
    *Smith v. Dyer.
    [Saturday, April 27, 1799.]
    Clerk of Court — Resignation.—What shall be a resignation of Ms office, by a Clerk of a Court.
    This was an appeal from an order of the District Court, awarding a peremptory writ of mandamus to the County Court of Pendleton, to restore Dyer into the office of Clerk of the Court of that County.
    The case was,' that of ' the first day of May, 1797, Gawin Hamilton, Clerk of the Court, wrote a letter to the Court of Pendleton county, in these words: “Your
    worships will please to take notice, I do intend to leave my resignation of my Clerk’s office in this county. I therefore, notify you to prepare to chuse you a Clerk in my room at the next Court, as I shall continue in office no longer after that day. ” Signed “Gawin Hamilton,” and directed to “the Justices of Pendleton county.” At June Court, 1797, the Court made this entry on their records, “the Court are of opinion from a letter received from Gawin Hamilton, in open Court at the last term, (and from his verbal declaration to them at that time,) that he would not continue in office, as Clerk of this County longer than this term, that he the said Hamilton, hath thereby resigned his said office as Clerk aforesaid; they, therefore, proceed to chuse another Clerk for the said County, and order, that the Clerk that may be so appointed, take upon himself and execute the duties of Clerk of the said County immediately after the expiration of this term: And that the said Hamilton be notified to appear at the next Court, to be held for this County, at the Court-house, to deliver up the records of said County to the person who may be chosen Clerk as aforesaid.” The Court, at the time of making the said entry, consisted of ten members; four of whom the record states objected thereto, because the said letter and verbal declaration did not warrant the appointment 563 *of a Clerk at that time; as Hamilton was not present and had not written any further to the Court. The record then states, that Dyer was immediately appointed Clerk; he having six votes, and the four who objected as above having refused to vote.
    At July Court, 1797, the same ten members were in Court, a new commission of the peace was produced, and three new Justices qualified under it, against the opinion of the above-mentioned six; because the recommendation was made at the last Court, and the copy of the order was not attested and sent to the Governor by Dyer; and because too, “the three new Magistrates aforesaid were qualified by the deputy Clerk of Gawin Hamilton.” Then follows an entry in these words, ‘ ‘Gawin Hamilton, Clerk of this County, came into Court and resigned his office as Clerk of this County, whereupon Abraham Smith having seven votes was duly elected Clerk of this County.” The above-named six members objected to this appointment, as they conceived Dyer to have been legally appointed, and he had qualified and given bond at the last Court.
    The District Court first granted a rule upon the Clerk and Justices, to shew cause why Dyer should not be reinstated in the office.
    Several depositions were taken in the District Court, which stated, that Hamilton came into the County Court at the May term and held a paper in his hand which the Court considered as his resignation. That he gave the paper to the Court, and told them it was his resignation. That one of the Justices objected to the form of it, but Hamilton said no advantage was intended; but that he meant it as his resignation. That, if the Court supposed he had any design, he would give up the office then, but that he wished to keep it until the next Court, that the young man might get the paper in order. That the Court might proceed to appoint another Clerk 564 at the next Court, for he *would be their Clerk no longer. And that Hamilton gave the Court no further information until the succeeding July term.
    The first writ of mandamus to restore or shew cause, not being returned by the Justices, a second issued, with a direction in the order, that it should be delivered to the “Justices, or such of them as shall be sitting in open Court,” &c.
    To this latter writ, six of the Justices who stated themselves to be then sitting, and composing part of the Court on the 6th of June, 1798, returned that “Dyer was never duly elected and sworn, but that the office from May to July, was filled by Hamilton : Who then resigned, and Smith was duly elected, sworn and admitted, &c.” But seven other Justices being the residue of the Court then siting, returned, “that Hamilton resigned at May Court, and Dyer was elected, qualified and admitted in June, 1797, and acted as Clerk till July, 1797; when', in consequence of an appointment of Smith as above-mentioned, (reciting the circumstances as already related,) he got the possession and acts as Clerk, &c. ”
    Upon his return, the District Court awarded a peremptory mandamus to restore Dj'er; and from that order Smith appealed to this Court.
    Call, Randolph and Nicholas, for the plaintiff.
    Contended that Dyer was not duly elected; because, at the time of his election, Hamilton, the preceding Clerk, had not resigned. Eor, the letter was not an actual resignation, but a mere declaration of an intention to resign, which he might or might not carry into effect, as he thought proper. Therefore, as he had done no further act of resignation, when Dyer’s election took place, the office was no<- then vacant, and, consequently, the election was void. That the County Court could not grant an office to take effect in occupation at a future day, as the King of England can ; because the constitution required 565 an actual vacancy, and as *there was no vacancy here at the time, the election conferred no right. That it appeared by the record, that the Court did not consider Hamilton’s resignation as perfected at the time of the election; for, Dyer is elected to occupy the office, after the expiration of that term of the Court; and at a subsequent term, it is stated, that Hamilton came in and resigned. That the return to the mandamus was not conclusive; for, it is not so only against the party praying it; and, therefore, the statute of Anne only gives a traverse to him who prays it.
    That where there was so nice a division of the sitting members of the Court, as there was in this case, when the return was made, and where too the members present at the elections were equally divided, and the Magistrate who made the majority was not present at either, whilst one of those who was present at both elections, and had divided in favor of Smith, was absent when the return was made, a peremptory mandamus ought not to have gone, until a feigned issue had been offered and rejected, as was done in [Rex v. Barker et al.] 3 Burr. [1268]. For, it was but a decent respect due to the minority in a doubtful question of this kind, and where accident alone, perhaps, had produced the return: Because, if there had been a full Court, or if the absent Justice before spoken of had been present, instead of the other who was not at the elections, a very different return would possibly have been made. That it did not appear that the mandamus was served upon all the Justices of the Court, and yet all had an equal interest in the business. For which reason, the order of the District Court, directing that the mandamus should be served upon the members in Court only, was clearly wrong; because it was subjecting the decision to chance and accident. For, if there should have happened to have been a mere quorum in Court, and that quorum had consisted of the members who voted for either of the candidates, the return would be according to their own opinions; which, it is not 566 to be presumed, they would *have changed after the decisions which they had made upon record relative to the elections. Of course, the only proper mode would have been, to have, directed that all the Justices should be served; and, consequently, that the District Court had erred in the manner which they had prescribed.
    Wickham and Marshall, for the appellee.
    Contended, that there was an actual vacancy of the office at the time of Dyer’s election; because, the resignation of Hamilton had been accepted by the Court, and was now complete by efflux of time. [Rex v. The Mayor &c. of Rippon,] 1 Salk. 433. That no set form of words was necessary to constitute a resignation, but that any thing tantamount was sufficient. Therefore, as Hamilton in this case had shewn a clear intention to divest himself of the office, it was enough. But, at all events, the return to the mandamus was conclusive. 3 Blac. Com. 111; [Bagg’s Case, 11] Co. 99. For, there was no ground for the supposed distinction between the person applying for the mandamus and any other person. That a feigned issue was not necessary, in a case where the right was clear. That it did not appear that all the Justices were not served with the writ. But, it was not necessary that it should be served upon all; for service on the sitting members of the Court was sufficient, because they were to do the act.
    
      
      Mandamus — Clerk—Restoration to Office, — The writ of mandamus is the proper remedy to restore a clerk ousted from his office by the illegal appointment of another person. Dew v. The Judges, 3 Hen. ■ & M. 1, 3 Am. Dec. 639.
      In Booker v. Young, 12 Gratt. 306, the court said:“The proceeding by way of mandamus seems to me to be a fair, convenient and ready mode of litigating and deciding upon questions such as those presented by the record of this case. The propriety of resorting to it in cases of the like kind is, I think, fully sanctioned in Smith v. Dyer, 1 Call 562, and in Dew v. The Judges of the Sweet Springs, 3 Hen. & M. 1. I am not aware that the authority of these precedents has been questioned in any subsequent decision of this court; and they furnish, in my opinion, a satisfactory answer to the objections made here to the remedy selected by the petitioner.” Upon this subject of mandamus, the principal case is further cited in Fisher v. Charleston, 17 W. Va. 610 ; Cross v. West Va. Cent. & P. Ry. Co., 35 W. Va. 181, 12 S. E. Rep. 1073. See foot-note to Morris, Ex Parte, 11 Gratt. 292.
    
   The Court affirmed the judgment of the District Court.  