come vacant inasmuch as the prior incumbent usually holds

over.'

II.

BY REFUSING OR NEGLECTING TO PERFORM DUTIES.

§ 435. Continued Refusal or Neglect to perform Duties constitutes Abandonment.-Public offices are held upon the implied condition that the officer will diligently and faithfully execute the duties belonging to them, and while a temporary or accidental failure to perform them in a single instance or during a short period will not operate as an abandonment, yet if the officer refuses or neglects to exercise the functions of the office for so long a period as to reasonably warrant the presumption that he does not desire or intend to perform the duties of the office at all, he will be held to have abandoned it, not only when his refusal to perform was wilful, but also where, while he

See ante, § 397.

Thus a mere temporary inability by sickness to perform the duties, though continuing for fifty days, will not amount to an abandonment. State v. Baird, 47 Mo. 301. See also State . Allen, 21 Ind. 516, 83 Am. Dec. 867.

People v. Hartwell, 67 Cal. 11; King v. Rook, Cro. Car. 491; Rex v. Wells, 4 Burr, 2004; State v. Allen, 21 Ind. 516, 83 Am. Dec. 367; People v. Kingston, T. R. Co. 23 Wend. (N. Y.) 193, 35 Am. Dec. 551. In this case, C. J. NELSON said:

"It is laid down as a general principle, that if an officer acts contrary to the nature and duty of his office, or refuses to act at all, he forfeits it; and, if granted by patent, he may be turned out by scire facias: 5 Bac. 210, 212, tit. Offices and Officers; Earl of Shrewsbury's Case, 9 Co. 50; Sir George Reynel's Case, 9 Co. 98; for in every grant of an office there is an implied condition that the grantee will diligently and faithfully execute

the duties of it. Lord Coke says, in the Earl of Shrewsbury's Case, 9 Coke 50, that there are three causes of forfeiture: 1. Abuser; 2. Non-user; and 8. Refusal. The first is where the sheriff or jailer permits a voluntary escape, or abuses the prisoners, etc.; or a forester or parker cuts wood, unless for necessary brush. The second, where the officer is concerned in the administration of justice, or of the commonwealth, and neglects to at tend upon his duties; and the third, where he is bound to attend upon request, and refuses; in either case, the office is forfeited. Sickness is an excuse; but in the case of a searcher of a port, voluntary absence when search should be made, is not, King v. Rooks, Cro. Car. 491. And Lord Holt held that the voluntary absence of a recorder of Ipswich, he holding a public office, was cause of forfeiture, though no inconvenience ensues: Queen v. Baliffs of Ipswich, 2 Ld. Raym. 1237. Mr. Hawkins doubts this, but adds that he who so far neg

intended to vacate the office, it was because he in good faith but mistakenly supposed he had no right to hold it.'

Where, however, while desiring and intending to hold the office if he has a legal right to do so, and with no desire or intention wilfully or purposely to abandon it, he vacates it in deference to the requirements of a public statute which is afterwards declared unconstitutional, such a surrender will not be deemed an abandonment, and upon the overthrow of the law, during his term, he may recover the office.'

§ 436. Judgment of Ouster necessary.-But while such an abandonment is clearly a cause for a forfeiture, it is ordinarily held that it does not of itself create a completed vacancy, but that a judicial determination of the fact is necessary to render it conclusive,'

III.

BY REMOVAL FROM THE DISTRICT.

§ 437. Officer usually required to reside in District for which he was elected.-As has been seen in an earlier section, it is usually provided that public officers shall reside in the district for and from which they are elected, and the statutes generally provide further that the office shall become vacant upon their ceasing to reside within said district. The reasons for these provisions are found in obvious requirements of public policy.

§ 438. Permanent Removal from District operates as Abandonment. Where the law thus requires the officer to reside within the district which he represents, and a fortiori so where it expressly declares that his removal from the district shall create a vacancy, a permanent removal from the district represented will be deemed an abandonment of the office and vacancy will result."

But a merely temporary removal for a limited time and with no intention to abandon or surrender the office or to cease to per form its duties, will not have this effect."

$439. Same Subject-Illustrations.-Thus, where a county officer leaves the county with his family with the intention not to return, or goes to another State with the intention of there

v. Greene, 2 Q. B. 460; Butts v. Wood, 37 N. Y. 317; Gray v. Hook, 4 N. Y. 449; (2), that such agreement and the surrender of the office by plaintiff did not amount to an abandonment or resignation.

1 Van Orsdallo. Hazard, 3 Hill (N. Y.) 243.

2 See ante, § 433.

3 Yonkey v. State, 27 Ind. 236; Curry v. Stewart, 8 Bush (Ky.) 560;

State v. Allen, 21 Ind. 516, 83 Am. Dec. 367; Prather v. Hart, 17 Neb. 598.

4 State v. Graham, 26 La. Ann. 568, 21 Am. Rep. 551; McGregor v. Allen, 33 La. Ann. 870; Curry v. Stewart, 8 Bush (Ky.) 560; People v. Parker, 3 Neb. 409, 19 Am. Rep. 634; Yonkey v. State, 27 Ind. 236.

Prather v. Hart, 17 Neb. 598.

2

making it his home,' or voluntarily enlists in the military service of the United States, he is held to have vacated his office; but a mere temporary absence, as to procure medical treatments or to engage in business for a limited time, or to fill a temporary appointment, where the office may be and is filled by a deputy, does not operate to vacate it.

§ 440. Office once abandoned cannot be resumed.—When the vacancy has once become complete by the abandonment of the officer, it can not be resumed by him, nor can he again possess himself of it by an accidental, voluntary or forcible reoccupancy.'

IV.

BY ENGAGING IN REBELLION.

§ 441. Officer who rebels against Government forfeits Office. -Where a public officer holding an office under the government, rebels against that government and seeks or aids its overthrow, he will be thereby deemed to have forfeited and vacated his office, and no judicial determination is necessary to determine the fact of the forfeiture."

ง.

BY DEATH.

§ 442. Death of single Officer creates vacancy.-The death of the incumbent of an office, which is by law to be filled by one person only, necessarily renders the office vacant. The fact of the vacancy in such a case and the means to be pursued to fill it, are usually made the subject of statutory enactment.

§ 443. Survivor of two or more Officers may execute Office. -But where the authority to be exercised is conferred upon two or more officers a different rule applies. While the death of one, of course, terminates his authority and leaves a vacancy to be filled, the whole office is not vacant but, unless the joint action of all is expressly required, the survivors may execute the office. As is said in one case, "A grant of power, in the nature of a public office, to several, does not become void upon the death or disability of one or more. Such a grant of power is not in the nature of a private franchise which, when granted to two without words of survivorship, might not by the rules of the common law, survive the death of one." "

1 People v. Palmer, 52 N. Y. 84; Downing v. Rugar, 21 Wend. (N. Y.) 178, 34 Am. Dec. 223.

282

See also Mechem on Agency, § 78.
People v. Palmer, 52 N. Y. 84.