« SebelumnyaLanjutkan »
no person shall be deprived of life, liberty, | (citing Kreitz v. Behrensmeyer, 149 Ill. 496, or property without due process of law. State 36 N. E. 983), a public office is not property, v. Crumbaugh, 63 S. W. 925, 927, 26 Tex. Civ. but a mere public agency created for the App. 521. See, also, Cameron v. Parker, 38 benefit of the state. People v. Barrett, 67 Pac. 14, 19, 2 Okl. 277; Donahue V. Will | N. E. 742, 745, 203 Ill. 99, 96 Am. St. Rep. County, 100 Ill. 94, 103; Attorney General v. 296. Jochim, 58 N. W. 611, 613, 99 Mich. 358, 23 L. R. A. 699, 41 Am. St. Rep. 606; Moore v.
An office is not regarded as property or Strickling, 33 S. E. 274, 276, 46 W. Va. 515, as a vested right, and the Legislature may, 50 L, R. A. 279; State v. Owens, 63 Tex. 261, in the absence of constitutional restrictions, 267; Hawkins v. Roberts, 27 South. 327, 332, make a provision for the abolition thereof. 122 Ala. 130.
State v. Common Council, 90 Wis. 612, 618,
64 N. W. 304. In New York public offices are not incorporeal hereditaments, nor have they the
Place or position. character or qualities of grants. Conner v. City of New York, 5 N. Y. (1 Seld.) 285, 296.
The intrinsic meaning of the word “of
fice" is expressed by the old English word An office is not property, nor are the pro- “place." People v. Nichols, 52 N. Y. 478, spective fees thereof the property of the in- 484, 11 Am. Rep. 734. cumbent. The incumbent cannot sell his oftice, or purchase it or incumber it. The Leg
Pamph. Laws 1882–83, p. 136, relating islature, in the absence of constitutional pro- to the depositories of money, uses the words, hibitions, may diminish or abolish the fees “the Governor shall declare said office va of the office at pleasure, or may render it a cant,” and in the same section the words salaried office. Smith v. City of New York, used are, "and the Governor may declare the 37 N. Y. 518, 520.
position vacant.” As thus used, the words
"position" and "office" synonymous. “A public office is a trust held for the The word "office" is used in the sense of benefit of the public. The incumbent, if be place, position, and agency, and not in the performs the duties, may be entitled to the sense that it is a public office. Colquitt v. emoluments, but he cannot have any prop- Simpson, 72 Ga. 501, 510. erty in the office itself. And hence, there being no property right involved in an inquiry
As public officer. as to one's right to an office, a jury cannot be bad to try the title.” Mason v. State, 50 of the Code of Practice, which provides
The word "office," as used in article 647 N. E. 6, 10, 58 Ohio St. 30, 41 L. R. A, 291.
that "if a debtor has neither movables, nor A public office is a mere right to exer- slaves, nor immovable property the sherife cise a public function or employment; a dele- may seize the rights and credits which begation of a portion of the sovereign power of long to him, and all sums of money which the government to the person filling the of- may be due to him, in whatsoever right, fice. The duties are to be performed for the unless it be for alimony or salaries of of. benefit of the public and in the public in- fice," means a public office. The commisterest. It is not property, nor are the pro sioners appointed under the statute of March spective fees of an office the property of its 14, 1842, providing for the liquidation of incumbent. Therefore, section 12 of the civil banks, are not public officers. Conrey V. service act (Act March 20, 1895), which pro- Copland, 4 La. Ann. 307, 308. vides for the trial by the civil service commission of charges against officers appointed
Relates to functions to be performed,
not place. under the act, and for their removal by the commission in case the charges are substan
The word "office," as used in 14 Stat. tiated, does not violate the constitutional 569, authorizing the payment of employés in right of trial by Jury, since a public office is the office of the coast survey, etc., "refers not property. People v. Kipley, 49 N. E. to the functions to be performed, and not 229, 238, 171 Ill. 44, 41 L. R. A. 775.
to the place where they are performed.”
Stone v. United States (U. S) 3 Ct. Cl. 260, A public office is a public trust, and the
262. incumbent has to some extent a property right in it, which he holds, not subject to Tenuro required. barter and sale, but for the benefit of the po
"Office" is defined as a public station litical society of which he is a member. State v. Wadhams, 64 Minn, 318, 324, 67 N.
or employment conferred by the govern
ment, and embraces the idea of tenure, duW. 64.
ration, emolument, and duties. A professor While it is true that an officer de jure of the University of West Virginia is not has a property right in the emoluments of an officer. He has not what is called “tenhis office, and may recover the same in an ure in office”; that is, a fixed term. That action at law from an officer de facto who he is paid a compensation does not make bas collected them while in his possession him an officer; a mere employé is paid.
Tbat an official oath is required by law is records made by the officer in custody of the a sign of office, and the Code prescribing it records. West Jersey Traction Co. v. Board as to “officers" does not require a university of Public Works, 30 Atl. 581, 582, 57 N. J. professor to take it. Hartigan v. Board of Law (28 Vroom) 313. Regents West Virginia University, 38 S. E. 698, 704, 49 W. Va. 14.
OFFICE FOR WEIGHING OF MER
CHANDISE. An officer is one empowered to act in discharge of a duty or trust, under obliga- Const. art. 5, § 8, provides: "All of tions imposed by the sanctions and re- fices for the weighing, measuring, culling or straints of legal authority in official life, and inspecting of any merchandise, produce, does not include one who receives no cer- | manufacture or commodity whatever, are tificate of appointment, or has no term or hereby abolished; and no such offices shall tenure of office, but performs such duties (hereafter be created by law; but nothing in as are required of him by the persons em- this section contained shall abrogate any ploying him, and whose responsibility is office created for the purpose of protecting limited to them. Wardlaw v. City of New the public health, or the interests of the York, 19 N. Y. Supp. 6, 7, 61 N. Y. Super. state in its property, revenue, tolls or purCt. (29 Jones & S.) 174.
chases, or of supplying the people with corA municipal officer subject to removal rect standards of weights and measures, or at the pleasure of the council is not an offi- shall prevent the creation of any office for cer” within Const. art. 14, $ 8, probibiting organizes the wardens' office of the port of
such purpose hereafter.” Act 1857, C. 405, rean increase in the salary of any officer during his term of office. State ex rel. Kane New York, the duties of the wardens in7. Johnson (Mo.) 25 S. W. 855, 856.
volving the examination of vessels and car
goes. “The constitutional restraint on legisOne who enjoys a definite term of office lative power was without doubt suggested is an officer. State ex rel. Bartraw v. by, and was primarily aimed at, a system Longfellow, 69 S. W 596, 597, 95 Mo. App. of laws which had grown up in this state, 660.
and which required a very large class of the
productions of the soil and of manufacture As term of office.
and mechanical industry to undergo an inThe words “incident to said office,” as spection, or the determination, by weighing, used in the official bond of a sheriff, re- measuring, or gauging, of the quantity conciting the fact that the sheriff bas been tained in the parcels in which they are elected for the term of three years, and that usually sold by public officers, preliminary he has undertaken the obligations and du- to their being sold for the purpose of exties "incident to said office," mean incident portation, and, in regard to some articles, as to said term of three years. Baker v. Bald- a condition to being sold and trafficked in win, 48 Conn. 131, 137.
the state. Almost every species of property
which was extensively dealt in had been Yearly salary.
subjected to these regulations. The officers The meaning of the word "office" neces- created for the execution of this system were sarily varies with its use in different stat. numerous, and their exactions were utes, and, to determine its meaning correct- siderable in amount, and were complained ly in a particular instance, regard must be of as vexatious in practice.” Held, that the had to the intention of the act, and the prohibition of the Constitution was against subject-matter in respect to which the terms public officers for testing the quantity and are used. The word "office,” as used in quality of articles with a view to the securi. Laws 1868, c. 854, § 4, prohibiting the board ty of trafficking in them, and the act was of supervisors for the county of New York not in conflict with such provision. Tink. from creating new offices, is to be con ham v. Tapscott, 17 N. Y. 141, 147. strued in its ordinary and familiar signification as in general and popular use, for OFFICE FOUND. the intention of the act was to prohibit the board of supervisors from creating any new acquire real property by operation of law,
"By the common law an alien cannot position with a regular yearly salary at. but may take it by act of the grantor to tached to it. Ryan v. City of New York hold it until 'office found; that is, until the (N. Y.) 50 How. Prac. 91, 93.
fact of alienage is authoritatively established
by a public officer upon an inquest held at OFFICE COPY.
the instance of the government. An "office copy" of a record or instru- ceeding which contains the inding of the ment is a copy made by an authorized offi. fact upon the inquest of the officer is techcer. Stamper v. Gay, 23 Pac. 69, 70, 3 Wyo. 'office found. It proved the fact upon the
nically designated in the books of law as
existence of which the law devests the esThe term "office copies" was used at tate, and transfers it to the government, common law to designate copies of judicial from the region of uncertainty, and makes
it a matter of record. It was devised, ac- OFFICE OF PROFIT.
The term "office of profit" is frequently solemn matter of record, without which he used to designate offices otherwise known in general, could neither take nor part with as “lucrative offices.” It describes an office anything; for it was deemed a part of the to which salary, compensation, or fees are liberties of England, and greatly for the attached, and the amount of the salary or safety of the subject, that the King may Board of Crook County Com'rs, 59 Pac. 797,
compensation is not material. Baker v. not enter upon or seize any man's posses
9 Wyo. 51. sions upon bare surmises without the intervention of a jury.'” Strickley v. Hill, 62 Pac.
An "office of profit" is property, as much 893, 895, 22 Utah, 257, 83 Am. St. Rep. 786 so as any other article that can be possess(quoting Phillips v. Moore, 100 U. S. 208, 212, ed. It is a franchise, and, when the lawful 25 L. Ed. 603).
owner of it is kept out of possession by an "Inquest of office” or “office found" was intruder, he has as much right through the a summary inquest by the King's escheater, courts to have himself placed in possession either by virture of his office or by special as to recover any other property unlawfully royal writ, to ascertain whether in the par- withheld from him. State v. Owens, 63 Tex. ticular case the sovereign has a right to the 261, 267. possession of lands in the hands of an alien. It was done under the King's officer
Rev. St. § 6969, wbich makes it a crime by a jury of no determined number, either for “an officer elected to an office of trust 12 or more or less. Baker v. Shy, 56 Tenn. or profit in this state” to become interested (9 Heisk.) 85, 89.
in any contract for the purchase of any
property or fire insurance for the use of the By the civil law some proceeding equiv. state, county, city, etc., applies to a person alent in its substantial features to an “office duly elected to and holding the office of found” was essential to take the fact of member of the board of public works of the alienage from being a matter of mere sur city of Cincinnati. There is no rule of conmise and conjecture and make it a matter struction which authorizes the court to say of record. Such a proceeding was usually that the language, "any contract for the purhad before a local magistrate or council, chase of property for the use of the state, and might be taken at the instance of the county, city,” etc., means simply contracts government, or on the denouncement of a for the purchase of property for the penal private citizen. The sale of land in Texas, and benevolent institutions of the state, or made before her separation from Mexico, that an officer elected to an office of trust by a citizen to a nonresident alien, passed or profit, etc., includes none but trustees, title to the latter, who thereby acquired a physicians, matrons, and stewards of such defeasible estate in the land, wbich he could institutions. Doll v. State, 15 N. E. 293, 295, hold until deprived thereof by the supreme 45 Ohio St. 445. authority on the official ascertainment of the fact of his nonresidence and alienage by the As used in Rev. St. 1838, p. 208, prescrlbgovernment, or on the denouncement of a ing, as a part of the punishment on the conprivate citizen. Phillips v. Moore, 100 U. 8. viction of larceny, that the person convicted 208, 212, 25 L Ed, 603.
be disfranchised and rendered incapable of
holding any office of trust or profit, the term OFFICE OF CORPORATION.
"profit" was also included in the term
“trust," as all offices of profit are necessarily See “Corporate Office."
offices of trust, and a verdict disfranchising
a defendant from holding any office of trust OFFICE OF HONOR.
was a substantial compliance with the statConst, art. 3, § 29, providing that no ute. Doty v. State (Ind.) 6 Blackf. 529, 530. person holding any “office of honor" or profit
The office of postmaster is an “office of under the government of the United States sball bold “any office of bonor” or profit profit, or trust under the authority of conunder the authority of the state, should be gress,” so as to prevent a postmaster from
holding an executive or judicial office while construed to include the office of director continuing to exercise the office of postof a state institution for the education of master. McGregor v. Balch, 14 Vt. 428, 436, the deaf and dumb, appointed by the Gov
39 Am. Dec. 231. ernor with the advice of the Senate, though there are no fees, perquisites, profit, or salary. It is merely an honorable trust OFFICE OF PUBLIO TRUST. that is confided to the director of the institution. It is an office, and not merely an
See "Public Trusts." employment. It is an "office of honor,” and, if not of great distinction, it is one of a high, OFFICE OF THE STATE. benevolent, and important trust. Dickson v. People, 17 Ill. (7 Peck) 191, 193.
See "State Officer."
3 Okl. 630; Commonwealth v. Christian (Pa.)
9 Phila. 556, 558. A written agreement between the parties to a pending case, bearing upon and af
Chief Justice Marshall says: "He who fecting the disposition to be made of the performs the duties of that office is an ofsame, and duly filed with the other papers ficer.” Hamlin v. Kassafer, 15 Pac. 778, in the case, is an "office paper,” of which a 779, 15 Or. 456, 3 Am. St. Rep. 176. copy may be established instanter on a mo
An officer is one who holds an office. tion made by one of the parties and sup State v. Griswold, 46 Atl. 829, 830, 73 Oonn. ported by a proper showing. In such case a formal rule nisi with service on the opposite party is not essential, especially when that The individual who is invested with the party is present and offers no valid objec- authority and is required to perform the dution to the establishment of the lost paper. ties incident to an office is a public officer. Watson V. Hemphill, 25 & E. 262, 99 Ga. State ex rel. Walker v. Bus, 36 S. W. 636, 121.
637, 135 Mo. 325, 33 L. R. A. 616; Attorney General v. McCaughey, 43 Atl. 646, 648, 21
R. I, 341. OFFICE WITHIN GIFT OF PEOPLE.
An officer is a part of the personal force The expression "office within the gift by which the state acts, thinks, determines, of the people,” as used in Const. art. 3, & 2 administers, and makes its constitution and declaring that all persons entitled to vote laws operative and effective. He is an arm shall be eligible to any office within the gift of the state, and always on its side. People of the people, means all offices, as well those v. Coler, 59 N. E 716, 723, 166 N. Y. 1, 52 filled by the Legislature as those filled by L. R. A. 814, 82 Am. St. Rep. 605. popular vote. Black v. Trower, 79 Va. 123, 126.
A public officer is every one who is appointed to discharge a public duty and re
ceives a compensation for the same. Conner OFFICER.
v. City of New York, 4 N. Y. Super. Ct. (2 See "Accounting Officer"; "Another Of- Sandf.) 355, 367 (citing Henly v. Mayor of
ficer”; “Appointed Officers"; "City Lyme, 5 Bing. 91).
A public officer is one who hath any
A public officer is an agent elected or Officer”; “Local Office or Officer”; “Man appointed to perform certain political duties aging Officer”; “Ministerial Office-Of- in the administration of the government. ficer”; “Municipal Officer"; "Noncom- State v. Trousdale, 16 Nev. 357, 360. missioned Officer”; “Peace Officer"; “Presiding Officer"; "Principal Offi A public officer is one who holds a pubcer"; "Proper Officer"; "Railroad Of-lic office, which is an agency of the state, ficers”; “School Officer"; "Ship’s Of- and wbose duty it is to perform the agency. cer"; "State Officer"; "Subordinate McCornick v. Thatcher, 8 Utah, 294, 301, 30 Officer”; "Town Officer"; “United Pac. 1091, 17 L. R. A. 243; 4 Jac. Dict. 433. States Officer"; "Warrant Officers."
Best, C. J., in Henly V. Mayor of All officers, see “All.”
Lyme, 5 Bing. 91, said: “In my opinion, All other officers, see "All Other." Any officer, see “Any."
every one who is appointed to discharge a
public duty, and receives compensation, in Any other officer, see “Any Other."
whatever shape, whether from the Crown Other necessary officer, see "Other."
or otherwise, is a public officer." People v. Other officer, see "Other."
Hayes (N. Y.) 7 How. Prac. 248-250; DempPoundkeeper public officer, see
sey v. New York Cent. & H. R. R. Co., 40 "Poundkeeper."
N. E. 867, 868, 146 N. Y. 290; Foltz v. KerAn "officer" is defined to be one who is lin, 4 N. E. 439, 440, 105 Ind. 221, 55 Am. Rep.
197. lawfully invested with an office. Brandt v. Godwin, 3 N. Y. Supp. 807, 809; Olmstead v. The thought running through every defiCity of New York, 42 N. Y. Super. Ct. (10 nition of an "officer" is that he shall perJones & S.) 481, 487; State v. Cobb, 2 Kan. form some service or owe some duty to the 32, 60; Mitchell v. Nelson, 49 Ala. 88, 89; government, state, or municipal corporation, Braithwaite v. Cameron, 38 Pac. 1084, 1087, and not merely to those who appoint or elect
bim. His tenure must be defined, fixed, and The term "officer," as used in Const. certain, and not arising out of mere contract art. 18, § 1, applies and refers to such offices of employment. Commonwealth v. Murphey, as bave some degree of permanency, and are 17 Montg. Co. Law Rep'r, 174, 176.
not created by a temporary nomination for a One of the earliest definitions of the Hooper, 40 Mich. 503, 505 (citing Under
single and transient purpose. Sburbun v. word "officium” is that function by virtue wood v. McDuffee, 15 Mich. 361, 366, 93 Am. whereof a man bath some employment in
Dec. 194). the affairs of another, as of the King or another person. Again, it is said that the "A public office is the right, authority, word "oficium" principally implies a duty, and duty created and conferred by law, by and in the next place the charge of such which for a given period, either fixed by duty, and that it is a rule that, where a law, or enduring at the pleasure of the creman bath to do with another's affairs against ating power, an individual is invested with his will and without his leave, this is an some portion of the sovereign functions of office, and he who is in it an officer. United the government, to be exercised by and for States v. Trice (U. S.) 30 Fed. 490, 494 (quot- the benefit of the public. The individual so ing Cowell).
invested is a public officer.” Attorney Gen“Public officers are the agents of the eral v. McCaughey, 43 Atl. 646, 647, 21 R.
I. 341. community which they represent, but a public officer is not the agent of each individ
All officers, ual member of the community, and no citizen can be presumed to assent to an illegal Pen. Code, $ 55, makes any agent, offior unauthorized act of a public officer; and cer, or collector guilty of larceny if he fraudbence, where a city charter authorized the ulently converts to his own use money in. city to make certificates, issued to persons trusted to him to apply to a municipal office. making sewer improvements under contract The statute itself does not undertake to de with the city, bearing a different rate of in- fine or restrict the word "officer," and we terest from that prescribed by the Consti- do not know by what authority or by what tution, the interest would not be declared rule of construction the court would be warlegal on the theory that the city was the ranted in announcing that the word "officer," agent of the property owner on whom the as employed in the statute, refers to one assessment was made, and that the certific character of officer more than another. State cate was a contract by him through such v. Isensee, 40 Pac. 985, 12 Wash. 254. agent.” Bayha v. Carter, 26 S. W. 137, 138, 7 Tex. Civ. App. 1.
“Public officers," as used in Rev. St.
1889, § 8589, providing that the fiscal year of A public officer is the person whose duty the state shall commence on January 1st it is to perform the agency for the state of and terminate on the 31st day of December a public office. The essence of it is the of each year and the books, accounts, and duty of performing an agency; that is, of reports of the public officers shall be made doing some act or acts or series of acts for to conform thereto, includes county as well the state. State v. Stanley, 66 N. C. 59, 8 as state officers. State ex rel. Exchange Am. Rep. 488. Similar definitions might be Bank v. Allison, 56 S. W. 467, 468, 155 Mo. almost indefinitely multiplied. But, after all, 325. it is rather a narrow view to lay down a general definition of the term “public officer,” that "any person who shall directly or in
Under Act 1890, No. 78, § 1, providing and then to measure by it the meaning of that same term, no matter under what con- directly offer or give any sum of money,
bribe, present or reward ditions it may be used. The nature of the
officer, state, parochial or municipal, * duties, the particular method in which they are to be performed, the end to be attained, or to any member or officer of the General
with intent to induce the depository of the power conferred, and such officer or member of the General Asthe wbole surroundings, must be all considered when the question as to whether a him required with partiality
favor position is a public office or not is to be
and the officer or member of the solved. Board of Worcester County School
General Assembly receiving Com’rs v. Goldsborough, 44 Atl. 1055, 1057,
any money, bribe, etc.,
with the 90 Md. 193.
intent or for the purpose or consideration Under an act authorizing the acknowl- aforesaid, shall be guilty of bribery,” the edgment of deeds before any mayor, chief words “officer or member of the General magistrate, or officer of the cities, towns, or Assembly" must be taken to refer to all per. places where the deed was made, it is held sons enumerated in the foregoing portion of that the word "mayor” refers to cities, “chief the act; that is to say, a state, parish, or magistrate” to towns, and "officers” to municipal officer, or member of the General places. McIntire's Lessee v. Ward (Pa.) 3 Assembly. State v. Callahan, 17 South. 50, Yeates, 424, 426.
59, 47 La, Ann. 444