Johnston v. Wilson
Superior Court of New Hampshire
The election of a person to an office constitutes the essence of his appointment but the office cannot be considered as actually filled, till his acceptance either express or implied. When once filled, the office, till the term of it expires, cannot be deemed vacant except by the death, resignation, or removal of the incumbent. The selectmen of a town cannot fill a vacancy in the office of collector, unless the town itself, on previous application, has refused to fill it.
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The election of a person to an office constitutes the essence of his appointment but the office cannot be considered as actually filled, till his acceptance either express or implied. When once filled, the office, till the term of it expires, cannot be deemed vacant except by the death, resignation, or removal of the incumbent. The selectmen of a town cannot fill a vacancy in the office of collector, unless the town itself, on previous application, has refused to fill it. If the selectmen, without previous application and refusal, proceed to appoint a person to fill such vacancy, their doings…
1Opinion of the CourtWoodbury, J.
On general principles, the choice of a person to fill an office constitutes the essence of his appointment.(l)
After the choice, if there be a commission, an oath of office, or any ceremony of inauguration, these are forms on-Jy, which may or may not be necessary to the validity any acts under the appointment, according as usage and positive statute may or may not render them indispensable.
But in no case can the office itself be considered as filled till an acceptance of the appointment by thé person chosen. That acceptance, however, need not be signified in express terms. It is often implied…
2Cases cited4 opinions
- People ex relat. Bush & Higby v. CollinsNew York Supreme Court · 1811
- Commonwealth v. FowlerMassachusetts Supreme Judicial Court · 1813
- M'Instry v. TannerNew York Supreme Court · 1812
- Jones v. GibsonSuperior Court of New Hampshire · 1818
3Cited by9 opinions
- Tucker v. AikenSuperior Court of New Hampshire · 1834
- Bishop v. ConeSuperior Court of New Hampshire · 1826
- Souhegan Nail, Cotton & Woolen Factory v. McConiheSuperior Court of New Hampshire · 1834
- State v. WinkleySuperior Court of New Hampshire · 1843
- Baker v. ShephardSuperior Court of New Hampshire · 1851
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