Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1882-01-28
The Opinion.

| Syllabus.
First OBSERVATION-DISCLOSURES of Off.
to resign to avoid obedience to a writ of man
damus. where he has an unrestricted right OF
Second Same Constitutional Law Tennessee
Constitution 1870 Art Z, Sec. 5, Constructive
ibat every oeef shall hold his se Once n his
successor is elected appointed and qualified. -
must continue in the discharge Of his duties un-
til his successor Is elected or appointed and quail
ton to obey writ OF mandamus, notwithstand-
ing his resignation. and + guilty Of contempt Il
CATION passes to his successor when qualified.
HAMMOND, J.
/ am unable to see why an officer served
with mandamus 10 levy taxes should be
| compelled to remain in office to discharge
that duty any more than to discharge any
| other duty imposed by law. The manda-
mus directs him to do what by law he
should do without it, but does not, in any
legal sense, make the duty more binding.
| limited States Us. Clark county, 95 u s., 769. |
If ano fficer is justified in surrendering his
Office because its duties are disagreeable to
him, or for any reason he does not wish to
perform them, why may he not give it up
! for that reason as-weh after as before man
datory process, and this without any re-
sponsibility for or inquiry into the motives
| TOR his action? 1t seems to me wholly un-
| tenable, when an officer has the right of res
ignation, to hold that he is guilty of con-
| tempt of court if he resigns rather than
| obey a writ of mandamus. He cannot
delay obedience without contempt, and
he remains in contempt as long
as he continues in Office without obedi-
ence. Hof rs. Jasper county, 20 Am. Law
Reg. IN. 81 435 But if before the opportu-
nifty to obey arrives, or before the time pre-
scribed by law for obedience, he resigns
| effectually or vacates the Office, / do not
recognize in the act of resigning any con-
tempt, no matter what his motives. The
mere fact that the creditor may be thus de-
feated of his remedy does not furnish rea-
son, though even this is merely temporary,
as the successor is amenable to the same pro-
cess. Commissioners us. Sellen, SO q. s.,
624. Thompson Us. United States, 103 U. s.,
480, 4S4. United States rs. Labette county,
Fed Rep. 318, $780, No authority has been
produced which supports the contrary doc
trine, and / think these views accord with
the principles involved in the consideration
of the subject and are proper inference
from the cases. Rees rs. WATERFOWL, 10
Wall, 10Y. Rarkley Us. Levee Commission
ers SO IS, 258. Meriwether Us. Garrett,
102 U. S., Az, 511-51S. Edwards ~. United
States I03 .. s., AL. Thompson u.s. United
States, supra The leading question in this
case is whether or not these respondents have
effectually resigned, or are still the justices
Oh LduueTudle anu lldDle sOr a nom
compliance with the writ commanding
them to levy the tax to pay the REALTORS
Judgment. This question depends upon a
proper construction of the constitution of
Tennessee, and there is no decision of the
Supreme Court Of the State to guide me in
its determination. Prior to the constitution
of 1870 there can be but little doubt that the
laws of Tennessee permitted to all officers
the most unrestricted right of resignation
The designations of the respondents were
rendered according to the Code and accepted
by the CouAty Court, which was, under the |
law as it existed independently of the consti- |
tuition, sufficient TO vacate their offices, al |
though REALTORS counsel suggest that for |
NAL acceptance is required, which was want !
ing as to some of the justices. 1t seems, |
however, to be generally conc eded by the |
authorities that where the officer or tribunal |
designated by law to receive designations |
has no duty to perform in respect to supply
ing successor the bare receipt of the resig-
nation without objection amounts to an ac-
ceptance. [Dill. Munic. Corp, sec. 1913 and
cases cited. McCrary Us. Elec sec. 260 and
cases cited. Edwards rs. United States, supra.
Thompson ~. United States, supra. Dennis,
II N. Y, 1878. State eE rel rs. Hauss, 43
Ind los. State ex rel. Us. Blocker, 56 Mo-,
IL Under the influence of the common
law, which was very strict as to the sur
render OF an office held by patent, requir-
ing that document to b, surrendered and
and the general principle of that
system OF laws which treated Offices as prop
erty, whether held by grant from the crown
or otherwise, it may be doubtful, particu-
larly in view of its Interpretation by the |
Supreme Court OF the United States in the
two cases last above cited, if this rule would
apply, and whether a more formal accept
ance would not be necessary. But it is con-
ceded by the court in those cases to be a
- lou r |
have no doubt, whatever, that under our
State Law it must be held that receiving
without dissent and filing the resignation, by
he authority appointed to receive it, consti-
ute an acceptance, and answer the common
aw requirement of that ceremony. [3
Meigs's Dig, I'd edition, sec. TAG. Kings
Dig, ID edition, SECS 1913, 1874. t. and
ion."l The authorities are too numerous
or citation here. A justice of the peace who
wishes to resign, shall make his resignation
o the County Court of the. county of
which he may be a justice. Act 1906, chap.
"A, sec. l. T. and S. Code, sec. 353.l When
,ver vacancy in the Office of jus,
ice of the peace occurs, it is filled
" special election to be held for the
purpose on ten days notice. Act 1885,
hap. ], sec. Is. L. and S. Code, sec. 342.
III special elections for county officers
authorized by law shall be ordered by the
heriff of the county, or the coroner in case
here is no sheriff; and he may proceed with
tut any formal notice of vacancy to hold the
lection. Code of 1858, T. and S. edition,
hat the County Court, in receiving the
acts ndependently of the sheriff
n holding the election, there being abso- {
utely no connection between the two. Other
provisions of the Code are cited BY the
earned counsel of respondents requiring
he justice on his resignation to turn over
lis dockets, books and papers to the near
st Justice of the peace, who is authorized
0 issue executions, ETC., showing his !
right of resignation. T. and
. Code, secs. APO, 5I36, 4139, 4I43-all
AIKEN from the act of 1885, chap. II. These
PROVISIONS of the statutes, which show SO
onclusively the modification if not the abro- /
alton of the common law governing the 7
esignations of these officers, do undoubtedly v
axe this case out OF the rule of Edwards u.s. c
he United States and Thompson t. the t
United States supra, and bring it within the U
there discussed, that it is matter I
local regulation that must control this Z
sse. But these statutes were all prior to
he constitution of 1870, which declares that t
every officer shall hold his office until his a
uccessor is elected or appointed and quail g
i. 1851 The former constitutions c
nder which the foregoing and I
Imilar statutes were passed, contained o
0 such provision. 1t was, how t
yer, principle of the common law that e
very officer held his office until his success q
Dr. was qualified and he could not surrender Il
without consent OF the crown or other APP 81
ointing power, or the election of his success 81
'r where it was an elective office; and this,
we have seen, was the basis of the rule G
lat an acceptance OF a resignation was ST
ecessary TO give that consent and vacate v
lie office. 1t was manifested BY cancella- b