dissenting:
May the resignation of a public office tendered to take effect in the future be withdrawn after it has been accepted *428by the appointing power? The eases upon which respondent relies (U. S. v. Wright, 1 McLean, 509, Fed. Cas. No. 16,775; State v. Boecker, 56 Mo. 17; People v. Porter, 6 Cal. 28; Nourse v. Clarke, 3 Nev. 574; Williams v. Beck, 24 Nev. 98) do not support his contentions in the light of acknowledged legal principles. The facts in none of these are similar to those in the present proceeding, while in all the decisions found where the circumstances were the same as they are here, the courts have held that a resignation tendered to take effect at a future date cannot be withdrawn after it had been accepted. United States v. Wright did not relate to the withdrawal of a resignation, but to the liability of a surety on a collector’s bond for delinquency committed by the collector after he had sent his resignation to the President, but before it was accepted. Hence there was neither an acceptance nor an attempt to withdraw the resignation, which are the two controlling ingredients in the proceeding now before this court. Justice McLean stated in that case: "There can be no doubt that a civil officer has fhe right to resign his office at pleasure, and it is not in the power of the executive to compel him to remain in office”
The following comment of the Supreme Court of New Jersey in State v. Ferguson, 31 N. J. Law, 107, upon this question, was quoted with approval by the Supreme Court of the United States in Edwards v. U. S., 103 U. S. 477, 26 L. Ed. 314: "It is hardly to be supposed that it was the intention of the judge to apply this remark to the class of officers who are elected by the people, and whose services are absolutely necessary to carry on local government, or that it was the purpose to brush away with a breath the doctrine of the common law, deeply rooted in public policy upon the subject. However true the proposition may be as applied to the facts then before the circuit court, it is clearly inconsistent with all previous decisions, if extended over the class of officers where responsibility is the subject of consideration.”
In State v. Boecker, supra, the clerk filed his resignation to take effect at a future date with the county court, instead of with the governor, who had the power of appointment. Before the day when the resignation was to take effect he *429forwarded to tbe county court his written withdrawal, but in the meantime, and without his consent and against his express directions, the resignation had been forwarded to the governor, who at the time he received it, and before he accepted it, was informed of these facts, and appointed another person clerk. It was held that such resignation was not legal and complete, unless sent to the governor and accepted by him with the knowledge and consent of the officer resigning, and that the filing of the document with the county court was a nullity, giving that body no jurisdiction. If Murphy had drawn his resignation and lodged it with some other officer, who later, against his express will, had filed it with the board of county commissioners, and they had accepted it and appointed his successor, knowing that he objected to having it filed with them, the two cases would be analogous in principle. The holding there that the officer could withdraw the resignation filed against his wish .by another with the governor is no authority for the respond-, ent here to withdraw his resignation filed by himself voluntarily with the board of county commissioners.
In People v. Porter, 6 Cal. 28, which also was determined by a divided court, no question of the withdrawal of the resignation was presented, and the statement there in this regard is merely dictum. The same is true in Nourse v. Clarke, 3 Nev. 574, where there was neither an acceptance nor withdrawal of the resignation as here, and where the case turned upon the holding of the court that under our statute an immediate resignation took effect upon being forwarded to the appointing power, and before acceptance. The inadvertent remarks of Chief Justice Beatty not appertaining to any question in the ease — "When a resignation is sent to take effect at a certain day, the case is different. Then there is no vacancy in the office until that day arrives, and, if in the meantime the resignation is withdrawn, the party stands as if he had never written or sent his resignation” — have been followed too far in Williams v. Beck, and in the present case, contrary to the various decisions involving any such issue, and the common law and our statute adopting it. He did not consider whether such a resignation could be withdrawn *430after it had been accepted, or whether an acceptance would make the resignation binding is not stated. The Supreme Court of the United States considered and ^declined to follow the opinion in Nourse v. Clarke in a ease under a Michigan statute which provided for the filing of resignations. (103 U. S. 477, 26 L. Ed. 314.)
Williams v. Beck is also readily distinguishable from the present proceeding, and it is unnecessary to consider whether, if the conditions were the same, that case ought to be held res adpidieata and conclusive. The resignation here was unconditional, and was to take effect on a specified day which was as sure to arrive as the earth to turn on its axis, and its meaning was clear. Beck’s resignation was subject to two conditions, one that unless a judicial investigation found him blameless, and the other that unless such investigation was held within sixty days, the resignation should be final. If such investigation was held within that period and resulted in finding him blameless, his resignation was not to take effect. Within the specified term of sixty days the grand jury examined into the charges, and in their report to the district court expressed their belief that the board of county commissioners, including Beck, had acted in good faith and for the best interests of the people in taking action to prevent the spread of a dangerous disease, but commended the county auditor for refusing to draw his warrant for the amount of the claim, which had been allowed by the board for the expenses of fumigation and which had occasioned the criticism of Beck. There might be an inference that there was no statute authorizing the payment of the claim, but the investigation at least held Beck blameless of any wrong intentions. If the conditions which were to give the resignation effect did not fail entirely, they so nearly failed when the grand jury found that he acted only with good motives, and for the best interests of the county, that the equities were with Beck. One of the strongest reasons for holding that an unconditional resignation could not be withdrawn was lacking in that case, because the governor was not justified in taking action towards the selection or appointment of *431a successor until the conditions arose which would make the resignation effective, and they might never arise.
Next to the adoption of the erroneous dictum in the Clarke case, which referred in no way to an acceptance, which controls here and which puts the resignation beyond withdrawal without consent, the greatest fallacy in the Beck ease, not denied in respondent's brief, and in the opinion of the majority of the court now, is the mere assumption that, because the statute gives an officer the right to resign without the consent of the appointing power, as held in the Clarke case, he has the right to withdraw his resignation without consent after it has been accepted.- It is illogical to conclude from the admitted premise that’ because the statute has made the resignation of the officer effective and complete in itself upon' execution and delivery, it is less ■ conclusive and may more readily be withdrawn after it has been filed than at common law. The contrary conclusion, if any, could more readily be drawn. But it is not difficult to distinguish between the right to resign and the right to withdraw a resignation after it has been accepted, nor to see that our statute, which gives the right to resign, but does not give the right to withdraw a resignation nor -mention such withdrawals, cannot properly be construed as giving the right of withdrawal, nor of changing the common-law rule that, after acceptance, a resignation cannot be withdrawn without the consent of the appointing power.
If there be any play upon words, the ones used, including "tender” and "to take effect” at a future day designated, and the resignation and conditions, were similar in Whitney v. Van Buskirk, 40 N. J. Law, 465. There the resignation read: "I respectfully tender my resignation of the office of chief of police of the City of Bayonne, to take effect upon the 1st day of January, 1878.” This resignation was received and accepted by the mayor and the board of councilmen on the 4th of December. Later the chief of police insisted that this neither vacated the office then, nor ascertained the end of his term. The court held that a resignation to take. effect at a future day named or accepted by competent authority was valid and *432binding, and would take effect according to its terms. It was said in the opinion: " There can be no question of the right of siieh officer to tender a resignation of his office, and upon the acceptance of the tender his holding ceases.- (Dil. on Mun. Corp. 163; State v. Newark, 27 N. J. Law, 185; State v. Ferguson, 31 N. J. Law, 107.) * * * And we are referred * * * to the case of Biddle v. Willard, 10 Ind. 63. The only feature in that case bearing a resemblance to this is that the resignation of Judge Stuart was tendered to take effect on the 1st of January — a future day. The suit was for a mandamus requiring the governor to issue a commission to the plaintiff, who had been chosen at the election occurring after the resignation was presented, and before the time when it was to take effect. It was held in construing statutes of the state regulating elections that there should be an existing vacancy at the time of election to validate it; and, further, that no such vacancy existed. For this latter ruling two reasons were given: One, that it did not appear that the governor had accepted the resignation; the other, ' that the vacancy did not occur by Judge Stuart’s resignation until January following’ the election, which was in October. It was rightly held that a resignation, to take effect at a future day, does not create a present vacancy. That is true whether it is accepted or not, but I am far from thinking that a prospective resignation, tendered and accepted, is without legal validity. Such a rule would be one of public inconvenience, and would be fruitful of no public good. It certainly is not asserted by the court in Biddle v. Willard, but the propriety of such a practice is commended on grounds of public convenience. There may be such cogent reasons moving a public officer to withdraw from the duties of his office as will constrain the appointing power to accept his surrender of it. If it be to take effect immediately, it may work confusion and disorder in public affairs, such as would not arise if time were given for the selection of a proper successor, and for his fitting instruction in official duties. And we are referred to no case that questions the legality or propriety of such a practice. In my judgment this resignation was, on acceptance by the mayor and council, valid and effective *433to terminate the relator's incumbency according to its terms.”
In Gates v. Delaware County, 12 Iowa, 405, it was held that the tendering of a prospective resignation of a public office, and the filing of the same without objection by the officer authorized to receive it, was equivalent to an acceptance and operated to vacate the office resigned according to the tenor of such resignation. I am unable to' see that the case of Leech v. State, 78 Ind. 570, wherein‘it was determined that when a city school trustee resigns his office, to take effect at a future day, the city council may fill the vacancy before the day fixed for the resignation to take effect, is in any way contradicted or modified by the case of McGee v. State, 103 Ind. 444, 3 N. E. 139, holding that the resignation could not be withdrawn after the time had arrived for it to take effect, and not holding that it could not have been withdrawn sooner, if it had been previously accepted. Also the case of Murray v. State, 115 Tenn. 303, 89 S. W. 101, and the part of the opinion quoted in the decision of this court, stands uncontradicted by any case where it was sought to withdraw an unconditional prospective resignation after it had been accepted.
In Bunting v. Willis, 27 Grat. (Va.) 144, 21 Am. Rep. 344, the court said: " That he had a right to resign his federal office, and that such right does not depend upon the consent or acceptance of the government or its agents, seems to be very well settled. That after such resignation becomes complete it cannot be withdrawn by the officer, even with the consent of the government, seems also to be settled, though he may receive a new appointment, which may perhaps be given to him in the form of a withdrawal by consent of his resignation of his former office. But a prospective resignation may be withdrawn at any time before.it is accepted; and, after it is accepted, it may be withdrawn by the consent of the authority accepting, where no new rights have intervened. This was held by the Supreme Court of Indiana (Biddle v. Willard, 10 Ind. 62), and seems to be a reasonable principle. We have seen no case to the contrary, while there are other cases which tend to sustain it.”
In State v. Augustine, 113 Mo. 24, 20 S. W. 651, 35 Am. *434St. Rep. 696, the court quoted with approval: "It is well-established law that, in the absence of express statutory enactment, the authority to accept the resignation of a public officer rests with the power to appoint a successor to fill the vacancy. The right to accept a resignation is said to be incidental to the power of appointment. (1 Dillon on Municipal Corporations, 3d ed. sec. 224; Mechem on Public Officers, 413; Van Orsdall v. Hazard, 3 Hill, N. Y. 243; State v. Boecker, 56 Mo. 17.)”
I could readily concur in the statements in the opinion that an officer may resign under our statute without the consent of the appointing power, and that, in the absence of a withdrawal, a prospective resignation is conclusive after the time stated for it to take effect, if they were pertinent, or if any such questions were involved, but I especially dissent from the assertions that by the great weight of authority a prospective resignation may be withdrawn before the time prescribed for it to take effect, and that there is a great contrariety of opinion, both as to the effect of acceptance of a resignation and as to the limitations upon the right to withdraw a prospective resignation, if these are intended to apply seriously to a case where there has been an acceptance before the withdrawal of an unconditional resignation to take effect at a future date, as in the present one, because the cases relating to similar conditions uniformly hold that such a resignation cannot be withdrawn after it has been accepted without the consent of the appointing power. Without these decisions the case would still be conclusive in favor of the petitioner, because it is not disputed that at common law a resignation cannot be withdrawn after acceptance without the consent of the appointing power, and the common law including .this rule is adopted in this state-by express legislative enactment. In the Clarke and Beck cases and in the present one this court seemed to be unaware of or to ignore the fact that under the common law as in force in this state, and under the different decisions elsewhere, it is too late to withdraw the resignation after it has - been accepted. The acceptance controls, and makes the resig*435nation conclusive, so it cannot be withdrawn without the consent of the appointing power.
The argument that it is better to allow the officer who has been elected to withdraw his resignation, and permit him to hold the office instead of an appointee, is contrary not only to the common law and decisions, but would apply as well to immediate resignations or others after the time for them to take effect had arrived. As this court has already proceeded too far on the wrong road in following the statements of Chief Justice Beatty made forty years ago in a case in which they were not pertinent, and which did not relate to an acceptance, which was not considered by him, and at a period when the authorities were not so accessible, it is time to call a halt. I am unable to agree with the conclusion of my esteemed associates, because it has no support except in dicta and the fallacies indicated, and is opposed by the unanimous opinions of the various judges in all these cases, where the courts had for determination a similar question, or one as to whether an unconditional resignation of a public office, which by its terms was to take effect at a future day, could be withdrawn after it. had been accepted without the consent of the appointing power, and because it is contrary to the common law, to the best public policy, and to the usages and practices most convenient and fair of giving reasonable notice of resignations of persons in public office and private employment. It is better to hold the one resigning to the plain terms of his resignation after it has been accepted and met by the mind of the appointing power, whether the governor or the county commissioners, than to promulgate a rule which will enable persons of vacillating dispositions to trifle with these officials in regard to their acceptance of resignations and appointment of successors, or which does- not give notice and reasonable time for these purposes.
The decision is also contrary to the opinion of the Supreme Court of the United States in Edwards v. U. S., supra, and to People v. Williams, 145 Ill. 577, 33 N. E. 849, 24 L. R. A. 492, 36 Am. St. Rep. 514, holding that the common law in regard *436to resignations is in full force even in the absence of a statute making it so, and as to the withdrawal of resignations, is in effect a judicial repeal of our statute, which provides that the common law, when not in conflict with the State or Federal Constitution, shall be the rule of decision in all the courts of this state, and is equivalent to the enactment of a provision that resignations may be withdrawn after their acceptance contrary to the common law and the decisions.
After the acceptance of the resignation, the board of county commissioners properly appointed relator, Ryan, to the office of sheriff in advance for the part of the term remaining after the time, which by its language, as apparent to all who read, it was to take effect, and he ought to be awarded the office accordingly.
As the statute which gives the respondent the right to resign imposes no condition or limitation, there is no reason why he could not make his resignation to take effect to-morrow or at some future date, as conclusive after acceptance as if it had been immediate, nor why a successor appointed in advance is not entitled to the office for the remaining part of the term analogously to officers elected in advance in the fall who are installed at the beginning of the following year. _