People v. Porter

Mr. Justice Terry delivered the opinion of the Court. Mr. Justice Heydenfeldt concurred.

On the 13th day of August, Wm. H. Badgley, County Judge of Calaveras County, tendered to the Governor (by mail) his resignation of said office, which by its terms was to take effect on the 1st of September.

The resignation was received by the Governor on the 24th of August. No action was taken by him in the matter until the 8th of September, when he appointed and commissioned respondent, who having duly qualified before a proper officer, entered upon the discharge of the duties of said office, which he continues to fill.

The fact that Badgley had resigned his office having been announced in the newspapers, the Board of Supervisors for Calaveras County ordered an election to fill the vacancy caused by said resignation, to take place on the day of the next general election, which was holdcn on the 5th of September, which order was published for more than ten days prior to said election.

Charles A. Leake, the relator, received at said election a majority of all the votes cast for the office of County Judge, obtained his certificate of election from the County Clerk, qualified and offered to enter into said office, but was prevented by respondent. This action was then [28]instituted, and the ease submitted on an agreed statement to the District Court for Calaveras County, where judgment was rendered in favor of respondent.

It is contended by respondent, that to render a resignation effectual, it is necessary that it should be accepted by the appointing power, and therefore no vacancy existed until the 8th of September, when the Governor, by the appointment of respondent, signified his acceptance of the resignation of Badgley. I do not think this point is well taken.

The tenure of an office does not depend upon the will of the Executive but of the incumbent. In 1 McLean’s Reports, 512, it was held “ that 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.”

The resignation of Badgley by its terms was to take effect on the 1st of September. I have no doubt that it was in his power at any time before that date, to withdraw his resignation and continue in office. Not having done so, the resignation became effectual, and a vacancy was created on that day.