10 F. 460 | U.S. Cir. Ct. | 1882
I am unable to see why an officer served with a mandamus to levy taxes should be compelled to remain in office to discharge that duty any more than to discharge any other duty imposed by law*. The mandamus directs him to do what by law he should do without it, but does not, in any legal sense, make the duty more binding. U. S. v. Clark County, 95 U. S. 769. If an officer is justified in surrendering his office because its duties are disagreeable
The leading question in this case is whether or not these respondents have effectually resigned, or are still the justices of Lauderdale county and liable for a non-compliance with the writ commanding them to levy the tax to pay the relator’s judgment. This question depends upon a proper construction of the constitution of Tennessee, and there is no decision of the supreme court of the state to guide the court in its determination.
Prior to the constitution of 1870 there can be but little doubt that the laws of Tennessee permitted to all officers the most unrestricted right of resignation. The resignations of the respondents were tendered according to the Code and accepted by the county court, which was, under the law as' it existed, independently of the constitution, sufficient to vacate their offices, although relator’s counsel suggest that a formal acceptance is required, which was wanting as to some of the justices. It seems, however, to be generally conceded by the authorities that where the officer or tribunal designated by law to receive resignations has no duty to perform in respect to supplying a successor, the bare receipt of the resignation without objection
Under the influence of the common law, which was very strict as to the surrender of an office held by patent, requiring that document to be surrendered and cancelled, and the general principle of that system of laws which treated offices as property, whether held by grant from the crown or otherwise, it may be doubtful, particularly in view of its interpretation by the supreme court of the United States in the two cases last above cited, if this rule would apply, and whether a more formal acceptance would not be necessary. But it is conceded by the court in those cases to be a question of local law in each state, and I have no doubt whatever that under our state law it must be held that receiving without dissent and filing the resignation by the authority appointed to receive it constitute an acceptance and answer the common-law requirement of that ceremony. 2 Meigs, Dig. (2d Ed.) § 746; 3 King, Dig. (2d Ed.) §§ 3973, 3974; T. & S. Code, passim, tit. “Officers” and “Designation.” The authorities are too numerous for citation here.
A justice of the peace who wishes to resign shall make his resignation to the county court of the county of which he may be a justice. Act 1806, c. 54, § 1, (T. & S. Code, § 353.). Whenever a vacancy in the office of a justice of the peace occurs, it is filled by special election to be held for the purpose on ten days’ notice. Act 1835, c. 1, § 15, (T. & S. Code, § 342.) All special elections for county officers, authorized by law, shall be ordered by the sheriff of the county, or the coroner, in case the sheriff cannot act or in case there is no sheriff; and he may proceed without any formal notice of vacancy to hold the election. Code of 1858, (T. & S. Ed.) §§ 804, 827. From this it will be seen that the county court, in receiving the resignation, acts independently of the sheriff in holding the election, there being absolutely no connection between the two. Other provisions of the Code are cited by the learned counsel of respondents requiring the justice on his resignation to turn over his dockets, books, and papers to the nearest justice of the peace who is authorized to issue executions, etc., as showing his untrammelled right of resignation. T. & S. Code, §§ 4126, 4136, 4139, 4143, all taken from the Act of 1835, c. 17.
These provisions of the statutes, which show so conclusively the modification, if not the abrogation, of the common law governing the
Nor was there wanting a solid foundation of good reason for the principle. The services of officers are necessary to organized society; and any hiatus or interregnum tends to disorganization. If one’s property, services as a soldier, his very life, in fact, may be taken to preserve society, there is no reason why his personal services, in an official capacity, may not be demanded and insisted on by the state. Enforced jury service furnishes a conspicuous example of the principle, as well as compulsory attendance of witnesses, and there may be others. Our own constitution says:
“No man’s particular services shall be demanded, or property taken or applied to public use, without the consent of his representatives, or without just compensation being made therefor.” Article 1, § 21, T. & S. Code, p. 82.
Not only is this compulsory service supported under this doctrine of necessity, but likewise under the contract. It is true, the bestowal of an office is not, in the ordinary technical sense, a contract, — at.
It is a paralysis of this governmental agency, and, if permitted to continue, destroys it effectually. I am unable to see why a construction of the constitution should be adopted which allows this mischief to prevail, when the other would effectually remedy it, for the. mere purpose of securing to officers unrestricted liberty to surrender their offices at will, or why this freedom of the citizen should be secured at the expense of so great a calamity to the public good. The case comes within the letter and spirit of the constitutional provision, and the mischief is clearly within the remedial efficacy of the clause. It is a presumption of law that the convention saw the evil of the former policy of unrestricted resignations, and desired to restore the rule of the common law for the public good, that no officer shall abandon the discharge of his duties until his successor has been elected or appointed and qualified. It is a wise provision, one within the power of the state to make, and the courts are required to liberally construe it in favor of the. remedy and to prevent the mischief. Cooley, Const. Lim. (4th Ed.) 71, 72, 74, 75, 79; Story, Const. 300, 401; Sedgwick, Stat. & Const. Law, 359, 491. The legislature has given tnis constitutional provision effect by enacting a statute in totidem verbis. Act 1870, c. 23, § 7, (T. & S. Code, § 825g.) It is very strenuously argued that this provision was only intended to apply to officers whose terms had expired, and to accommodate-the change made by the constitution of 1870 in the tenure of offices. Under the construction of the old constitution, when a vacancy occurred the person elected to fill it held for a full and not an unexpired term, while the new constitution abrogates that construction, and gives fixed .terms of office, which expire at the completion of the term, whe'.her held by the original incumbent or one supplied to fill a vacancy. T. & S. Code, 109, note a. There is no apparent reason why the clause we are construing was more needed under
On the whole case, after a most careful consideration, I am thoroughly satisfied, notwithstanding the strong conviction I had at first the other wray, that, on principle, the proper construction of our constitution is that under this clause and the statute to give it effect all officers resigning must continue to discharge their official duties until their successors aro elected and qualified. The case of Badger v. U. S. 93 U. S. 599, is a direct authority for this construction, and is conclusive here, in the absence of any contrary construction by the supreme court of the state. Vide S. C. 6 Biss. 308. There are some cases which support a contrary view, as Olmsted v.
This attitude of the case renders it unnecessary to consider the other points so much argued arising out of the failure to act before resignation, when there was an opportunity to obey the writ and the effect of the negotiations with the relator’s attorney to excuse obedience. It may be said, however, that several of the respondents show no excuse, except the pendency of negotiations for a .compromise; and it is doubtful if the attorney’s action, taking it for all that can be claimed, afforded any justification. The magistrates certainly acted in bad faith to him in conspiring to defeat a levy by resignations after his indulgence. There was an implied understanding that if the compromise failed the writ would be obeyed, and it was a fraud on the relator to act otherwise. The whole case shows a deliberate intention on the part of these officers, no doubt in obedience to popular sentiment, to circumvent the obligation imposed by law to levy the tax to pay these bonds. I have been inclined to at'once impose as a penalty for this contempt the whole judgment as a fine, distributing the sum among the respondents according to their respective abilities to pay, and to commit them until the fines and costs were paid and the writ obeyed; but, on reflection, I have concluded to afford another opportunity for obedience to the writ of mandamus, having received assurances that if the court decides the resignations ineffectual no further resistance will be made to the process. The court therefore adjudges respondents in contempt of its process, but for the present withholds sentence, and directs an alias mandamus to issue requiring these respondents, and their successors in office, to levy the tax at the next regular levy in April, as other taxes are levied, and to collect the same as required by law; and until it shall be made known to the court how the writ has been obeyed, all other matters are reserved.
So ordered.
ÍTotb. By an able review of this case by Robert W. Haywood, Esql, printed in the Brownsville (Tenn.) Democrat, I am reminded of an unintentional omission to notice an argument, made also at the bar oh the trial of this case, that the construction adopted -would continue officers removing from the county or state in their offices. Our constitution itself provides that justices of the peace and constables removing from the civil district shall vacate the office, which makes an exception to the general rule of the clause construed in the principal case. Article 6, § 15. Perhaps a paramount public policy analogous to that so declared would make an exception in all cases of
E. S. H.