The facts are not in dispute. The effect of those facts is. I feel unable to concur in the view that on April 3, 1933, when the vote concerning the appointment of Meyer was taken, there was any vacancy in the office which prior to that date had been filled by Fleming. It is true that Fleming cast his vote in favor of the motion appointing Meyer supervisor in the place of himself (Fleming); but this act was quite as consistent with the theory and the view on Fleming's part that Meyer would succeed him whenever he (Fleming) should qualify for the office of chairman and executive officer by taking the oath of office and filing a bond as it was with the theory and the view on his part that he was thereby resigning the office of supervisor. There was no express resignation, either written or oral. Fleming's participation in the vote concerning Meyer was not sufficient, to my mind, to indicate a resignation then and there by Fleming.
On February 16, 1933, when Chairman Kalama was seriously ill, Fleming was appointed, by unanimous vote *Page 824 of the board, the acting chairman and executive officer. It was by virtue of that appointment that he served as presiding officer at the meeting of April 3. Nothing happened on April 3, either ceremonially or otherwise, to indicate a change in the capacity in which he was acting from that of acting chairman to that of duly appointed and qualified chairman. On the contrary the acts showing qualification and entry into office, to-wit, the taking of an oath and the filing of a bond, both being required by law (R.L. 1925, §§ 1613, 1614), did not occur until the following day. That Fleming did not qualify until April 4 shows clearly, as I think, that on all of April 3 he was acting solely, under the selection of February 16, as acting chairman and that there was not and was not intended to be any release by him of the office of supervisor at any time during April 3. If on all of April 3 he was still serving as acting chairman he was still also serving as an ordinary member of the board of supervisors, for without the latter office he could not have been chosen acting chairman. His appointment as acting chairman did not connote his resignation as a supervisor. It would still have been legally possible, after his selection and service as acting chairman, for some other member of the board to be appointed chairman and executive officer and for Fleming to resume his functions as a mere supervisor.
It is worthy of note that if the vote of June 5 is to be relied upon as the act which definitely placed Mr. Fleming in office as chairman and executive officer it must be on the theory that when the motion was made Fleming was not yet chairman and executive officer. If he was not at that moment chairman and executive officer by virtue of the appointment of April 3 he was still a supervisor or member of the board. How could Meyer's vote be counted under those circumstances? Meyer never *Page 825 having been appointed to succeed Kalama, it was not legally possible for both Fleming and Meyer to have been members of the board at the moment when the motion of June 5 was put and voted on and without Meyer's participation the motion did not carry.
While a resignation may be found to arise by implication from other facts and circumstances, nevertheless it should not be found to have occurred upon circumstances that are ambiguous in their effect and that are not consistent merely with the theory of a resignation. The motion of April 3 was that Meyer "be appointed supervisor in place of D.T. Fleming." At that time, there being no vacancy in that office, the vote was ineffective and on June 5, when Meyer joined in the supposed appointment of Fleming as chairman and executive officer he (Meyer) was not a duly appointed member of the board and the vote on that day in favor of Fleming's appointment was by less than the majority required by law.
That still leaves open the question whether Fleming on April 3 could lawfully vote for himself as chairman and executive officer and the motion to dismiss "all proceedings herein on the ground that the issue involved is now a moot question" should be denied. *Page 826