McKelley

This is an original application for a writ of mandate requiring the respondent, as auditor of Lake County, to issue his warrant in favor of petitioner for his salary as sheriff of that county for the month of June, 1928. The only issue of fact raised by the pleadings is whether the petitioner resigned his office as such sheriff on May 17, 1928. A reference was ordered and the referee took evidence and found therefrom that the petitioner did not so resign. Respondent contends that the evidence does not support the finding of the referee.

It appears from the evidence that during the forenoon of May 17, 1928, the board of supervisors of the county made demand upon the petitioner that he resign the office. He refused to do so and engaged an attorney to represent him in the controversy. Later in the day the attorney went to the petitioner’s home and, after much persuasion, induced him to sign a form of resignation which the attorney, of his own volition, had prepared in advance. The attorney thereupon proceeded to the courthouse and filed the paper so signed. Petitioner contends that it was filed without his consent and contrary to his express direction. Relative to what occurred at…