Pennsylvania Advisory Opinions November 16, 1905: AGO 149

Advisory Opinion Text

IN RE RESIGNATION OF GEORGE W. MINTZER, MEMBER OP THE HOUSE OF REPRESENTATIVES FOR THE SESSION OF 1905-06, FROM THE FIRST DISTRICT OF PHILADELPHIA-PUBLC OFFICERS-RESIGNATION OF-POWER TO RECALL-PROPER OFFICER TO RECEIVE.

In Alabama, California, Iowa, Nevada, New York, Virginia and in a circuit court of the United States, it has been held, in unqualified terms, that a public officer has the right to resign his office at any time at his own pleasure, without the assent of the appointing power, and that, in the absence of any statute to the contrary, an absolute and unconditional resignation vacates an office from the time the resignation reaches the proper authority, without any acceptance, express or implied, on the part of the latter.

The weight of authority, however, and the obvious dictates of public policy require that the right shall be declared in «, much more restricted manner, because an office being regarded as a burden which it is the duty of the appointee to bear for the public benefit, it follows that a. public officer can not resign his office without the consent of the appointing power, manifested either by an acceptance of his resignation or by the appointment of another in his place.

Where statutes prescribe to whom the resignation of a public officer is to be made, the legislative provision must be complied with: but, in the absence of such a provision, it is properly made to that officer or body that is by law authorized to act upon it, by appointing a successor or calling an election to fill the vacancy.

In Pennsylvania there is no statute which prescribes to whom the resignation of a member of the House of Representatives shall be tendered, but the case falls within the principle that a resignation is properly tendered to that officer or body that is by law authorized to act upon it, by appointing a successor or calling an election to fill the vacancy.

The Speaker of the House of Representatives is the proper officer to receive the resignation of a member of that body, during a recess of the legislature.

Where the resignation of a member of the House of Representatives was intended to take effect immediately, and was delivered with that purpose to the officer authorized to receive it, it cannot be withdrawn even with the consent of the latter.

Hon. Henry F. Walton, Speaker of the House of Representatives:

Sir: I herewith acknowledge receipt of a letter from you, couched in the following terms:

"On April 14, 1905, I received the following letter from Hon. George W. Mintzer, Sr., who at that time was a member of the House of Representatives for the session of 1905-'06, from the First district of Philadelphia:

" 'I respectfully tender my resignation as a member of the House of Representatives, session of 19Q5-'06, from the First district, to take effect immediately.'

"This letter was handed to me by Mr. Mintzer at my office, and at his request, on April 15, 1905, I sent the following letter to John M. Walton, city comptroller of Philadelphia:

" 'I beg leave to inform you that I have.received this day the resignation of George W. Mintzer, Sr., as amem-ber of the House of Representatives, session of 1905'06, from the First District, to take effect immediately.'

"Upon November 14, 1905, I received the following from Mr. 'Mintzer:

" 'My resignation as a member of the Legislature not having been accepted, I hereby withdraw the same, and give you notice that it is my intention to perform the duties of the office until the expiration of the term for which I was elected.'

"Inasmuch as the Honorable Samuel W. Penny-packer, Governor of the Commonwealth, by his proclamation, has convened a session of the Legislature from. January 15, 1906, I find that 'Whenever a vacancy shall occur in either house, the presiding officer thereof shall issue a writ of election to fill such vacancy for the remainder of the term.'

"Will you kindly render me an opinion as to whether or not a resignation thus made to me, as Speaker of the House of Representatives, between a regular and special session such as I have designated, the resignation having been filed with me and accepted, is legal, and therefore cannot be withdrawn? If so, whether or not it is my duty, as Speaker of the House of Representatives to issue a writ for the special election to be held in said district to fill said vacancy ?"

The point presented is a novel one in this State, and I reach my conclusion after a careful examination of such authorities as exist elsewhere. It must be observed that this is a claim on the part of one who was an active member of the House during the session of L905 to recall his own resignation, presented after adjournment sine die, on the ground that it has not been accepted-a position depending upon two propositions: First, that an acceptance is legally necessary to make the resignation effective; and, second, that, in point of fact, there was no acceptance.

I shall deal with these propositions in their order. In Alabama, California, Iowa, Nebraska, Nevada, New York, Virginia, and in a circuit court of the United States, it has been held, in unqualified terms, that a public officer has the right to resign his,office at any time at his own pleasure without the assent of the appointing power, and that, in the absence of any statute to the contrary, an absolute and unconditional resignation vacates an office from the time the resignation reaches the proper authority, without any acceptance, express or implied, on the part of the latter. State v. Fitts, 49 Ala., 402; People v. Porter, 6 Cal., 26; Gates v. Delaware County, 12 Iowa, 405; State v. Mayor, 4 Neb., 260, State v. Clarke, 3 Nev., 566; Gilbert v. Luce, 11 Barbour (N. Y.), 91; Olmsted v. Dennis 77 N. Y., 378; Bunting v. Willis, 27 Grattan (Va), 144; U. S. v. Wright, 1 McLean (U. S.), 512.

The weight of authority, however, and the obvious dictates of public policy require that the right shall be declared in a much more restricted manner, because an office being regarded as a harden which it was the duty of the appointee to bear for the public benefit, it follows that a public officer cannot resign his office without the consent of the appointing power, manifested either by an acceptance of his resignation or by the appointment of another in his place. This is required in order that the public interests may suffer no inconvenience from the want of public servants to execute the laws. This is the substance of Mr. Justice Bradley's opinion in Edwards v. United States, 103 U. S., 471. The same principle is stated by Chief Justice Buffin, of North Carolina, in the case of Hoke v. Henderson, 4 Dev. (N. C.) 1, and is sustained by a large number of cases cited with approval in Throup's Public Officers, Section 409; Mechem on Public Officers, Sections 409-414; 19 American and English Encyclopedia of Law-title, "Public Officers;" sub-title, "Resignation."

Conceding, then, the necessity of acceptance, the first consideration is: To whom is the resignation to be made? If an acceptance be necessary, it is clear that it must be by a party having the power to accept, and if the resignation be presented to the wrong person or body, acceptance as well as' resignation would be futile. The authorities are agreed that, where statutes prescribe to whom the resignation of a public officer is to be made, the legislative provision must be complied with, but, in the absence of such a provision, it is properly made to that officer or body which is by law authorized to act upon it by appointing a successor or calling an election to fill the vacancy. Mechem on Public Officers, section 413; Edwards v. United States, 103 U. S., 471; Pace v. People, 50 111., 432; McGee v. State, 104 Ind., 444; Gates v. Delaware County, 12 Iowa, 405.

In this State there is no statute which prescribes to whom the resignation of a public officer is to be made in a case such as the one under consideration, but the case falls within the principle that a resignation is properly made if made to that officer or body which is by law authorized to act upon it by appointing a successor or calling an election to fill the vacancy. Mr. Mintzer presented his resignation to you as the presiding officer of the House, of which he was a member, the House having adjourned sine die. The Constitution provides, in article 2, section 2, that "whenever a vacancy shall occur in either house the presiding officer thereof shall issue a writ of election to fill such vacancy for the remainder of the term." This provision for issuing writs to fill vacancies by the presiding officer 'of each House is substantially the same as the 19th section, article 1, of the Constitution of 1790. Buckalew on the Constitution, page 31. The acts of 2d July, 1839, P. L. 519, and of 16th of January, 1855, P. L. 1, were passed to give effect to the constitutional provision, and are still in force. Both of these acts imposed the duties of issuing writs to fill vacancies upon the speakers of the respective bodies in which the vacancies occur, such vacancy occurring during the recess.

I am of the opinion that you were the proper person to address in the matter of resignation under the foregoing authorities-first, because, the House not being in session, you were the only official representative of the House who could be reached; and, next, because the duty is specifically imposed upon you of issuing writs to fill vacancies occurring during recess, the Legislature having been required by the Governor to meet at a time previous to the next general election. The case is squarely within the language of the act of 16th of January, 1855, P. L. 1. It would be absurd to contend that a member, attempting to resign, should be required to address every member of an adjourned body, and it would be equally without reason to contend that a resignation could not be made during a recess. That vacancies can occur during a recess is manifest from the language of the Constitution as well as from the language of the statutes above referred to. To hold that no vacancy can arise until the resignation presented to the Speaker in recess is presented by him to the House at its next regular session, would be to destroy the legislative provisions as to the filling of vacancies occurring during a recess in a case where the Legislature is required by the Governor to meet at a time previous to the next: general election, a case covered by the act of 1855, or else the word "vacancy" must be limited to the case of a vacancy occurring through death, a limitation of the use of the word for which I perceive no authority whatever. The word is used in a general sense in the Constitution and the statutes without. qualification. A vacancy may arise from death, resignation or otherwise; but, however occurring, it is none the less a vacancy.

I am of opinion, therefore, that the resignation of Mr. Mintzer was properly presented to you, and that you had the power to accept it. The only remaining question is whether you did accept it, and this presents the proposition as to whether there was an actual acceptance.

There is nothing in the law which prescribes any specific mode of acceptance. The acceptance may be manifested either by a formal declaration or by the appointment of a successor, or by any unequivocal circumstance showing an intention to act upon the resignation. Mechem on Public Officers, section 415, and cases cited; 19 American and English Encyclopedia of Law-title, "Public Officers," page 562T and 562TJ. In Pace v. People, 50 111., 432, and in Gates v. Delaware County, 12 Iowa, 405, it was held that acceptance of a resignation is presumed where the written resignation of an officer is received and filed in the proper office without objection. And in Van Orsdall v. Hazard, 3 Hill (N. Y.), 248, the court, by Mr. Justice Cowen, said:

''Where no particular mode of resignation is prescribed by law, and where the appointment is not by deed, it may be by parole; as, by the incumbent declaring to the appointing power that he resigns his office, or will continue to serve no longer, and requesting an acceptance of his resignation. Nor need the acceptance be in writing. It is enough "that the office' be treated as vacant; for instance, by appointing a successor."

There can be no doubt, upon the facts as detailed by you, of the intention of Mr. Mintzer to resign, and of your acceptance of his resignation. He presented his resignation to you as a member of the House of Representatives, session of 1905'06, to take effect immediately. He handed the letter containing the resignation to you at your office, and, at his request, on the day subsequent to the date of his letter, you notified the city comptroller of Philadelphia that yon had received the resignation of Mr. Mintzer as a member of the House of Representatives, session of 1905'06, to take effect immediately.

These acts are unequivocal in their meaning. The language and conduct of Mr. Mintzer leaves no room for doubt as to his mental attitude, acquiesced in by him for more than six months thereafter, and your act in notifying another officer of the fact of resignation, particularly as that notification was given at the request of Mr. Mintzer himself, indicates an acceptance of his resignation. It was a public declaration by you of the fact, made at the request of Mr. Mintzer himself, and presumably for his benefit. Although it is not stated in your letter, it is clear that there was some reason for the notification to the city comptroller, and that such notice was necessary to enable him to perform some official act. If such act inured to the benefit of Mr. Mintzer, it is clear that not only did he resign his place, but that he desired public announcement of the fact to be made by you to an officer whose action was of importance to himself. He has thus acted in such manner as to entirely negative the thought that his resignation was tentative, or that it depended upon some future action of the House, of which he had been a member. The very language of the resignation itself indicates that it was to take effect immediately, and bound you to immediate action. This, under the case as stated, you took without delay.

I am of opinion that a resignation so given cannot be withdrawn. The doctrine of the law on this point is well stated in Biddle v. Willard, 10 Ind., 62, and to the same effect are State v. Boeker, 5G Mo., J7; Rodgers v. Slonaker, 32 Kan., 192; State v. Clark, 3 Nev., 519. In the first case it was said:

"A prospective resignation may, in point of law, amount to a notice of the intention to resign at a future day, or a proposition to so resign, and for the reason that it is not accompanied by a giving up of the office possession is still retained, and may not necessarily be surrendered till the expiration of the legal term of the office because the officer may recall his resignation- may withdraw his proposition to resign. He certainly can do this at any time before it is accepted; and after it is accepted he may make the withdrawal by the consent of the authority accepting, where no new rights have intervened."

But, as was said in State v. Hauss, 43 Ind., 105, where the resignation was intended to take effect immediately, and has been delivered with that purpose to the officer authorized to receive it, it cannot be withdrawn even with the consent of the latter; and the same ruling has been made in other cases. Yonks v. State, 27 Ind., 236; Queen v. Mayor, 14 Queen's Bench Division, 908. The effect of the decision in Pace v. People, 50 111., 432; Gates v. Delaware County, 12 Iowa, 405; and State v. Fitts, 49 Ala., 402, is that an accepted resignation cannot be withdrawn.

It is clear from the language of 'Mr. Mintzer's resignation that he was not presenting a proposition to resign, but that he unequivocally tendered his resignation, to take effect immediately. Any other construction would be inadmissible.

I am of opinion, therefore, that a vacancy exists in this case, arising from a resignation properly presented to you and accepted by you, acquiesced in by Mr. Mintzer, and that it is not within his power to recall the same. New rights have intervened, the rights of a constituency to be represented by a member chosen to fill a vacancy arising during the recess of the Legislature from a cause, not only contemplated, but covered by the terms of the act of January 16, 1855, which provides that the method of filling vacancies shall be as prescribed by the act of 2d July, 1839, section 35, P. L. 526, and particularly by section 37 of the last named act.

I reach the same conclusion from another point of view. Should you determine not to issue a writ in this case, it is tantamount to a decision that your previous act amounted to no acceptance, and that the attempted recall of the resignation is operative to save the rights of Mr. Mintzer as a member of the House. In this way it would be impossible to hold a special election with a view of filling the vacancy, and a wrong would be done to the constituency hitherto represented by Mr. Mintzer, for that constituency would be left without a representative during the special session of the Legislature, as called by the Governor, if the House, in judging of the qualifications of Mr. Mintzer as a member, should determine that he had resigned to you as the proper officer, and that your acceptance of his resignation was a valid acceptance. In this way the constituency of the First legislative district would be deprived of representation.

On the other hand, if a special election is held, Mr. Mintzer may either be re-elected, or, should he decline to stand as a candidate and maintain his present position, he could appear before the House and claim his right to the seat, challenging the right of the specially elected member to fill the vacancy, and in this way both parties would be heard and an opportunity given for the presentation of their respective claims, and the road thus be opened for a determination by the House, which, whichever way decided, would not result in depriving the district of a representative.

I therefore instruct you that it is your duty to issue a special writ for the filling of a vacancy in the First Legislative district of Pennsylvania.

Very respectfully,

HAMPTON L. CARSON, Attorney General.