Show The Legal View A vacancy in the office of Delegate in Congress may be caused by death resignation resig-nation or incapacity or by a failure to elect at the time prescribed by law The time for holding a special election to fill a vacancy may be prescribed by the Jaws of the territory where it occurs In this territory a special election to fill a 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 a 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 received re-ceived by the Governor before he can take action as to the filling of the vacancy Does a vacancy exist when the incumbent incum-bent after sending his resignation to the governor by letter and previous to its reception interposes his withdrawal of the resignation not the governor may not call a special election in his case The notice to be that there is a vacancy If the withdrawal is equal or superior to the resignation there is no vacancy therefore there can be no legal special election < i In the absence of any statutory provision pro-vision as to the acceptance of the resignation resigna-tion of a public officer the commonlaw will rule There is no such provision in the laws of Utah nor in the laws of Congress Con-gress Under the common law no resignation resig-nation is complete without its acceptance And as notice of a 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 a vacancy in the office of Delegate would be equal to a formal acceptance ac-ceptance of th re 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 itwithout the consent of the people or some one officially representing repre-senting them When a state or territory provides for resignation at the will of the incumbent without formal acceptance that law willrnle but otherwise the common com-mon law principle holds that a resignation resigna-tion without acceptance is incomplete and therefore void Lest there might be some dispute as to these propositions we will cite some authorities 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 Michigan Michi-gan see 103rd United States reports Justice BRADLEY delivered the opinion of the court which ruled that The common law rule ic in force in Michigan that the resignation of a public pub-lic 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 provision pro-vision on the question involved In arguing the matter Justice BRADLEY said As civil officers are appointed for the purpose of exercising thb functions and carrying on the operations of government and maintaining publio order a 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 accept it and perform Its duties and he subjected himself to a penalty by refusal An office was regarded as a burden which the 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 1 In this country where offices of honor and emolument and commonly more eagerly sought after than shunned a contrary doctrine with regard to such offices and in some states with regard to officesin general may have obtained but we must assume that the common law fj > iifj K ii < p I rule prevails unless the contrary be shown It seems to us apparent that the common com-mon law requirementnamely that a resignation res-ignation must be accepted before it can be regarded as complete was not intended inten-ded to be abrogated To hold it to be abrogated ab-rogated would enable every oftlco holder to throw off his official character at will and leave the community unprotected We do not think that this was the intent of the law In Hoke vs Henderson decided in 1832 Mr Chief Justice Ruffin speaking for the supremo court of North Carolina said An officer may certainly resign but without acceptance his resignation is nothing and he remains in office It is not true that the office is held at the will of either party It is held at the will of both Generally resignations are accepted ac-cepted and that has been so much a matter of course with respect to lucrative offices as to have grown into a common notion that to resign is a matter of right But it is otherwise Tho public has aright a-right to the services of all the citizens and may demand them in all civil departments depart-ments as well as in the military Everyman Every-man is obliged upon a general principle after entering upon his office totiis charge the duties of it while he continues in office and he cannot lay it down until the public or those to whom the authority author-ity is confided are satisfied that the office is in a proper state to bo left and the officer discharged In view of these authorities it seems clear that the Governor representin the people of this territory may withold acceptance ac-ceptance of the resignation tendered inconsideration in-consideration of the very general expression expres-sion of the people who elected Mr RAWLINS RAW-LINS that he shall withdraw it And if that withdrawal is interposed before reception re-ception of the resignation that appears to strengthen his position if he decides not to recognize a vacancy in the office We agree with the proposition that 1 what is done must be legally done and we have no doubt the Governor will be sure he is right before he goes ahead |