UNITED STATES V. GREEN.

769

scribed in that chapter.; and section 2614 of the same chapter pro· vides that actiollil for the recovery of lands, tenements, or heredita· ments, or the possession thereof, should be commenced ,within 10 years. From this language the necessary conclusion is that the action must be commencd within 10 years after the cause of action has accrued. Section 2620 provides that when a right of entry on land accrues the entry must be consiJered as having been made, and the cause of ac· tion as then accrued. If, under the will, Sarah TimmOllil took but a life estate in the farm, but, that she had a full title, conveyed the same to Wal· drop by deed, he took as owner in fee and from her death held as such, and from that date the right of entry and the cause of action accrued as against him, and his possession, and the possession of all holding under him, must have been adverse to the heirs from that time; and the illiltruction that his possession could not be included to make up the 10 years we collilider error. We also consider that the proposition contended for by the plaintiff in error, that adverse possession, being once shown, is presumed to continue until the contrary is shown, is well established to be the law of Alabama, (Abbett v. Page, 92 Ala. 571,9 South. Rep. 332; Marston v. Rowe, 43 Ala. 271,) and it should have been so charged. It is ordered that the judgment of the court below be set aside, and the cause remanded for a new trial
UNITED STATES v. GREEN et al. (Circuit Court, W. D. Missouri, W. D. December 10, 1892.)

1.

OFFICE AND OFFICERS-RESIGNATION-APpoINnIENT OF SUCCESSOR.

The oonstltuti(m of Missouri (article 14, § 5) provides that, "in the absence of any contrary provision, all officers hereafter elected or appointed, subject to the right of resignation, shall hold office during their official terms, and until their successors shall be elected or appointed and qualified." Rev. St. Mo. 1889, § 1584, provides that the mayor, marshal, 001lector, and board of aldermen of any city shall hold their offices for two years, and until their successors are elected and qualified. Held, that the saving of right of resignation in the constitution does not enable an officer to resign so as to create a vacancy before the election of his successor, and, notwithstanding such resignation, he holds office until that time. 'fhe mayor and aldermen of the city of Lathrop, Mo., having been served with a writ of mandamus to enforce the collection of a judgment against the city, made no response thereto, and the aldermen immediately offered their resignations, which were accepted by the mayor, and adjourned sine die, and no others were elected to take their places. Held that, as they are still the governing body of the city, they were guilty of oontempt in refusing to comply with the writ of mandamus. The mayor did not resign, but held office until his successor was elected and qualified, and thereafter removed from the city. Held that, as he alone was without power to oomply with the mandamus, he was not guilty of contempt.
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2.

SAME-MANDAMUS-CONTEMPT.

8.

SAME.

At Law. Proceeding by mandamus against J. n. Green, M. A. Goff, William McK. Lowe, H. 11. Freeman, and J. C. Bohart, constituting the mayor and board of aldermen of the city of Lathrop, Mo.,
v.53F.no.8-49

770

FEDERAL REPORTEB,

vol. 58.

make ailevy for thepurpoiM!o'f pajfhg a judg. the, city.On'motion to quash a wl'itof Q.ttachment for: contempt.'· "Grantedal to respondent Gteen, and·overruled as to theoth-. .

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& for pla.i,nw,1t &; HughElS, for defendants.

bOara.:

. PIlILlPS, Distr'etJudge,:(orally.) Inthe·matferof the mandamna against the mayor and bolY'dof llldermenof' the city of Lathi'eP the facts arebrietly these: In 1889 therespondente, the mayoll and board of Bldermen of the city of Lathrop, (judgment b.a.vmgpreviously been· rendered against the city in favor of certain holders of its bonds,)t:were served with an alternative writ of mandamW!lJ To thatalternlltive writ they made no response. On the 28th· day of March, li889/ the alternative, writ was made peremptory. On the same day oftha order,' and perhaps later in the afternoon or evening,. they 'had aealled meeting of the board. What. they did a' this icaJIed meetiJigis shown by the record made by the clerk of the

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Aldermen all present. The call tor convening councU was read and filed. M. A. Goff, Prest. ot the boud of aldermen, and alderman trom the First ward, tendered his resignation, which, upon motion, was accepted, to take effect upon adjournment. Wm. McK. Lowe, alderman from the Second ward, tendered his resignation, and, upontrlotion,the same was accepted, to take effect npon adjo\lPlDlent, H. M. alderman from the Second ward, tendered biB resignation, and, upon' motion, the same was accepted by the mayor, to take >/lffect after adjournment. J. C. Bohart then tendered his resignation as alderman trom the First ward, which, upon motion, was accepted by the mayor, to take effect after adjournment. CouncU then, upon motion, adjourned sine

··Mayor'. Otrioo,Lathrop, Mo., Moh. 28, 1889. By canol the mayor, a special meet.llig of the citY ,. Council wail held this date. Mayririn the chair.

die."

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And it has. surely tried. its 'best to die, and the question now ia whether it is dead or not. Some time after this, a city election waa held, or the voters at least went throughthe form of an election. It seems, however, that the votes were never counted. .;rIley elected, at that time, another mayor, named Ellis, who staid lY'ound there for a while, and finally went to another district to live. From that time to the present they have had no other board of aldermen, or anyone acting with authority,andthe question now is, were these parties subject to contempt on this nUI,nda;mus writ? Their contention is that they went out ,of. offiee by resignation, and they claim the right therefor is predicated upon article 14, § 5, of the constitution of Missouri, which reads as follows:
"In the absence of any. contrary provision, Il1l omcera hereafter elected or appointed, subject to the right of resigIW.tioll, shall hold ofiice during their ofdcial terms, and untU their successors shall be duly elected or appointed and quallfled."

The only of the state statutes respectin(f such offices 811 these to which niyattention has been called, and whioh I have beeo able to find, are the following:

UNITED BTA'1'ES ,,; Gl'tEEN." 'I

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771

"All ofliceri(Meeted or appointed by the authority Of 'the laws of thisstata shall'!l'old their offices until their Successors are elected 01" appointed, commis. sioned, and qualified." Rev. St. Mo. 1889, § 712l. ".All vacancieS,in·the board of aldermep. sha,ll be filIel! by, electioll in. such manner as may be provided by ordinance." IcU§ '1587. ' ,! ' , ' , "ThefollowiI1g offlcers shall tie electedbyi the quallfted voters of such city, and shall hold their offices for two, years, and until thdr gllccessorsare elected and qualified, viz.: A mayor, marsllil-l, collector, and, bqard o,f 11Idermen." Id.
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The only pertinent provision that I 3lID. able to find in the statute is this section 1584, which provides that these officers shall hold their offices for two years; and' until their sucoossors are qualified. There does not appear to have been any ordinance under section 1587. The contentioti of respondents is that the ruling in the Badger Case, 93 U. So 599, (where it is held that municipal officers resigning under circumstances like these continue to hold office until their successors are elected and qualified,) was predicated of the common law. This is a glaring error. 'The court in the Badger Case say:
"By the common law, as well as by the statutes of the United States and the laws of most of the states, when the term of· office to which one is elected or appointed expires, 'lis power to perform its duties ceases. People v. Tieman, 8 Abb. Pro 359, 30 Barb, 193. This is the general rule."

The statute of Illinois on which that decision was based provided, just as the Missouri statute, that such officers, notwithstanding their attempted resignation, continue in office until their successors are duly elected and quali:fied. The next contention for the respondents is that the right of resigna· tion is secured by the Missouri constitution, just cited, and that the resignation operates from the instant it is tendered. I do not think' this a proper construction of the constitution. The other language of the provision was so broad and sweeping in terms that, lest it might be understood to preclude the possibility of resignation, the framer of the section thought it prudent to interpolate the words "subject to the right of resignation;" so that, while this right of resignation is secured, it only puts an end to the term just as byexpiration of two years, or whatever the term of office be. As said by the court in the Badger Case, 93 U. S. 603:
'''rhe resigrations may be made to and accepted by the officers named; but, to become perfect, they depend upon and must be followed by an additional fact, to wit, the appointment of a successor, and his qualification. 'When it is said in the statute that the resignation may be thus accepted, it is like to the expiration of the term of office. In form the office is thereby ended, but to make it effectual it must be followed by the qualification of a successor."

This, too, is the view of the only court of this state which has had occasion to construe this provision, so far as I am advised. In Sta.te v. Hermann, 11 Mo. App. 43--48, the court say:
"We understand the general purpose of this provision to be nothing more than the prevention of an interregnum between the expiration of any officer's term of office and the qualification of his successor to discharge the same official duties. * * * The official term, as here understood, may end by the resIgnation or death of the incumbent. * * * The constitution does not intend to in.terfere with any of the methods whereby an officer's incumbency

J'lCDERAl. REPORTER,

vol. 58.

lIUly,beiJljutde to to law, bnt<only to provide that whenever It does cease; by wbatever means, be B1ulllbe empowered to act until the qualIfication of his successor."

'It is &SO to be observed,that the said provision of the constitution opens'with the following words,' ''In, the absence of any contrary prowhich qualify the entire section; and the enactments by the legislature have but' effectuated the spirit of the constitution by guarding against the hurtful consequences of creating a vacancy in office, either by expiratlon of the ,term fixed by the statute or by resignation. When the alternative writ was served on the respondents, 'they' were brought into this court, and became subject to ita jurlsdiction and orders. The mandamus was made fu).al, in fact, before their act of resigna.tion. Their attempt to thus escape the judgment of this court was as ,abortive as it was ill advised. They are yettb.e governing board of the defendant jure, if not de ,facto. As imch,they are, to-day, clothed' with authority to proceed and execute the mandate of this court. As to the respondent M1'. Green, (the mayor at the time of the serv:ice of the writ of mandamus) the rule of contempt does not apply, He did not attempt to resign. He seems to have held office for the nart :rear, when his successor was duly elected and qualified. He has since removed from the defendant' city, and, of course, as mere year the judgment of this court making the writ peremptory, he, without power to comply therewith. The of the aldermen, the other respondents, is quite different. They are not only yetfu office, but, under provision of the statute govern.ingQities of the fourth (to which the defendant city be· longs,) they are to elect a provisional ml'!'yor,and proceed with the gpvernmentof the corporation. Rev. St. MOo 1889, §§ 1616, '., ,,' , 1617. The motion to writ of attachment as to the respondent Green is ,sustained. ,and, overruled as to the other respondents, and they will be committed until ,1;\ levy for the satisfaction of the judgment is made. .
EMANUEL et al. v. GATES et aL

Court of Appeals, Fifth Circuit. January 9, 1893.)
No. 48.

J.

EvmBNClll,-RECORD8

In an action of tre8po.ss to try title to certain lands In Trinity county, Tex., defendants, in order to prove" deed In their chain of title, ofrered In evidence a certified copy from the records of Cherokee county, dated August 5, 1835, and purpol'ttng to have been duly recorded In Trlnity county July 2, 1856, and in Cherokee county July 15, 1856. It appeared that the records of Trlnity county were destroyed by fire in 1872, and defendants proved that the original deed had been searched for In vain by them In au places where there was any reason to h'illeve that it could be found, and that there had been notoriousassel'tlon of title tln.l pos.<;l\ssion under the deed, accompanied with paymHut 01 taxes. Held that, under these circumstances, the court properly permitted the certified copy to go to the jury, as 0. circumstance in the case, uotwltilstanillu, that plalntUr. had attacked the original as a forge17.

oW'

DlllEDS-l;.oSS QF ORIGINAL.