dissenting, said:
This is upon an application by George Coleman, the petitioner, for the peremptory writ of mandamus to compel W. H. Sands, the respondent, to transmit to the county court of Henrico a written statement of the grounds relied on by the said petitioner to register as a voter, alleging that the respondent is a registrar of voters in the registration district in question, and that said certificate is required by law.
The respondent answers that he is not now, and was not'at the time application was made to him for said certificate, a registrar of voters in said district; that he had held such office, but had resigned the same unreservedly before the application was made to him for the certificate in question, and that petitioner was informed of the fact that he had resigned the said office, and was no longer authorized by law to discharge the functions of said office. That he was appointed by the electoral board of the county as prescribed by law, and had delivered his resignation in writing to the said appointing power through its clerk.
It is set forth therein also that whereas by law it is provided that each registrar shall annually, on the second Tuesday in May, at his voting place, proceed to register the names of all qualified voters within his election district, not previously registered, who shall apply to be registered, commencing at sunrise and ending at sunset (sec. 78, Code of Virginia), and although he had notified all persons manifesting an interest in the subject that on that day all would be added to the list who were entitled to be; that yet, as the law authorized a registrar to register applicants entitled to vote at any time previous to regular elections, numerous persons applied to him at his house at night in such manner and with such in*700sistence that he had been unwilling to hold the said office, and had unconditionally resigned.
To this answer the petitioner demurred, and upon consideration of the issue thus raised, I am of opinion that the answer is sufficient in law, and is indeed a complete answer to the petition; and that the same should be dismissed and the writ of mandamus denied, because the respondent is not a registrar, but is out of office, and cannot lawfully perform any duty appertaining to it.
In Virginia an unconditioned resignation of an office is a termination of an office proprio vigore. I find all the books agreed upon this proposition, and I have not found anything to the contrary. Mr. Minor, in his Institutes, Vol. 2, p. 26, says:
“ The grounds on which offices may be determined.
The circumstances which may lead to offices being determined, may be enumerated as follows :
(1.) Resignation, expiration of term, and removal from office by competent authority.”
And again he says on the following page (27):
“Mode of effecting the removal from office of one on the grounds above named.
Resignation, expiration of term, and removal by competent authority, of course terminated the office proprio vigore; but in the other cases of delinquency, the office is not determined ipso facto by the occurrence of the cause. There must be a judgment of a motion,” &c.
This must be so under our constitution and laws, which everywhere recognize and provide for vacancies in office created by resignation or otherwise; and Mr. Minor is clearly right in this view, because if an incumbent has resigned beybnd recall, he cannot again rehabilitate himself with the office; and when the resignation is accepted, which it may be, either expressly *701or by implication, the resignation is effective, if peremptory, from its date.
This language of Mr. Minor has been adopted by this court more than once, and is by the decisions of this court the settled law upon this subject in this State. In the case in this court known as the Bland & Giles Co., Judge Carr, reported in 33 Graft., it was said in the opinion of this, court: “An office is terminated proprio vigore by resignation, expiration of term, and removal by competent authority. But in other cases the office is not determined ipso facto by the occurrence of the cause. There-must be a judgment of a motion,” &c. Citing 2 Min. Inst., p. 22, and authorities there cited, one' of which is Tuck. Com., Vol. —, p. 11, where the same doctrine is found.
Judge Tucker says: “It remains to remark that offices may be terminated by resignation, or the acceptance of an incompatible office, even though it be inferior (2 T. R. 81, Dough, 398,) or by removal,” &c. Adding, “offices may be forfeited by misconduct or neglect, &c., but this can only be by the judgment of a court, I apprehend, in Virginia. * * * * I am not aware of any decision as to the necessity of a judgment of a motion when an office has been forfeited by removal or an incompatible office.”
It will be observed that the learned commentator seems to regard the case as Mr. Minor, as obviously a matter of course. Again, in the case of Johnson v. Mann, Judge, and Couch, Treasurer, reported in 77th Va. Rep., 270, Judge Richardson, speaking of a case of expiration of term, says, in delivering the unanimous opinion of this court, all the judges, as the court.is now constituted, concurring. •
“ Again, in the Bland and Giles county case, 33 Gratt., 450, Judge Christian, in delivering the opinion of this court, in speaking of the tenure of office of a county judge, says:
‘ An office is terminated proprio vigore by resignation, expiration of term, and removal by competent authority.’ ”
*702And again, in the same case in construing a section of the Pennsylvania Constitution, which is as follows: “They (certain officers, including the one then in question) shall hold their offices for three years, if they shall so long behave themselves well, and until their successor shall be duly qualified,” it is said, “The obvious meaning of this provision is, that such officers cannot hold for less than three years if they so long behave well, and choose not to resign, although on the happening of certain contingencies, they may hold for a longer period.”
Upon the language relied on by the petitioner in the laws, that “this officer shall hold for a stated term and until his successor is qualified,” refers, I think, to a definition of term and tenue, where there had been no vacancy created in the office except by expiration of terms, the end and object is enabling only.
This language has been under review here in several cases. In the case of Johnson v. Mann, Judge, supra, and in the case of Kilpatrick v. Smith, 77 Va. Rep., p. 358, Judge Richardson says: “The twenty-fifth, section of article six of the Constitution is in its nature enabling. It empowers judges and all other officers elected or appointed, to continue to discharge the duties of their offices after their terms of service have expired, until their successors have qualified no longer.” * * * “The clause in question, in our Constitution, does not extend the term, but simply enables the incumbent to hold over until his successor, whether elected or appointed, is chosen, in the way prescribed by law.”
And I think this language cannot be correctly Used to do more than to enable an officer to discharge the duties when his term has ended by expiration of the time for which he was chosen. It is not intended to compel a citizen to hold an office against his will, and after he has chosen to resign. It was intended to enable the incumbent to hold for that time (to *703use the language of the unanimous opinion of this court cited above), “unless he choose sooner to resign.”
There are other decisions of this court to the same effect on both propositions, but it is not necessary to further cite them.
I do not concur in the argument that the authority granted by secs. 67, 69, and 84, of the Code of Virginia, are intended to and does compel an officer to hold for the full term and after-wards, whether he wishes to or not. They mean, as this court has said, “choose sooner to resign;” and he may resign during the term if he chooses to do so, and'thus create a vacancy.
But the argument is that the supreme court of the United States has held in certain cases, erroneously cited as Badger v. United States, and Salamanka v. United States, that an officer cannot resign when he chooses, and thus throw off his responsibilities to the public, &c., &c.; and especially that Justice Bradley has said so in Edwards v. United States, Vol. 103, U. S. Rep., 471.
Without pausing to myself explain or construe these cases, I will leave that where it is so well done by that learned justice himself in the later case of Amy v. Watertown, 130 U. S. R., 315, 319, merely remarking that in the case of Edwards v. United States, supra, the justice says :
“ In this country, where offices of emolument and honor are commonly more eagerly sought after than shunned, a contrary doctrine (that is, contrary to the common law,) with regard to such offices, and, in some States, with regard to offices in general, may have obtained; but we must presume that the common law rule prevails unless the contrary is shown;” and he goes on to show that in that State, Michigan, the common law rule has been adopted by statute, and cites a law of that State where, if an officer declines to accept an office, and does not qualify within ten days, he is fined $10.
Of course when acceptance of an office is made compulsory *704by the penal laws, and resignation is restricted by law, the question is distinguishable from this.
But I have said that I would cite this learned justice in Amy v. Watertown, decided in 1889. In that case, speaking of an officer who had resigned, he said: “There was no mayor in office at the time. The last mayor had resigned, and his resignation had taken effect. Service on him was of no more avail than service on an entire stranger.”
The case is different from those in which we have held that a resignation of an officer did not take effect until it was accepted, or until another was appointed. In these cases either the common law prevailed, or the local law provided for the case, and prevented a vacancy. Such were the cases of Badger v. Bolles, 93 U. S., 599, and Edwards v. United States, 103 U S. R., 471, and Salamanka v. Wilson, 109 U. S., 627.
“In the present case,” further says the learned justice, a it is true the consolidated charter of the city of Watertown provides that ‘all elective officers, except aldermen, shall, unless otherwise provided, hold their respective offices for one year, and until their successors are elected and qualified.’ But that provision has respect to ordinary cases. It cannot apply in case of death, and does not apply in case of resignation;” and goes on to show that this resignation was to take effect by the State law from the time it was filed.
And it appears that this case, like the others, proceeds upon a consideration of the law of the State where the case arose, in accordance with the act of Congress of June 1st, 1872 (Rev. Stat., § 914), since the passage of which act the practice and pleadings and forms and modes of proceedings must conform to the State law and the practice of the State courts.
In this case, therefore, if the supreme court of the United States were considering this question, the said court, in view of the foregoing decisions of this court, would, I think, decide this question as I have urged that it should be decided, and I do not find anything in that court to the contrary.
*705We have been referred to numerous other authorities by the learned counsel for the respondent. Among them the case in this court of Bunting v. Willis, Judge, 27 Gratt., where Judge Moncure, speaking for the court, said, as to an officer who had resigned a Federal office in Virginia,'“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 well settled.” That after such a 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.
Further citations are not necessary, I think; it is clear to me that Mr. Sands, the registrar, is out of office, and is no longer capable or able to do the act required of him, and that the writ should be denied.
Richardson, J., concurred with Lacy, J.
Mandamus awarded.