dissenting:
I cannot concur in the conclusion arrived at in the above opinion that respondent’s letter of May 26th was an absolute withdrawal of his resignation of the 8th day of April, and must therefore respectfully dissent from the judgment.
I am of opinion that the respondent was acting in good faith when he notified the governor of his desire to no longer hold his office, unless a judicial investigation, which he had demanded, should hold him blameless with respect to what he regarded as “ serious charges ” made by the Nevada State Journal. His counsel claimed that the respondent, being assured that the grand jury would be called and that he would be exonerated by them, withdrew his resignation by the said letter of May 26th. From this it appears to me that his withdrawal was based solely on the contingency of his being exonerated; that he did not at that time intend to withdraw his resignation regardless of said charges and without reference to whether he was exonerated or not.
The charges contained in the newspaper article were that a bill presented by Professor W. McN. Miller to the board of county commissioners for fumigating a room in a hotel at Reno was not a legal charge against Washoe county; that there was no law authorizing said work to be done at the county’s expense, and that the board allowed said bill by unanimous vote. After setting out the items of the bill, the author of the article claimed that the charges therefor were not only illegal but most extravagant, and concluded his comments as follows: “ In view of this there can only be one construction put upon the whole matter and that is that maudlin sentimentality has overcome the better judgment of sensible men.”
It seems that the respondent regarded these charges as being of such serious nature that he determined not to retain *100his office, unless he was held blameless by a judicial investigation. Entertaining this view of the matter he exhibited a commendable public spirit in desiring to be relieved of his official responsibilities, a spirit, however, not commonly manifested in like manner, in official circles. It is clear to my mind that he did not change his mind with respect to his resignation until the 5th day of June. On that day he wrote to the governor as follows: * '* * “ Sir: I hereby recall my conditional resignation of date April 8, 1897. Very respectfully, H. H. Beck.” * * *
That letter was evidently intended by him as an absolute withdrawal of his conditional resignation. If he hád regarded his letter of May 26th as being such withdrawal, there was no necessity or propriety in absolutely withdrawing it again. If he intended on the 26th day of May to absolutely withdraw his resignation, I am of opinion that he would have done so in the clear and concise form he attempted to withdraw it on the 5th day of June, without reference to any assurance that he had that the charges would be investigated, and without regard to any assurance that he would be exonerated.
On the 4th day of June the grand jury reported to the court as follows:
“ We have examined into the charges made by publication in the Nevada State Journal alleging certain illegal acts of the board of county commissioners and find as follows, after examining several witnesses:
“A child died at the Clarendon Hotel in this city on the 21st day of February, 1897, of malignant scarlet fever; that there was great danger of the disease spreading, and that the attending physician notified the chairman of the board of county commissioners of the danger and advised him of the necessity of having the premises and clothing in the rooms immediately and thoroughly fumigated, and that after further consultation the chairman of the board of county commissioners requested the attending physician to have the necessary fumigating properly done, that the danger of the spreading of the disease might be averted; that it was accordingly done in a thorough manner by him and under his supervision. Subsequently at a meeting of the board of *101county commissioners held April 7, 1897, Dr. Miller presented a bill for $76 15; that said bill was unanimously allowed by said board and was later properly vetoed by the auditor, and at a later meeting of the board the auditor’s veto was sustained. While we commend the action of the auditor in refusing to draw his warrant in payment of this bill and believe there was no law authorizing its payment, we believe the chairman and other members of the board of county commissioners acted in good faith and for the best interests of the people of this community in thus taking action in preventing the spread of a dangerous and generally fatal disease.”
Counsel seemed to think that the conditional resignation was simply a foolish act on the part of the respondent, and argued that, however it might be considered, the grand jury had fully exonerated the board from the charges made, and hence that under the terms of the letter of the 8th day of April the conditional' resignation never took effect. It is true the grand jury found that the respondent and the other commissioners acted in good faith in thus taking action in preventing the spread of a dangerous disease. The jury, however, found that the charges made by said article were substantially true, that is, that said board unanimously allowed said bill of Dr. Miller of $76 15, and that there was no law authorizing its payment. It was not charged against the commissioners, or either of them, that they acted in bad faith, but their alleged illegal acts were ascribed solely to maudlin sentimentality having overcome their better judgment as sensible men.
It appears to me that the respondent was of opinion that he could legally withdraw his resignation at any time before the governor made his appointment, and that on the 5th day of June he changed his mind with respect to his resignation and concluded to withdraw it absolutely, which he then attempted to do. It is probable that at that time he, too, considered that his conditional resignation was a foolish act. The validity of a resignation does not depend upon the resignation being based on sensible grounds, nor can it be defeated by its being a foolish act. In my view of the case his resignation took effect on the 4th day of June when *102the grand jury submitted their report to the court, and that at that time his right of withdrawal ceased.