108 Kan. 101 | Kan. | 1920
The opinion of the court was delivered by
This proceeding involves the right of M. F. Amrine to recognition as a member of the board of education of the city of Council Grove. He had been duly elected to the office, but the board refused to recognize his right to the office on the theory that he had resigned the position and that another had been elected to succeed him. This action was then brought by the plaintiff to compel recognition.
It appears that sometime after his election he went to France, where he was engaged in war work under the direction of the Young Men’s Christian Association. Shortly after arriving there he wrote a letter to J. N. Pemberton, who was president of the board, relating to his work in France and to which he added a postscript to the effect that in case Pemberton thought it best or found it necessary he might consider the statement as a resignation. Pemberton testified that he never considered the statement in the letter as a resignation, never thought it necessary to treat it as such, never presented it to the board, and that no action had ever been taken by the board towards an acceptance or a declaration that a vacancy in the office existed. There was a rumor in the city that a resignation had been tendered and some of the citizens gave consideration to the question of a vacancy and as to suitable candidates to fill it. Two proclamations of the city election of 19Í9 were
The election was held and upon a canvass of the votes it was found that 55 votes were cast for J. J. Rhodes, as a successor to Amrine, and 65 votes for a number of other persons. While about 450 votes were cast at the election on one of the propositions submitted to the electors, only 120 were cast for the position in question. A certificate of election was issued to Rhodes and at several meetings of the board prior to the return of Amrine he was recognized as a member of the board. Shortly after the election Amrine returned and claimed the office and made the demand for recognition as a member of the board, which was refused.
In an earlier stage of this proceeding a motion for judgment on the pleadings was made and it was then determined that under the allegations of the answer Amrine’s right to the office had been extinguished. The ruling was based on the averment that he had resigned the office and upon the principle that the action taken by the board was tantamount to an acceptance of it. (The State, ex rel., v. Board of Education, 106 Kan. 863, 189 Pac. 915.) Following this decision the testimony was taken and under the facts as now presented it must be held that there never has been an unconditional or effective resignation.
Under the commo'n-law theory, and the one which has been adopted in this state, the duties and responsibilities of a public officer cannot be laid down at his will or pleasure. There must be a resignation with the intention of relinquishing the office, and it is not then effective until it has been accepted by the proper authorities or they have done something that is equivalent to an acceptance. (The State, ex rel., v. Clayton, 27 Kan. 442; Rogers v. Slonaker, 32 Kan. 191, 4 Pac. 138; The State, ex rel., v. Board of Education, supra.) Instead of tendering an unqualified resignation to the board of education,
Holding under the evidence that there was no effective resignation and no vacancy, it must be held that Amrine is entitled to the office claimed and therefore judgment is rendered for plaintiff in accordance with the prayer of the petition.