day, but rather the analogy of the other corporate officers, who hold over until their successors are elected, unless the legislative intent to the contrary be manifested.' Thus, in Vermont it is held,-there being no statute to the contrary, and such having been the practice,-that school officers elected at the annual meeting hold over until others are elected at another annual meeting, whether more or less than a year from the time of their election.'

§ 159. The law on this subject has been thus stated by a learned American judge: "Where, in the charter or organic law of a corporation, there is an express or implied restriction upon the time of holding office, as that the officers shall be annually elected on a particular day, and that they shall hold from one charter (election) day till the next, or that they shall be elected 'for the year ensuing only,' in such case they cannot hold over beyond the next election day or the end of the year." "But where, by the

'People v. Rundle, 9 Johns. 147; Slee v. Bloom, 5 Johns. Ch. 366, 378; 2 Kent Com. 238; Kelsey v. Wright, 1 Root (Conn.) 83; Smith v. Natchez Steamboat Co., 1 How. (Miss.) 479; Lynch v. Laffland, 4 Cow. (Tenn.) 96; South Bay, &c. Co. v. Gray, 30 Maine, 547; Elmendorf v. Mayor, &c. of New York, 25 Wend. 693. And see cases infra.

Chandler v. Bradish, 23 Vt. 416, 1851.

The better opinion," says Shaw, C. J., arguendo, in Overseers of Poor, &c. v. Sears, 22 Pick. 122, 130, "is, that town officers annually chosen, hold their offices until others are chosen and qualified in their place. School District v. Atherton, 12 Met. 105, 1846; Dow v. Bullock, 13 Gray, 136, 1859. So in Illinois. People v. Fairbury, 51 Ill. 149, 1869. So in Connecticut, an officer elected for "the year ensuing " is, in the absence of any other restrictive provision, entitled to hold beyond the year, and until he is superseded by the election of another person in his place. McCall v. Byram Manuf. Co., 6 Conn. 428, 1827, where the authorities are reviewed and commented on by Hosmer, C. J.; S. P. Cong. Soc. &c. v. Sperry, 10 Conn. 200; Weir o. Bush, 4 Litt. (Ky.) 433, where, by statute, an officer holds for a given term, and "until his successor is elected and qualified," he continues in office until his successor is duly elected and qualified, though this (from failure to elect, or from other causes), be after the expiration of the Serm. Stewart v. State, 4 Ind. 396, 1853; Tuley v. State, 1 Пb. 500, 515; Ex parte Lawhorne, 18 Gratt. (Va.) 85.

3 Tuley v. State, 1 Ind. (Cart.) 500, 502, 1849, per Perkins, J.; King v. Mayor, &c., 6 Vin. Abr. 296; Corporation of Banbury, 10 Mod. 346; Rex v. Fassmore, 3 Term R. 199; 6 Petersd. Abr. 738. But whether a provision merely that an officer shall "be annually elected on a particular day,” is

constitution of the corporation, the officers are elected for a term, and until their successors are elected and qualified, or where they are elected for the year ensuing,' and the charter or organic law contains no restrictive clause, the officers may continue to hold and exercise their offices, after the expiration of the year, until they are superseded by the election of other persons in their places.

991

§ 160. As against the public, however, officers cannot found a valid title or right to hold over upon their own neglect of duty. Therefore, where the charter made it the express duty of the trustees in office to give notice of, and themselves to hold, the annual elections, it was held, that

an implied restriction that he shall not hold over, see the cases in Vermont, Massachusetts, New York, Illinois, and Connecticut, above cited. The weight of authority in this country is the other way. Where a city charter gave the mayor power to hold until his successor was elected and qualified, but denied this power to the members of the city council by providing that they should be elected for a specified term, "and no longer," and that their seats should be vacated at the end of such term, they cannot hold over, and their action, after the time thus fixed, is void, and does not bind the corporation. Louisville v. Higdon, 2 Met. (Ky.) 526, 1859. When the law is silent as to the term, but requires an election to be held every two years, an officer holds over until his successor is provided. Cordiell v. Frizzell, 1 Nevada, 130.

1 Per Perkins, J., Tuley v. State, 1 Ind. (Cart.) 500, 502, 1849 (action on official bond against sureties). Foot v. Prowse, Str. 625; Queen v. Durham, 10 Mod. 146; King v. Lisle, Andrews, 163; McCall v. Manufacturing Company, 6 Conn. 428; 9 1b. 536; 10 Ib. 200; 17 lb. 588; Kelsey ». Wright, 1 Root, 83; Weir v. Bush, 4 Litt. (Ky.) 429; People v. Runkle, 9 Johns. 147; Vernon Society v. Hills, 6 Cow. 23; Slee v. Bloom, 5 Johns. Ch. 366; Pender v. King, 6 Vin. Abr. 296; 2 Kent Com. 295, note b; Hicks v. Launcelot, 1 Rol. Abr. 513; Bank v. Petway, 3 Humph. (Tenn.) 522; Stewart v. State, 4 Ind. 396; Rex v. Poole, Cas. Temp. Hardw. 23, and Phillips v. Wickham, 1 Paige Ch. 590, were considered to have a contrary bearing. It was decided, in Beck v. Hanscom, 9 Fost. (N. H.) 213, 222, 1854, that where the charter or incorporating act made no provision for the continuance of corporate officers in office after the expiration of the term for which they were elected, they could not hold over until others should be chosen and qualified; citing the opinion of Chancellor Walworth, in Phillips v. Wickham, 1 Paige, 590; but admitting that the People v. Runkle, 9 Johns. 147, and Trustees ¤. Hills, 6 Cow. 23, held a different view. In People v. Tieman, 8 Abb. Pr. 359; S. C., 30 Barb. 193, the Supreme Court, at special term, denied that the officer himself could hold over unless authorized by statute, though to protect the public his acts are sustained. Cocke v. Halsey, 16 Pet. 71.

if they omitted to discharge this duty, though inadvertently, in consequence of which omission there was and could be no election, that they were not entitled to hold over, although by the charter it was provided that they should continue in office until a new election should be made and their successors should qualify.'

Vacancies in Municipal Offices.

§ 161. At common law there must be a vacancy in the office existing at the time of the election; "for one cannot," says Mr. Willcock, "be elected to a corporate office in reversion." And the same doctrine has been recognized in this country, and a vacancy must exist before an election to fill it can be ordered,' and an election to fill an anticipated vacancy is not valid unless expressly authorized by the charter or statute. Elections, however, in advance of the expiration of the regular term of the incumbent of an office, are always provided for and held, but such cases are not elections to vacancies within the meaning of the rule under consideration.

1

People v. Bartlett, 6 Wend. 222, 1831. In such a case, being trustees de facto, their acts would be good. And their title would also be good except when called in question by quo warranto. Ib.; Lynch v. Laffland, 4 Coldw. (Tenn.) 96, 1867. Validity of acts of officers de facto. People v. Stevens, 5 Hill (N. Y.) 616, per Bronson, J.; People v. Runkle, 9 Johns. 147; Trustees v. Hill, 7 Cow. 23; Plymouth v. Painter, 17 Conn. 585; Smith v. State, 19 Ib. 493; People v. Bartlett, 6 Wend. 422; State v. Jacobs, 17 Ohio, 143; Hinton v. Lindsay, 20 Geo. 746. Post, secs. 214, 716.

2 Willc. Corp. 207, pl. 526; Hob. 150; Skin. 45; Glover, 216.

'Lindsey v. Luckett, 20 Texas, 516; Biddle v. Willard, 10 Ind. 63, 1857; People v. Wetherell, 14 Mich. 48.

Biddle v. Willard, supra. In this case it was said, that a resignation to take effect at a fixed future time may, if no new rights have attached, be withdrawn, even after acceptance, by the consent of the party accepting; and under the laws of that state it was held, that such a resignation did not create a vacancy which would authorize an election at a period prior to the taking effect of the resignation.

There is no technical or peculiar meaning to the word "vacant," as used in the constitution. It means empty, unoccupied; as applied to an office, without an incumbent. There is no basis for the distinction urged, that it applies only to offices vacated by death, resignation or otherwise. An existing office, without an incumbent, is vacant, whether it be a new or an old one. Per Stuart, J., Stocking v. State (vacancy in new judicial circuit), 7 Ind. 326, 1855; followed, Collins v. State, 8 Ib. 344, 1856.

Refusal to Serve in Office.

§ 162. It is an established common law principle, that since a municipal corporation is entitled to the official service of its eligible members, it may, by virtue of its inherent or incidental power, pass a by-law imposing a pecuniary penalty upon such as refuse, without legal excuse, an office to which they have been duly elected.' The ground of this doctrine is clearly set forth by Lord Holt iu Vanacker's Case, and although all of his reasoning is not applicable to our American municipal corporations, still it is believed that under the usual general welfare clause, or under their incidental power to pass reasonable and necessary by-laws, they would be authorized, where such an ordinance did not contravene the charter or statute, or public legislative policy respecting offices, to impose a reasonable fine for refusing corporate offices. In this country, however, offices have not usually been regarded as burdens to be avoided, but rather,. as distinctions to be coveted, and hence there has been little occasion to call into

'City of London v. Vanacker, 1 Ld. Raym. 496; S. C., Carth. 482; S. C., 12 Mod. 272; 1 Salk. 142; Rex v. Bower, 2 Dowl. & R. 761, 842; S. C., 1 Barn. & Cress. 587; Vintners' Company v. Passey, 1 Burr. 239; Willc. 230; Glover, 181; Grant, 211. If of a public and magisterial nature, the penalty for refusal may be imposed, though the person be also liable to be punished by indictment, or, in the disrcetion of the court, by criminal information. London v. Vanacker, 1 Ld. Raym. 499; Rex v. Grosvenor, 1 Wils. 18; S. C., 2 Str. 1193; Rex v. Hungerford, 11 Mod. 132, 142; Rex v. Woodrow, 2 Term R. 732; Rex . Whitwell, 5 Term R. 86; Rex v. Leyland, 3 M. & S. 184. The Municipal Corporations Act (5 and 6 Will. IV. chap. LXXVI. sec. 51) requires every qualified person elected to the office of alderman, councillor, auditor, or assessor, or mayor, to accept the office or pay a fine to the borough fund. The refusal to take the requisite oaths is a refusal of the office. Exon v. Starre, 2 Show. 159. As there is a common law duty to serve in an office to which a person has been duly elected, this duty may, if the office be sufficiently important, be enforced by mandamus, and the payment of the fine is not in lieu of service unless the statute or by-law release him from service by treating the penalty as compensation. Rex v. Bower, 1 Barn. & Cress. 585; S. C., 2 Dowl. & R. 842; Rex v. Leland, 3 Maule & Sel. 185; Rex v. Woodrow, 2 Term R. 731. Post, sec. 667. By the above mentioned provision of the Municipal Corporations Act, the fine is in lieu of the acceptance of the office. Grant on Corp. 222.

exercise the power of the courts, or to test the authority of the corporations, to enforce the undertaking of their offices. If, under the charter or statute, an officer has the right to resign or lay down his office at pleasure, the authority to impose a fine for refusing to serve would probably not exist.'

Resignation of Municipal Offices.

§ 163. An office must be resigned either (first) expressly, or (second) by implication.' If the charter prescribes the mode in which the resignation is to be made, that mode should, of course, be complied with.' Acceptance by the corporation is, at common law, necessary to a consummation of the resignation, and until acceptance by proper authority, the tender or offer to resign is revocable. The right to accept a resignation is a power incidental to every corporation. It is also a common law principle that the right to accept the resignation of an officer is incidental to the power of appointing him. If no particular mode is

'See Willc. 133, pl. 308; Grant, 221, 222; Gates v. Delaware County, 12 Iowa, 405; United States v. Wright, 1 McLean, 509; State, &c. v. Ferguson, 31 N. J. (2 Vroom) 107.

Regents of University v. Williams, 9 Gill & J. (Md.) 365, 422, 1838; Willc. 132, 238; Grant, 268, 246, note e; Ib. 221, 222.

3

'Willc. 239; Rex v. Hughes, 5 Barn. & Cress. 886, 896; Rex v. Mayor of Ripon, 1 Ld. Raym. 563; Rex v. Payne, 2 Chitty, 366; Reg. v. Morton, 4 Q. B. 146.

* Rex v. Lane, 2 Ld. Raym. 1304; Rex ». Ripon, supra; Hazard's Case, 2 Rol. 11; Jenring's Case, 12 Mod. 402; Rex v. Patteson, 4 B. & Ad. 9; 1 Nev. & Mann. 612. The acceptance may be by entry in books, by vote, or resolution, or by treating the place as vacant and electing another to fill it, or ordering an election if to be filled by a popular vote. Van Orsdall v. Hazard, 3 Hill (N. Y.) 243; State v. Ancker, 2 Rich. (South Car.) 245. One elected to an office cannot resign it before he has qualified and become an incumbent of it. Miller v. Supervisors, &c., 25 Cal. 93; Willc. 236.

common

'Rex v. Tidderley, 1 Sid. 14; Hazard's Case, supra. The " council" may regulate resignations by by-laws, and it may accept resignations, as it represents the corporation at large. Rawlinson (5th ed.) 317, note; Staniland v. Hopkins, 9 M. & W. 178; Willc. 240, pl. 615.

• Van Orsdall v. Hazard, 3 Hill (N. Y.), 243; asserting, arguendo, the incidental power of municipal corporations, as such, to accept resignations, and approving the opinion of Mr. Willcock (Munic. Corp. 240), who ob serves, respecting the cases on this subject: "I presume that a right tc