State ex rel. Almon v. Fowler

ANDERSON, J. An unconditional resignation of a public office, to take effect immediately, cannot he withdrawn, even with the consent of the power authorized to accept it, and it does not seem to he material that the resignation had not been accepted. — State v. Fitts, 49 Ala. 402; 23 Am. & Eng. Ency. Law, 424. A contingent or a prospective resignation, however, can be withdrawn at any time before it is accepted. — 29 Cyc. 1404. There are some authorities, however, holding that a resignation of a public office does not take effect until an acceptance, among which will be found the leading case of State v. Clayton, 27 Kan. 442, 41 Am. Rep. 418. But our court has, by the Fitts Gase, supra, become committed to the doctrine that an acceptance is not necessary, when the resignation is unconditional and goes into effect immediately. [189] The resignation, in the case at bar, was not unconditional, as was the one in the Fitts Case, supra} but was to become final and effective only upon the acceptance by the judge. An unconditional acceptance by the judge would have'rendered the resignation conclusive and effective; but, while the acceptance was indorsed by the judge August 21, 1908, it ivas conditional, in that its operation and effect was postponed until September 19, 1908. The acceptance not becoming effective until said 19th of September, the respondent had the right to withdraw said resignation, which he did on the 12th of September, 1908. The resignation was by its terms to take effect only upon the acceptance by the judge, and, the judge having made the acceptance effective upon a future day, the respondent had the right to withdraw said resignation before the arrival of the date fixed by the judge. The resignation did not take effect immediately, but was subject to the acceptance of the judge, and effective only upon the time designated by him, and was withdrawn before the said acceptance, by its very terms, became effective. The case of Murray v. State, 115 Tenn. 303, 89 S. W. 101, is unlike the case at bar. There the officer requested that the resignation be acted upon at once by the judge of the county court, and it appears that it was on that day unconditionally accepted, and the opinion, following the Grace Case, 113 Tenn. 9, 82 S. W. 485, seems to have stressed the fact that the acceptance of the resignation ipso facto vacated the office. Here we had no unconditional acceptance, but one which, by its own terms, was not to become effective until a subsequent day. ■The trial court properly gave the general charge requested by the relator, and the judgment is affirmed. Affirmed. Tyson. C. J., and Simpson and Denson, JJ., concur.