the power to fill vacancies; but that even if they had the power to accept resignations it had not been exercised legally in this case, as the meeting at which the resignation was accepted had not been regularly convened.

§ 66. Time. Where acceptance of a resignation is deemed necessary, the resignation does not become complete until the acceptance, but where the common law rule has been changed it may take effect earlier. Thus in the case of Reiter v. State (20), the mayor of the village of Pleasant Ridge presented his resignation to the city council on February 21, 1893, to take effect the first of the following month. The resignation was not acted on until the next meeting, March 7, when it was accepted; and on March 11 Reiter was appointed to fill the vacancy. The next annual municipal election was held April 3 and a mayor elected to fill the unexpired term, but, as it was provided by law that the filling of the vacancy by election should take place thirty days after the vacancy, Reiter claimed that the vacancy did not occur until the acceptance of the resignation on March 7, that accordingly the election was held within the thirty days and was invalid, and that he was still mayor. But the court said that the common law doctrine of the necessity of an acceptance seemed inconsistent with the Ohio statutes, pointed to the fact that in a number of states the common law rule had been changed, considered that in a case of this kind the necessity of an acceptance might "tempt a partisan officer to delay the acceptance of a resignation until too late

to fill the vacancy at the succeeding election," and held accordingly that the resignation in question took effect March 1 and that the election was valid.

§ 67. Acceptance of incompatible office vacates prior office. In the case of Attorney-General v. Common Council (21), Pingree, while mayor of the city of Detroit, was elected to and entered upon the execution of the duties of the office of governor. He continued to perform both functions when this action was brought to compel the calling of an election to fill the vacancy which it was claimed his acecptance of the office of governor had made in the office of mayor. The court pointed out that the governor had the right to remove the mayor and said: "If a superior officer is clothed with power to remove from office an inferior person, there is certainly no logic or reason in holding that one person may hold both. No more marked incompatibility is possible." Accordingly the court held that the office of mayor was vacated. Where acceptance of resignation is not necessary or where the power which appoints to the second is the same power to whom would be made surrender of the first, this rule that the acceptance of the second vacates the first prevails; but, in the case of Attorney-General v. Marston (22) there was no such absolute right of resignation, and the court held that as the offices of collector of taxes and selectman were incompatible, and as the defendant had been collector of taxes when elected selectman without any resignation of the office of collector having been accepted, that

(21) 112 Mich. 145.

the first office was not vacated, but that he had never been de jure selectman and ousted him from that office.

§ 68. In what incompatibility consists. It is not mere physical impossibility to perform the functions of two offices that makes them incompatible. A deputy clerk of the court of special sessions for the city and county of New York had been elected a member of the legislature, and had been engaged in the performance of the duties of the latter office in the city of Albany during the months of February, April and May, thus making it impossible to perform the duties of a deputy clerk during that time. His salary as deputy clerk for three months was not paid and he brought suit for it. The court held that he had a right to it and said: "It is clearly shown in those opinions that physical impossibility is not the incompatibility of the common law, which existing, one office is ipso facto vacated by accepting another. Incompatibility between two offices is an inconsistency in the functions of the two; as judge and clerk of the same court, or officer who presents his personal account subject to audit and officers whose duty it is to audit it" (23).

(23) People v. Green, 58 N. Y. 295.

CHAPTER IV.

AUTHORITY AND POWERS OF OFFICERS.

SECTION 1. AUTHORITY.

§ 69. Derived from law. We have already seen that offices must be created by law (§ 6, above), and that in the states it is generally held that officers are responsible to the law and not to the chief executive (§ 5, above). It is also generally true that the authority of an officer must trace itself to the common law, to the constitution, to some statute, or to some administrative or municipal regulation authorized or ratified by law, and cannot find its source in the constitutional power of the chief executive to enforce the law. But in the Federal government officers are far more responsible to the chief executive than they are in the states, and in the case of In re Neagle (1) it was held that the order of the President prescribing certain duties to a United States deputy marshal was a sufficient authority to exempt the latter from the jurisdiction of the state courts. There being reason to apprehend an assault upon Mr. Justice Field of the Federal Supreme Court, while discharging his duties in California, the United States marshal there, at the suggestion of the attorney-general of the United States, appointed Neagle a deputy marshal to protect Judge Field. In discharging

(1) 135 U. S. 1.

this duty Neagle killed one Terry, as he considered, in defense of Justice Field's life. He was charged with murder in the California courts, but was released on habeas corpus by the Federal circuit court, which was affirmed by the Supreme Court.

In order to affirm the release it was necessary to bring the case within the Federal habeas corpus statute, providing for the release of prisoners "in custody for an act done or omitted in pursuance of a law of the United States." There was admittedly no express statutory provision authorizing deputy marshals to accompany judges on circuit; and the principal ground taken by the court was that there was an express constitutional duty on the President to "take care that the laws be faithfully executed," that for the execution of the laws it was essential that the judges should be protected in the discharge of their high duties, that even in the absence of a legislative act for that purpose the President could order suitable officers to see to such protection, and that such order would be "a law" within the meaning of the provision with regard to habeas corpus and entitle the officer to release from the state courts. As we have seen (§ 55, above) a similar argument from the duty of the chief executive to enforce the laws was made in Kentucky to show that the governor had the right of removal, but Chief Justice Marshall of that state repudiated it and said that officers were to look to the law and not to the orders of supposed superiors, so it is unlikely that the doctrine of In re Neagle will bear much fruit in the states where the ideas expressed by the Kentucky court are gen