172 Ind. 1 | Ind. | 1909
The complaint alleges the election of relator to the office of assessor of Mitcheltree township in Martin county, Indiana, at the general election of 1904, his eligibility and qualification, and the discharge of his duties as such until February, 1907, when upon demand upon the auditor for the necessary and prescribed assessor’s books, blanks and other papers they were refused him; that the auditor had attempted to appoint appellee as assessor, and had accepted and approved a pretended bond tendered by appellee, and administered a pretended oath of office to appellee and delivered to him all the plats, books, blanks, papers and other official supplies for the assessor of said township, and recog
Appellee answered in two paragraphs: One paragraph admitting the election of relator as assessor at the general election of 1904, and his qualification and discharge of the duties until December 15, 1906, ‘ ‘ at which said time he voluntarily abandoned said office and left the State of Indiana, with the avowed purpose of remaining away permanently,” and alleging the appointment, January 29, 1907, of appellee to fill the unexpired term of relator, appellee’s eligibility, qualification and entry upon the duties of his office, and his continuance in discharge of those duties under such appointment. The second paragraph alleges the written resignation of relator submitted to the board of commissioners on December 15, 1906, and its acceptance, the appointment of § successor by the board and such appointee’s failure to qualify, the eligibility of appellee, his appointment by the auditor, his qualification, etc., and that he is acting by virtue of such appointment.
The demurrer of appellant to each of these answers was overruled, and exceptions reserved. There was a reply in general denial, a trial, finding and judgment for appellee.
“December 15, 1906.
To the Board of Commissioners of the County of Martin.
This is to certify that I, assessor of Mitcheltree township, do hereby ask you to appoint Robert C. Armstrong as my successor, as assessor of said township. If you cannot appoint him as my successor, I decline to resign, and will have him appointed as my first deputy.
Walter MeG-uyer,
Mitcheltree Township Assessor.”
This paper he delivered to Armstrong, who in turn delivered it to one of the members of the board, when not in. session, or
On January 29, 1906, the auditor of Martin county, after reciting that relator, the former assessor, had tendered his resignation to the county commissioners, and removed from the State, and the commissioners had appointed Armstrong, who was at the time ineligible, and that the office was vacant, appointed appellee to fill the unexpired term of relator, and appellee took the oath of office, qualified, and has since acted. The parol evidence shows no intention on the part of relator to remain in California, or to abandon his residence in Mitcheltree township, but shows an intention to return not later than March ensuing, unless the board should appoint Armstrong as his successor, or he should appoint Armstrong as his deputy, and then not later than March 15, 1907. There appears to have been some communication between relator and the commissioners prior to December 15, 1906, in regard to his going away, and in regard to his selection of a deputy, and there was an impression that the commissioners might have something to do with his appointing a deputy, in case they could not appoint a successor, or that he had to be present to appoint one himself, and it appears from the evidence that he supposed, until after the appointment of appellee, that Armstrong had been selected as his deputy, when he learned of it through a county paper. As early as January 20, 1907, relator had made preparations to return from
“I should have written you before, but have failed. I will leave to-morrow for Indiana to do my work as an assessor, as Mr. Armstrong failed to qualify, and my resignation which I sent was to the effect that if he did not serve, I was not to be considered as resigning. I will be at Shoals on March 1. ’ ’
We come then to the question whether the paper relied on constituted a resignation. When it was offered, it was not objected to by relator on the ground that it had not been pleaded, and the question as to whether it was admissible on that ground is not presented. Nor was it objected to upon any ground of inadmissibility, but upon the -ground that it was not a resignation, but a communication to the board of commissioners. It then resolves itself into the matter of the proper construction of the paper. In that determination several propositions of law are to be considered.
A resignation may be withdrawn if not accepted, and it has been held not effective, although a successor has been appointed, if it was transmitted without the officer’s consent. Biddle v. Willard, supra; State, ex rel., v. Boecker
The judgment is reversed, with instructions to the court below to sustain the motion for a new trial, and for further proceedings in accordance with this opinion.