This is a motion to dismiss the questions of law reserved by the Honorable Daniel H. Case, judge of the circuit court of the second circuit. The ground of the motion is that since the questions were reserved certain matters have transpired which render it unnecessary to answer them.
The proceeding in which the questions arose was in quowarranto and was instituted on May 1, 1933. The purpose was to oust the respondent, David T. Fleming, from the office of chairman and executive officer of the board of supervisors of the County of Maui.
The facts presented by the record may be summarized as follows: Samuel E. Kalama was elected chairman and executive officer of the board of supervisors of the County of Maui at the general election held on November 8, 1932, which office he held until his death, which occurred on February 27, 1933. R.A. Drummond, H.L. Holstein, A.S. Spencer, Alvin K. Silva and H.K. Tatekawa were elected supervisors at said election. David T. Fleming was elected supervisor at the primary election on the 1st day of October, 1932. Under the provisions of the statutes of the Territory, when a vacancy occurs in the office of chairman and executive officer the board of supervisors has the power to appoint a suitable person to fill such vacancy during the remainder of the unexpired term. On April 3, 1933, at a regular meeting of the board, all the members were present except Silva. Fleming presided as acting chairman and executive officer. Supervisor *Page 820 Drummond moved that Fleming be appointed chairman and executive officer of the board for the remainder of the unexpired term, which motion was duly seconded by Supervisor Spencer. The motion was put to a vote by Fleming and upon roll call Drummond, Spencer, Tatekawa and Fleming voted in the affirmative; Holstein voted in the negative; Supervisor Silva being absent and therefore not voting. Fleming announced that the motion had carried and declared himself duly appointed. On April 4, 1933, he took the required oath of office and filed a bond.
Immediately following the action of the board on April 3, 1933, relating to Fleming's appointment, a motion was made by Supervisor Spencer that H.J. Meyer be appointed supervisor of the County of Maui in place of David T. Fleming. Upon roll call the motion was adopted by the unanimous vote of all the members of the board, except Silva, who was absent. On June 5, 1933, at a meeting of the board at which all of the supervisors except Silva were present, Supervisor Spencer presented the following resolution: "Be it Resolved by the Board of Supervisors of the County of Maui, Territory of Hawaii, that D.T. Fleming be and he is hereby appointed chairman and executive officer of the board of supervisors of the County of Maui." This resolution was seconded by H.J. Meyer and on roll call Drummond, Meyer, Spencer and Tatekawa voted aye. Holstein left the meeting and did not vote. Fleming voted no, saying he had already been appointed chairman.
The theory upon which the quo warranto proceedings were instituted was that exclusive of Fleming's vote only three members of the board voted for his appointment and that his vote in his own behalf, being unauthorized by law, his appointment was void.
If, however, the appointment of Fleming on June 5 was *Page 821 valid, he is now entitled to the office of chairman and executive officer of the board no matter what imperfection there may have been in his title at the time the quo warranto proceedings were instituted. The validity of his appointment depends on whether Meyer, whose vote was necessary to it, was legally appointed a supervisor on April 3, and the legality of that appointment in turn depends on whether the office of supervisor, to which Fleming was elected by popular vote in October 1932, was vacant. If it was vacant, then under the laws of Hawaii it was within the power of the board to fill it, and the appointment of Meyer was legal. On the contrary, if there was no vacancy there was nothing to fill and his appointment was futile and the appointment of Fleming likewise was futile.
It is contended by Fleming that his acceptance of the office of chairman and executive officer, to which he believed himself appointed on April 3, is shown by the record and that such acceptance constituted an abandonment or resignation of the office of supervisor, to which he was elected in 1932, and therefore this office was vacant at the time of Meyer's appointment.
As we have already seen, it is undisputed that Fleming, on April 3, voted for his own appointment as chairman and executive officer, and after announcing that the motion had carried declared himself duly appointed. It also appears as an undisputed fact that immediately after this, when Spencer's motion that Meyer be appointed supervisor in the place of Fleming was put to a vote Fleming voted in the affirmative.
Fleming's vote in each of these instances was entirely inconsistent with an intention to continue in the office of supervisor to which he had been elected in 1932. It was, however, consistent with an intention to give up the prior office and accept the latter. This intention was *Page 822 conclusively indicated when he subsequently took the oath of office and executed a bond. It is true this was done on the day following the proceedings of the board but it was close enough in point of time to reflect his intention at the time these proceedings were had. His acceptance of the office of chairman and executive officer, which we think is clearly shown, in itself constituted an abandonment or resignation of the office of supervisor which he held prior to his acceptance. As a mere supervisor his duties were much more restricted than were those of a supervisor who was also chairman and executive officer. If he had remained in the office of supervisor, to which he was elected, he of course could not have performed the duties that were imposed by law upon the chairman and executive officer. The two offices, therefore, were incompatible. The rule is well settled that the acceptance of a second office incompatible with the one already held vacates the first, and this is true even though the title to the second office fails, as where the election is void. 22 R.C.L. § 63, p. 418. See also 2 McQuillin, Mun. Corp. (2 ed.), § 517, p. 187; Howard v. Harrington, 96 Atl. (Me.) 769; Wescott v. Scull, 96 Atl. (N.J.) 407; State v. Wittmer, 144 Pac. (Mont.) 648; Commonwealth v. Bennett, 82 Atl. (Pa.) 249.
Fleming's intention to resign the office of supervisor is further indicated by his vote in favor of Meyer as his successor. The very fact that he did so vote carries with it the unmistakable implication that he considered that he had abdicated the office and that it was therefore without an incumbent. Since we have no statute, as have some jurisdictions, prescribing the means by which a resignation shall be accomplished, it may be done either expressly or by implication. The intention is the vital thing to be determined and that may be inferred from the conduct of the party. *Page 823
When Fleming joined with other members of the board in appointing Meyer to fill the position to which he had been elected, he gave up that position as effectually as though he had expressly resigned, and this is true without regard to the legality vel non of his appointment as chairman of the board.
Meyer having been lawfully appointed a member of the board it follows that Fleming's appointment as chairman and executive officer on June 5 was also lawful and that he is now the lawful incumbent of that office.
The issue involved in the quo warranto proceedings is therefore moot and the motion to dismiss is granted.