Johnson v. Griswold

Morton, J. The sole question in this case is whether the resignation of Smead and its acceptance by the county commissioners could be shown by the oral testimony of Smead and the county commissioners, or only by the records of the commissioners. There is nothing in the statute creating the office which requires that a resignation should be in writing, or should be accepted of record in so many words by the commissioners. In the absence of any statutory provisions in relation to the matter we are remitted to the common law, and at common law it is clear that a resignation in a form acceptable to the parties 36 would be a good resignation. Rex v. Rippon, Ld. Raym. 563 ; S. C. Salk. 433. Regina v. Lane, Ld. Raym. 1304; 8. C. Fort. 275; 11 Mod. 270. Jennings's case, 12 Mod. 402. Regina v. Gloucester, Holt, 450. Van Orsdall v. Hazard, 3 Hill, 243. People v. Metropolitan Police Board, 26 N. Y. 316. No doubt it would have been more orderly if the resignation had been in writing and bad been filed by the clerk of the commissioners. But the fact that it was not in writing did not render it ineffectual, or operate to continue Smead in office against his will. Moreover, it was not necessary to show in totidem verbis an acceptance of Smead’s resignation by the commissioners. Their appointment of a successor constituted, without anything more, an acceptance of his resignation. Edwards v. United States, 103 U. S. 471, 474. There could be no appointment of a successor unless there was a vacancy. And a vacancy could not exist except by the resignation or removal of the prior appointee. The appointment of the plaintiff showed of itself that there had been an acceptance of Smead’s resignation. The appointment being a matter of record, it is immaterial whether the commissioners acted judicially or ministerially. How far preliminary matters and matters of recital shall be spread upon the records is for the commissioners to determine. Exceptions sustained.