ferred and assumed, it could not be laid down without the consent of the appointing power. This was required in order that the public interests might suffer no inconvenience for the want of public servants to execute the laws. . . . . In view of the manifest spirit and intent of the laws above cited it seems to us apparent that the common law requirement, namely, that a resignation must be accepted before it can be regarded as complete, was not intended to be abrogated. To hold it to be abrogated would enable every office-holder to throw off his official character at will, and leave the community unprotected. We do not think that this was the intent of the law."

Chief Justice Ruffin in Hoke v. Henderson, 4 Dev. 1, 25 Am. Dec. 677, said: "It is not true that an office is held at the will of either party. It is held at the will of both. Generally resignations are accepted, and that has been so much a matter of course with respect to lucrative offices, as to have grown into a common notion that to resign is a matter of right, But it is otherwise. The public has a right to the services of all the citizens, and may demand them in all civil departments as well as in the military. Hence there are on our statute books several acts to compel men to serve in offices. Every man is obliged, upon a general principle, upon entering upon his office, to discharge the duties of it while he continues in office, and he cannot lay it down until the public, or those to whom the authority is confided, are satisfied that the office is in a proper state to be left, and the officer discharged. The obligation is therefore strictly mutual, and neither party can forcibly violate it." "The rule in relation to the resignations of officers is, that such resignations take effect on their acceptance by the officer or officers authorized to fill the vacancy, and until accepted they are simply offers to resign": Rogers v. Stonaker, 32 Kan. 191. In State v. Clayton, 27 Kan. 442, 41 Am. Rep. 418, it was held that the acceptance of the resignation of a public officer is necessary to render it effective, and that when such resignation is accepted to take effect upon the appointment of a successor, the resignation is not complete, nor the office vacant, until such successor is appointed.

The following cases also maintain the rule that public officers cannot, at their pleasure, lay aside their offices by merely resigning, but that in order to make their offices vacant by resignation, such resignation must be accepted by competent authority, and that until the resignation is so accepted, it is inoperative and the officers remain in office: Coleman v. Sands, 87 Va. 689; overruling Bunting v. Willis, 27 Gratt. 144; 21 Am. Rep. 338; State v. Ferguson, 31 N. J. L. 107; Van Orsdall v. Hazard, 3 Hill, 243. An officer's resignation is virtually accepted when it is tendered by him, taken by the proper authority and placed on file in court. It is not necessary to enter an order of court upon the records accepting the resignation in form: Pace v. People, 50 Ill. 432.

After a public officer has resigned his office, and before his resignation has been accepted by the proper authority or his successor appointed, mandamus will lie to compel him to perform the duties pertaining to such office: Edwards v. United States, 103 U. S. 471.

In those states having a statute which provides that a person elected to office shall serve therein until his successor is elected or appointed, and qualified an officer although his resignation is tendered to and accepted by the proper authority, continues in office and is not relieved from his duties or responsibilities as such officer until his successor has qualified. During the interval between the acceptance of his resignation and the

qualification and induction of his successor into office, the resigning officer may be compelled by mandamus to perform any of the duties which pertain to the office from which he has resigned: Badger v. United States, 93 U. &. 599; United States v. Justices, 10 Fed. Rep. 460; People v. Supervisors of Barnett Tp., 100 Ill 332; Jones v. City of Jefferson, 66 Tex. 576. Of course this is not true where the doctrine prevails that the mere tendering of a resignation of the office renders it vacant and relieves the officer resigning of further duties or responsibilities in relation thereto: Olmstead ▾. Dennis, 77 N. Y. 378, but as we have said, the latter rule is not supported by reason or the weight of current authority.

RIGHT TO WITHDRAW RESIGNATION.—As an officer has a right to tender his resignation at any time, so a prospective resignation by a public officer may be withdrawn at any time before it it is finally accepted: Bunting v. Willis, 27 Gratt. 144, 21 Am. Rep. 338; Biddle v. Willard, 10 Ind. 62. Thus the resignation of a person as coroner takes effect on its acceptance by the proper authority, and until so accepted it is merely an offer to resign, and may be withdrawn: Rogers v. Slonaker, 32 Kan. 191.

It has been decided that a prospective resignation may be withdrawn by the consent of the authority accepting, if no new rights have intervened: Biddle v. Willard, 10 Ind. 62; Bunting v. Willis, 27 Gratt. 144; 21 Am. Rep. 338. But if after the resignation has become complete and new rights have intervened, it cannot be withdrawn even with the consent of the appointing power: Bunting v. Willis, 27 Gratt. 144; 21 Am. Rep. 338. Although it has been decided that when a county clerk resigns by tendering his resignation to take effect at a future date, and then withdraws it before the date when it is to take effect, he is still entitled to hold the office notwithstanding that in the mean time, against his express wishes and without his consent, such resignation has been forwarded to the appointing power and by him approved and another person appointed clerk: State v. Van Buskirk, 56 Mo. 17.

When an officer has transmitted his written resignation of an office to, and it has been received and accepted by, the officer or an authority appointed by law to receive it, he cannot withdraw it even with the consent of the appointing power, if it is not so worded as to take immediate effect, as there is then a vacancy in the office to be filled by the proper authority: State v. Hauss, 43 Ind. 105; 13 Am. Rep. 384; Pace v. People, 50 Ill. 432; Gates v. Delaware County, 12 Iowa 405; State v. Clarke, 3 Nev. 566; Queen v. Mayor, L. R. 14 Q. B. Div. 908. Thus when a county officer transmits an unconditional resignation of his office, with the intention that it shall be delivered to the officer or authority entitled to receive it, the resignation thereby becomes complete and effectual and cannot afterwards be withdrawn: State v. Fitts, 49 Ala, 402.

CASES

IN THE

SUPREME COURT

INDIANA.

BOARD OF COMMISSIONERS OF CARROLL COUNTY v. JUSTICE.

[133 INDIANA, 89.]

HIGHWAYS-FALSE INDUCEMENTS TO SIGN PETITION FOR-REMEDY.-When a free gravel highway is sought to be established, and certain petitioners therefor are harmed by false inducements held out to influeuce them to sign the petition, their remedy is by objection made before the sufficiency. of the petition is established by the board of commissioners, and failing to do so they are precluded by the judgment if the latter is regular and effectual. HIGHWAYS-MINISTERIAL ACT IN APPROVING BOND FOR COSTS OF ESTABLISHING. The act of a board of commissioners in approving a bond to secure the expense of a preliminary survey and report in establishing a free gravel road, is merely ministerial and the fact that one of the commissioners is an interested party does not affect the action of the board. JUDGMENT BY DISQUALIFIED JUDGE-COLLATERAL ATTACK.-The act of a board of commissioners in passing upon the sufficiency of a petition and appointing viewers and a surveyor for the establishment of a free gravel road is judicial in its nature, and the participation therein by a com missioner disqualified to act by reason of interest or otherwise renders the judgment of the board voidable by appropriate proceeding, but when the board has acquired jurisdiction of the subject matter and of the perBon by giving the required statutory notice, and an opportunity by appeal is given of having a trial by an impartial tribunal, such voidable act by the board is not subject to collateral attack by injunction or other wise.

JUDGMENT BY DISQUALIFIED JUDGE.-In an action to declare a judgment participated in by a disqualified and interested judge a nullity, the fact that the major portion of the members of the court were disinterested, and that a large number of parties litigant, other than such disqualified judge, were interested in, and would be affected by, such judgment is not without weight.

W. C. Smith, J. H. Gould, and G. R. Eldridge, for the appellant.

D. C. Justice, Q. A. Myers, and J. C. Nelson, for the appellees.

90 MILLER, J. This action was brought by the appellees in the Carroll circuit court, to declare void the proceedings of the board of commissioners of that county for the establishment of a free gravel road, and to enjoin the placing of assessments against their lands for its construction.

The improvement sought to be enjoined was being made under the Act of March 3, 1877: Rev. Stats. 1881, sec. 5091, et seq.

The complaint proceeds upon two grounds:

1. That some of the landowners who signed the petition for the making of the improvement were induced to do so by false representations and false promises as to the amount which would be assessed against their lands, and by promises by one John G. Cornell that he would pay all that their lands were assessed above a fixed amount.

2. That the proceedings before the board of county commissioners are void, because John G. Cornell, one of the county commissioners, was one of the petitioners, owned lands within two miles of the proposed road, which were subject to assessment for its construction, 91 and was, also, related by blood and marriage to certain other named petitioners and interested parties; and, being so disqualified, acted with the board of commissioners in certain proceedings relating to the making of the improvement.

Taking these questions in their order, if it be admitted that the appellees were harmed by the inducements held out to influence other landowners to sign the petition, they should have made the objection before the sufficiency of the petition was established by the adjudication of the board of commissioners. Not having done so, if that adjudication was effectual, they are precluded by that judgment: Osborn v. Sutton, 108 Ind. 443; Million v. Board etc., 89 Ind. 5; White v. Fleming, 114 Ind. 560; Loesnitz v. Seelinger, 127 Ind. 422.

The other proposition presents a question of more difficulty.

The complaint charges that Cornell and others filed their petition with the auditor of the county for the construction of the gravel road, together with a bond payable to the board of commissioners, by which they agreed to pay the costs and ex

AM. ST. REP., VOL. XXXVL-34

penses of the preliminary survey and report, in case the proposed road was not finally ordered by the board; that at the June term of the commissioners' court the bond was accepted and approved, Cornell acting with the other commissioners; that on the succeeding day of the term, Cornell again acting with them, the board of commissioners heard proofs upon the petition, and made findings of fact thereon, appointed three viewers and an engineer to view, examine, and lay out the proposed free gravel road, to make assessments of damages, and to determine upon the public utility thereof, and to ascertain the lands which were liable to be assessed for the improvements. The auditor was also ordered to give the viewers and surveyor notice of the time and place fixed for their meeting, as well as the notice required 92 by publication in some newspaper; that afterwards the viewers and surveyor made their report, and the board of commissioners, at their December term, Cornell being absent and not acting, approved the report, and made an order declaring the improvement to be of public utility, and appointing three disinter ested freeholders to make an assessment upon the lands for the amount of the estimated cost thereof; that afterwards the assessors made their report to the county auditor, who gave notice, by publication, of the time when the commissioners would meet at his office to hear the same; that on the day named the board met, Cornell acting with them, heard the report, confirmed the assessment, and ordered it put upon the duplicate for collection.

Taking up the questions presented by the action of the board of commissioners, in the order of their occurrence, we find that the first action complained of was the approval of the bond of the freeholders, securing the expense of the preliminary survey and report. The condition of the bond being fixed by statute, and no action being required to fix the amount of penalty, nothing remained to be determined but the sufficiency of the obligors. This was a ministerial act, such as a clerk or sheriff, possessing no judicial functions, may perform: Gregory v. State, 94 Ind. 384; 48 Am. Rep. 162; Gulick v. New, 14 Ind. 93; 77 Am. Dec. 49; Votaw v. State, 12 Ind. 497; State v. Winninger, 81 Ind. 51.

While it would have been proper for the member of the board of commissioners interested in the matter before them to have absented himself when action was taken upon the approval of the bond, it was not error to remain and act.