People ex rel. Biggs v. Smith

Mr. Justice Farmer delivered the opinion of the court: Appellant’s contention is, that when appellee requested the board of supervisors to relieve him of the duties of overseer of the poor “for his term,” it amounted to a resignation or relinquishment of the duties of overseer of the poor for the full term of his office as supervisor and that he could not again assume those duties during his term, and that the appointment of relator as overseer of the poor by the new board was valid. Appellee contends that he could not resign as overseer of the poor without resigning the office of supervisor, but could only request the board to relieve him of those duties by appointing some person to perform them; that such appointment could only be made for a period not to exceed one year, and that upon the expiration of the term for which said appointment was made, the duties of the supervisor as overseer of the poor again devolved upon him. It is not disputed that the term of the board to which appellee made his request expired upon the organization of the board of supervisors in 1907, and that the term of the overseer appointed by the old board also expired at that time. It then remains to be determined whether the new board could appoint an overseer of the poor upon the request made to the old board. When appellee was elected and qualified as supervisor he became overseer of the poor by virtue of his election and qualification to that office. Overseer of the poor is not an office, but the duty of caring for the poor is by law made one of the duties to be performed by the supervisor by virtue of his office as such supervisor. The statute providing for the relief of a supervisor, at his request, from the duties of overseer of the poor does not contemplate a resignation of an office but simply relief from certain duties. The office to which the duties of overseer of the poor attaches is that of supervisor, and the only duty of that office that the incumbent may be relieved of, upon his request, is that of overseer of the poor. Asking to be relieved of those duties is not a resignation of any office. The authorities cited by counsel upon the subject of the resignation of an office are not applicable here. A supervisor could not resign as overseer of the poor without resigning his office as supervisor. All he could lawfully do while holding the office of supervisor was to request the county board to relieve him from the duties of overseer of the poor for such time as the board had authority to relieve him. That is what he did. While it is true that in doing so he used the words “for his term,” this meant no more than that he did not care to discharge the duties of overseer of the poor during his term of office and that he desired to be relieved of those duties for such a period of time as that board might lawfully relieve him. The board appointed a person to perform those duties for a period of one year. They could not appoint for a longer time. When this period expired, as it did in this case by the organization of the new board, the duties of overseer of the poor again devolved upon appellee, whose duty it was then to perform them or by request in writing ask the new board to relieve him of them. The request to the old board was not a request to the new board, and the new board in this case could not act upon the request made to the old board; and whether or not appellee notified the new board of his determination to resume the duties imposed upon him by law as overseer of the poor, those duties devolved upon him immediately upon the expiration of the term of the person appointed by the old board, and continued as a duty to be performed by him so long as he held the office of supervisor, or until he proceeded in accordance with the statute and requested the new board to relieve him of those duties and they complied with his request. No request was made to the new board that appointed relator for such relief, and its action in appointing him was without authority of law, and void. The trial court therefore did not err in overruling the demurrer to appellant’s plea. The judgment of the Appellate Court is therefore affirmed. Judgment affirmed.