Page:Federal Reporter, 1st Series, Volume 10.djvu/476

 464 FEDERAL REPORTER. �resignation of these officers, do undoubtedly take this case out of the rule of Edwards v. U. S. and Thompson v. U. S. supra, and bring it within a principle, there discussed, that it is a matter of local regu- lation that must control this case. But these statutes were all prier to the constitution of 1870, which declares that "evei*y officer shall hold his office until his successor is elected or appointed and quali- fied." Article 7, § 5, T. & S, Code, p. 108. The former constitutions, under whieh the foregoing and similar statutes were passed, con- tained no such provision. It was, however, a principle of the com- mon law that every officer held his office until his successor was qualified, and he could not surrender it without consent of the orown or other appointing power, or the election of his successor where it ■was an elective office ; and this, as we have seen, was the basis of the rule that an acceptance of a resignation was necessary to give that consent and vacate the office. It was manifested by a cancella- tion of the patent of office, a formai acceptance of the surrender or resignation, or impliedly by the appointment or election of a suc- cessor. Indeed, the common law would eompel -the acceptance of an office, and a refusai to assume it was indictable as an offence. 5 Comyn's Dig. tit. "Officer," B 1 ; Id. K 4, 9, passim; Id. tit. "Jus- tices of Peace," A 1; Bac. Abr. 322m; Anon. 12 Mod. 256; Rex v. Mayor of Rippon, 2 Salk. 433; S. G. 1 Ld. Eaym. 563; Rex v. Patte- son, 4 B. & A. 15; Worth v. Newton, 10 Exch. 247; Lond n v. Hea- den, 76 N. C. 72; Stratton v. Oulton, 28 Cal. 45; People v. Stratton, Id. 382 ; Edwards v. U. 8. supra; Thompson v. U. S. supra. �Nor was there wanting a solid foundation of good reason for the principle. The services of officers are necessary to organized society ; and any hiatus or interregnum tends to disorganization. If one's property, services as a soldier, his very life, in fact, may be taken to preserve society, there is no reason why his personal services, in an officiai capacity, may not be demanded and insisted on by the state. Enforced jury service furnishes a conspicuous example of the prin- ciple, as well as compulsory attendance of witnesses, and there may be others. Our own constitution says : �"Xo man's particular services shall be demanded, or property taken or ap- plied to public use, without the consent of his representatives, or without just compensation being made therefor." Article 1, § 21, T. & S. Code, p. 82. �Not only is this compulsory service supported under this doctrine of necessity, but likewise under the contract. It is true, the beatowal of an office is not, in the ordinary technical sense, a contract, — at ��� �