The San Francisco call., 1897-01-20
DID THE BOARD
ACT UNLAWFULLY2
Mr.. Babcock Thinks That
the Old School Direc-
tors Erred.
Finds a Decision Under Which
Their Acts May Have Been
Invalid.
Mr.. Murdock Sat as a Mem ber After
He Resigned. Although He Had
Not Been Reins tated.

Superintendent Babcock OF the public
schools has discovered a decision of the
Supreme Court which he believes to be
applicable to the resignation of School
Director Murdock last October, and, if his
conclusions are correct, there may be
some question raised concerning the legal
ity of all the proceedings of the board be-
tween October and the first of January.
at least this is the view taken of it by Mr.
Babcock. He has submitted the matter
to the City and County Attorney for con-
sideration.
"The decision which I have found" said
Superintendent Babcock yesterday, lis
that of the People against Porter, which
was given by the Supreme Court of this
State. 1t appears to me to be applica BILE,
and l understand that there IS later deci-
sion in the same direction. The doc trine
laid down in the Porter case is that the
appointing power has nothing to do with
a resignation, and that when an incum-
bent OF a civil Office resigns that resigna-
tlon takes the person out of Office"
The decision which Mr.. BabcocK re.
ferred to is found in CAL, 26. The ac-
tion was for the usurpation by the defend
ant, Porter. of the Office of County Judge
of Calaveras County. There was va
cancy in the Office of County Judge on the
gust William H. Baogeley, County Judge
of Calaveras County, rendered to The Gov
ernor b, mail his resignation, which was
to take effect September 1. The resigna-
tion was received by the Governor August
"a. No action was taken by him until
September s, when he appointed and COM
missioned Porter, who entered at once
upon the discharge of his duties.
In the meantime the Supervisors had Or
dered an election to take place Septe m Der
8 TO fill the vacancy, and Charles a. Leake
gas duly elected, obtained his certificate
OF election from the County Clerk, quail
fed and offered TO enter into office, but
was prevented by Porter from so doing.
In the opinion OF Justice Terry, Justice
Heyfenfeldt concurring, 1t was set forth
that 1.-THE tenure of an Office does not de-
pend upon the will OF the executive. but
of the incumbent. l have no doubt that
it was in his (Badgeley's) power at any
time before September l to Withdraw his
resignation and continue in office. Not
having done so the resignation became
effectual and vacancy was created on
that day. The judgment of the lower
court, which was in favor OF Porter, was
confirmed.
The facts concerning the resignation of
He resigned his otfice October 2, 1885, say
ing that he was not satisfied. Upon mo-
tion OF Director McElroy the resignation
was laid upon the table. October IA the
board received letter from MIR. Murdack,
in which he explained his absence and
said that the matter was in the hands of
the City and County Attorney.
At the same meeting Director McElroy
moved that permission be given to Mr..
Murdoch 10 withdraw his resignation.
Director Carew moved TO await the action
OF the City and County Attorney, and this
motion was adopted. Mr.. Murdoch then
resumed the performance of the duties of
a member of the BOARD and so continued
until the terms of office of the board had
all expired, MS status not being affected
by any opinion OF the City ana County
Attorney. Mr. Murdock's name is found
set down on the records in response TO the
rollcall on October %.
From that time on he took part in the
deliberations OF the board and voted on
propositions contemplating the expendi-
ture OF money and other matters of public
importance.
Now Mr.. Babcock contends that Mr..
Murdock having resigned, in view of the
doctrine laid down in People VS.. Porter
by the Supreme Court, he was no longer a
memb ber of the board and that the board,
by permitting him to sit as a mem Der,
and TO vote as a member, after he had
resigned, may have invalidated ali that it
did during the latter part OF the year.