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lic or private; a place of trust." From these definitions and we think they are correctit is quite apparent that compensation is not indispensable to the existence or creation of the office, within the meaning of Const, art. 15, 2; Burns' Rev. St. 1894, § 224, providing that the General Assembly shall not create any office, the tenure of which shall be longer than four years. Indianapolis Brewing Co. V. Claypool, 48 N. E. 228, 230, 149 Ind. 193.

The right to the fees or compensation at tached to an office does not grow out of contract between the government and the officer, but arises from the rendition of services. Therefore, an officer who has been kept out of his office and has not performed his duties cannot maintain an action against the government to recover the amount of his fees accruing from the office. Smith v. City of New York, 37 N. Y. 518, 520.

The oath, the salary, or fees are mere incidents, and they constitute no part of the office. Clark v. Stanley, 66 N. C. 59, 63, 8 Am. Rep. 488; State Prison of North Carolina v. Day, 32 S. E. 748, 749, 124 N. C. 362, 46 L. R. A. 295.

Continuance regardless of incumbency. In the abstract, "office" signifies a place of trust. In legal idea an office is an entity, and may exist in fact, though without an incumbent. In this sense the word "office" is used in a number of instances in the Constitution and in the statutes. People v. Stratton, 28 Cal. 382; Wardlaw v. City of New York, 19 N. Y. Supp. 6, 7, 61 N. Y. Super. Ct. (29 Jones & S.) 174.

In People v. Loeffler, 175 Ill. 585, 51 N. E. 785, it is said: "An office is a position which does not end with the termination of the term of the person filling it, but its duties continue to be performed by the successors of such person, whether elected or appointed." Ptacek v. People, 62 N. E. 530, 532, 194 Ill. 125. See, also, State v. Hocker, 22 South. 721, 722, 39 Fla. 477, 63 Am. St. Rep. 174; United States v. Maurice (U. S.) 26 Fed. Cas. 1211, 1214.

Continuing employment.

An office "has been defined to be an employment on behalf of the government in any situation of public trust not merely transient, occasional, or incidental." People v. Nichols, 52 N. Y. 478, 484, 11 Am. Rep. 734; Wardlaw v. City of New York, 19 N. Y. Supp. 6, 7, 61 N. Y. Super. Ct. (29 Jones & S.) 174; People v. Nostrand, 46 N. Y. 375, 381; Lewis v. Board of Public Works, 17 Atl. 112, 51 N. J. Law (22 Vroom) 240; Attorney General v. McCaughey, 21 R. I. 341, 346, 43 Atl. 346, 648.

"Public office," as used in the Constitution, has respect to a permanent trust to be

exercised in behalf of the governmert and of all the citizens who may need the intervention of a public functionary or officer in any matters or duties pertaining to the character of the trust, and it does not include the appointment to meet special exigencies of the individual to perform transient, occasional, or incidental duties, such as are ordinarily performed by public officers, and as to such appointments the Legislature is at liberty to invest the courts with power to make them. In re Hathaway, 71 N. Y. 238, 244.

Within the ordinary acceptation of the term, one who is engaged to render service in a particular transaction is not an "officer." That word implies continuity of service, and excludes those employed for a special and a single transaction. Clark v. Renninger, 42Atl. 928, 929, 89 Md. 66, 44 L. R. A. 413. See, also, Shelby v. Alcorn, 36 Miss. 273, 289, 72 Am. Dec. 169; State v. Hocker, 22 South. 721, 722, 39 Fla. 477, 63 Am. St. Rep. 174; State v. Wilson, 29 Ohio St. 347, 348; Braithwaite v. Cameron, 38 Pac. 1084, 1087, 3 Okl.

630.

"Officer" means one with public duties somewhat continuous in their nature. The merchant appraisers are appointed by colThe theory lectors of customs for each case. of the law is that the collector appoints a merchant appraiser for each occasion, and if two or three reappraisements are acted on at the same time, it is not because the merchant appraiser holds the office for a day or an hour or for a month, but it is because the same man may be appointed in two or three instances to act upon more than one appraisement, and he acts on several at the same time. He does not hold an office, but merely holds a designation for that one thing. Auffmordt v. Hedden (U. S.) 30 Fed. 360, 362.

ficers" should be elected or appointed by the Wis. Const. requiring that certain "ofpeople of the district to which their offices appertain, cannot be construed to include to review certain actions by a board of supercommissioners appointed by the circuit judge visors of a county wherein a city or town is

located, and determine what sum should be added or deducted from the aggregate valuation of the taxable property of the city, village, or town to produce a just relation between valuations. Such commissioners are merely appointed to do a specific act, and, when that is performed, their power ceases. They bear a strong analogy to the commissioners appointed by the justices of the peace in reviewing the action of town supervisors in laying out or discontinuing highways. There is a distinction between an office and a mere service or employment.. State v. Myers, 9 N. W. 777, 778, 52 Wis. 628..

As a contract.

See "Contract."

Created and duties prescribed by law. From the mass of learning displayed in cases determining the meaning of the term "office," it is almost impossible to deduce a definition of the term universally applicable. One of the requisites is that the office itself must be created by the Constitution of the

state, or it must be authorized by some stat

ute; but not all employments authorized by law are public offices, in the sense of the Constitution. The presidency of a private corporation may be spoken of as an office. An executor, guardian, a referee for the decision and the trial of an action, are all officers who derive their existence from statutes, but they are not public officers in the constitutional sense. It seems to be reasonably well settled that, where the Legislature creates and prescribes the duty and fixes the compensation, these duties pertain to the public, and are continuing and permanent, not occasional and temporary. Such compensation or employment is an office, and one who occupies it is an officer. In such a case there is a declaration by the Legislature that some portion, great or small, of the function of the government, was to be exercised for the benefit of the public, and the Legislature has decided for itself that the employment is of sufficient dignity and importance to be deemed an office. Patton v. Board of Health of City and County of San Francisco, 59 Pac. 702, 703, 127 Cal. 388, 78 Am. St. Rep. 66.

The right to an office embraces the idea that the "office" has been created by adequate authority, that the manner of designation for, and the conditions of eligibility to, the office, as well as the tenure, duration, emoluments, and duties pertaining to it, have been prescribed. Gosman v. State, 106 Ind. 203, 204, 6 N. E. 349.

A public office is not a natural growth of the soil, and can be created only by the Legislature, or some municipal board or body authorized by the Legislature to create one. Miller v. Warner, 59 N. Y. Supp. 956, 957, 42 App. Div. 208.

A public office exists, if at all, either by a constitutional provision or by the fiat of the Legislature, or by some body or board to which the Legislature has delegated the power to create an office. Eckerson v. City of New York, 80 N. Y. Supp. 168, 169, 80 App. Div. 12 (citing Meyers v. City of New York, 69 Hun, 293, 23 N. Y. Supp. 484).

The true test of a public office seems to be that it is a parcel of the administration of government, civil or military, or is itself created by the lawmaking power. Eliason v. Coleman, 86 N. C. 235, 241.

An office is a place created, or at least recognized, by the laws of the state, and to

which certain public duties are assigned, either by the law itself or by regulations adoptHudson County, 38 Atl. 842, 61 N. J. Law, ed under authority of the law. Stewart v. 117 (citing Bownes v. Meehan, 45 N. J. Law [16 Vroom] 189); Peterson v. Salem County, 42 Atl. 844, 845, 63 N. J. Law, 57; Cramer

V. Water Com'rs of New Brunswick, 31 Atl.

384, 385, 57 N. J. Law (28 Vroom) 478; O'Brien v. Thorogood, 39 N. E. 287, 288, 162 Mass. 598.

An office is defined by the Constitution of Illinois as a public position created by the Constitution or by law, continuing during the pleasure of the appointing power or for a fixed time, with a successor elected or appointed. People v. Loeffler, 51 N. E. 785, 789, 175 Ill. 585; People v. Bollam, 54 N. E. 1032, 1033, 182 Ill. 528.

It may be stated that, where an employment or duty is a continuing one, which is defined by rules prescribed by law, and not by contract, such charge or employment is an office, and the person who performs it is an officer. State v. Wilson, 29 Ohio St. 347, 348. See, also, State v. Hocker, 22 South. 721, 722, 39 Fla. 477, 63 Am. St. Rep. 174; Shelby v. Alcorn, 36 Miss. 273, 289, 72 Am. Dec. 169; United States v. Maurice (U. S.) 26 Fed. Cas. 1211, 1214.

An office is a public position created by the Constitution or law, continuing during the pleasure of the appointing power or for a fixed time, with a successor elected or appointed. Wilcox v. People, 90 Ill. 186, 192

(citing Const. 1870, art. 5, § 24).

Election or appointment.

An office is a public station or employment conferred by the appointment of the government. Polk v. James, 68 Ga. 128.

A person in the service of the government, who derives his position from duly, legally authorized election or appointment is a public officer. State v. Hocker, 22 South. 721, 722, 39 Fla. 477, 63 Am. St. Rep. 174.

Certainly, where an individual has been appointed or elected in a manner prescribed by law, has a designation or title given him by law, and exercises functions concerning the public, assigned to him by law, he must be regarded as a public officer. It can make no difference whether he be commissioned by the chief executive officer with the authentication of the seal of state or not. Where that is given, it is but evidence of his title to the office. Bradford v. Justices of Inferior Court, 33 Ga. 332, 336.

Every office is an appointment or an employment, but it does not follow that every appointment is an office, and the words are not convertible terms. Commonwealth v. Binns (Pa.) 17 Serg. & R. 219, 220, 232.

An officer, within the meaning of the St. | office, while an "employment" does not comLouis charter provision forbidding the change prehend a delegation of any part of the of an officer's salary during the term for sovereign authority. State v. Hocker, 22 which he was elected or appointed, is one South. 721, 722, 39 Fla. 477, 63 Am. St. Rep. who by the local law enjoys either an annual | 174; Montgomery v. State, 18 South. 157, 159, salary or a definite term of office. State ex 107 Ala. 372. rel. Bartraw v. Longfellow, 69 S. W. 596, 597, 95 Mo. App. 660.

Employment distinguished.

"In every definition of the word 'office,' the features recognized as characteristic, and distinguishing it from a mere employment, are the manner of appointment and the nature and duties to be performed, and whether the duties are such as pertain to the particular official designation, and are continuing and permanent, and not occasional or temporary." State V. Board of Public Works, 17 Atl. 112, 51 N. J. Law (22 Vroom)

240.

"An officer is distinguished from an employé in the greater importance, dignity, and independence of his position; in being required to take an official oath, and perhaps to give an official bond; in the liability to be called to account as a public offender for misfeasance or nonfeasance in office; and usually, though not necessarily, in the tenure of his position." State ex rel. Cameron v. Shannon, 33 S. W. 1137, 1144, 133 Mo. 139; State ex rel. Kane v. Johnson (Mo.) 25 S. W. 855, 856; City of Baltimore v. Lyman, 48 Atl. 145, 146, 92 Md. 591.

The term "office" has no legal or technical meaning attached to it, distinguishing it from its ordinary acceptation. An office is a public charge or employment. But as every employment is not an office, it is sometimes difficult to distinguish between employments which are and which are not offices. 7 Bac. Abr. 280. Legislatures generally define "office" to be public employment on behalf of the government in any station of public trust. In common parlance, the term office has a more general signification; thus, we say the office of the executor, or the office of the president. In re Attorneys' Oaths (N. Y.) 20 Johns. 492, 494; In re Ricker, 66 N. H. 207, 232, 29 Atl. 559, 572, 24 L. R. A. 740.

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In United States v. Maurice (U. S.) 26 Fed. Cas. 1211, Chief Justice Marshall said: "An office is defined to be a public charge or employment, and he who performs the duties of the office is an officer. Although an office is an employment, it does not follow that every employment is an office. A man may certainly be employed under a contract, express or implied, to do an act or to perform a service, without becoming an officer; but if the duty be a continuing one, which is defined by the rules prescribed by the government, and not by contract, which an individual is appointed by the government to perform, who enters upon the duties appertaining to his station without any contract defining them, if those duties continue though the person be changed, it seems very difficult to distinguish such a charge or employment from an office, or the person who performs the duties from an officer." Vincenheller v. Reagan, 64 S. W. 278, 284, 69 Ark. 460; Ptacek v. People, 94 Ill. App. 571, 577, 578.

As franchise.

See "Franchise."

Investment with functions of government.

There are various tests by which to determine who are officers in the meaning of the law, but at last, in a case of uncertainty, the intention of the lawmakers controls. To constitute an officer it does not seem to be material whether his term be for a period fixed by law or to endure at the will of the creating power; but, if an individual be invested with some portion of the functions of the government to be exercised for the benefit of the public, he is an officer. Per Lewis, C. J., in City of Louisville v. Wilson, 36 S. W. 944, 99 Ky. 598 (cited with approval in Pratt v. Breckinridge, 65 S. W. 136, 137, 112 Ky. 1, and Lowry v. City of Lexington, 68 S. W. 1109, 1112, 24 Ky. Law Rep. 516).

A public office is defined to be the right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. State ex rel. Walker v. Bees, 36 S. W. 636, 637, 135 Mo. 325, 33 L. R. A. 616 (citing Mechem, Pub. Off. 1); Hendricks v. State, 49 S. W. 705, 20 Tex. Civ. App. 178; Kimbrough v. Bar nett, 93 Tex. 301, 310, 55 S. W. 120, 122: Attorney General v. McCaughey, 43 Atl. 646.

648, 21 R. I. 341; Guthrie Daily Leader v. | Atl. 1013, 1016, 66 N. J. Law, 590, 88 Am. St. Cameron, 41 Pac. 635, 639, 8 Okl. 677. Rep. 496.

Many efforts have been made to define a "public office," but it is easier to conceive the general requirements of such an office than to express them with precision in a definition that shall be entirely faultless. It will be found, however, by consulting the cases and authorities, that the most general distinction of a public office is that it embraces the performance by the incumbent of a public function delegated to him as part of the sovereignty of the state. The fact that a public employment is held at the will or pleasure of another as a deputy or servant, who holds at the will of his principal, is held in the state of Maine to distinguish a mere employment from a public office, for in such case no part of the state sovereignty is delegated to such employés. State v. Jennings, 49 N. E. 404 405, 57 Ohio St. 415, 63 Am. St. Rep. 723.

The words "public office" are used in so many senses that it is impossible to give a precise definition covering all cases. It depends, not on what we call it, or even on what a statute may incidentally call it, but upon the powers wielded, the functions performed, and other circumstances manifesting the character of the position. Mechem, Pub. Off. § 4, says: "The most important characteristic which distinguishes an office from an employment or contract is that the creation of an office involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public. * Unless the powers conferred are of this na

ture, the individual is not a public officer."

The test is that he should exercise some

thing that can fitly be called a part of the sovereignty of the state. Hartigan v. Board of Regents of West Virginia University, 38

S. E. 698, 701, 49 W. Va. 14.

An office is a public station or position, to which a portion of the sovereignty of the country, either legislative, judicial, or executive, attaches for the time being, and which is exercised for the benefit of the public. High, Rec. § 625. The word itself implies a more or less permanent delegation of a portion of governmental power, coupled with legally defined duties and privileges, continuous in their nature, and which, upon the death, resignation, or removal of the incumbent, devolve upon his successor. Commonwealth v. Murphey (Pa.) 17 Montg. Co. Law Rep'r, 174, 176 (citing Tied. Mun. Corp. [Ed. 1894]).

The term "office" implies a delegation of a portion of the sovereign power, and a possession of it by the person filling the office. State v. Hocker, 22 South. 721, 722, 39 Fla. 477, 63 Am. St. Rep. 174.

An office is where, for the time being, a portion of the sovereignty, legislative, executive, or judicial, attaches, to be exercised for the public benefit. United States v. Lockwood (Wis.) 1 Pin. 359, 363.

A public office is one whose duties are in their nature public; that is, involving in their performance the exercise of some portion of the sovereign power, whether great or small, and in whose proper performance all citizens, irrespective of party, are interested, either as members of the entire body politic, or of some duly established division thereof. Attorney General v. Drohan, 48 N. E. 279, 281, 169 Mass. 534, 61 Am. St. Rep. 301.

In 2 Spell. Extr. Rem. § 1780, it is said: "There are three principal tests for determining whether one performing duties of a public nature is a public officer, in the sense of subjecting his incumbency or employment to a quo warranto proceeding: First, whether the sovereignty, either directly, as through legislative enactment or executive appointment, or indirectly, as through a municipal charter, is the source of authority; second, whether the duties pertaining to the position are of a public character—that is, due to the community in its political capacity; third, whether the tenure is fixed and permanent, for a definite period, by law, unless for neglect of duty or malfeasance, or subject to ter

mination at the will of others without assignterm 'office' implies a delegation of a portion ment of cause." "We apprehend that the of the sovereign power, and the possession of

it by the person filling the office, and the exercise of such power, within the legal limits, constitutes the correct discharge of the duties of such officer. And power thus delegated and possessed may be a portion belonging sometimes to one of the three great departшents, and sometimes to another. Still, it is a legal power, which may be rightfully exercised, and in its effects will bind the rights of others, and be subject to revision and correction only according to the laws of the state. An employment, merely, has none of these distinguishing features. A public agent acts only on behalf of his principal, the public, whose sanction is generally considered necessary to give the act performed the authority and power of a public act or law, and if the act be such as not to require such subAn office is the right and duty conferred sequent sanction, still it is only a species of on an individual to perform any part of the service performed under public authority, functions of government, and receive such but not in execution of any standing laws compensation, if any, as the law may affix** It appears, then, that every 'office,' to the service. McArdle v. Jersey City, 49 in the constitutional meaning of the term, im

plies an authority to exercise some portion of the sovereign power, either in making, administering, or executing the laws. Montgomery v. State, 18 South. 157, 159, 107 Ala. 372.

Every office implies an authority to execute a portion of the sovereign power of the state, either in making or executing or administering the laws. Wardlaw v. City of New York, 19 N. Y. Supp. 6, 7, 61 N. Y. Super. Ct. (29 Jones & S.) 174.

Public office is a right to exercise generally, and in all proper cases, the function of a public trust or employment, and to receive the fees and emoluments, and to hold

the office and perform the duties for the term and by the tenure prescribed by law. In re Rupp, 59 N. Y. Supp. 997, 999, 28 Misc. Rep.

703.

An office is defined by good authority as involving the delegation to the individual of some of the several functions of government to be exercised by him for the benefit of the public, by which it is distinguished from employment or contract. State v. Thompson, 29 S. E. 720, 721, 122 N. C. 493 (citing Mech. Pub. Off. §§ 1, 4).

Limitations on powers as affecting.

Officers are public or private, and it is said that every man is a public officer who hath any duty concerning the public; and he is not the less a public officer because his authority is confined to narrow limits, since it is the duty, and the nature of that duty, which make him a public officer, and not the extent of his authority. Commonwealth v. Binns (Pa.) 17 Serg. & R. 219, 220, 232. See, also, Polk v. James, 68 Ga. 128; Bradford v. Justices of Inferior Court, 33 Ga. 332, 336.

Persons who, under an act of the General Assembly of October 17, 1870, had been appointed commissioners to purchase a tract of land at the place selected for a county site, to lay off the same into town lots, sell them, and to apply the proceeds to the building of a courthouse and jail for the county, were officers, under the law. Polk v. James, 68

Ga. 128.

Oath required.

The frame of the government of the state of North Carolina after its secession from the Union still existed, but there were no officers, as the officers had renounced their allegiance to the government of the United States, and had taken an oath to support the government of the Confederate States. The government of the United States could not recognize, as rightly officers of the state, men who were not bound by the oath required by the federal Constitution, but who, on the other hand, were bound by the oath to support another government. After the surrender of the state

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The purpose of creating public offices is regulating them have a reference to the disthe common good. Hence most of the rules charge of the duties and the promotion of the

public convenience. Hence they are not the subjects of property in the sense of that full and absolute dominion which is recognized in many other things. They are only the subjects of property as far as they can be so in safety to the general interest involved in the discharge of their duties. This principle demands that different rights of property should be recognized in different offices. It is one of the ordinary rights of property to alien and dispose of it at pleasure; but that is inadmissible in public offices, because the public require a responsible person to answer Besides, the power of alienation is not the test of property. Property in reference to a thing means whatever a person can possess and enjoy by right; and in reference to the person, he who has that right to the exclusion of others is said to have the property.

for defaults.

That an office is the subject of property thus explained is well understood by every one, as well as distinctly stated in

the lawbooks from the earliest times. Hoke v. Henderson, 15 N. C. 1, 17, 25 Am. Dec. 677.

by Blackstone

An office

"Offices" are classed among incorporeal hereditaments. may further be said to be a vested right. The officer has an estate in it as a property, of which he cannot be divested, except in the three ways pointed out by Lord Coke, viz.: First, by abuse; second, nonuser; third, refusal. Under our system of government it may be regarded as a contract between the state on one hand, and the individual on the other, whereby he assumes the performance of certain duties for a certain compensation. For these purposes he becomes seised of the office as of any other property in the right and enjoyment of which he cannot be disturbed or defeated, except by operation of law. People v. Wells, 2 Cal. 198, 203.

A public office is a mere public agency, revocable according to the will and appointment of the people as exercised in the Constitution and the laws enacted in conformity therewith, and is not property within the meaning of the constitutional provision that

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