The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1893-05-14
The Legal View.

nation or incapacity, or by failure to
elect at the time prescribed by law. The
time for holding a special election to fill
vacancy may be prescribed by the laws
of the territory where it occurs.
In this territory special election to fill
vacancy in the Office of Delegate is to be
called by the Governor within twenty
days after he has received notice of such
vacancy.
There is no form provided by which
notice of a vacancy is to be served on the
Governor, nor does the law, either of
Congress or of the territory, prescribe by
whom such notice shall be given. The
law is also silent as to the acceptance or
rejection of a resignation. A vacancy
must exist, and notice of it must be re-
ceived by the Governor before he can take
action as to the filling of the vacancy.
Does vacancy exist when the incum-
bent, after sending his resignation to the
governor by letter and previous to it's
reception, interposes his withdrawal OF
the resignation? Ifnot, the governor may
not call special election in his case.
The notice is to be that there is a vacancy.
Ii the withdrawal is equal or superior to
the resignation there is no vacancy,
therefore there can be no legal special
election.
In the absence of any statutory pro-
vision as to the acceptance of the resigna-
ton of a public officer, the common-law
will rule. There is no such provision in
the laws of Utah nor in the laws of Con-
gress. Under the common law no resig-
nation is complete without it's acceptance.
And as notice of vacancy is to be served
on the governor, it devolves on that
functionary to take formal action as to
the acceptance of the resignation which
causes the vacancy.
A notice from the Governor of a special
election to fill vacancy in the Office OF
Delegate would be equal to formal ac-
ceptance of the resignation which caused
the vacancy. Until some acceptance is
formulated the resigning officer is still
the incumbent. He cannot alone rid
himself of the responsibilities of the
office.
The legal theory is that the rights of
the people must be protected as well as
those of individuals who are elected to
office. After entering upon the office
they cannot vacate it without the consent
of the people or some one officially repre-
senting them. When a state or territory
provides for resignation at the will of the
incumbent without formal acceptance
that law will rule, but otherwise the COM
mon law principle holds that resigna-
ton without acceptance is incomplete
and therefore void.
Lest there might be some dispute as to
these propositions, we will cite some au-
thorities bearing directly on the question.
In the case of Edwards VS.. United States
in error to the Circuit Court of the United
States for the Western district of Michi-
gan (see 103rd United States reLorts)
Justice BRADLEY delivered the opinion of
the court which ruled that:
1.-THE common law rule is in force in
Michigan, that the resignation of a pub
lie officer is not complete until the proper
authority accepts it, or does something
tantamount thereto, such as to appoint a
successor
The reason why this common law rule
prevailed in Michigan was that, as in the
case of Utah, there was no statutory pro-
vision on the question involved. In
arguing the matter Justice BRADLEY
said:
GAS civil officers are appointed for the
purpose of exercising the functions and
carrying on the operations of government
and maintaining public order, political
organization would seem to be
imperfect which should allow the
depositaries of its power to throw
off their responsibilities at their
own pleasure. This certainly was not the
doctrine of the common law. In England
a person elected to a municipal office was
obliged to acceptit and perform It's duties,
and he subjected himself to penalty by
refusal. An Office was regarded as
burden which che appointee was bound
in the interest of the community and
of good government to bear, and from
this it followed of course that. after an
office was conferred and assumed, it could
not be laid down without the consent of
the appointing power. This was required
in order that the public interests might
suffer no Inconvenience for the want OF
public servants to execute the laws
A large number of authorities was cited
by the court and continuing, the justice
said:
SIN this country where Offices of honor
and emolument and commonly more
eagerly sought after than Stunned,
contrary doctrine with regard to such
offices, and in some states with regard to
offices in general may have obtained; but
we must assume that the common law