Слике страница
[ocr errors][ocr errors][ocr errors][ocr errors][merged small][merged small][ocr errors][merged small][ocr errors][merged small]

may be required to do military service at the will of the sovereign power. These are examples where prirate right and convenience must yield to the public welfare and neces. sity. It is essential to the public welfare, necessary to the preservation of government, that public affairs be properly administered; and for this purpose civil officers are chosen, and their duties prescribed by law. A political organization must necessarily be defective, which provides no adequate means to compel the observance of the obvious duty of the citizen, chosen to office, to enter upon and discharge the public duty imposed by its laws, and necessary to the exercise of the functions of government.

It is admitted by the demurrer that the respondent was legally appointed town clerk of the town of Mount Morris. The office is connected with, and necessary to, the levy of taxes to carry on the municipal concerns of the town and administra. tion of its local jurisdiction. It is shown that there was a public necessity, as well as that relators had a private interest in the performance of the duties of that office. No election had been held in the town since the annual town meeting of 1891. Numerous persons had been appointed to said office, but it remained vacant, and the duties, consequently, undischarged. It is admitted by the demurrer, also, that claims against the town, in favor of the relator, to a large amount, had been 584 audited by the board of town auditors of said town, and allowed, and certificate thereof duly made, as provided by law, but that the same could not be delivered to or filed with the town clerk, because of such vacancy in said office, nor could the aggregate amount thereof be certified to the county clerk of said county, to be levied and collected as other town taxes. It is conceded that the respondent was eligible to the office; that a vacancy therein existed; that he was appointed conformably to the law, and duly notified thereof: Secs. 1, 2, 3, art. 10, c. 139, Rev. Stats. The statute provides that every person appointed to the office of town clerk, before he enterg upon the duties of his office, and within ten days after he shall be notified of his appointment, shall take and subscribe, before some justice of the peace, etc., the oath or affirmation of office prescribed by the constitution, and within eight days thereafter file the same in the office of the town clerk: Sec. 2, art. 9, o. 139, Rev. Stats. Section 3 of the same article provides that if any person elected or appointed to said office shall neglect to take and subscribe the oath, and cause the same to be filed

[ocr errors][ocr errors][ocr errors]

as aforesaid, such neglect shall be deemed a refusal to serve. And section 7 of the same article provides: “If any person, elected to the office of .... town clerk shall refuse to serve, he shall forfeit to the town the sum of twenty-five dollars." One of the special duties enjoined upon a town clerk is: “He shall annually, at the time required by law, certify to the county clerk the amount of taxes required to be raised for all town purposes": Sec. 4, art. 12, c. 129, Rev. Stats. Sections 127 and 128 of chapter 120 of the Revised Statutes provide that the county clerk shall determine the rate per cent, upon the valuation of the property of towns, etc., that will produce not less than the net amount of the sums certified to them ac. cording to law, to be extended by the county clerk upon the equalized valuation of property in such town, etc. The only mode provided by law by which a tax can be levied upon the property of a town for the 585 payment of its debts or current expenses, is by the certificate of the town clerk of the town to the county clerk, as thus prescribed. It is apparent, therefore, that a public necessity exists for the discharge of the public duty.

It is insisted, that the legislature having provided a penalty for the refusal to accept the office, that that remedy is exclu. sive, and that a payment of the penalty imposed was intended to be in lieu of the service. We cannot concur in this view. The purpose of imposing the penalty, was to enforce the acceptance of the office and performance of its duties, and the statute cannot be construed as intending that the person chosen should be discharged from the duty by payment of the penalty, and thereby the purposes of the creation of the office frustrated, and the public duty remain unperformed. Authorities supra. It is to be presumed that, had the legislature intended that the payment of the fine should be in lieu of the service, they would have so enacted, and not having done so, the duty remains, nothwithstanding the imposition of the fine or penalty: High on Extraordinary Legal Remedies, 334, and supra.

It is also insisted, that the demurrer should be sustained for the reason that no demand is a verred to have been made upon respondent to accept the office and perform its duties. It is alleged that he was duly forthwith notified of his appointment by the board authorized by law to make the same (sec. 3, art. 10, c. 139, Rev. Stats.), and that he refused and nego lected to accept the office. Upon being notified, it was his

[ocr errors][ocr errors][ocr errors]

duty by law to take and subscribe the oath of office, and file the same, and enter upon the discharge of the duties.

Relator was not alone interested, nor did the failure of respondent to qualify affect its interest only. On the contrary, the duty, the performance of which is sought to be enforced, is a public duty, commanded by public law. The case is, therefore, clearly distinguishable from one in which the act sought to be enforced is for the benefit of some 586 private party. In cases of this class no formal demand was neces. sary as preliminary to the application for mandamus: People . Board of Education, 127 Ill. 624.

We are of opinion that the respondent ought to be required to accept the office of town clerk of said town, to which he has been duly and legally appointed, to take and file the oath as such town clerk, as provided by law, and to discharge the duties of said office, and a peremptory writ of mandamus is awarded accordingly.

OFFICE-OBLIGATION TO ACCEPT.—The doctrine of the common law that a person duly elected or appointed to a public office, and qualified to fill it, is under obligation to accept it and perform the duties connected therewith, is 80 fully and correctly stated in the principal case that any attempt to enlarge upon it here would be a mere waste of words. Hence we shall only state that the refusal of a person duly elected or appointed to a public office to which he is eligible is an offense at common law indictable and punishable as such: Rex v. Lone, 2 Strange, 920; Rex v. Jones, 2 Strange, 1145; King v. Burder, 4 Term Rep. 778. Although such refusal to accept it and to discharge its duties is punishable by fine or otherwise, yet mandamus will lie to compel him to qualify for and enter upon the discharge of the duties of such office: King v. Bower, 1 Barn. & C. 585; Edwards v. United States, 103 U. 8. 471.

A person elected to an office owes a duty to the public to qualify himself therefor, and to enter upon the discharge of his duties. Such duty being incumbent by law, he may be compelled by the writ of mandamus to assume the office and take apon himself the duties thereof, and though he may be subject to indictment or fine for a failure to qualify for and accept the office, yet mandamus will be granted, for the reason that neither the indictment nor the fine is an adequate remedy in the premises, because it does not fill the office and prevent a failure of the discharge of public duties. This is the rule uniformly laid down by the few existing cases on the subject, and it has universally been accepted by textwriters as the true exposition of the law: Mechem's Public Officers, secs. 240-245; High on Extraordinary Legal Remedics, sec. 331; Grant on Corporations, sec. 230; Topping on Mandamus, 189; Merrill on Mandamus, sec. 145.

A penalty may be imposed by statute upon the person elected to a publio office for his neglect to accept and his refusal to serve Such penalty attaches against the party elected if he omits to signify his acceptance of the office, and the authorities are thereby compelled to proceed to a now election: Winnegar v. Roe, 1 Cow, 258.

[ocr errors]

The rule that the acceptance of a public office is a duty enforceable by mandamus is of little practical atility it, as some of the cases imply, the acceptance cannot be euforced if a salary or other compensation for the sery. ices to be rendered has not been guaranteed by law. For certainly if the person selected to fill an official station has the right to be compensated at all, he must have the right to be adequately compensated; and the right of the public to his services is likely to be defeated by interposing an issue as to the adequacy of the compensation allowed by statute for such services, In Illinois it has been said that “no man can be compelled to give his time and labor, any more than his tangible property, to the public without com. pensation, and since there is no mode by which policemen appointed by the commissioners can be compensated, it follows that no one, oven after accepting their appointment, can be compelled to perform any police duties": Hinze v. People, 92 III. 400, 424.

A man cannot be compelled to accept a second office while be is in possession of, and discharging the duties of, one to which he has been chosen. Thus when a citizen is elected to the office of constable, but refuses to serve, and an action is brought against him for the statutory penalty provided for such refusal, and he answers alleging that at the same election he was elected to the office of supervisor, that he accepted the latter office, and entered upon the discharge of the duties connected therewith, such answer discloses a suf. ficient defense to the action. A citizen will not in such case be compelled to accept both offices: Township of Hartford v. Bennett, 10 Ohio St. 441. When a person has been elected or appointed to a judicial office with his consent and knowledge, the holding of which renders bim, during the term of such office ineligible to any office of trust or profit other than a judicial office, he may without accepting such office be afterwards elected to and hold an office not judicial, the term of which will run during the judicial term to which he has been elected or appointed: Smith v. Moore, 90 Ind. 294.

Office-RIGHT OF OFFICER TO RESIGN AND EFFECT OF RESIGNATION. -A person elected or appointed to, and in the possession of, any public office, and performing the duties connected therewith, may tender his resignation at pleasure. Before he can resign, however, he must have accepted the office, as acceptance is necessary to the full possession and responsibility of an office: Smith v. Moore, 90 Ind. 294-306. Hence one who has been elected to an office cannot resign it until the time has arrived when he is entitled by law to possess it, has taken the oath, given the required bond, and entered upon the discharge of its duties. Every attempt to resign an office before the officer has qualified and entered upon the discharge of its duties is abortive and ineffectual: Miller v. Board of Supervisors, 25 Cal. 94.

To constitute a complete and operative resignation there must be an in. tention to relinquish a portion of the term of the office, accompanied by the act of relinquishment: Biddle v. Willard, 10 Ind. 62. When by law a resignation is required to be made in any particular form it must be sube stantially complied with, but if no such form is prescribed by statute tho resignation may be made in any method indicative of a purpose to resiga. It may be by parol, unless required to be in writing under the statute: Van Orsdall v. Hazard, 3 Hill, 243. The statute usually prescribes to whom the resignation of a public officer is to be made, and in the absence of such pro vision it should be made to such officer or body as is by law authorized to act upon it by appointing a suceessor, or by calling an election to fill the vacancy: Edwards v. United States, 103 0. S. 471.

Resignation, Whether Must Be Accepted. — There is a line of casos maintaining the proposition that when an unconditional resignation of a publie officer is transmitted to the proper officer or body with the intention that is shall operate w such, it amounts, so far as the resigning officer is concerned, to a complete resignation, so as to vacate the office, and relieve such officer from longer performing the duties connected therewith, and so also as to relieve him from all further responsibility or liability in connection with the office from which he has resigned. In other words, the resignation is effec. tual to relieve the officer without its acceptance by the appointing power, and regardless of the fact as to whether such resignation is accepted or not: Pea ple v. Porter, 6 Cal. 26; State v. Clarke, 3 Nev. 566; Stale v. Fills, 49 Ala. 402; Bunting v. Willis, 27 Gratt. 144; 21 Am. Rep. 338. Under this view of the law it has been maintained that the tendering of his resignation by a public officer, in writing, to the officer authorized by law to receive it, and the filing of the resignation by such officer, without objection, operates to vacate the office resigned according to the tenor of such resignation: Gates v. Delaware County, 12 Iowa, 405; that a civil officer has a right at any tine to resign his office, and after his resignation has been received at the proper department his surety is not bound for the faithful performance of the duties of the office by his principal: United States v. Wright, 1 McLean, 509; that a drainage commissioner appointed by statute has a right to resign, and his resignation is complete when it is received by the county judge; no formal acceptance by the latter is needed to give it effect; and after such resignation the person resigning cannot legally act in the office froin which he has resigned: Olmstead v. Dennis, 77 N. Y. 378; that the acceptance of a resignation of a municipal office by the authorities to whom it is tendered is not necessary in order to make it effective: Stale v. Mayor of Lincoln, 4 Neb. 260. These cases are not susceptible of reconciliation with the principle hereinbefore stated, that the acceptance of a public offico is an enforceable duty; for certainly it would be a vain and idiotic procedure to compel the acceptance of a public office if the officer could by immediato resignation exonerate bimself from the performance of the duties assumed ander compulsion.

Therefore, on the other hand, the doctrine was maintained at common law and now prevails in a great number of the states of the American union that the resignation of a public officer is not complete so far as tho public is concerned until it is duly accepted by the proper authorities. In the absenco of statute this rule is supported by the better reasoning as well as by a major part of the authorities, and it has been adopted by the supreme court of the United States in the case of Edwards v. United States, 103 U. 8. 471, to the effect that the resignation of a public officer is not complete until the proper authority accepts it, or does something tantamount thereto, such as to appoint a successor. In this case Mr. Justice Bradley, in delivering the opin. ion of the court, said: “As civil officers are appointed for the purpose of exercising the fanctions and carrying on the operations of government and maintaining public order, a political organization would seem to be imperfect which should allow the depositaries of its power to throw off their responsibilities at their own pleasure. This certainly was not the doctrine of the common law. In England a person elected to a municipal office was obliged to accept it and perform its duties, and he subjected himself to a penalty by refusal. An office was regarded as a burden which the appointeo was bound, in the interest of the community and of good government, to bear. And from this it followed, of course, that after an office was con

« ПретходнаНастави »