By the Court,
Massey, J.:The respondent was duly elected county commissioner of Washoe county, State of Nevada, at the general election held therein on the 3d day of November, 1896, for a term of four years, commencing on the first Monday in January, 1897, duly qualified as such, and has since that time discharged the duties of said office.
On the 8th day of April, 1897, the respondent transmitted to R. Sadler, the acting governor, the following letter:
“ Reno, Nevada, April 8, 1897.
“ His Excellency, R. Sadler, Governor of Nevada, Carson City, Nevada.
“ Sir: In view of serious charges, as appear in the Nevada State Journal, of even date hereof, made against me as a public official of this, Washoe county, I hereby resign said *96office, to wit, county commissioner of Washoe county, Nevada, and beg you to hold the same subject to the findings of a judicial investigation which I have this day demanded and requested of the proper authorities, to wit: The honorable district judge of our district and the honorable T. V. Julien, district attorney of my county. Unless such investigation shall find me blameless, or in case such investigation shall not be held for a term of sixty days from the date hereof, then, and in either event, you will consider this my final resignation and proceed under the law to appoint my successor. In the meantime I shall consider my duties as county commissioner suspended. Very respectfully,
“H. H. Beck.”
This letter was indorsed by the governor: “ Resignation accepted upon the conditions named therein. R. Sadler.”
The charges published in the Reno Journal, and referred to in the above letter of the respondent, were to the effect that the respondent had voted to allow a bill for disinfecting a room where a child had recently died with a contagious disease, and that there was no authority of law for the allowance of the same. On the 26th day of May, 1897, the respondent wrote and transmitted the following letter to the governor:
“ Reno, Nevada, May 26, 1897.
“ II'is Excellency, R. Sadler, Governor of Nevada, Carson City, Nevada.
“ Sir: Please return to me my conditional resignation, under date of April 8, 1897. Since then the district judge has called a grand jury and I am assured that the charges made against me by a local paper will be investigated. Very truly yours, H. H. Beck,
“County Commissioner, Washoe county, Nevada.”
On the 29th day of May, 1897, the governor, in answer to said letter, refused to return to the respondent the letter of resignation, assigning as a reason therefor that the same had been filed in the archives of the executive department, and had been accepted subject to the conditions named. Further correspondence passed between the respondent and the governor relative to this matter, but as the same is not necessary *97in determining the questions presented by this action, it is omitted. On the 4th day of June, 1897, the grand jury of Washoe county reported to the district court therein the result of the investigation of the matters referred to in respondent’s letter of resignation, in which report the grand jury commended the county auditor of said county for refusing to draw his warrant for the amount of said claim, and expressed the belief that the board of county commissioners had acted' in good faith and for the best interests of the people in taking action to prevent the spread of a dangerous disease. >
On the 7th day of June, 1897, the relator was appointed and commissioned by the acting governor as county commissioner of Washoe county to fill the vacancy occasioned by the alleged resignation of the respondent, and thereafter took the required oath as such. On the 5th day of July, 1897, the relator demanded of the respondent the possession of said office, which demand was refused, since when the respondent has continued to exercise the functions of said office, and has excluded the relator therefrom.
Upon these facts the relator asks the court to adjudge the respondent not entitled to said office, that he be ousted and excluded therefrom, and that relator be admitted thereto and to all the rights and emoluments thereof.
The character of respondent’s act in transmitting his resignation to the governor, the effect thereof, whether the resignation is conditional or absolute, and the effect of the subsequent transactions occurring after the receipt of the resignation by the governor are the only matters necessarily to be considered in determining the question presented in this proceeding.
The relator contends that the letter of April 8, 1897, is an absolute and unconditional resignation of the office of county commissioner. We cannot so hold. The resignation was to become effective at a future date and upon the happening of two specified contingencies, to wit: in case the judicial investigation demanded should not be had within sixty days from the date of the letter, or in case said investigation should fail to hold the respondent blameless in the matter *98charged. These are the express conditions named upon which the resignation should become final and effective.
The act of the governor, in accepting the resignation of the respondent and in refusing to return the same upon demand,is neither material nor important, for it has been settled by this court that a civil officer has the right to resign his office at his own pleasure and will, and the acceptance or rejection of such resignation can in no manner affect such right. (State, ex rel. Nourse, v. Clarke, 3 Nev. 566.)
The resignation of the respondent being conditional and not to take effect except upon certain contingencies and at a future day, there was no vacancy in the office until the happening of the contingencies and until the arrival of such day. In the mean time, the resignation was within the control of the respondent and could be withdrawn at his pleasure, and if such withdrawal was made by the respondent, he stands as if he had never written nor'sent said resignation. (State v. ex rel. Nourse, v. Clarke, supra.)
The question then is: Did respondent withdraw his resignation before the happening of the contingencies named therein and within sixty days from the date thereof? We think he did! The letter of resignation was written and transmitted on the 8th day of April, 1897. On the 26th day of May, 1897, before the sixty days had elapsed and before an investigation of the charges had. been made by the grand jury, the respondent transmitted to the governor the letter in which he asked the return of the conditional resignation under date of April 8, 1897. This letter was an absolute withdrawal of such resignation. At the time the same was written, the resignation was subject to withdrawal and entirely within the control of the respondent. It cannot be a matter of any importance what reasons were assigned by the respondent for the transmission of his letter of resignation or in transmitting the letter withdrawing the same. Having withdrawn the resignation, at a time' when the same was subject to such withdrawal, and before the happening of the contingencies named, there was no vacancy in the office of county commissioner of Washoe county at the time the relator was appointed by the governor, and therefore such appointment conferred no right to such office upon the relator.
*99Other questions were discussed by counsel for the respective parties, but we do not deem it necessary to pass upon the same.
For these reasons the proceedings will be dismissed at relator’s cost and judgment entered accordingly.
Belknap, C. J.: I concur.