Gates v. Delaware County

Lowe, C. J. In the trial of this cause below, two errors are claimed to have occurred. The first relates to the admission of evidence said to be incompetent, consisting in the introduction before the jury of the written appointment by the county judge of W. A. Roberts as the successor of the plaintiff in the office of county superintendent, and also permitting to go the jury as evidence, the plaintiff’s letter of resignation with the indorsement thereon, above described, without more proof than was adduced to show acts on the part of the county judge to make the same effective in law as a resignation. The second ground of alleged error consists substantially in charging the jury, that the circumstances under which the foregoing written resignation was tendered, recorded and filed in the county judge’s office, was sufficient to give it the force and effect of a legal resignation, or in other words to vacate the office of school superintendent. If this last question is found against the appellant, it will follow that there was no material error in allowing the introduction of the evidence complained of. The Code designates the county judge as the officer to whom a county school superintendent may resign his office. But it does not specify the mode or ceremony which must be adopted in order to consúmate this object, nor does it invest the county judge with any discretionary power to refuse such resignation. The right to lay down office in this country is so clear [408] and universally acknowledged, that it may well be questioned whether the officer appointed to take such remuneration would have the right to prevent it. Certainly no such power is given him in the law. It is true in particular cases, or under special circumstances, ho might with propriety advise against it, but he has no absolute legal right to peremptorily forbid the act, or refuse the resignation. Such is neither the language, the spirit, nor the policy of the law. Hence we infer that there can be no good reason for requiring that the resignation should be formally accepted in writing, or entered on record and the incumbent notified thereof before the same can be effectual in rendering vacant the office. Still it is true these acts should be done by which the officer to whom the resignation is to be made, and the public through him may clearly understand that the office has been surrendered by the party resigning. Now, the plaintiff in this case made a formal unconditional written resignation of his office as county superintendent of common schools, and placed the same into the hands of the county judge > who, by his clerk had it indorsed a “ resignation,” with the date of its reception, and filed in his office without objection. Such acts constitute a virtual acceptance of the resignation, and it is not necessary in addition to this, as contended for by appellant, that the county judge should make a special record of the fact, and notify the party resigning, that his resignation has been duly accepted, before his office can be vacated. Such officer may fairly indulge the presumption that unless his resignation has been returned to him with objections that it has been duly accepted; and this presumption the plaintiff did indulge, for according to the evidence he did not pretend to attend to any of the duties of the office for nearly four months thereafter and until he first obtained leave to withdraw his resignation. This withdrawal is entitled to no ignificance ’inasmuch as the office [409] had become vacant long before, bj the act of the plaintiff himself, acquiesced in by the county judge. The plaintiff could only be reinvested with the office by a new election or appointment. Believing upon the whole that the charge of the court was a very fair exposition of the law of this case, we must Affirm.