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Court oficer or omployé.
clude officers de facto. An officer de facto as The post of a president judge is within clearly holds an office as an officer de fure. the common-law definition of an "office." The term “officer" is generic, and when used Commonwealth v. Gamble, 62 Pa. (12 P. F. in the statute, and there is nothing in the Smith) 343, 349, 1 Am. Rep. 422.
context or authority to indicate that it is
used in a different sense, it should be held to An attendant upon the Supreme Court, include all classes of officers, officers de facto to attend upon it and to perform the duties as well as officers de Jure, and there is no required to be performed by him at a fixed good reason why an officer de facto should salary, is “in office," within the meaning of not be punished for embezzlement as well as the statute providing that "the board of su- an officer de jure State v. Goss, 69 Me. 22, pervisors of the county of New York are here- 28. by prohibited from creating any new office or department, or increasing the salaries of Depository. those now in office or their successors."
See “Depository." Rowland v. City of New York, 83 N. Y. 372, 375, 376.
Deputy. An attendant of the Marine Court of the The bond of a deputy sherif was condiCity of New York holds an "office," within tioned that he should well and faithfully the meaning of that term as used in section 3 perform "all the duties of the said office as of chapter 382, Laws of 1870, prohibiting any deputy sheriff.” It was objected that there increase in the salaries “of persons then in was no such office as deputy sheriše. The office or their successors." Moser v. City of court said that a "deputy sheriff performs the New York (N. Y.) 21 Hun, 163, 164.
functions of the office of sheriff. He occu
pies the place and performs the duties of an Const. art. 5, § 3, which declares that officer, and it does not matter whether he in the jurisdiction of the Supreme Court shall fact is an officer, or only occupies the place extend over the state, and the judges thereof and performs the duties. Such deputies are shall have original jurisdiction of quo war- generally known and designated as officers, ranto as to all "officers of the common
but the word 'office,' used in the wealth” whose jurisdiction extends over the condition, may refer as well or better to the state, includes judges and associate judges office of sheriff as to that of deputy." Gradle of the court of common pleas. Common 7. Hoffman, 105 Ill. 147, 153. wealth v. Dumbauld, 97 Pa. 293, 295.
The office of deputy sheriff, appointed by “Public officers," within the rule that the sheriff under Rev. St. 1889, 88 8181, 8182, statutes directing the mode of proceedings requiring them to take the oath of office and by public officers are directory, and are not to perform the duties prescribed by law to regarded as essential to the validity of the be performed by the sheriff, is a public ofproceedings themselves unless it be so de- fice. State ex rel. Walker v. Bus, 36 S. W. clared in the statutes, includes a judge of a 636, 637, 135 Mo. 325, 33 L R. A. 616. court. In re Hennesy, 58 N. E. 446, 447, 164 N. Y. 393.
A deputy sheriff is an officer of the gov
ernment, within a statute punishing embezThe municipal court of the city of Wil- zlement by officers of the government. State mington, under 17 Laws, c. 207, 8 14 et seq., v. Brooks, 42 Tex. 62, 66. creating it and defining its jurisdiction, be ing an “inferior court" within the meaning
Acts 1847, c. 40, § 3, providing that all re of Const, art. 4, § 30, the judge of such court demptions that shall hereafter be made on is a “public officer” within Const. art. 3, s or after the last day of the 15 months by any 9. State v. Churchman (Del.) 49 Atl. 381, creditor shall be made at the sheriff's office 385, 3 Pennewill, 167.
of the county in which the sale took place,
and it shall be the duty of the "officer makThe term “public officer," in Cr. Code, 8 ing such sale” to attend at such office during 3931, providing that any public officer who the last day, etc., applies either to the sheriff, deals in claims against the county shall be the undersheriff, or to a deputy sheriff. Peo fined, includes a probate judge's clerk ap- ple v. Lynch, 68 N. Y. 473, 478 (cited and appointed in pursuance of Acts 1893, p. 1190. proved in Wilson v. Russell, 31 N. W. 645, Scruggs v. State, 20 South. 642, 643, 111 Ala. 652, 4 Dak. 376); Livingston v. Arnoux, 56 60.
N. Y. 507, 517. De facto officer.
A special deputy sheriff is not an officer, The word "officer" is defined in Web but is merely the agent of the sheriff. Prince ster's Dictionary as one who holds an office; Kavanaugh v. State, 41 Ala. 399.
v. Dickson, 18 S. E. 33, 34, 39 S. O. 477; a person lawfully invested with an office. The latter branch of this definition would A deputy county clerk is not an “oficer" seem to embrace only officers de jure, but the within the meaning of Const. art. 11, $ 5, first is clearly comprehensive enough to in- requiring the Legislature to provide for the
election of county officers, to prescribe their Irrigation district oficers. duties, and regulate their compensation.
An irrigation district organized under Nelson v. Troy, U Wash, 435, 442, 39 Pac the Wright act is a public corporation, and 974
its officers are public officers of the state. "Office," as used in Const. art. 7, § 6, pro Hertle v. Ball (Idaho) 72 Pac. 953, 954 (citing viding that no person except a qualified elect- In re Madera Irrigation Dist., 92 Cal. 296, or shall be elected or appointed to any civil 28 Pac. 272, 14 L R. A. 755, 27 Am. St. Rep. or military office in this state, does not in
106). clude deputy clerkships of county courts, and
Jaller or other prison keeper. hence women may hold such deputy clerkships. Jeffries v. Harrington, 17 Pac. 505,
In Bac, Abr. "Offices and Officers," it 506, 11 Colo. 191.
is said: “An office is a right to exercise a
public function or employment, and to take "Office," as used in Const. art. 15, g 4, the fees and emoluments belonging to it.” providing that no person shall be elected or Every part of this definition applies to the appointed to any office in this state unless he place of jailer. No public employment is possesses the qualifications of an elector, more clearly marked by these distinguishing does not include the office of the deputy clerk traits of an office than the ordinary functions of the probate court, and therefore a female of a Jaller. State v. Sellers (S. C.) 7 Rich. is eligible to that clerkship. Warwick v. Law, 368, 370. State, 25 Ohio St 21, 24.
The superintendent of the Albany CounDeputy clerks of counties in New Jersey ty Penitentiary is a public officer, inasmuch are public officers, though they have no term as he has charge of a public institution, and of office, and though they are employés of the position is denominated an "office” in the county clerk, so that their employment is the statute establishing the penitentiary. a mere matter of private contract. Gibbs v. Porter V. Pillsbury (N. Y.) 11 How. Prac. Morgan, 39 N. J. Eq. (12 Stew.) 126, 128.
240, 241. In Rev. Laws, p. 206, providing for pro The office of keeper of the workhouse ceedings on information in the nature of a is an “office" within the meaning of the auquo warranto where any person usurps, in- thorities, as the employment was not trantrudes into, or unlawfully holds or executes sient, occasional, or accidental, and the salary any "office” within the state, the word "of- fixed was by the year. The position was not fice" should be construed to include the of- a menial one, such as a janitor or servant, fice of deputy adjutant general of a brigade nor was the incumbent a per diem laborer, of militia, it being provided that, whenever whose employment might be evidenced by the commander in chief of the militia should a mere verbal direction to go to work at consider that the service required, he could prevailing rates. Stenson v. City of New appoint a deputy adjutant general to each York, 82 N. Y. Supp. 946, 947, 40 Misc. Rep. brigade or division, for such office is a pub- 533. lic office concerning the public, and is a valuable as well as an honorable office. Miller
Juror or jury commissioner. v. Utter, 14 N. J. Law (2 J. S. Green) 84, 87.
The term "public officers" includes grand
jurors and listers. State v. Rollins, 27 Atl. As employé, laborer, or workman.
498, 499, 65 Vt. 608. See "Employé”; “Laborer"; "Workman."
A grand juror is a public officer. State Ex-officer or officer electo
v. Rollins, 27 Atl. 498, 499, 65 Vt. 608. "County officers," as used in the consti The term “public officers," as used in tutional provision that such officers, under the Constitution and statutes, does not inthe laws of the territory when the Con- clude Jurors, although they serve the public, stitution shall take effect, shall continue in and perform important duties in the adminisofice until a certain date ixed, means offi- tration of justice. State v. Bradley, 48 Conn. cers who may be exercising the functions 535, 536. of the office when the Constitution takes effect. Those wbo have been elected but
A grand Juror is a public officer. State not inducted into office are, properly speak- 27 L R. A. 776, 41 Am. Sť Rep. 45 (citing
V. Noyes, 87 Wis. 340, 346, 58 N. W. 386, ing, "officers elect.” Those in office are sim- Jac. Law Dict, Bac. Abr. tit. “Office and ply "officers." Those who have been in of
Officers'). ice but bave gone out are properly "exofficers." But where the term "officer" is As used in St. U. S. March 22, 1892, used in a sentence where there is nothing c. 47, § 8, providing that no polygamist, to qualify or control its meaning, it refers bigamist, or any other person cohabiting to an officer then holding and enjoying the with more than one woman should be enofice. It means neither an ex-officer nor titled to vote at any election held in any an officer elect. Cordiell v. Frizell, 1 Nev. territory or place over which the United 130, 132
States has exclusive Jurisdiction, or be ell
gible for election or appointment to, or be of its legal orders would arrest the course entitled to hold, any "office" or place of of justice and produce infinite inconvenience public trust, honor, or emolument in, under, to the community. Such commissioners are or for any such territory or place, or under chosen by the people to execute this duty, the United States, “office" cannot be con- among others. They undertake to perform strued to include the right to sit on a jury. it by accepting the office, and become thereby An office is a public station or employ- public officers, and as such assigned, like othment conferred by the appointment of gov- er officers, to the proper discharge of their ernment, and embraces the ideas of tenure, duty. In re Hummell (Pa.) 9 Watts, 416, 431. duration, employment, and duties. It is the right to exercise a public function or employ
Justice of the peace. ment, and to take the fees and emoluments
A public officer is one who has "the belonging to it. Jury duty is in the nature right, and corresponding duty, to execute a of service due from the citizen to the gove public or privileged trust, and to take the ernment, necessarily required in the adminis- emoluments belonging to it.” 3 Kent, Comm. tration of its laws. Its character has but 454. Justices of the peace and constables little similarity to tenure, duration, power, are “public officers” within the meaning of and the right to exercise powers conferred Const. art. 3, § 13, providing that “no law by the appointment of government, which shall extend the term of any public officer are essential characteristics of office, and not or increase or diminish his salary or emolumere transient, occasional, or incidental. It ments after his election or appointment.” is true a person summoned to appear as Rupert v. Chester Co., 13 Pa. Co. Ct. R. 342, a juror has a duty of a public nature to
343. perform, and for it he is compensated out of the public treasury; but in no other re- Magistrate. spect does his position or his duties corre
The general term "officers" includes both spond with the essential elements of office. He has no certain term of office. He has Proc. Tex. 1895, art. 61.
magistrates and peace officers. no right to, and has no power to enforce a right to, the performance of any act or serv- Minister. ice which constitutes the performance of off
It was decided in Commonwealth cial duty. He is liable at any moment to Cuyler (Pa.) 5 Watts & S. 275, that a minisbe discharged by the court from all service, ter in an unincorporated society is not an and to be excused by either party from serv- officer whose salary is liable to taxation. ing in the trial of any cause, without con: Conceding that he may be in some senses sulting his wishes or interests. The oath he takes, in its terms and scope, limits his an "officer,” it is plain that he is not an
officer within the meaning of the law reguduty to the facts of the particular case then on trial, and is not the oath required by the Pa. (5 Casey) 226, 230.
lating taxation. Miller v. Kirkpatrick, 29 laws of this territory, or by the Constitution and laws of the United States, to be taken
Municipal officer or employé. by public officers.” People v. Hopt, 4 Pac. 250, 254, 3 Utah, 396.
It cannot be doubted, as a general prop
osition of law applying to the construction Police jurymen are the officers of a of statutory and constitutional provisions political corporation, and they continue in alike, that the word "offices" or "officers," office, after the expiration of their terms, taken by themselves, in a statute or Constiuntil their successors are chosen and induct- tution, means state or county offices or offed into office, under Rev. St. 1870, $2608, cers only, and cannot be construed to mean providing that “all officers, whether appoint- the offices or officers of municipal or other ed or elected, shall hold their offices and corporations, unless there be language, exdischarge the duty thereof until their suc-pressly or by necessary implication, extendcessors are elected or appointed, as the case ing their meaning to corporation officers. may be, and duly qualify." Because the of. Thus Const. 1897, art. 3, § 9, requiring the fice of a police juror is not a constitutional consent of the Senate to the appointment by office, it by no means follows that it is the Governor of such "officers" as he is no office at all. State ex rel. Gorbam v. authorized by law to appoint, does not reMontgomery, 25 La. Ann. 138, 139.
quire the appointment of a city officer, reThe term "officers” includes county com
quired by the city charter to be made by the missioners charged with a duty of electing Governor, to be confirmed by the Senate. jurors for the courts of the counties, within State v. Churchman, 51 Atl. 49, 50, 3 Pennethe meaning of Act June 16, 1836, restricting
will, 361. the powers of the several courts to issue An officer of a municipal corporation is attachments and to inflict summary punish- a “public officer," within 2 Rev. St. 696, $ ments for contempts of court, as without | 38, punishing delinquency of a public offisuch officers a court could not discharge its cer as a misdemeanor. People v. Bedell functions, and their disobedience or neglect (N. Y.) 2 Hill, 196, 199.
"Officer," as used in Const. c. 2, $ 11,, wbich extends to all persons owing debts providing that the Governor shall have pow. which shall not have been created in conse er to commission all officers, and section quence of a defalcation, as a public officer, 24, providing that every "officer" of the state, or an executor, administrator, guardian, or whether judicial or executive, shall be liable trustee, or while acting in any other fiduciato be impeached by the General Assembly, ry capacity. Morse v. City of Lowell, 48 and section 29, providing that every "offi- Mass. (7 Metc.) 152, 154. cer," whether executive, judicial, or military, in authority under this state, shall take board of aldermen in New York City, whose
A messenger to the president of the and subscribe the oath of office prescribed therein, bas reference only to such officers duties were to carry messages and run erof the state as are either elected by the rands, and who was clothed with no power freemen at large or required to be commis- to perform any official duty of the office, sioned by the Governor. Municipal officers
was not a public officer, there being no statare not included therein. Rowell y. Hor- ute creating such an office, or defining the ton, 3 Atl. 906, 307, 58 Vt. 1.
duties to be performed officially. Smith v.
City of New York (N. Y.) 67 Barb. 223, 224. "Public officer," within the meaning of Gen. St. c. 257, § 7, providing for the puniff and other county officers of Richmond
Laws 1897, c. 108, constituting the sherishment of any public officer, being a receiver of public money, who shall fraudulently county a board to appoint police commisconvert the same to his own use, includes sioners for the county, does not violate the a selectman. State v. Boody, 53 N. H. 610, provision of Const. 1895, art. 10, § 1, provid611.
ing that sheriffs shall hold no other office,
a membership in the board of police commisWithin the meaning of Pen. Code, $ 72, sioners being held not to constitute an office. providing that any judicial officer, or any People v. Howland, 45 N. Y. Supp. 347, 350, person who executes the functions of a pub- 17 App. Div. 165. lic office, who receives a bribe, shall be punished, the expression of “person who exe
Under Code, $ 124, providing that causes cutes any of the functions of a public offi- against a public officer for an act done by cer" includes a member of the common coun
him in virtue of his office must be tried in cil or other municipal officer. People v.
the county where the cause, or some part Jaebne, 8 N. E. 374, 377, 103 N. Y. 182.
thereof, arose, one appointed by Laws 1870,
c. 382, to audit certain accounts against the A chief engineer of a city fire depart city of New York, became the incumbent ment, appointed by the council and subject of an office. People v. Tweed (N. Y.) 13 to removal by it, is not an "officer" within Abb. Prac. (N. S.) 419, 420, 424. Const. art. 14, § 8, prohibiting an increase
The commissioners of the funded debt in the salary of any officer during his term of office. State ex rel. Kane v. Johnson, 27 of San Francisco are not "officers” within S. W. 399, 401, 123 Mo. 43.
the meaning of Const. art. 11, § 7, which
provides that the duration of any office not "Public office," as used in Rev. St. $fixed by the Constitution shall never exceed 6770, authorizing an action in quo warranto four years, and the term during which the to be brought against a person who usurps, commissioners are authorized to act is not intrudes into, or unlawfully holds or exer- limited to four years. People v. Middleton, cises a public office, includes the presidency 28 Cal. 603. of a city council. State v. Anderson, 12 N. E. 656, 657, 45 Ohio St. 196.
“Public offices" are in general, if not
always, directly created by the Legislature The charter of a village authorized the itself, the municipal authorities selecting the election of certain officers, giving power to persons to perform their functions. The the trustees to appoint an attorney, street term cannot be applied to the general supercommissioner, fire wardens, and such other intendent of waterworks, employed by the officers as authorized by the act. The of-water commissioners of a city for a term of fice of village collector was not named in years, the position being the creature of the any class of officers in the act, but one board of commissioners, and entirely unsection prorided that the collector should col- known to the statute. Cramer V. Water lect all moneys that shall be ordered by the Com’rs of New Brunswick, 31 Atl. 384, 385, corporation to be raised by taxes. The 57 N. J. Law (28 Vroom) 478. board of trustees appointed a collector. Held, that he was a “public officer” within Rev. ing the city of Cambridge with water, pro
St. 1865, c. 153, being an act for supplySt. c. 120, § 7, declaring that, if a public vides, in section 6, that the powers thereofficer embezzles any money in his position, in granted shall be exercised by such agents be shall be punished, etc. State v. Walton, 62 Me. 106, 111.
as the city council shall direct. A water
board is not provided for by any subsequent A collector of city taxes is a "public act, but subsequent ordinances of the city, officer" within Bankr. Act U. S. 1841, $ 1 in designating its agents, use the phrase
"water board." St. 1891, C 384, amending The position of chief clerk in the office such charter, recognizes the existence of the of the assessor of the city of Detroit is not water board, and makes no provision for an officer. People v. Langdon, 40 Mich. 673, the election of its members, except in sec- 682. tion 9, which provides that all officers not elected by voters shall be appointed by
A poundmaster appointed from time to the commissioners, subject to confirmation
time by the common council of a city does by the board of aldermen. Held, that the not hold an “office” within the meaning of members of the water board are officers" the city charter, providing that every person within the meaning of the latter section, and chosen or appointed to any office or place therefore an ordinance providing for their of trust shall take and subscribe an oath. appointment in such
Wilcox v. Hemming, 58 Wis. 144, 145, 15 N. O'Brien v. Thorogood, 39 N. E. 287, 288, 162 W. 435, 46 Am. Rep. 625. Mass. 598.
A person appointed by the board of A health inspector appointed by the police of the city of Rochester as superinboard of health of the city of San Francisco, tendent of the police telegraph system of whose duties are to inspect and report con- that city, there being no office of that name cerning the premises on which nuisances are
or nature known to the law, is merely an situated, and to serve notice for their abate employé of the city, and the proper authoriment, is a public officer. Patton v. San ties of the city have the same power to disFrancisco Board of Health, 59 Pac. 702, 703, charge him that a private employer would 127 Cal. 388, 78 Am. St. Rep. 66.
have. Miller v. Warner, 59 N. Y. Supp. 956,
957, 42 App. Div. 208. Members of the board of public works of the city of Detroit are "officers" within A person employed by the city council the meaning of Const. art. 15, $ 14, provid- to trim lights in its electrical light depart. ing that "judicial officers of cities and vil- ment is not a “public officer.” There is no lages shall be elected, and all other officers more reason for calling him such than there shall be elected or appointed at such time, would be to call a person employed in the and in such manner as the Legislature shall public streets to shovel dirt a “public offi. direct,” though they are not officers requir- cer." State v, Anderson, 49 N. E 406, 407, ed or designated by name in the Constitu- 57 Ohio St. 429. tion itself. People v. Hurlbut, 24 Mich. 44,
By Laws 1895, p. 518, c. 371, amending 59, 9 Am. Rep. 103.
the New York City Charter, tit. 2, $$ 4, 5, The term “officers," whenever used in p. 10, the chamberlain is a public officer. the articles relating to cities of the first and In re Haase, 83 N. Y. Supp. 932, 933, 41 Misc. third classes, shall include all persons hold. Rep. 114. ing any situations under the city government or its departments, with an annual salary or Notary public. for a definite term of office. Rev. St. Mo.
Every man is a public officer who has 1899, 89 5333, 5777.
any duty concerning the public, and it is The terms "officers," "clerks," "subordi- held that a notary public is a “public offi. nate officers,” and “employés,” in Act June cer" within Const. art. 13, § 5, providing that 1, 1885, relating to cities of the first class, any public officer who shall travel on a free in reference to the appointment of officers, pass shall forfeit his office. People v. Rathclerks, subordinate officers, and employés, bone, 32 N. Y. Supp. 108, 109, 11 Misc. Rep.
98. do not include the medical staff, or the board of visiting physicians of the Philadel
A notary public is not an “officer in phia Hospital, consisting of specialists or ex: view of Const, art. 10, $ 2, providing that perts in the various departments of medical no one can hold an office within the state science, who perform gratuitous services. who is appointed or chosen in the manner Commonwealth v. Fitler, 23 Atl. 568, 571, 147 as therein provided. In re Searls, 48 N. Pa. 288, 15 L. R. A. 205.
Y. Supp. 60, 63, 22 App. Div. 140. The governor of an almshouse is one of
The powers conferred by Rev. St. $ the heads of departments, and an officer of 5252, 5254, on an officer taking depositions, the city of New York, probibited by chapter to punish for contempt by a witness, extend 187 of Act 1894, § 19, from being interested to a notary public. In re Rauh, 61 N. EL in the purchase of any real estate belonging 701, 702, 65 Ohio St. 128. to the corporation. Roosevelt v. Draper, 23 N. Y. 318, 319.
Oficer authorized to execute process. A position as organist, to which one was The word "officer,” used in Rey, St. appointed and continued at the pleasure of 4296, declaring that any person who shall the vestry, was not a “public annual office." knowingly and willfully resist or oppose any Rex v. Inhabitants of St. George's, Hanover officer of the state, or any person authorized Square, 5 Barn. & Adol. 571,
by law, in serving or attempting to execute