
    The State, ex rel. Staley, v. City of Lakewood et al.
    (Decided May 7, 1934.)
    
      Messrs. McDonald, Webster $ Thompson, for relator.
    
      Mr. B. G. Curren, for respondents.
   Levine, J.

This is an original action in mandamus ■which, the relator institutes in this court seeking an order of court to reinstate him to his former position as a police officer of the city of Lakewood, to recognize bim as a member of said police department, to assign him duties as a policeman, to return him to the pay roll of the city, and so forth.

The petition briefly recites that Harry S. Staley, relator, since the 4th day of April, 1923, has been a member of the police department in the service of the city of Lakewood; that on or about the 7th day of December, 1933, he decided to resign as a member of said police department; that pursuant to this intention he filed his resignation with the defendant L. B. Miller, chief of police, to become effective on the 15th day of December, 1933; that thereafter, to wit, on the 14th day of December, 1933, his said resignation not yet being effective, he canceled and withdrew it by informing the defendants L. B. Miller, chief of police, and Amos I. Kauffman, mayor, that he desired to withdraw his resignation, and demanded that they return his resignation to him, which they then and there and ever since have refused to do.

For the purposes of this case, the parties thereto entered into an agreed statement of facts, which, while admitting the formal allegations of the petition, raises a question as to the legal effect of the attempted withdrawal of relator’s resignation. Nos. 3 and 4 of the agreed statement recite:

“3. That on December 7, 1933, he decided to resign as a member of the police department of the City of Lakewood; that in pursuance of his intention he filed with the defendant, L. B. Miller, Chief of the Division of Police, his written resignation reading as follows:
“ ‘Dec. 7th, 1933
“ ‘Chief L. B. Miller Sir:
“ ‘I hereby tender my Resignation to take a feet [effect] on the 16th of Dec. 1933
“ ‘Patrolman Harry Staley #12
“ ‘Witnessed: L. B. Miller
“ ‘H. C. Lang.’
“4. That L. B. Miller, Chief of Police, delivered said written resignation to Amos I. Kauffman, mayor and director of public safety, the officer duly authorized to receive the same, and on December 8, 1933, the mayor sent a letter to Harry S. Staley, a copy of which is as follows:
“ ‘December 8,1933.
“ ‘Mr. Harry Staley, Patrolman, Lakewood Police Dept.
“ ‘Dear Sir: This will acknowledge receipt of your letter of December 7th in which you tender your resignation as Patrolman of the Lakewood Police Department to take effect December 16,1933.
“ ‘By this, resignation you will understand that you will b.e continued on the payroll up to and including December 15 th.
“ ‘Very truly yours,
“ ‘A. I. Kauffman, Mayor.
“ ‘AIK:DHC
“ ‘CC: Chief Miller
“ ‘H. A. Rees.’ ”

Statements Nos. 5 and 6 read as follows:

“5. That a copy of this letter was sent to L. B. Miller, Chief of Police, and H. A. Rees, Director of Finance.
“6. That on December 14, 1933, Harry S. Staley verbally stated to the defendant, A. I. Kauffman, mayor and director of public safety, and L. B. Miller, chief of the division of police, that he desired to withdraw his resignation, and tendered to said L. B. Miller the following letter which the said L. B. Miller refused to receive:
“ ‘Dear Sir:
“ ‘This is to advise that upon more mature consideration I hereby withdraw my resignation from the Lakewood Police Department, dated December 7, 1933.
“ ‘Very truly yours,
“ ‘H. Staley.’
“and that the defendants then and ever- since then have refused to permit relator to withdraw his resignation and have refused to recognize as of any force and effect his attempt to cancel and withdraw his said resignation and have refused to recognize him as a member of the Department.”

In the final analysis there is but one question before us, namely, the right of relator to-withdraw his resignation, which he tendered before the date it was to become effective, and whether or not the letter which he addressed to the defendants advising them that he withdrew his resignation effected the result which he sought to achieve.

‘ It may be taken as conceded that, when the relator, Staley, tendered his resignation, he specified that the same was to take effect on the 15th of December, 1933; that the letter of Mayor Kauffman, which acknowledged the receipt of Staley’s letter of December 7th, in which Staley tendered his resignation, did not in express words state that the resignation was accepted, but did contain the following language: “By thisi resignation you will understand that you will be continued on the payroll up' to and including December 15th.”

Does a municipal employee in the classified service have the right to withdraw, prior to the effective date thereof, a previously filed resignation which is to become effective at a future date? The Civil Service Commission of the city of Lakewood in 1914 formulated and adopted rules and regulations for the government of classified employees, rule 10 of which follows generally the provisions of General Code, Section 486-16, and is as follows:

“Any officer or employe in the classified service who has resigned from said office or position, may he restored to the eligible list therefor, upon his written request, unless at the time of said resignation charges were pending against such officer or employe for official misconduct or incompetency; provided such request be made within thirty (30) days after said resignation shall have been accepted.”

The word “may” as found in the above section does not intend to lodge discretion with the civil service commission to restore or not to restore to office an employee in the classified service who has resigned. The law intends to confer a right upon such employee, which he may exercise within the time limit set forth in said rule.

It is not unreasonable to assume that it was the intention of the Legislature of the state of Ohio and of the Civil Service Commission of the city of Lakewood to exercise liberality towards employees in the classified service who have severed their connection with such service, by permitting them to be restored to the eligible list within a given time after resignation. The same rule of liberality should be applied to the present situation.

It will be observed that the position which Staley held prior to his tender of resignation has not been vacated; that no one has been appointed in his place; that he has reported for work daily, and has at all times been ready, able and willing to perform any of the duties which might be assigned to him as a member of the police department of the city of Lakewood. There are no charges pending against the officer for official misconduct of incumbency.

Furthermore, between December 7th, the date of Staley’s tender of resignation, and December 15th, the date when the same was to become effective, he was on duty, and did all that was required of him in the performance of his duty as a police officer in the city of Lakewood. He has at no time relinquished the possession of his office.

In the case of Biddle v. Willard, Governor, 10 Ind., 62, the court said:

“To constitute a complete and operative resignar tion, there must be an intention to relinquish a portion of the term of the office, accompanied by the act of relinquishment. ’ ’

And in the course of the opinion in the Biddle case we find the following, at page 66:

“Hence, a prospective resignation may, in point of law, amount but to a notice of 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.”

To constitute a complete and operative resignation of a public officer there must be an intention to relinquish a part of the term accompanied by an act of relinquishment. State, ex rel. McGuyer, v. Huff, 172 Ind., 1, 87 N. E., 141, 139 Am. St. Rep., 355; State, ex rel. Young, v. Ladeen, 104 Minn., 252, 116 N. W., 486, 16 L. R. A. (N. S.), 1058.

A written resignation delivered to the board or officer authorized to* receive it is prima facie, but not conclusive, evidence of an intention to relinquish the office. State, ex rel. Young, v. Ladeen, supra.

The adjudicated cases seem to draw a distinction between an unconditional resignation to take immediate effect and one which is to take effect in the future. When an unconditional resignation to take immediate effect has been transmitted to the power authorized to accept it, it is held by some courts that it cannot be withdrawn. State, ex rel. Ryan, v. Murphy, 30 Nev., 409, 97 P., 391, 18 L. R. A. (N. S.), 1210.

On the other hand, many courts adhere to the view that a prospective resignation before its acceptance may be withdrawn in spite of the fact that it is unconditional in its terms. State, ex rel. Almon, v. Fowler, 160 Ala., 186, 48 So., 985, 135 Am. St. Rep., 91; State, ex rel. McGuyer, v. Huff, 172 Ind., 1, 87 N. E., 141, 139 Am. St. Rep., 355; 5 Ann. Cas., 690, note; State, ex rel. Gernigan, v. Stickley, 80 S. C., 64, 61 S. E., 211, 128 Am. St. Rep., 855, 15 Ann. Cas., 136.

Apparently a resignation to take effect in the future may be withdrawn prior to the time it has taken effect, even against the will of the body to which it is ten-, dered and which has accepted it. State, ex rel. Ryan, v. Murphy, supra.

The relator, Staley, was entitled to continue in his position during good behavior, since no charges were pending against him for official delinquency or incompetency. His declaration in his letter of resignation of an intention to relinquish his position at a future date does not so bind him as to bar him from withdrawing the same before the date specified in his letter.

We are therefore of the opinion: First. That the weight of adjudicated cases in other states permits Staley to withdraw his resignation prior to the date when the same was to become effective. Second. That to give this intention to relinquish his position an operative effect it must be accompanied by the act of relinquishment.

Upon the above considerations it is adjudged and decreed that a writ of mandamus issue from this court restoring the relator to his former position as a police officer, 'and that he be granted all further relief as prayed for in the petition.

Writ allowed.

Lieghley, P. J., and McGill, J., concur.  