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lic or private; a place of trust." From these exercised in behalf of the government and definitions and we think they are correct- of all the citizens who may need the intervenit is quite apparent that compensation is not tion of a public functionary or officer in any indispensable to the existence or creation of matters or duties pertaining to the character the office, within the meaning of Const, art of the trust, and it does not include the ap 13, & 2; Burns' Rev. St. 1894, § 224, providing pointment to meet special exigencies of the that the General Assembly shall not create individual to perform transient, occasional, any office, the tenure of which shall be longer or incidental duties, such as are ordinarily than four years. Indianapolis Brewing Co. performed by public officers, and as to such F. Claypool, 48 N. E. 228, 230, 149 Ind. 193. appointments the Legislature is at liberty

to invest the courts with power to make The right to the fees or compensation at-. them. In re Hathaway, 71 N. Y. 238, 244. tached to an office does not grow out of contract between the government and the officer, Within the ordinary acceptation of the but arises from the rendition of services. term, one who is engaged to render service Therefore, an officer who has been kept out in a particular transaction is not an “officer.” of his office and has not performed his du- That word implies continuity of service, and ties cannot maintain an action against the excludes those employed for a special and a government to recover the amount of his single transaction. Clark v. Renninger, 42 fees accruing from the office. Smith v. City Atl. 928, 929, 89 Md. 66, 44 L. R. A. 413. of New York, 37 N. Y. 518, 520.

See, also, Shelby v. Alcorn, 36 Miss. 273, 289,

72 Am. Dec, 169; State v. Hocker, 22 South. The oath, the salary, or fees are mere 721, 722, 39 Fla. 477, 63 Am. St. Rep. 174; incidents, and they constitute no part of the State v. Wilson, 29 Ohio St. 347, 348; Braithoffice. Clark v. Stanley, 66 N. C. 59, 63, 8 waite v. Cameron, 38 Pac. 1084, 1087, 3 Okl. Am. Rep. 488; State Prison of North Caro

630. lida v. Day, 32 S. E. 748, 749, 124 N. C. 362, 46 L. R. A. 295.

"Officer" means one with public duties.

somewhat continuous in their nature. The Continuance regardless of incumbency. merchant appraisers are appointed by colIn the abstract, "office” signifies a place of the law is that the collector appoints a

lectors of customs for each case. The theory of trust. In legal idea an office is an entity, and may exist in fact, though with merchant appraiser for each occasion, and out an incumbent. In this sense the word

if two or three reappraisements are acted "office” is used in a number of instances in on at the same time, it is not because the the Constitution and in the statutes. Peo- merchant appraiser holds the office for a day ple v. Stratton, 28 Cal. 382; Wardlaw v. City or an hour or for a month, but it is because of New York, 19 N. Y. Supp. 6, 7, 61 N. Y. the same man may be appointed in two or Super. Ct. (29 Jones & S.) 174.

three instances to act upon more than one

appraisement, and he acts on several at the In People v. Loeffler, 175 III. 585, 51 same time. He does not bold an office, but N. E. 785, it is said: “An office is a position merely holds a designation for that one thing. which does not end with the termination of Auffmordt v. Hedden (U. S.) 30 Fed. 360, 362. the term of the person filling it, but its duties continue to be performed by the successors of

Wis. Const. requiring that certain "ofsuch person, whether elected or appointed.”

ficers” should be elected or appointed by the Ptacek v. People, 62 N. E. 530, 532, 194 II. people of the district to which their offices 125. See, also, State v. Hocker, 22 South. appertain, cannot be construed to include 721, 722, 39 Fla. 477, 63 Am. St. Rep. 174; to review certain actions by a board of super

commissioners appointed by the circuit judge United States v. Maurice (U. S.) 26 Fed. Cas. Visors of a county wherein a city or town is 1211, 1214.

located, and determine what sum should be Continuing omployment.

added or deducted from the aggregate valua

tion of the taxable property of the city, vilAn office “has been defined to be an em-lage, or town to produce a just relation beployment on behalf of the government in any tween valuations. Such commissioners are situation of public trust not merely transient, merely appointed to do a specific act, and, occasional, or incidental.” People v. Nichols, when that is performed, their power ceases. 52 N. Y. 478, 484, 11 Am. Rep. 734; Ward- They bear a strong analogy to the commislaw v. City of New York, 19 N. Y. Supp. 6, sioners appointed by the justices of the 7, 61 N. Y. Super. Ot. (29 Jones & S.) 174; peace in reviewing the action of town superPeople v. Nostrand, 46 N. Y. 375, 381; Lewis visors in laying out or discontinuing highv. Board of Public Works, 17 Atl. 112, 51 ways. There is a distinction between an ofN. J. Law (22 Vroom) 240; Attorney Gen- fice and a mere service or employment. eral v. McCaughey, 21 R. I. 341, 346, 43 Atl. State v. Myers, 9 N. W. 777, 778, 52 Wis. 628.. 346, 648. "Public office,” as used in the Constitu

As a contract. 'ion, bas respect to a permanent trust to be See “Contract."

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Created and duties prescribed by law. which certain public duties are assigned, ei

From the mass of learning displayed in ther by the law itself or by regulations adoptcases determining the meaning of the termed under authority of the law. Stewart v. "office,” it is almost impossible to deduce a

Hudson County, 38 Atl. 842, 61 N. J. Law, definition of the term universally applicable. 117 (citing Bownes v. Meehan, 45 N. J. Law One of the requisites is that the office itself (16 Vroom) 189); Peterson v. Salem County, must be created by the Constitution of the 42 Atl. 844, 845, 63 N. J. Law, 57; Cramer state, or it must be authorized by some stat

V. Water Com’rs of New Brunswick, 31 Atl. ute; but not all employments authorized by 384, 385, 57 N. J. Law (28 Vroom) 478; law are public offices, in the sense of the O'Brien v. Thorogood, 39 N. E. 287, 288, 162 Constitution. The presidency of a private

Mass. 598. corporation may be spoken of as an office.

An office is defined by the Constitution of An executor, guardian, a referee for the de Illinois as a public position created by the cision and the trial of an action, are all of. Constitution or by law, continuing during ticers wbo derive their existence from stat- the pleasure of the appointing power or for utes, but they are not public officers in the a fixed time, with a successor elected or apconstitutional sense. It seems to be reason- pointed. People v. Loeffler, 51 N. E. 783, 789, ably well settled that, where the Legislature 175 III. 585; People v. Bollam, 54 N. E. 1032, creates and prescribes the duty and fixes 1033, 182 Ill. 528. the compensation, these duties pertain to the public, and are continuing and perma

It may be stated that, where an employnent, not occasional and temporary. Such ment or duty is a continuing one, which is compensation or employment is an office, and defined by rules prescribed by law, and not one who occupies it is an officer. In such by contract, such charge or employment is a case there is a declaration by the Legisla. an office, and the person who performs it is ture that some portion, great or small, of an officer. State v. Wilson, 29 Ohio St. 347, the function of the government, was to be 348. See, also, State v. Hocker, 22 South. exercised for the benefit of the public, and 721, 722, 39 Fla. 477, 63 Am. St. Rep. 174; the Legislature has decided for itself that the Sbelby v. Alcorn, 36 Miss. 273, 289, 72 Am. employment is of sufficient dignity and im- Dec. 169; United States v. Maurice (U. S.) portance to be deemed an office. Patton v. 26 Fed. Cas. 1211, 1214. Board of Health of City and County of San Francisco, 59 Pac. 702, 703, 127 Cal. 388, 78 the Constitution or law, continuing during

An office is a public position created by Am. St. Rep. 66.

the pleasure of the appointing power or for The right to an office embraces the idea a fixed time, with a successor elected or apthat the "office” has been created by ade pointed. Wilcox v. People, 90 III. 186, 192 quate authority, that the manner of designa- (citing Const. 1870, art. 5, $ 24). tion for, and the conditions of eligibility to, the office, as well as the tenure, duration,

Election or appointment. emoluments, and duties pertaining to it,

An office is a public station or employ. have been prescribed. Gosman v. State, 106 ment conferred by the appointment of the Ind. 203, 204, 6 N. E. 349.

government. Polk v. James, 68 Ga. 128. A public office is not a natural growth

A person in the service of the governof the soil, and can be created only by the ment, who derives his position from duly, Legislature, or some municipal board or body legally authorized election or appointment is authorized by the Legislature to create one.

a public officer. State v. Hocker, 22 South. Miller v. Warner, 59 N. Y. Supp. 956, 957, 721, 722, 39 Fla. 477, 63 Am. St. Rep. 174. 42 App. Div. 208.

Certainly, where an individual has been A public office exists, if at all, either appointed or elected in a manner prescribed by a constitutional provision or by the fiat of by law, has a designation or title given him the Legislature, or by some body or board by law, and exercises functions concerning to which the Legislature has delegated the the public, assigned to him by law, he must power to create an office. Eckerson v. City be regarded as a public officer. It can make of New York, 80 N. Y. Supp. 168, 169, 80 no difference whether he be commissioned App. Div. 12 (citing Meyers v. City of New by the chief executive officer with the auYork, 69 Hun, 293, 23 N. Y. Supp. 484).

thentication of the seal of state or not.

Where tbat is given, it is but evidence of his The true test of a public office seems title to the office. Bradford v. Justices of to be that it is parcel of the administra- Inferior Court, 33 Ga. 332, 336. tion of government, civil or military, or is itself created by the lawmaking power. Elia

Every office is an appointment or an son v. Coleman, 86 N. C. 235, 241.

employment, but it does not follow that ev

ery appointment is an office, and the words An office is a place created, or at least are not convertible terms. Commonwealth recognized, by the laws of the state, and to v. Bipns (Pa.) 17 Serg. & R. 219, 220, 232.

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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 8. W. 596, 597, 95 Mo. App. 660.

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 distinguished.

employment, and he who performs the du"In every definition of the word office,' ties of the office is an officer.

Althe features recognized as characteristic, and though an office is an employment, it does distinguisbing it from a mere employment, not follow that erery employment is an are the manner of appointment and the na- office. A man may certainly be employed ture and duties to be performed, and wheth- | under a contract, express or implied, to do er the duties are such as pertain to the par- an act or to perform a service, without beticular official designation, and are continu- coming an officer; but if the duty be a coning and permanent, and not occasional or tinuing one, which is defined by the rules temporary." State Board of Public prescribed by the government, and not by Works, 17 Atl. 112, 51 N. J. Law (22 Vroom) contract, which an individual is appointed 240.

by the government to perform, who enters “An officer is distinguished from an em- upon the duties appertaining to his station ploge in the greater importance, dignity, and without any contract defining them, if those independence of his position; in being re

duties continue though the person be chanquired to take an official oath, and perhaps ged, it seems very difficult to distinguish to give an official bond; in the liability to such a charge or employment from an office, be called to account as a public offender for or the person who performs the duties from misfeasance or nonfeasance in office; and an officer." Vincenbeller v. Reagan, 64 S. W. usually, though not necessarily, in the ten- 278, 284, 69 Ark. 460; Ptacek v. People, 94 ure of his position.” State ex rel. Cameron

Ill. App. 571, 577, 578.
5. Shannon, 33 S. W. 1137, 1144, 133 Mo. 139;

As franchise.
State ex rel, Kane v. Johnson (Mo.) 25 S. W.
855, 856; City of Baltimore v. Lyman, 48

See "Franchise."
Atl, 145, 146, 92 Md. 591.

Investment with functions of govern-
The term "office" has no legal or tech-

ment. nical meaning attached to it, distinguishing There are various tests by which to deit from its ordinary acceptation. An office termine who are officers in the meaning of is a public charge or employment. But as the law, but at last, in a case of uncertainevery employment is not an office, it is somety, the intention of the lawmakers controls. times difficult to distinguish between employ. To constitute an officer it does not seem to ments which are and which are not offices. be material whether his term be for a period 7 Bac. Abr. 280. Legislatures generally de fixed by law or to endure at the will of the fine "office" to be public employment on be creating power; but, if an individual be inball of the government in any station of | vested with some portion of the functions of public trust. In common parlance, the term the government to be exercised for the benoffice has a more general signification; thus, eft of the public, he is an officer. Per Lewis, we say the office of the executor, or the O. J., in City of Louisville v. Wilson, 36 S. office of the president. In re Attorneys' | W. 944, 99 Ky. 598 (cited with approval in Oaths (N. Y.) 20 Johns. 492, 494; In re Ricker, Pratt v. Breckinridge, 65 S. W. 136, 137, 112 66 N. 8. 207, 232, 29 Atl. 559, 572, 24 L. R. A. Ky. 1, and Lowry v. City of Lexington, 68 740.

S. W. 1109, 1112, 24 Ky. Law Rep. 516). Const. art. 5, § 24, defines an office as

A public office is defined to be the right, follows: “An office is a public position cre- authority, and duty created and conferred ated by the Constitution or law, continuing by law, by which for a given period, either during the pleasure of the appointive power fixed by law or enduring at the pleasure of or for a fixed time, with a successor elected the creating power, an individual is invested or appointed. An employment is an agency with some portion of the sovereign funcfor a temporary purpose, which ceases when tions of the government, to be exercised by that purpose is accomplished.” Lasher v.

him for the benefit of the public. State ex People, 53 N. E. 663, 666, 183 III. 226, 47 L. rel. Walker v. Bees, 36 S. W. 636, 637, 133 R. A. 802, 75 Am. St. Rep. 103.

Mo. 325, 33 L. R. A. 616 (citing Mechem,

Pub. Off. 1); Hendricks v. State, 49 S. W. 705, The term "office" implies a delegation of 20 Tex, Civ. App. 178; Kimbrough v. Bar a position of the sovereign power to, and nett, 93 Tex. 301, 310, 55 S. W. 120, 122: Atpossession of it by, the person filling the torney General v. McCaughey, 43 Atl. 646.

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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 The term "office" implies a delegation of "public office," but it is easier to conceive a portion of the sovereign power, and a posthe general requirements of such an office session of it by the person illing the office. than to express them with precision in a State v. Hocker, 22 South. 721, 722, 39 Fla. definition that shall be entirely faultless. It 477, 63 Am. St. Rep. 174. will be found, however, by consulting the

An office is where, for the time being, cases and authorities, that the most generai a portion of the sovereignty, legislative, exdistinction of a public office is that it em. ecutive, or judicial, attaches, to be exercised braces the performance by the incumbent of

for the public benefit. United States v. Locka public function delegated to him as part wood (Wis.) 1 Pin. 359, 363. of the sovereignty of the state. The fact that a public employment is held at the will

A public office is one whose duties are in or pleasure of another as a deputy or serv. their nature public; that is, involving in their ant, who holds at the will of his principal, performance the exercise of some portion of is held in the state of Maine to distinguish the sovereign power, whether great or small, a mere employment from a public office, for and in whose proper performance all citizens, in such case no part of the state sovereignty irrespective of party, are interested, either is delegated to such employés. State v. Jen as members of the entire body politic, or of nings, 49 N. E. 404, 405, 57 Ohio St. 415, 63 some duly established division thereof. AtAm. St. Rep. 723.

torney General v. Drohan, 48 N. E. 279, 281,

169 Mass. 534, 61 Am. St. Rep. 301. The words “public office" are used in so many senses that it is impossible to give a

In 2 Spell. Extr. Rem. $ 1780, it is said: precise definition covering all cases. It de

“There are three principal tests for deterpends, not on what we call it, or even on mining whether one performing duties of a what a statute may incidentally call it, but public nature is a public officer, in the sense upon the powers wielded, the functions per to a quo warranto proceeding: First, wheth

of subjecting his incumbency or employment formed, and other circumstances manifesting the character of the position. Mechem, er the sovereignty, either directly, as through Pub. Off. § 4, says: "The most important

legislative enactment or executive appointcharacteristic wbich distinguishes an office ment, or indirectly, as through a municipal from an employment or contract is that the charter, is the source of authority; second, creation of an office involves a delegation whether the duties pertaining to the position to the individual of some of the sovereign are of a public character-that is, due to the functions of government, to be exercised by community in its political capacity; third,

whether the tenure is fixed and permanent, him for the benefit of the public. Unless the powers conferred are of this na

for a definite period, by law, unless for negture, the individual is not a public officer.” lect of duty or malfeasance, or subject to ter

mination at the will of others without assignThe test is that he should exercise something that can ftly be called a part of the term 'office implies a delegation of a portion

ment of cause." "We apprehend that the sovereignty of the state. Hartigan v. Board of Regents of West Virginia University, 38 it by the person filling the office, and the ex

of the sovereign power, and the possession of S. E. 698, 701, 49 W. Va. 14.

ercise of such power, within the legal limits, An office is a public station or position, constitutes the correct discharge of the duties to which a portion of the sovereignty of the of such officer. And power thus delegated country, either legislative, judicial, or exec- and possessed may be a portion belonging utive, attaches for the time being, and which sometimes to one of the three great departis exercised for the benefit of the public. wents, and sometimes to another. Still, it is High, Rec. $ 625. The word itself implies a

a legal power, which may be rightfully exermore or less permanent delegation of a por- cised, and in its effects will bind the rights tion of governmental power, coupled with of others, and be subject to revision and corlegally defined duties and privileges, contin. rection only according to the laws of the uous in their nature, and which, upon the state. An employment, merely, has none of death, resignation, or removal of the incum- these distinguishing features. A public agent bent, devolve upon his successor. Common- acts only on behalf of his principal, tbe pubwealth v. Murphey (Pa.) 17 Montg. Co. Law lic, whose sanction is generally considered Rep’r, 174, 176 (citing Tied. Mun. Corp. (Ed. necessary to give the act performed the au1894]).

thority 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 to the federal government, the latter governthe sovereign power, either in making, ad- ment had the right to call the convention for ministering, or executing the laws. Mont. the establishment of a new state government, gomery v. State, 18 South. 157, 159, 107 Ala. though certain persons were declared to be 372.

ineligible as delegates. Therefore, one elect

ed to the office of governor of North Carolina Every office implies an authority to execute a portion of the sovereign power of the pursuant to the Constitution adopted by that state, either in making or executing or_ad. Hughes, 61 N. C. 57, 61, 68.

convention properly held the office.

In re ministering the laws. Wardlaw v. City of New York, 19 N. Y. Supp. 6, 7, 61 N. Y. Super. Ct. (29 Jones & S.) 174.

As occupation.

See “Occupation (Vocation)." Public office is a right to exercise generally, and in all proper cases, the function As property. of a public trust or employment, and to receive the fees and emoluments, and to hold the common good. Hence most of the rules

The purpose of creating public offices is the office and perf the duties for the term and by the tenure prescribed by law. In re charge of the duties and the promotion of the

regulating them have a reference to the disRupp, 59 N. Y. Supp. 997, 999, 28 Misc. Rep. public convenience. Hence they are not the 703.

subjects of property in the sense of that full An office is defined by good authority as and absolute dominion which is recognized in involving the delegation to the individual of many other things. They are only the subsome of the several functions of government jects of property as far as they can be so in to be exercised by him for the benefit of the safety to the general interest involved in the public, by which it is distinguished from em- discharge of their duties. This principle deployment or contract. State v. Thompson, 29 mands that different rights of property S. E. 720, 721, 122 N. C. 493 (citing Mech. should be recognized in different offices. It Pub. Off. $$ 1, 4).

is one of the ordinary rights of property to

alien and dispose of it at pleasure; but that Limitations on powers as affecting.

is inadmissible in public offices, because the Officers are public or private, and it is public require a responsible person to answer said that every man is a public officer who for defaults. Besides, the power of alienahath any duty concerning the public; and tion is not the test of property. Property in he is not the less a public officer because his reference to a thing means whatever a perauthority is confined to narrow limits, since son can possess and enjoy by right; and in it is the duty, and the nature of that duty, reference to the person, he who has that right which make him a public officer, and not the to the exclusion of others is said to have the extent of his authority. Commonwealth v. property. That an office is the subject of Binns (Pa.) 17 Serg. & R. 219, 220, 232. See, property thus explained is well understood also, Polk v. James, 68 Ga. 128; Bradford v. by every one, as well as distinctly stated in

the lawbooks from the earliest times. Hoke Justices of Inferior Court, 33 Ga. 332, 336.

v. Henderson, 15 N. C. 1, 17, 25 Am. Dec. 677. Persons who, under an act of the Gen

"Offices" eral Assembly of October 17, 1870, had been

classed by Blackstone appointed commissioners to purchase a tract among incorporeal hereditaments. An office of land at the place selected for a county site, may further be said to be a vested right. The to lay off the same into town lots, sell them, officer has an estate in it as a property, of and to apply the proceeds to the building of which he cannot be divested, except in the a courthouse and jail for the county, were

three ways pointed out by Lord Coke, viz.: officers, under the law. Polk v. James, 68 First, by abuse; second, nonuser; third, re Ga. 128.

fusal. Under our system of government it

may be regarded as a contract between the Oath required.

state on one hand, and the individual on the The frame of the government of the state of certain duties for a certain compensation.

other, whereby he assumes the performance of North Carolina after its secession from the For these purposes he becomes seised of the Union still existed, but there were no officers, office as of any other property in the right as the officers had renounced their allegiance and enjoyment of which he cannot be disto the government of the United States, and turbed or defeated, except by operation of had taken an oath to support the government law. People v. Wells, 2 Cal. 198, 203. of the Confederate States. The government of the United States could not recognize, as A public office is a mere public agency, rightly officers of the state, men who were not revocable according to the will and appointbound by the oath required by the federal ment of the people as exercised in the ConConstitution, but who, on the other hand, stitution and the laws enacted in conformity were bound by the oath to support another therewith, and is not property within the government. After the surrender of the state meaning of the constitutional provision that


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