue of an office, and comes into court to recover it, he must show an unquestionable right. It is not enough that he is an officer de facto, that he merely acts in the office; but he must be an officer de jure, and have a right to act. So, we think, where a person being in an office seeks to prevent the performance of its duties to a creditor of the town, by a hasty resignation, he must see that he resigns not only de facto, but de jure; that he resigns his office not only, but that a successor is appointed. An attempt to create a vacancy at a time when such action is fatal to the creditor will not be helped out by the aid of the courts.

Judgment affirmed.

For the rule as to the obligation to accept office see People v. Williams, 145 Ill. 573, supra.

STATE V. FERGUSON.

Supreme Court of New Jersey. November, 1864.

31 New Jersey Law, 107.

THE CHIEF JUSTICE. The issue which was to be tried in this cause was, whether William Ferguson, Jr., the defendant, was at the time of the service of the writ of mandamus upon him, an overseer of the highways of the township of Upper Alloways Creek, in the county of Salem.

The defendant, on the trial, proved on his part that before the service of the mandamus he had sent in his resignation, in writing, of the office of overseer of the highways to four of the township committee, who had endorsed upon it an acceptance of such resignation. It further appeared that the fifth township committeeman, who had not signed the acceptance, had not been notified of the meeting at which the resignation was received and accepted, and was not present at it. This resignation and acceptance were overruled by the court.

Two question are discussed. First. Was the resignation of the officer complete, and did it operate as a discharge from the office in the sense of an acceptance? Second. Was there a legal acceptance of the resignation in this case?

First, as to the officer's power to resign. It was insisted on the part of the defendant that an overseer of the highways has the right, in law, to resign at will, and that the mere notification of the fact that he resigns discharges him from his office.

If he possess this power to resign at pleasure, it would seem to follow, as an inevitable consequence, that he cannot be compelled to accept the office. But the books seem to furnish no warrant for this doctrine.

To refuse an office in a public corporation connected with local jurisdiction, was a common law offence and punishable by indictment. In Vanacker's case, reported in Carthew 480 and in 1 Ld. Raymond 496, it was decided that a municipal corporation of common right possessed authority to impose fines for refusal to accept office, Lord Holt remarking, "that it would be in vain to give them such power to elect sheriffs, etc., if they could not compel the persons elected to serve." And again he says: "As every citizen is capable of the benefit of this franchise so he ought to submit to the charge also." And then in the case of Pelson, 2 Lev. 252, a suit

was sustained in a by-law of the corporation to recover a penalty for not serving in the office of steward. In The Queen v. Hungerford, 11 Mod. 142, a motion was made in the King's Bench for an information in the nature of a quo warranto against a common councilman of Bristol for refusing to take upon himself the office after he was chosen, but the court denied the motion and said their remedy was to proceed by their by-laws in order to compel himhe not being such a public officer as a sheriff-but if they had applied to the court for a mandamus they would have had it. The same principle was clearly recognized in the case of The King v. Larwood, 4 Mod. 270, which was an information against the defendant who had been elected sheriff in the city of Norwich, and who had refused to serve, "to the great hindrance," in the language of the information, "of the business both of the King and his subjects." So uniformly is this doctrine maintained by an extensive series of decisions that we find it stated as the unquestionable law by all the text writers.

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Regarding, then, this doctrine of the law as established, it seems to be an unavoidable sequence that the party elected, and who is thus compelled by force of the sanctions of the criminal law to accept the office, cannot afterwards resign it ex mero motu. If his recusancy to accept can be punished, it cannot be that he can accept and immediately afterwards, at his pleasure, lay down the office. The law is far too practical to admit of such a frustration of one of its regulations, designed for the protection of the public interest. The only authority which was cited to lend countenance to such a proposition was that of The United States v. Wright, 1 McLean 512, in which the question was whether the sureties of a collector of internal revenue ceased to be responsible for the acts of their principal subsequent to his resignation. However true the proposition may be as applied to the facts then before the Circuit Court, it is clearly inconsistent with all previous decisions, if extended over the class of officers where responsibility is the subject of consideration. The decisions, in my opinion, go to this point and not beyond it, that a resignation, when completed by an acceptance, will be a discharge from the office.

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The remaining question in this case then is, was there a legal acceptance of the resignation of the defendant?

I do not perceive how this point can be plausibly insisted on. The people elect the overseer, how can the township committee discharge him? Whence do they derive the power? Their whole authority is defined in the statute and they have none other, ex

cept what is thus conferred and such powers as are necessary to carry into execution those thus expressly given. The 13th section, Nix Dig. 875, in the act relating to townships, provides for filling vacancies in the office of overseers of the roads by special election, and on the neglect of the electors gives the power to the committee to fill the office. But this power to appoint in a certain juncture does not certainly imply a right to assist in creating a vacancy. I cannot think the township committee are the agents of the corporation for the purpose of accepting resignations.

But, admitting the power to exist, it was not, in my opinion, legally exercised in this case. The township committee is composed of five members, and can no more legally act unless legally convened than the corporation can. All the members must be summoned. And in this case the fifth man was not present nor was he notified of the meeting. The rule that all the members of the corporate body, or of a branch of a corporate body who discharge special functions for the society, who have the right to consult and to vote, must be notified in some form to attend the meetings of the body to which they belong, is too familiar to require much reference to authorities in its support. See Grant on Corp., 156-7-8.

My conclusion is that an overseer of the highways has not the right to quit his office at pleasure. And that the resignation of the defendant in this case was not accepted by competent authority; and that, consequently, the verdict below was right.

VAN DYKE, J., dissented.

REITER V. STATE.

Supreme Court of Ohio. February, 1894.

51 Ohio St. 74.

Error to the Circuit Court of Hamilton County.

The material facts found by the Circuit Court on the trial of this case, are as follows:

On the 21st day of February, 1893, Amos Hill, being the mayor of the village of Pleasant Ridge in Hamilton County, presented to the council while in session the following resignation:

"Pleasant Ridge, February 21, 1893.

"To the Honorable Council of the village of Pleasant Ridge: I, Amos Hill, mayor, tender to you my resignation, to take effect March 1, 1893, as I cannot take time to attend to this office.

"Yours with respect,

"AMOS HILL.”

On motion this resignation was laid over to the next meeting, March 7, when it was accepted by council to take effect at once, and at an adjourned meeting held March 11, George Reiter, plaintiff in error, was appointed mayor to fill the vacancy caused by the resignation of Mr. Hill, and on the same day Mr. Reiter was qualified and entered upon the duties of his office.

At the following April election John H. Durrell, was elected mayor of the village of Pleasant Ridge, and in due time gave bond, qualified, and demanded the office, but Mr. Reiter refused to surrender the office to him, and claimed that the election for mayor held in April, was not authorized by law, as the election occurred, as he claimed, less than thirty days after the vacancy.

Thereupon Mr. Durrell filed his petition in quo warranto in the circuit court of Hamilton county, to oust Mr. Reiter from the office of mayor.

Upon the above facts the Circuit Court found in favor of Mr. Durrell, ousted Mr. Reiter and ordered Mr. Durrell to be inducted into the office of mayor; to all of which Mr. Reiter excepted, and filed his petition in this court to reverse the judgment of the Circuit Court.

BURKET, J. Section 1754 of the Revised Statutes provides as follows:

"In case of the death, resignation, disability, or other vacation of his office, the council may, by a vote of a majority of all the members elected, appoint some suitable person within the corporation to act as mayor, and discharge the duties of the office until the vacancy is filled, or the disability removed: Provided, that at the next annual municipal election occurring more than thirty days after such vacancy, a mayor shall be elected for any unexpired term, unless the disability is of a temporary character."

If a

The election was held on the third day of April, 1893. vacancy in the office occurred on the first day of March, then the April election occurred more than thirty days after such vacancy, and the election of Mr. Durrell was valid; but if the vacancy did. not occur until the resignation was accepted on the 7th of March,

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