The Evansville journal. [volume] (Evansville, Ind.) 1866-1870, 1869-03-06
OPINION OF JUDGE 1eLEHART.

AACfttf dCtE A%fN " ~ ' NN
derotr0h County:
Having been requested by you to give an
opinion as 10 the validity of the appoint
ment of Samuel Barker, County commits
siOner, to fll an alleged vacancy occa-
siOnet by the alleged restgHati n OF Henry
Hawkins, hsve examined the Commits
sioners record aud the statutes bearing
upon the subject. and listened to the state
ments of tue case by the individual MEM
Oers OF the Board, and now proceed u
comply with your request.
The facts as | learn them from the
sources above stated, are about as follows:
Ga the 10Th day OF February, 1869, Mr..
Hawkins desiring To resign his Office as
County Commissioners, applied to Mr..
Auditor Bisch TO prepare a formal resigna-
Mr.. Biach believing thai the resignation
should be directed to, and flied In the office
himself, and after Mr.. Hawkins had signed
the same IN Auditor deposited IL in his
office.
The qua OF the Is
:" HereaOith resign my office as County co M
missioner Of PaHder9UTgh County,"
on the second day of the present session
the validity OF whtcn l think Is not in
Yolved here, and 1. therefore. omit any
formal statement of Them.
On the third day CT the term, the two
remaining Commissioners, Messrs. Decker
and Bower, and the Auditor being ures-
eat, it was proposed by Mr.. Decker. Presi-
lent OF the Board, to fill the vacancy Oc-
csslOned by the resignation of Mr. Hawk
ms. whereupOn Mr. Bowers Onjecte3, upon
t4AC CN9 bAA4b BAAC 80 AoAIAOA " Va
Hawkins was not delivered to the Clerk,
and IL was proven by the Clerk that no
resignation was on file in his office.
That pending these proceedings the
Clerk of the Circuit Court filed his certtf-
cate, stating that on hat day the restgna-
ton of Mr.. been filed in his
office, w~hersupon the Il )ard still being in
session, Mr.. Bowers belng present, but pro.
testing, samuel Barker was appointed to fill
the vacancy. 1t appeared upon eXamfna-
ton That the resignation To which the
Clerk certified, was the same which was
left by Mr.. Hawkins with Auditor Bisch,
and the fnfereuce Is a fair one, that Mr..
Bisch hled is in the Clerks Office.
II further appears that after eOrder APP
pointing Mr.. Barker, r.Hawkinscame be-
lore the Board, and stated that he had CIV
en- his resignation to Mr.. Bisch, believing
that he wa the proper off 1er, and intend
ing a resignation; that he never gave any
express authority to MIR. Il. to file it in the
Clerks office; that he was infor ned that
the resignation was illegal, auG If so he de-
sired to Withdraw it and revoke Ii.
BY the second section OF an act concern
Ing commissions certificates and reSigna-
ttons OF officers, Il q & II. r. :. 2450 it IS
provided that County commissioner are
TO receive lin lieu of their oOmmission) a
certificate from the Clerk of the Circuit
BY the third subdivision of the third sec
ton of the same act, it provides that he
resignation OF certain officers, embracing
County Commissioners, shall be tFoaS3RiE-
ted to the Clerk of the Circuit Court, and
by the eighth section of the same act, the
party so ~resIgning shall give notice TO the
Now, the question, and the oaly one in
my oplniOn, presented here is, did Henry
Hawkins, within the meaning of the stat
ute. and up "A a fair construction of the
ton to the Clerk of the Circuit Court?
For 1t will scarcely be contendedt latifthe
resignation was legally accomplished that
Mr.. Barker appointment is illegal.
If the resignati II was properly teHdered,
the office at once became vacant, and no
act OF ratification or acceptance was nee
nGSnFU on Tho mart n fFkna Rnn FH a fNnna n is
S1OnerS-NOr waSit1n the power ofHaWktnS
10 W e or withdraw the resignation, if
once it Was lawfully placed in the hands
of the Clerk. So, then, let us enquire
whether the resignation was properly
made.
was duly filed in his office. The Board
viii, OF course, presume that the res1g-
nation came properly into the hands
presumes that that which is upon its face
regular is absolutely SO, and he who alleges
irregulariiy must prove IL. And no at
tempt was made here, as l understand, to
show any substantial regularity Indeed,
the Board of Commlss oners might Wei
have treated the certl1cate or notl1e&tlon
of the CLERK a~sc0ncLUS re, and have refu ed
to look outside of 1t.
Is TO the necessity of the person re Sign
ing giv1nz notice, the prOvisIo of the
statute on this subject is merely directory,
and If 1t were at all materials to comply with
1t, the delivery of the resignation to the
| AudttOr was q sufficient notice, as he was
| the clerk and a m of the Board
charged with the appointment OF a sue
So then, 1 arrive at the conclusion that
the Board had before them evidence from
which they might fairly presume, if not
concIusiveIy, that the resignation was reg
ularly transmitted to the clerk, and, hav
ing acted upon II, their action is cOnclu-
But, as this view will be regarded as
technical, 1 propose to place my opinion
upon higher ground.
The case is This: Mr.. Hawkins desires to
res gn his Office He goes to Mr.. Bisch.
the Auditor, to write his resignation and
resig alton. BY mistake he addressed ii
to himself as Auditor, a thing wholly i'm
material. No address was Beces airy: "A
wrong address did no harm. The instru-
ment was a resignation in due form, and
valid, NOW Outstanding a wrong address
The Auditor flies 1t in his own office, and
finding it should h we been filed with tAe
clerk, correets the mistake he induced
himself by. hting. the paper IN Tue proper
wal imply the OF Mr.. BiScn t6
carry out the object of Hawkins, by pIac-
ing the paper In the right custody.
There is q principle OF law which applies
with great force here. It is this: the law
will ordinarily carry GU the O.
parties to a contract or other transaction
regarding the substance rather than the
form, and seek rather t. give effect 10 tht
object intended to be accomplished than tC
defeat the same. -eE4s
Here, Mr.. Hawkins. in good faith In
tended a resignation. A substantial com
pliance with the provisions of statute II
accomplish hat object was had, and / an
clearly of opinion that any Court would
eonstrue the acts of the parGies to hav'
legally produced q acanc and therefore
h appointment OF Mr.. Barker IS valid.
Mr.. Bo wers' protest or opposition cou'C
not lnvalldate the appointment, there be
ing at h time 8 legal vacancy.
1 fully coAeur with the County ATTORNEY
that The transmission Of The resignation &
the clerk is the essence Of the transaction,
and that having taken place, the reSiena
ton was perfect. A vacancy occur ed anC
1.-The. appointment of Mr.. Barker, bein;
regular, is valid. A2
Respectfully, ASA IGLEHAhT.