(after stating the facts). — According to the agreed statement of facts, defendant resigned on the 18th of October, his resignation ■ to take effect “immediately,” as he stated. It was forthwith *483accepted by tbe mayor, another man appointed to the vacancy who duly qualified, his bond and appointment being approved by the board of aldermen. Thereafter defendant refused to discharge the duties of his office, but at the same time refused to surrender to his successor or to the city, the property of the city in his hands, pertaining to the office. The excuse that defendant-makes for this somewhat extraordinary conduct on his part is that, having been elected for a term of two years in the first instance, no election could be regularly held for the office of collector until the expiration of two years from the date of his election, and that it was the duty of the mayor, instead of appointing some one to the vacancy, to have forthwith called a special election to fill the vacancy which he had created. Suppose that were so, what would become of the collection of the revenue of the city and of its papers in the interim? Defendant’s resignation had no saving clause in it; it was peremptory, was to take effect immediately and it was so accepted. According to defendant’s own theory, if the mayor had “forthwith” called' a special election, there would necessarily have been an interval between the date of issue of the call and the date of holding the election. In the interim the city would have been without an officer to discharge the duties which the agreed statement of facts shows the defendant refused to discharge — that of collecting the revenues as they were tendered to him from day to day by the tax payers of the city, nor would the public archives of the office have been in any lawful custody. Such a condition would be intolerable. A regular election was to be held for one-half the members of the board of aldermen on the 2nd of April, 1907, the board being composed of eight members, four to be elected annually for a term of two years, and that was within six months of the date at which defendant had tendered his resignation. The law and ordinance therefore vested in the mayor authority to appoint a collector pending that election, for *484a vacancy occurring within six months thereof, as was the case here. The appointment of the plaintiff Andrae was regularly made, was made in accordance with law and on what we consider a legal proceeding. Having no substantial foundation and no possible justification for retaining the public documents, defendant insisted on putting the city and its authorities to the cost and trouble and inconveniences of this suit.

The judgment of the circuit court is affirmed.