Page:Federal Reporter, 1st Series, Volume 10.djvu/474

 462 FEDEBAIi SEPORTEB. �to him, or for any reason he does not wish to perform them, why may lie not give it up for that reason as well after as before mandatory process, and this without any responsibility for or inquiry into the motive for his action? It seems to me wholly untenable, when an officer bas the right of resignation, to hold that he is guilty of con- tempt of court if he resigna rather than obey a writ of mandamus. He cannot delay obedience without contempt, and he remains in con- tempt as long as he continues in office without obedience. Hoff v. Jasper County, 20 Am. Law Eeg. (N. S.) 435. But if before the oppor- tunity to obey arrives, or before the time prescribed by law for obe- dience, he resigns effectually or vaeates the office, I do not recognize in the act of resignation any contempt, no matter what his motives. The mere fact that the creditor may be thus defeated of his remedy does not furnish a reason,. though even this is merely temporary, as the suc- cesBor is amenable to the same process. Com'rs v. Sellew, 99 U. S. 624; Thompson v. U. S. 103 U. S. 480, 484; U. S. v. Labette County, 7 Fed. Rep. 318, 320. No authority has been produced which supports the contrary doctrine, and I think these views accord with the general principles involved in the consideration of the sub- ject, and are a proper inference from the cases. Rees v. Watertown, 19 Wall. 107; Barkley v. Levee ComWs, 93 U. S. 258; Meriwether v. Garrett, 102 U. S. 472, 511-518; Edwards v. U. S. 103 U. S. 471; Thompson v. V. S. supra. �The leading question in this case is whether or not these respond- ents have effectually resigned, or are still the justices of Lauderdale county and liable for a non-compliance with the writ commanding them to levy the tax to pay the relator's judgment. This question depends upon a proper construction of the constitution of Tennessee, and there is no decision of the supreme court of the state to guide the court in ita determination. �Prior to the constitution of 1870 there can be but little doubt that the laws of Tennessee permitted to all ofiicers the most i|inrestricted right of resignation. The resignations of the respondents were ten- dered aocording to the Code and accepted by the county court, which was, under the law as it existed, independently of the constitution, sufficient to vacate their offices, although relator's counsel suggest that a formai acceptance is required, which was wanting as to some of the justices. It seems, however, to be generally conceded by the authorities that where the of&cer or tribunal designated by law to receive resignations has no duty to perform in respect to supplying a successor, the bare receipt of the resignation without objection ��� �