State ex rel. Reeves v. Ferguson

The Chief Justice. The issue which was to be tried in this cause was, whether William Ferguson, jun., the defendant, was, at the time of the service of the writ of mandamus — 118 — upon him, an overseer of the highways of the township of Upper Alloways Creek, in the county of Salem. To sustain this issue prima facie, the relator produced and proved the township book of the election of officers. This book was objected to as evidence on the ground that it had not been signed by the moderator of the town meeting, in compliance with the provisions of the statute to that effect. Nix. Dig. 836, § 16.* The construction put upon this clause of the statute on the argument, seemed to be, that the provision was designed to make the township book the sole evidence of the election of the township officers, and that if the moderator did not sign it the book was not admissible and the official character was not provable in any other mode. Such does not appear to me to be a just construction of the clause. The language is simply directory; it orders the clerk to keep a book, and then provides that “ the proceedings of such meetings” shall be “signed by the presiding officer of the meeting and attested by the clerk.” The act does not declare that the book shall, if kept and signed in the mode prescribed, be received in evidence; much less does it intimate that if not so kept and signed it shall not be admissible as legal proof in verification of the facts contained in it. If the statute had not required the signature of the moderator, it is clear that the book would, upon general principles, being a public register, have been regarded as evidence of its own contents, its authenticity having been first established. The familiar rule is that a book kept by a person in public office, recording transactions which it is his duty to enter, all which fall under his personal observation and occur in the course of his public duty, is recognized by the law as a public writing, which, its genuinensss being attested, proves itself. The statute has merely superadded a formality, but it has not said that if such formality be omitted, the book shall not be entitled to that favor with whicli the law regards a, public register. I think the book was properly admitted in evidence. This appears to have been the view which this — 119 — court took of this section of the statute in the case of The State v. Bentley, 3 Zab. 535. But I do not think that if the book had been improperly admitted at the trial, the defendant would be entitled to succeed on this motion. The facts before this court show that independently of the book in question, there was competent proof of the official character of the defendant. The testimony established the fact that he had notoriously acted as overseer of the highways, and two of his own affidavits were before-the jury, in which it was admitted that he held such office. It is one of the recognized exceptions to this general rule-which requires the best evidence of which the point is susceptible, that proof that an individual has acted openly in a public office is prima facie evidence of his official character without proving his election or producing his commission. 1 Greenl. Ev., § 83. The plaintiff therefore was not obliged to produce the township book in order to prove the office of the defendant; it was enough for him to show that he had held himself out to the public as the incumbent of the office in question. But if this point wanted additional support it would be found in the testimony on the part of the defendant himself. The written resignation of the office of overseer, which the defendant put in, was, if any there could be, conclusive evidence on the question of official character — so that when the case (dosed the point now made was not in dispute. Under such circumstances it is difficult to perceive what the defendant can complain of, unless it is that some technical rule of evidence was violated. But this can avail him nothing. New trials are not granted on such grounds. The invariable rule is that if the merits of the case have been fairly tested and determined, and substantial justice done, mere-irregularities will not affect the verdict. Snyder v. Findley, Coxe 78; Campbell v. Ely, 1 Greenl. 50; Den v. Steelman, 1 Harr. 68. In this connection I may remark that I have examined the questions which were made in regard to the sufficiency of the pleadings, and I have not been able to discover in them — 120 — any defects which ought to affect the case as it is now presented in this present motion. It is evident that the case of the respective parties has been fairly tried upon the merits, and in this condition of things a nice objection that the evidence did not correspond with the pleadings does not seem entitled to much weight, for the defendant does not now stand upon the law, but makes his appeal to the equitable judgment of the court. But the more important subject remains to be considered. The defendant, on the trial, proved on his part that before the service of the mandamus he had sent in his resignation, in writing, of the office of overseer of the highways to four of the township committee, who had endorsed upon it an acceptance of such resignation. It further appeared that the fifth township committeeman who had not signed the acceptance, had not been notified of the meeting at which the resignation was received and accepted, and was not present at it. This resignation and acceptance were overruled by the court. Two questions are discussed. First. Was the resignation of the officer complete, and did it operate as a discharge from the office in the sense of an acceptance? Second. Was there a legal acceptance of the resignation in this case ? First, as to the officer’s power to resign. It was insisted •on the part of the defendant that an overseer of the highways has the right, in law, to resign at will, and that the mere notification of the fact that he resigns discharges him from his office. If he possess this power to resign at pleasure, it would seem to follow, as an inevitable consequence, that he cannot be compelled to accept the office. But the books seem to furnish no warrant for this doctrine. • To refuse an office in a public corporation connected with local jurisdiction, was a common law offence and punishable by indictment. In Vanacker’s case, reported in Carthew 480, and in 1 Ld. Raymond 496, it was decided that a municipal corporation of common right possessed authority to impose fines for refusal to accept office, Lord Holt remarking — 121 — “ that it would be in vain to give them such power to elect sheriffs, &c., if they could not compel the persons elected to-serve.” And again he says: “As every citizen is capable of the benefit of this franchise so he ought to submit to the-charge also.” And then in the case of Pelson, 2 Lev. 252, a suit was sustained in a by-law of the corporation to recover-a penalty for not serving in the office of steward. In The Queen v. Hungerford, 11 Mod. 142, a motion was made in the King’s Bench for an information in the nature of a quowarranto against a common councilman of Bristol for refusing to take upon himself the office after he was chosen, but the court denied the motion and said their remedy was to. proceed by their by-laws in order to compel him — he not being such a public officer as a sheriff — but if they had applied to the court for a mandamus they would have had it. The same principle was clearly recognized in case of The King v. Larwood, 4 Mod. 270, which was an information against the defendant who had been elected sheriff in the city pf Norwich, and who had refused to serve, “ to the great hindrance,” in the language of the information, “of the business both of the King and his subjects.” So uniformly is this doctrine maintained by an extensive series of decisions that we find it stated as the unquestionable law by ail the text writers. Mr. Grant, in his Treatise on the Law of Corporations, p. 230, thus expresses his view of this subject i “ On the other hand, when not being exempt or disqualified, a man is duly elected to an office, the court, if the corporation is a public one and the office of a sufficiently important nature to justify its interference, and in all cases where the office is connected with the administration of local jurisdiction vested in the corporation, or the administration of justice, will interfere by metndamus to compel him to take upon him and serve the office.” This seems to be the result of the eases, because in most of the instances designated above, to refuse the office is a common law offence and punishable by indictment or criminal information. Wilcock, p. 128, maintains a similar doctrine, which he states in these words: “Besides these — 122 — methods of punishing a refusal of office when the public sustains an injury from it, as by its impeding the administration of justice in the municipality, it amounts to a misdemeanor, for which the recusant may be indicted/' Then again on •the same page he says : “ An indictment against a constable for refusing the office must show a prescription in the corporation to elect such an officer.” The numerous cases cited in the notes of the liabilities above referred to, fully sustain the doctrine thus clearly stated in the text. I think it undeniable, therefore, that upon general principles of law as contained in judicial decisions of the highest authority, the refusal of an office of the class to which the one under consideration belongs, was an offence punishable by a proceeding in behalf of the public. Regarding then this doctrine of the law as established, it seems to be an unavoidable sequence that the party elected, and who is thus compelled by force of the sanctions of the criminal law to accept the office, cannot afterwards resign it ex mero motu. If his recusancy to accept can be punished, it cannot be that he can accept and immediately afterwards, at his pleasure, lay down the office. The law is far too practical to admit of such a frustration of one of its regulations, designed for the protection of the public interest. The only authority which was cited to lend countenance to such a proposition was that of The United States v. Wright, 1 McLean 512, in which the question was whether the sureties of a collector of internal revenue ceased to be responsible for the acts of their principal subsequent to his resignation; arid it is admitted that the language, taken in its broadest sense, of Chief Justice McLean in that case, sustains the position of the defendant. His words are — “ There can be no doubt that a civil officer has a right to resign his office at pleasure, and it is not in the power of the executive to compel him to remain in office. It is only necessary that the resignation should be received to take effect, and this does not depend upon the acceptance or rejection of the resignation by the president.” But it is hardly to be "supposed that it was the — 123 — intention of the judge to apply this remark to the class of officers who are elected by the people and whose services are absolutely necessary to carry on local government; or that it was his purpose to brush away with a breath the doctrine of the common law, deeply rooted in public policy upon the subject. However true the proposition may be as applied to the facts then before the Circuit Court, it is clearly inconsistent with all previous decisions, if extended over the class of officers where responsibility is the subject of consideration. I do not think any of the other cases relied upon on the argument sustain in the least degree the doctrine, but on the contrary they all imply that the resignation, to be effectual, must be accepted. Thus when we examine-the authorities indicated in 4 Com. Dig., tit. Franchise, f. 30, which was referred to, it is manifest that the office was not considered vacant until the resignation was acted upon by the appointing power. Thus in Taylor’s case, Pop. 133, which is one of those cited by Comyn, the question was whether an alderman could surrender his office, even with the consent of the corporation. And in Tidderley’s case, Sid. 14, likewise cited, the same point was under consideration. Lord Chief Baron Hale maintains that the corporation had the power to accept the resignation. The decisions, in my opinion, go to this point and not beyond it, that a resignation, when completed by an acceptance, will be a discharge from the office. The remaining question in this case then is, was there a legal .acceptance of the resignation of the defendant ? I do not perceive how this point can be plausibly insisted on. The people elect the overseer, how can the township •committee discharge him ? Whence do they derive the power ? Their whole authority is defined in the statute and they have none other, except what is thus conferred and such powers as are necessary to carry into execution those thus expressly given. The 13th section, Nix. Dig. 835,* in the act relating to townships, provides lor filling vacancies in the office of overseers of the roads by special election, and on the neglect of Ihe electors gives the power to the committee to fill the — 124 — office. But this power to appoint in a certain juncture does not certainly imply a right to assist in creating a vacancy. I cannot think the township committee are the agents of the corporation for the purpose of accepting resignations. But admitting the power to exist, it was not, in my opinion, legally exercised in this case. The township committee is composed of five members, and can no more legally act unless legally convened than the corporation can. All the members must be summoned. And in this case the fifth man was not present nor was he notified of the meeting. The rule that all the members of the corporate body, or of a branch of a corporate body who discharge special functions for the society, who have the right to consult and to vote, must be notified in some form to attend the meetings of the body to which they belong, is too familiar to require much reference to authorities in its support. See Grant on Corp. 156-7-8. My conclusion is that an overseer of the highways has not the right to quit his office at pleasure. And that the resignation of the defendant in this case was not accepted by competent authority; and that, consequently, the verdict below was right. Elmer, J. The defendant returned to a mandamus, directed to him as one of the overseers of the highways of the township of Upper Alloways Creek, in the county of Salem, that he was not, at the time when the said writ was served upon and delivered to him, and had not been at any time since, an overseer of the highways of the township of Upper Alloways Creek, in the said county of Salem. ' To this return the prosecutor pleaded that at the time when, &c., to wit, on the twenty-fourth day of August, 1863, the said William Ferguson, jun., was and ever since hath been and then was an overseer of the highways of said township, as authorized by the act for the better regulation of proceedings upon writs of mandamus. Nix. Dig. 454, § 2.* Issue having been joined on this plea, the jury, on the trial at the Salem Circuit, rendered a verdict for the relator. A rulé having been allowed — 125 — to show cause why this verdict should not -be set aside and a new trial granted, it is now to be considered whether any error was committed on the trial, which requires the interposition of this court. It is too clear to admit of doubt that the only matter submitted to the jury and to be determined by their verdict, was the truth of the fact alleged in the plea, viz., that William Ferguson, jun., at the time when, &c., was one of the overseers of the highways of the township of Upper Alloways Creek, in the county of Salem. This part of the averments in the mandamus and this part alone, was denied by the return. A more general denial of all the recitals was not attempted, either because the defendant could not deny them upon his oath or did not consider them important. Whatever the cause, he thought proper to set up a single reason why a peremptory mandamus should not issue; a reason which, if true, is amply sufficient. The burthen of proof, as to the truth of the plea, was on the relator; but any proof of other facts not involved in that issue would have been wholly irrelevant. There is no force, therefore, in the objection made on the trial and by one of the counsel in the argument here, that the relator should have been non-suited because he did not prove the truth of all the recitals in the mandamus. The authority so much relied on of People v. Supervisors of West Chester, 15 Barb. 607, where it is said that a mandamus must set-forth the proper facts, as at any time objections may be made, means only that a mandamus, like a declaration, must set forth a sufficient cause in itself; and if it does not, the defect being on the record is always open in a proper way to objection, in arrest of judgment or otherwise. The next reason insisted on for a new trial was that the court erred in admitting as evidence the book kept for the purpose of entering the names of the persons and offices to which they were elected at the town meeting, the same not having been signed by the presiding officer. It appeared that the clerk had himself signed the moderator’s name, but whether with or without his authority did not appejr. This — 126 — book, verified as it'was by the clerk’s oath of the truth of the proceedings of the town meeting therein recorded, was, in my opinion, properly admitted. It was held in the case of The State v. Bentley, 3 Zab. 535, that although a record duly made and signed is the best evidence of the doings of the meeting, the law does not make it so essential that the omissions of the clerk or moderator to comply with the statute, Nix. Dig. 835, § 16,* will deprive the public of its officers. This is emphatically a case where the provisions of the statute in this respect must be held to be only directory to the officers of the town meeting, rendering them responsible for their neglect of duty, but no more essential to the proof of the proceedings than would be the neglect of the clerk prescribed by the l7th section, to transmit a certified list of the names to the clerk of the Common Pleas, and to set up copies of such list in three or more public places in the township. There was ample proof of the election of the defendant, independently of the book and in corroboration of the entry there, not only by the evidence of the clerk but by the production of two affidavits, signed and sworn to by the defendant himself some time after the town meeting was held, in which he set forth that he was the overseer of the district and had accepted the office, and by the paper after-wards produced by the defendant, purporting to be a written resignation of the office of overseer of the roads in the aforesaid township. Another reason insisted on was that it apj>eared by the evidence that Ferguson was elected overseer, not by the voters assembled in town meeting, but by the voters only of the fourth road district of said township, who drew off separately, and after electing the overseer handed in his name to be recorded by the clerk, as it was. This was done in pursuance of a special law authorizing such a proceeding in that particular township. Acts 1856, p. 89. It was hence insisted that he was not an overseer of the highways of the township of Upper Alloways Creek, as alleged in the plea, but only ¿in overseer of the fourth district. No such reason — 127 — appears among those assigned, and it is apparent from the case that no such objection was made at the trial; if it had been, it would have been in the discretion of the judge to admit such amendments of the proceedings as would have prevented a failure of justice by reason of mistakes and objections of form, as authorized by the statute. Nix. Dig. 641, § 166.* But I do not think the objection ought to prevail, taking the pleadings as they now are. It is manifest from the whole tenor of the act of 1856, that the overseer, although to be elected as overseer of a particular district, may be designated as overseer of the township. It is a mere question of description in the plea, as to which certainty to a common intent is sufficient. But the more important question and the one upon which •the merit of this case turns is, did the judge err in overruling •the evidence offered to show that Ferguson had resigned and was no longer an overseer of the highways ? It appeared that four out of the five members of the township committee, being together on the ninth of June, 1863, but how convened or for what special purpose not being shown, a i>aper was handed to them signed by W. Ferguson and another overseer, as follows: “ June 9th, 1863. To township committee of Upper Alloways Creek. Sirs — This is to inform you that we, the undersigned, do resign being overseers of the roads in the aforesaid township.” And upon the back of the paper was the following endorsement, signed by the four committeemen: “ We, the township committee, do accept the resignation of Robert Wentzell as overseer of roads, and we do accept the resignation of William Ferguson, jun., overseer of roads in fourth district.” Ferguson testified, I have' done nothing as overseer since the 9th of June, 1863. There can be no doubt that, as was said in the ease of The State v. Newark, 3 Dutcher 198, the right of resigning an office or employment is universally recognized in practice and seems indispensable. If accepted by a power that has a right to fill a vacancy it becomes complete, and the officer is held to be no longer capable of acting. But it was insisted in this — 128 — case, and the stress of the argument for the defendant was-rested on the ground that a resignation is complete without acceptance, and for this reliance was had on the broad language of Judge McLean, in the case of United States v. Wright, 1 McLean’s R. 513. He there says: “ There is no doubt that a civil officer has a right to resign his office at-pleasure, and it is not in the power of the executive to compel him to remain in office. It is only necessary that the resignation shall be received to take effect, and this does not depend upon the acceptance or rejection of the resignation by the president.” This opinion, however, was a mere dictum,. and not the point on which the cause was decided, and is entirely without the support of authority, if it is not directly in oposition to prior decisions. The language of the court in the case of Van Orsdall v. Hazard, 3 Hill 245, is, “independently of the co-operation' of the appointing power, I take it to be entirely clear that nothing short of some permanent disqualification, such as removal with a view to a change of domicil, or perhaps lasting disability — for instance, paralysis- or insanity — can be allowed as itself creating a vacancy.” And in 4 Dever. N. C. 1, it was held that as offices are held by the will of both parties, if the resignation of an officer be not accepted he remains in office. When the mode of resignation is regulated by statute, as is the case in reference to appointments made by the joint meeting in this state, of course a compliance with the mode pointed out will be sufficient. In the absence of such regulation it would seem the only safe course to require the acceptance of the appointing power, who, in that case, if he deems the public interests require it,, will at once fill the vacancy. To hold that an officer, civil or military, may at his own pleasure divest himself of responsibility by simply tendering a resignation, whatever may be the circumstances prompting the act, it seems to me would be fraught with danger of no imaginary magnitude. But whatever may be the rule in regard to appointments-made by the president or by our own state governments, which are generally anxiously sought for rather than avoided, — 129 — the law is well settled that offices of municipal corporations can only be resigned, by being made to and accepted by the body having the power at the time to fill vacancies. In these cases the office is considered to be a burthen, as township offices in this state are, and a penalty is imposed for refusal to serve. See the cases cited by Justice Parke in Rex v. Patterson, 4 Barn. & Ad. 15, and collected in Grant on Corp. 223, 268, and throughout the work. Jacob’s L. Dic., tit. .Resignation. The industry of counsel has not enabled them to present a single case or dictum dissenting from these authorities. Admitting then that an overseer of the highways may resign, or, what is substantially the same thing and referred to in the statute, refuse to serve, neither act will discharge the officer from his duty until the resignation or refusal is properly recognized by some authority having power under the circumstances to fill the vacancy thus made. So important is it justly considered in the case of public corporations and of officers so connected with the administration of local jurisdictions, that in the absence of statutes or by-laws imposing a fine, it was held that a refusal to serve made the officer liable to indictment, and he might be compelled to serve by a mandamus. Grant Corp. 221, 226. By our act incorporating townships, Nix. Dig. 835, § 13,* it is provided that if an officer shall refuse to act, or die or remove, a special town meeting shall be held to fill the vacancy; and in case of neglect for fifteen days to do so, then the township committee shall, by writing under their hands and seals, appoint a person to fill such vacancy until the next annual town meeting. This power, as indeed are all the powers of the town meeting itself as well as those of the committee, is a special and limited one, and can only be fulfilled in the mode prescribed. Whatever may be the power of the town meeting in this respect, it is clear that the power of the committee is only to fill a vacancy and not to create one. It is of the greatest importance that these bodies be confined to the exact power conferred in express terms. The convenience and even the safety of the public require that every road district shall — 130 — have an overseer, charged with the duty of keeping the road in repair, and liable to heavy penalties for neglecting to do so. This court has repeatedly, by mandamus, required the committeee to assign overseers to the districts. In their haste to violate rather than to fulfil their proper-duty, the members of the committee who met, instead of waiting the fifteen days prescribed in the statute, until the-expiration of which period they had no power to act in any way, immediately accepted the resignation. In my opiniou they had no such power. Had they, after ascertaining that a town meeting had not acted, been properly convened and proceeded to appoint another overseer, the case would have come within the principle adopted in Rex v. Mayor of Rippon, 2 Salk. 433; 1 Ld. Raymond 563, and W. Ferguson would have been entitled to a verdict on this issue; although it is a grave question whether his resignation, as well as the-action of the committee, would not have been punishable as-a contempt if it appeared that the purpose of the proceeding was merely to evade obedience to the mandamus, which it. was known had then been applied for. Even if it could be admitted that the committee had power-to accept the resignation as they did, it was requisite that the meeting should have been regularly adjourned or that all the members were notified to attend. Meetings of a corporation or of a select body having power to act for them, are-not valid in the absence of a statutory mode of notice when all are present, or all are actually summoned to attend. Rex. v. Bailiffs Liverpool, 2 Burr. 723; Rex. v. Mayor of Carlisle, 1 Str. 385; King v. Langhorn, 4 Adol. & Ell. 538; Grant Corp. 155. This is not, as counsel insisted, confined to cases of judicial proceedings, but is a rule of great importance, to-be observed in all proceedings of such bodies. As a majority form a quorum, and a majority of those present can decide a measure, it follows that in the case of a committee of five the consent of two might effect a purpose to which a majority of the whole, if they had the opportunity of being present,, might be opposed. — 131 — In my opinion the evidence offered to show that W. Ferguson had ceased to be overseer of the highways of the township of Upper Alloways Creek, by means of the written resignation and acceptance produced, failed to show any such result, and was therefore properly overruled. The rale to show cause should be discharged and final judgment entered for the relators with costs, according to the statute. Vahn Dyke, J., dissented. Cited in Love v. Jersey City, 11 Vroom 459; Bolton v. Good, 12 Vroom 298. Footnotes [*] Rev., p. 1196, § 16. [*] Rev., p. 1195, § 13. [*] Rev., p. 630, § 2. [*] Rev., p. 1196, § 16. [*] Rev., p. 869, § 138. [*] Rev., p. 1201, § 45.