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. Strickling, 33 S. E. 274, 276, 46 W. Va. 515, 50 L. R. A. 279; State v. Owens, 63 Tex. 261, 267; Hawkins v. Roberts, 27 South. 327, 332, 122 Ala. 130. In New York public offices are not incorporeal hereditaments, nor have they the character or qualities of grants. Conner v. City of New York, 5 N. Y. (1 Seld.) 285, 296. An office is not property, nor are the prospective fees thereof the property of the incumbent. The incumbent cannot sell his office, or purchase it or incumber it. The Legislature, in the absence of constitutional prohibitions, may diminish or abolish the fees of the office at pleasure, or may render it a salaried office. Smith v. City of New York, 37 N. Y. 518, 520. "A public office is a trust held for the benefit of the public. The incumbent, if he performs the duties, may be entitled to the emoluments, but he cannot have any property in the office itself. And hence, there being no property right involved in an inquiry as to one's right to an office, a jury cannot be had to try the title." Mason v. State, 50 N. E. 6, 10, 58 Ohio St. 30, 41 L. R. A. 291. An office is not regarded as property or as a vested right, and the Legislature may, in the absence of constitutional restrictions, make a provision for the abolition thereof. State v. Common Council, 90 Wis. 612, 618, 64 N. W. 304. Place or position. The intrinsic meaning of the word "office" is expressed by the old English word "place." People v. Nichols, 52 N. Y. 478, 484, 11 Am. Rep. 734. Pamph. Laws 1882-83, p. 136, relating to the depositories of money, uses the words, "the Governor shall declare said office vacant," and in the same section the words used are, "and the Governor may declare the position vacant." As thus used, the words "position" and "office" are The word "office" is used in the sense of synonymous. place, position, and agency, and not in the sense that it is a public office. Colquitt v. Simpson, 72 Ga. 501, 510. As public officer. of the Code of Practice, which provides The word "office," as used in article 647 that "if a debtor has neither movables, nor slaves, nor immovable property the sheriff may seize the rights and credits which belong to him, and all sums of money which may be due to him, in whatsoever right, unless it be for alimony or salaries of office," means a public office. The commissioners appointed under the statute of March 14, 1842, providing for the liquidation of banks, are not public officers. Conrey v. Copland, 4 La. Ann. 307, 308. A public office is a mere right to exercise a public function or employment; a delegation of a portion of the sovereign power of the government to the person filling the office. The duties are to be performed for the benefit of the public and in the public interest. It is not property, nor are the prospective fees of an office the property of its incumbent. Therefore, section 12 of the civil service act (Act March 20, 1895), which provides for the trial by the civil service commission of charges against officers appointed under the act, and for their removal by the commission in case the charges are substanThe 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 not property. People v. Kipley, 49 N. E. 229, 238, 171 Ill. 44, 41 L. R. A. 775. A public office is a public trust, and the incumbent has to some extent a property right in it, which he holds, not subject to barter and sale, but for the benefit of the political society of which he is a member. State v. Wadhams, 64 Minn. 318, 324, 67 N. W. 64. Relates to functions to be performed, not place. the office of the coast survey, etc., "refers to the functions to be performed, and not to the place where they are performed." Stone v. United States (U. S.) 3 Ct. Cl. 260, 262. Tenure required. "Office" is defined as a public station or employment conferred by the government, and embraces the idea of tenure, duration, 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 has collected them while in his possession him an officer; a mere employé is paid. 1 That an official oath is required by law is a sign of office, and the Code prescribing it as to "officers" does not require a university professor to take it. Hartigan v. Board of Regents West Virginia University, 38 S. E. 698, 704, 49 W. Va. 14. An officer is one empowered to act in discharge of a duty or trust, under obligations imposed by the sanctions and restraints of legal authority in official life, and does not include one who receives no certificate of appointment, or has no term or tenure of office, but performs such duties as are required of him by the persons employing him, and whose responsibility is limited to them. Wardlaw v. City of New York, 19 N. Y. Supp. 6, 7, 61 N. Y. Super. Ct. (29 Jones & S.) 174. A municipal officer subject to removal at the pleasure of the council is not an "officer" within Const. art. 14, § 8, prohibiting an increase in the salary of any officer during his term of office. State ex rel. Kane v. Johnson (Mo.) 25 S. W. 855, 856. One who enjoys a definite term of office is an officer. State ex rel. Bartraw v. Longfellow, 69 S. W 596, 597, 95 Mo. App. 660. As term of office. records made by the officer in custody of the records. West Jersey Traction Co. v. Board of Public Works, 30 Atl. 581, 582, 57 N. J. Law (28 Vroom) 313. OFFICE FOR WEIGHING OF MER- New York, the duties of the wardens in Const. art. 5, § 8, provides: "All of fices for the weighing, measuring, culling or inspecting of any merchandise, produce, manufacture or commodity whatever, are hereby abolished; and no such offices shall hereafter be created by law; but nothing in this section contained shall abrogate any office created for the purpose of protecting the public health, or the interests of the state in its property, revenue, tolls or purchases, or of supplying the people with correct standards of weights and measures, or shall prevent the creation of any office for such purpose hereafter." Act 1857, c. 405, reorganizes the wardens' office of the port of volving the examination of vessels and cargoes. "The constitutional restraint on legislative power was without doubt suggested by, and was primarily aimed at, a system of laws which had grown up in this state, and which required a very large class of the productions of the soil and of manufacture and mechanical industry to undergo an inspection, or the determination, by weighing, measuring, or gauging, of the quantity contained in the parcels in which they are usually sold by public officers, preliminary to their being sold for the purpose of exportation, and, in regard to some articles, as a condition to being sold and trafficked in the state. Almost every species of property which was extensively dealt in had been 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 securiLaws 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. Tinkfrom creating new offices, is to be conham v. Tapscott, 17 N. Y. 141, 147. strued in its ordinary and familiar signification as in general and popular use, for the intention of the act was to prohibit the board of supervisors from creating any new position with a regular yearly salary attached to it. Ryan v. City of New York (N. Y.) 50 How. Prac. 91, 93. The words "incident to said office," as used in the official bond of a sheriff, reciting the fact that the sheriff has been elected for the term of three years, and that he has undertaken the obligations and duties "incident to said office," mean incident to said term of three years. Baker v. Baldwin, 48 Conn. 131, 137. Yearly salary. OFFICE FOUND. con "By the common law an alien cannot acquire real property by operation of law, but may take it by act of the grantor to hold it until 'office found'; that is, until the fact of alienage is authoritatively established by a public officer upon an inquest held at the instance of the government. ceeding which contains the finding of the fact upon the inquest of the officer is technically designated in the books of law as The pro 'office found.' It proved the fact upon the existence of which the law devests the estate, and transfers it to the government, from the region of uncertainty, and makes it a matter of record. It was devised, according to the old law-writers, as an authentic means to give the King his right by solemn matter of record, without which he, in general, could neither take nor part with anything; for it was deemed 'a part of the liberties of England, and greatly for the safety of the subject, that the King may not enter upon or seize any man's possessions upon bare surmises without the intervention of a jury.'" Strickley v. Hill, 62 Pac. 893, 895, 22 Utah, 257, 83 Am. St. Rep. 786 (quoting Phillips v. Moore, 100 U. S. 208, 212, 25 L. Ed. 603). "Inquest of office" or "office found" was a summary inquest by the King's escheater, either by virture of his office or by special royal writ, to ascertain whether in the particular case the sovereign has a right to the possession of lands in the hands of an alien. It was done under the King's officer by a jury of no determined number, either 12 or more or less. Baker v. Shy, 56 Tenn. (9 Heisk.) 85, 89. By the civil law some proceeding equivalent in its substantial features to an "office found" was essential to take the fact of alienage from being a matter of mere surmise and conjecture and make it a matter of record. Such a proceeding was usually had before a local magistrate or council, and might be taken at the instance of the government, or on the denouncement of a private citizen. The sale of land in Texas, made before her separation from Mexico, by a citizen to a nonresident alien, passed title to the latter, who thereby acquired a defeasible estate in the land, which he could hold until deprived thereof by the supreme authority on the official ascertainment of the fact of his nonresidence and alienage by the government, or on the denouncement of a private citizen. Phillips v. Moore, 100 U. S. 208, 212, 25 L. Ed. 603. OFFICE OF CORPORATION. See "Corporate Office." OFFICE OF HONOR. of a state institution for the education of An "office of profit" is property, as much so as any other article that can be possessed. It is a franchise, and, when the lawful owner of it is kept out of possession by an intruder, he has as much right through the courts to have himself placed in possession as to recover any other property unlawfully withheld from him. State v. Owens, 63 Tex. 261, 267. Rev. St. 6969, which makes it a crime for "an officer elected to an office of trust or profit in this state" to become interested in any contract for the purchase of any property or fire insurance for the use of the state, county, city, etc., applies to a person duly elected to and holding the office of member of the board of public works of the city of Cincinnati. There is no rule of construction which authorizes the court to say that the language, "any contract for the purchase of property for the use of the state, county, city," etc., means simply contracts for the purchase of property for the penal and benevolent institutions of the state, or that an officer elected to an office of trust or profit, etc., includes none but trustees, physicians, matrons, and stewards of such institutions. Doll v. State, 15 N. E. 293, 295, 45 Ohio St. 445. As used in Rev. St. 1838, p. 208, prescribing, as a part of the punishment on the conviction of larceny, that the person convicted be disfranchised and rendered incapable of holding any office of trust or profit, the term "profit" was also included in the term "trust," as all offices of profit are necessarily offices of trust, and a verdict disfranchising a defendant from holding any office of trust was a substantial compliance with the statute. Doty v. State (Ind.) 6 Blackf. 529, 530. profit or trust under the authority of ConThe office of postmaster is an "office of 39 Am. Dec. 231. Const. art. 3, § 29, providing that no person holding any "office of honor" or profit under the government of the United States shall hold "any office of honor" or profit under the authority of the state, should be gress," so as to prevent a postmaster from construed to include the office of director holding an executive or judicial office while continuing to exercise the office of postthe deaf and dumb, appointed by the Gov-master. McGregor v. Balch, 14 Vt. 428, 436, ernor with the advice of the Senate, though there are no fees, perquisites, profit, or salary. It is merely an honorable trust OFFICE OF PUBLIC TRUST. that is confided to the director of the institution. It is an office, and not merely an employment. It is an "office of honor," and, if not of great distinction, it is one of a high, benevolent, and important trust. Dickson v. People, 17 Ill. (7 Peck) 191, 193. See "Public Trusts." OFFICE OF THE STATE. See "State Officer." OFFICE PAPER. 3 Okl. 630; Commonwealth v. Christian (Pa.) 9 Phila. 556, 558. Chief Justice Marshall says: "He who performs the duties of that office is an officer." Hamlin v. Kassafer, 15 Pac. 778, Or. 456, 3 Am. St. Rep. 176. 779, 15 An officer is one who holds an office. A written agreement between the parties to a pending case, bearing upon and affecting the disposition to be made of the same, and duly filed with the other papers in the case, is an "office paper," of which a copy may be established instanter on a motion made by one of the parties and sup- State v. Griswold, 46 Atl. 829, 830, 73 Conn. ported by a proper showing. In such case a formal rule nisi with service on the opposite party is not essential, especially when that party is present and offers no valid objection to the establishment of the lost paper. Watson v. Hemphill, 25 S. E. 262, 99 Ga. 121. OFFICE WITHIN GIFT OF PEOPLE. The expression "office within the gift of the people," as used in Const. art. 3, § 2, declaring that all persons entitled to vote shall be eligible to any office within the gift of the people, means all offices, as well those filled by the Legislature as those filled by popular vote. Black v. Trower, 79 Va. 123, 126. OFFICER. 95. The individual who is invested with the authority and is required to perform the duties incident to an office is a public officer. State ex rel. Walker v. Bus, 36 S. W. 636, 637, 135 Mo. 325, 33 L. R. A. 616; Attorney General v. McCaughey, 43 Atl. 646, 648, 21 R. I. 341. An officer is a part of the personal force by which the state acts, thinks, determines, administers, and makes its constitution and laws operative and effective. He is an arm of the state, and always on its side. People v. Coler, 59 N. E. 716, 723, 166 N. Y. 1, 52 L. R. A. 814, 82 Am. St. Rep. 605. A public officer is every one who is appointed to discharge a public duty and receives a compensation for the same. Conner v. City of New York, 4 N. Y. Super. Ct. (2 Sandf.) 355, 367 (citing Henly v. Mayor of Lyme, 5 Bing. 91). See "Accounting Officer"; "Another Of ficer"; "Appointed Officers"; "City Officer"; "Civil Officer"; "Collection A public officer is one who hath any Officer"; "Commissioned Officer"; duty to perform concerning the public. Pier"Competent Officer"; "Constitutional son v. McCormick, 2 Pa. Law J. 201, 202. Office or Officer"; "County Officer"; "De Facto Officer"; "De Jure Officer"; A public officer is one on whom the pub"Executive Officer"; "Fiscal Officer"; lic have a right to call for the discharge or "General Officers"; "Government Offi- performance of certain duties. In re A. B., cer"; "Informing Officer"; "Judicial 5 N. Y. Leg. Obs. 136, 138. Officer"; "Legal Officer"; "Legislative Officer"; "Local Office or Officer"; "Managing Officer"; "Ministerial Office-Officer"; "Municipal Officer"; "Noncommissioned 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 Off- and whose 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." All officers, see "All." All other officers, see "All Other." Any other officer, see "Any Other." An "officer" is defined to be one who is lawfully invested with an office. Brandt v. Godwin, 3 N. Y. Supp. 807, 809; Olmstead v. City of New York, 42 N. Y. Super. Ct. (10 Jones & S.) 481, 487; State v. Cobb, 2 Kan. 32, 60; Mitchell v. Nelson, 49 Ala. 88, 89; Braithwaite v. Cameron, 38 Pac. 1084, 1087, A public officer is an agent elected or appointed to perform certain political duties in the administration of the government. State v. Trousdale, 16 Nev. 357, 360. Best, C. J., in Henly v. Mayor of Lyme, 5 Bing. 91, said: "In my opinion, every one who is appointed to discharge a public duty, and receives compensation, in whatever shape, whether from the Crown or otherwise, is a public officer." People v. Hayes (N. Y.) 7 How. Prac. 248-250; Dempsey v. New York Cent. & H. R. R. Co., 40 N. E. 867, 868, 146 N. Y. 290; Foltz v. Kerlin, 4 N. E. 439, 440, 105 Ind. 221, 55 Am. Rep. 197. The thought running through every definition of an "officer" is that he shall perform some service or owe some duty to the government, state, or municipal corporation, and not merely to those who appoint or elect him. His tenure must be defined, fixed, and certain, and not arising out of mere contract of employment. Commonwealth v. Murphey, 17 Montg. Co. Law Rep'r, 174, 176. One of the earliest definitions of the word "officium" is that function by virtue whereof a man hath some employment in the affairs of another, as of the King or another person. Again, it is said that the word "officium" principally implies a duty, and in the next place the charge of such duty, and that it is a rule that, where a man hath to do with another's affairs against his will and without his leave, this is an office, and he who is in it an officer. United States v. Trice (U. S.) 30 Fed. 490, 494 (quoting Cowell). "Public officers are the agents of the community which they represent, but a public officer is not the agent of each individual member of the community, and no citizen can be presumed to assent to an illegal or unauthorized act of a public officer; and hence, where a city charter authorized the city to make certificates, issued to persons making sewer improvements under contract with the city, bearing a different rate of interest from that prescribed by the Constitution, the interest would not be declared legal on the theory that the city was the agent of the property owner on whom the assessment was made, and that the certificate was a contract by him through such agent." Bayha v. Carter, 26 S. W. 137, 138, 7 Tex. Civ. App. 1. A public officer is the person whose duty it is to perform the agency for the state of a public office. The essence of it is the duty of performing an agency; that is, of doing some act or acts or series of acts for the state. State v. Stanley, 66 N. C. 59, 8 Am. Rep. 488. Similar definitions might be almost indefinitely multiplied. But, after all, it is rather a narrow view to lay down a general definition of the term "public officer," and then to measure by it the meaning of that same term, no matter under what conditions it may be used. The nature of the duties, the particular method in which they are to be performed, the end to be attained, the depository of the power conferred, and the whole surroundings, must be all considered when the question as to whether a position is a public office or not is to be solved. Board of Worcester County School Com'rs v. Goldsborough, 44 Atl. 1055, 1057, 90 Md. 193. The term "officer," as used in Const. art. 18, § 1, applies and refers to such offices as have some degree of permanency, and are not created by a temporary nomination for a single and transient purpose. Shurbun v. Hooper, 40 Mich. 503, 505 (citing Underwood v. McDuffee, 15 Mich. 361, 366, 93 Am. Dec. 194). "A public office is 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 and for the benefit of the public. The individual so invested is a public officer." Attorney General v. McCaughey, 43 Atl. 646, 647, 21 R. I. 341. All officers. Pen. Code, 55, makes any agent, officer, or collector guilty of larceny if he fraudulently converts to his own use money intrusted to him to apply to a municipal office. The statute itself does not undertake to define or restrict the word "officer," and we do not know by what authority or by what rule of construction the court would be warranted in announcing that the word "officer," as employed in the statute, refers to one character of officer more than another. State v. Isensee, 40 Pac. 985, 12 Wash. 254. "Public officers," as used in Rev. St. 1889, § 8589, providing that the fiscal year of the state shall commence on January 1st and terminate on the 31st day of December of each year and the books, accounts, and reports of the public officers shall be made to conform thereto, includes county as well as state officers. State ex rel. Exchange Bank v. Allison, 56 S. W. 467, 468, 155 Mo. 325. Under Act 1890, No. 78, § 1, providing that "any person who shall directly or indirectly offer or give any sum of money, bribe, present or reward to any officer, state, parochial or municipal, or to any member or officer of the General with intent to induce such officer or member of the General AsAssembly, sembly to perform any duty of required with partiality ог favor him * * and the officer or member of the General Assembly SO receiving any money, bribe, etc., with the 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 perplaces 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. |