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Army or militia officer.

The position of colonel in the Fourth Regiment New Jersey Volunteers of the United States army is an "office" within the meaning of the statute creating the board of street and water commissioners, which provides that, if such commissioner shall accept any other appointment to "public office," his office of commissioner shall thereupon be come vacant. Oliver v. City of Jersey City, 42 Atl. 782, 784, 63 N. J. Law, 96.

The word "officer," as used in Const. [eree, and trustee, and the imposing of a duty art. 7, declaring that "every male person of upon or the forbidding of any act, shall inthe age of 21 years or upwards, belonging clude his successor, and any person authorto either of the following classes, who shall ized by law to perform the duties of such have resided in the United States one year officer. U. S. Comp. St. 1901, p. 3419. and in this state four months next preceding any election, shall be entitled to vote at such election, in the election district in which he shall at the time have been for ten days a resident, for all officers that now are or hereafter may be elective by the people," etc., means the executive or administrative agents of the state or governmental subdivisions thereof. State v. Johnson, 91 N. W. 840, 841, 87 Minn. 221, 94 Am. St. Rep. 718. Under a constitutional provision that the General Assembly, in cases not provided for in the Constitution, shall fix the term of office and the compensation of all officers, it is held that the term "officers" cannot be regarded as comprehending more than such offices as may be created to aid in the permanent administration of the government, and does not include all agencies which the General Assembly may authorize municipal and other corporations to employ for local and temporary purposes. Walker v. City of Cincinnati, 21 Ohio St. 14, 50, 8 Am. Rep.

24.

Although, by Rev. St. U. S. § 1094, an officer on the retired list is declared to be a part of the army, and though he may, by other provisions, be appointed to certain duties, under certain circumstances, in connection with the Soldiers' Home, he does not "hold office" within the meaning of Laws 1898, c. 584, § 1, providing that the person appointed to the office of aqueduct commissioner shall hold no other federal, state, or municipal office. His mere eligibility to the appointment as an officer of the Soldiers' Home is not equivalent to holding another office. From other sections of the Revised Statutes it appears that such retired officer is deprived of all the functions of the office previously held by him, and divested of all its authority, and wholly discharged from the performance of all its duties. People v. Duane, 55 Hun, 315, 318, 8 N. Y. Supp. 439,

440.

Assignee, receiver, or trustee.

The Constitution adopted in 1846, art. 10, § 2, declared: "All county officers, whose election or appointment is not provided for by this Constitution, shall be elected by the electors of the respective counties, or appointed by the board of supervisors or other county authorities, as the Legislature shall direct. All city, town and village officers whose election or appointment is not provided for by this Constitution, shall be elected by the electors of such cities, towns, or villages, or of some division thereof, or appointed by such authorities thereof as the Legislature shall designate for that purpose. All other officers whose election or appointment is not provided for by this Constitution, and all officers whose offices shall hereafter be created by law, shall be elected by the people or appointed as the Legislature may direct." Held, that the officers and offices designated in the first two sentences of the 11 R. I. 359, 360, 363. section were those instituted and existing

Gen. St. 1872, c. 167,. authorized the court to appoint a new trustee in case of the "vacancy in office thereof." It was held that, inasmuch as at the time the statute was enacted it had become common to speak of some trusts as "offices," where a trustee under a voluntary assignment for the benefit of creditors died, the court had power to appoint a new trustee. Ex parte Ballou,

under actual laws of the state at the time of Minnesota is recognized as an officer of An assignee under the insolvency law of the adoption of the Constitution, and those embraced in the last clause, all officers of every description, both local and general, whose offices were to be thereafter created by law. People v. Pinckney, 32 N. Y. 377,

381.

The reference to any "officer" shall include any person authorized by law to perform the duties of such office. U. S. Comp. St. 1901, p. 3; Ballinger's Ann. Codes & St. Wash. 1897, 4787.

"Officer," as used in the bankruptcy act, shall include clerk, marshal, receiver, ref

the state district court, and, as long as he is in possession of the property, the marshal of the federal court cannot interfere with such possession, even to enforce a maritime

claim. McCaffrey v. The J. G. Chapman (U. S.) 62 Fed. 939, 940.

"Officer," as used in Rev. St. § 5504 [U.

s. Comp. St. 1901, p. 3710], providing that every clerk or other officer of a United States

court who fails to deposit money belonging in the registry of the court, etc., with the treasurer, assistant treasurer, or a designated depository of the United States in the name

and to the credit of the court, or who retains or converts to his own use, etc., any such money, is guilty of embezzlement, etc., does not include an assignee in bankruptcy. While such a person is an officer of the court, the funds of the estate which come into his hands are not required to be deposited in any of the places designated in this section in the name of the court and to its credit. Hence, he is not an "officer" within the meaning of the statute. United States v. Bixby (U. S.) 6 Fed. 375, 376.

Officers appointed under an act of the Legislature to close up the affairs of the insolvent State Bank of Illinois were not "of

ficers," but merely trustees. People v. Ridgley, 21 Ill. (11 Peck) 65, 68.

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 receiver is not a common-law officer, and his functions have no relation to the title to the exercise of a franchise, which is the sole question raised upon quo warranto. Commonwealth v. Order of Vesta, 27 Atl. 14, 15, 156 Pa. 531.

"Officer," as used in Code Iowa, § 3915, providing for the punishment of any person who knowingly annuls, and without authority of law takes, carries away, secretes, or destroys, any property or chattels while the same are in the lawful custody of any sheriff, coroner, marshal, constable, or other "officer," or rightfully held by such officer by virtue of any execution, writ of attachment, or other legal process issued under the law of Iowa, cannot be construed to include a receiver. State v. Rivers, 13 N. W. 73, 74, 60 Iowa, 381.

Attorney at law.

In Lord Coke's time and prior thereto an attorney was considered a public officer. Afterwards Lord Holt (1 Salk. 87) held that he was not compelled to appear for any one unless he takes his fee or backs his war

member of either House during his continuance in office, and it has never been questioned that practicing as an attorney or counselor in the federal courts is inconsistent with holding at the same time the office of senator or representative in Congress. Ex parte Law (U. S.) 15 Fed. Cas. 3, 4, 35 Ga. 285.

An attorney at law is a public officer. In re Leigh (Va.) 1 Munf. 468, 479; Merritt v. Lambert (N. Y.) 10 Paige, 352, 356; Waters v. Whittemore (N. Y.) 22 Barb. 593, 595; but the practice of law is not an office or place, under the statute to suppress dueling. In re Leigh (Va.) 1 Munf. 468, 479.

In re Bland & Giles County Judge (Va.) 33
An attorney at law is not an officer.

Grat. 443.

An officer is a person who performs any public duty, and an attorney at law is not an officer, and does not hold a public trust. Maxey v. Wright, 54 S. W. 807, 811, 3 Ind. T. 243.

A lawyer is a "public officer" in the sense of that clause of the Constitution requiring that all executive and judicial officers of the United States and of the several states shall be bound by oath or affirmation to support that Constitution. So far as the legal profession is an occupation open to all, there is no reason to consider a lawyer as a public officer. The exercise of his profession is in part an occupation in which every person is free to engage, but it is not so in respect to proceedings in the courts of justice, as the admission of an attorney is a general appointment to conduct cases before the courts, a station having its peculiar powers, privileges, and duties, and it thus becomes an office in the administration of justice. In re Wood (N. Y.) 2 Cow. 29, 30, note.

Attorneys are in a certain sense "public officers," but are not within the statute (1 Rev. St. 122, § 36) providing, among other things, that every "office" shall become vacant by the incumbent ceasing to be an inhabitant of a state. Richardson v. Brook

ranty. In Seymour v. Ellison (N. Y.) 2 lyn City & N. R. Co. (N. Y.) 22 How. Prac.

368, 369.

The term "public office," within the common-law rule which excludes women from government by withholding electoral and official power, does not include vocation of a member of the bar as an attorney and officer of the court. In re Ricker, 29 Atl. 559, 66 N. H. 207, 24 L. R. A. 740.

Cow. 13, and Merritt v. Lambert (N. Y.) 10 Paige, 352, practitioners of the law are said to be public officers, but in other cases they are held not to be such, and as remarked by Platt, J., in Re Attorneys' Oaths (N. Y.) 20 Johns. 492: "As attorneys and counselors, they perform no public duties on behalf of the government; they execute no public trust. I am of the opinion that the law is with the negative of that question, nor do and is not a public officer of the state in I think that Congress in the act of Congress such a sense as to be entitled to have his of January 24, 1865, involving the subject of the oath to be taken by attorneys and coun- right to the office determined by a legal ac selors in the federal courts, considered them tion. In re Burchard (N. Y.) 27 Hun, 429. public officers." In Const. art. 1, § 6, cl. 2, The word "officers," as used in Act 1868, it is declared that no person holding any c. 2, § 5, requiring the courts to administer office under the United States shall be a the abjuration of the Ku-Klux to "all offi

An attorney is an officer of the court,

cers," does not apply to attorneys. Ingersoll ▼. Howard, 48 Tenn. (1 Heisk.) 247, 251.

Const. 30, art. 16, provides that all terms of office not otherwise fixed by the Constitution are limited to two years. Held that, since the office of an attorney is one for life, he cannot be regarded as a constitutional officer. Neither can he be regarded as a public officer, for his duty appertains only to the court in which he is authorized to practice. Ex parte Williams, 20 S. W. 580, 581, 31 Tex. Cr. R. 262, 21 L. R. A. 783 (citing Ex parte Garland, 71 U. S. [4 Wall.] 333, 18 L. Ed. 366; Ex parte Law, 35 Ga. 285, 15 Fed. Cas. 3; Ex parte Yale, 24 Cal.

241, 85 Am. Dec. 62).

form no duties on behalf of the government; they execute no public trust." In re Attorneys' Oaths (N. Y.) 20 Johns. 492, 493.

The term "office or public trust," in the clause of the Constitution providing that neither the chancellor nor justice of the Supreme Court, nor any circuit judge, shall hold any other office or public trust, includes an attorney or counselor. Seymour v. Ellison (N. Y.) 2 Cow. 13-29.

An attorney or counselor at law holds an "office or public trust," within the meaning of the terms as used in the Constitution. In re Wood (N. Y.) Hopk. Ch. 6, 8.

Attorneys at law belong properly to the class of judicial officers, and derive their office by appointment. Ex parte Faulkner, 1 W. Va. 269, 297.

Const. art. 11, § 3, prescribes the form of oath to be taken by officers and persons executing public trusts, which is that such officer or person will discharge the duties of A public officer is one who has a duty the office of according to the best of concerning the public, and is none the less his ability. Held, that the words "office" a public officer where his authority is conand "public trust" in such section were fined to narrow limits. Attorneys at law used in the same sense and applied only are public officers. Ex parte Faulkner, 1 W. to persons whose duties and responsibilities | Va. 269, 297 (citing 7 Bacon's Abr. 279, 280, were of a public nature. An attorney at law, tit. "Office and Officers").

is not an "officer" in the constitutional sense of the word, and he does not hold a public trust. Ex parte Yale, 24 Cal. 242, 244, 85 Am. Dec. 62.

"Officer," as used in Act 1827, authorizing the recovery of specific bank paper which has appreciated in value while in the possession of the officer collecting the same, includes attorneys at law. Bank of Commonwealth v. Patton's Ex'r, 27 Ky. (4 J. J. Marsh.) 190, 192.

An attorney at law is not, indeed, in the strict sense, a public "officer," but he comes very near it. As was said by Lord Holt, the office of an attorney concerns the public, for it is for the administration of Justice. In re White, 6 Mod. 18. By our statutes he is required, upon his admission, to take and subscribe in open court the oaths to support the Constitutions of the United States and of this commonwealth, as well as the oath of office. This oath, the form of which has remained without substantial change since the time of Lord Holt, nearly 180 years, pledges him to conduct himself in the office of an attorney within the courts according to the best of his knowl. edge and discretion, and with all good fidelity, as well to the courts as to his clients, and he becomes by his admission an officer of the courts, and holds his office during good behavior, subject to removal by the court for malpractice. In re Robinson, 131 Mass. 376, 379, 41 Am. Rep. 239 (citing Gen. St. c. 121, } 30, 31).

"An attorney or counselor does not hold an 'office,' but exercises a privilege or franchise. As attorneys or counselors, they per

Counselors and attorneys are not "public officers" within the meaning of the Constitution, prohibiting certain courts from appointing public officers to office. In re A. B., 5 N. Y. Leg. Obs. 136, 138.

The power of a court to appoint attorneys as a class of public officers was conferred originally, and has been from time to time regulated and controlled, in England by statute. In this state it seems that attorneys, prior to the Revolution, were appointed by the Governor of the colony. The Constitution of 1846 provided that judges "shall not exercise any power of appointment to public office. Any male citizen of 21 years of good moral character, etc., shall be entitled to admission to practice in all the courts of this state." The object of this provision is plain. Attorneys, solicitors, etc., were public officers; the power of appointing them had previously rested with the judges, and this was the principal appointing power which they possessed. In re Cooper (N. Y.) 20 How. Prac. 1, 11, 13, 14.

While it is true that an attorney is in some sense an “officer" of the court, he is certainly not a public officer, so that while he may be required, as incident to the privilege of practicing, to discharge certain duties imposed upon him by statute, as, for instance, to defend a criminal, he is under no obligation to give his services to the public Code, § 325, providing that proceedings to without compensation; and hence, under remove an attorney may be commenced by direction of the court, who must direct some attorney to draw up the accusation, an attorney appointed to prosecute disbarment pro

ceedings may recover from the county a reasonable compensation for his services, though there is no statutory provision for compensation. Hyatt v. Hamilton County, 96 N. W. 855, 856, 121 Iowa, 292, 63 L. R. A. court, and in a sense officers of the state, for

Legislature might choose to subject to similar regulations. Byrne's Adm'rs v. Stewart's Adm'rs (S. C.) 3 Desaus. 466, 478.

614.

Members of the bar are officers of the

which the court acts. Officers charged with the general business of the state within the state must be residents of the state. Under ordinary circumstances, members of the bar of other states are permitted to argue causes in the Supreme Court without any general license to practice. In re Mosness, 39 Wis 509, 510, 20 Am. Rep. 55.

In Re Wood (N. Y.) Hopk. Ch. 6, Chancellor Sandford held that a solicitor in chancery was an "officer" within the meaning of the new Constitution, and therefore could not be compelled to take any other oath than that prescribed therein. And in Seymour v. Ellison (N. Y.) 2 Cow. 13, Chief Justice Savage, in a concurring opinion, held that an attorney was an "officer" within the meaning of the phrase prohibiting chancellors and justices of the Supreme Court and circuit judges from holding any other office. The opinion of the court, as delivered by Jus-lic trust," does not apply to an attorney or counselor. Seymour v. Ellison (N. Y.) 2 Cow. 13, 28.

tice Woodworth, however, was decided on other grounds. In Re Leigh (Va.) 1 Munf. 468, it was decided that an attorney was not an "officer" within a statute requiring every person appointed to any office to take an anti-dueling oath. In Re Dorsey (Ala.) 7 Port. 293, it was held that the provision of the statute empowering the General Assembly to disqualify from office for dueling did not extend to attorneys and counselors at law. And it was held in Re Cooper, 22 N. Y. 67, 84, 92, that the provision of the statute forbidding judges to exercise any power of appointment to public office did not prohibit the appointment of attorneys. Under these authorities an attorney at law is not an "officer" within the meaning of the Constitution, providing that a certain oath there in set forth shall be the only oath or test required as a qualification for any office or public trust, and could therefore be compelled by the Legislature, before being admitted to practice, to take another and more comprehensive oath. Cohen v. Wright, 22 Cal. 293, 301, 315, 320.

If a statute excluded from "office" one convicted of a particular offense, and used no other term or designation, the profession of a lawyer would not be included within the meaning of the term as generally used, because he can no more be said to hold an "office" than one who follows the profession of a physician, the avocation of a teacher, or who discharges the function of an administrator. In re Dorsey (Ala.) 7 Port. 293, 365.

An attorney at law is not a public officer; he is not appointed by the Legislature, nor is he amenable to it, nor does he possess any portion of the public authority, and can be construed in no other light than that of a private agent for the citizens of the country who might employ him to do their legal business in the court; and though the law requires of him certain qualifications, and he receives a license from the judges, yet his office is no more a public one than would be any other profession or trade which the

The word "office," in the constitutional

clause providing that "neither the chancellor nor justices of the Supreme Court, nor any circuit judge shall hold any office or pub

Candidate for office.

St. 1884, c. 299, § 43, prescribing a punishment for any person who shall alter a ballot cast for "any officer," includes the alteration of a ballot cast for one who was merely a candidate for office and was not elected, and cannot be limited to existing officers who might be candidates for re-election. Commonwealth v. McGurty, 14 N. E. 98, 101, 145 Mass. 257.

Commissioner of highways.

Commissioners appointed by the act of the Legislature to lay out and build a road for the use of the public are public officers. People v. Hayes (N. Y.) 7 How. Prac. 248, 250.

Commissioners appointed by a board of aldermen to lay out a highway under Gen. Laws R. I. c. 71, § 2, providing that for the due marking out of any highway the town council shall appoint three suitable and disinterested men, are not public officers, but mere statutory servants and agents of the board appointing them. Attorney General v. McCaughey, 43 Atl. 646, 647, 21 R. I. 341.

"An office is a public employment conferred by appointment of government, and in the performance of its functions the citizen selected to represent the sovereign is in the exercise of both a private right, or privilege, and a public duty." United States v. Patrick (U. S.) 54 Fed. 338, 349.

The term "office" has reference to func

tions conferred by public authority and for a public purpose. Moll v. Sbisa, 25 South. 141, 142, 51 La. Ann. 290.

The position of commissioner, under Laws 1869, c. 905, relating to the construction of a highway in the county of Queens, is an office, and hence vacated by the commissioner's acceptance of the office of sheriff, Const. art. 10, § 1, declaring that sheriffs

shall hold no other office. People v. Nostrand, 46 N. Y. 375, 381.

The term "public officer," in Rev. Code, § 183, which authorizes the discharge of sureties upon the official bond of any public offiRoad commissioners, as established by cer required to be approved by the judge of Acts 1871, c. 158, Pub. St. c. 27, § 75, while the circuit court or judge of probate or chanengaged in making improvements and altera- cery, does not include the public adminisations on an existing way for the purpose of trator of a county. "A public officer is a perrendering it safe for travelers, are public son who exercises the functions of a public officers, and not servants of the town, al-office, while under our law an administrator though the work was ordered by the county commissioners upon petition by the town. McManus v. Inhabitants of Weston, 41 N. E. 301, 302, 164 Mass. 263, 31 L. R. A. 174.

Corporation.

Sess. Laws 1895, p. 47, 25, providing that all printing, binding, etc., which is paid out of the territorial treasury shall be done and furnished by the State Capitol PrintIng Company, of Guthrie, does not make the State Capitol Printing Company a public officer. Guthrie Daily Leader v. Cameron, 41 Pac. 635, 636, 3 Okl. 677.

County officer or employé.

The term "officer" held not to include commissioners of a county, in a statute against bribery, reading "any member of the General Assembly, or any officer of this commonwealth, judge, juror, justice, referee or arbitrator," who shall accept a bribe shall be punished (Pen. Code, § 48), the phrase being evidently intended to include none but state officers or officers of the commonwealth, as distinguished from merely local or county officers. Commonwealth v. Neely (Pa.) 3 Pittsb. R. 527, 530.

A member of the county board of education is a public officer under Const. art. 14, 7, providing that no person holding an office or place of trust shall hold or exercise any other. Barnhill v. Thompson, 29 S. E. 720, 721, 122 N. C. 493.

Under an act regarding honorably discharged soldiers and sailors, and which declares that no person of that description who holds a position or office within the state shall be removed except for cause, it is held that a janitor of the county courthouse does not hold an office. State v. Board of Chosen Freeholders of Salem County, 42 Atl. 844, 845, 63 N. J. Law, 57.

The right to exercise the duties, and take the compensation therefor, of county recorder, is an office; and equally so the right to the employment and pay of a county commissioner. Dailey v. State (Ind.) 8 Blackf. 329,

330.

A law authorizing the appointing of a practicing physician for a certain county, fixing the term for which he shall be appointed, providing for his salary, and prescribing his duties, creates an office. People v. Harrington, 63 Cal. 257, 260.

6 WDS. & P.-5

is a trustee whose duty it is to be employed wholly about private affairs." Mitchell v. Nelson, 49 Ala. 88, 89.

The word "officer," as used in Const. art. 8, requiring officers to take an oath of office, includes a county treasurer. Riddle v. Bedford County (Pa.) 7 Serg. & R. 386–391.

The post of deputy warden of a county almshouse is not an office, but a position. State v. Board of Chosen Freeholders, 38 Atl. 842, 61 N. J. Law, 117.

The term "office," within the meaning of the Constitution, does not include a levee inspector. State v. Green, 9 South. 42, 43, 43 La. Ann. 402.

The exercise of the duties of the clerk of the poor-law commissioners materially affects a great body of persons, and the public within his district have an interest in such exercise. The office is therefore one of a public nature. Reg. v. Guardians of Poor of St. Martin's in the Fields, 17 Q. B. 149, 160.

The board of supervisors of a county is not a "public officer" within the statute in reference to double costs. People v. Niagara County Sup'rs (N. Y.) 50 How. Prac. 353, 354.

Any man is a public officer who is appointed by the government and has any duty to perform concerning the public; nor is he any the less a public officer because his authority or duty is confined to narrow limits. 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.

the purchase and safe-keeping of the stationA stationery storekeeper charged with ery required by a county is a public officer. A public officer is one who exercises, in an independent character, a public function in the interest of the people by virtue of law, which is only saying in another form that he exercises a portion of the sovereignty of the people delegated to him by law. State v. Jennings, 49 N. E. 404, 405, 57 Ohio St. 415, 63 Am. St. Rep. 723.

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