Gambar halaman
PDF
ePub

any legal writ, rule, order, or process, or, v. City of New York, 44 N. E. 1038, 1040, who shall knowingly or willfully resist any 150 N. Y. 450. such officer in the discharge of his duties without such writ or process, shall be pun-Code, art. 488, providing that an assault be

A policeman is an "officer," under Cr. ished, means only such officers as are author.

comes aggravated when committed on .an ized to execute legal processes. Therefore a road supervisor is not an officers within the officer in the lawful discharge of the duties

of his office. The statute was intended to meaning of the statute. State V. Putnam,

punish any one who had assaulted any off35 Iowa, 561, 562.

cer of the state while in the discharge of his Officer of political party.

official duty as an officer. It matters not by

what name such officer is called; though he The fact that the Legislature has by might be no more than a taxgatherer in the statute regulated the election and conduct of lawful discharge of his humble duties, yet political committees, the members of which the interests of the state require that he are the officers of the party which selects should be protected. Sanner v. State, 2 Tex. them, and wbose duties are confined to the

App. 458, 459. party to which they belong, does not make the office of committeeman a public one. At A village marshal is a public officer. torney General v. Drohan, 48 N. E. 279, 281, State v. Schram, 85 N. W. 155, 82 Minn. 420. 169 Mass. 534, 61 Am. St. Rep. 301.

Persons appointed to the detective de

partment of the district police force of the Pilot.

commonwealth under Pub. St. C. 103, and See "Pilot."

amendments thereof, are public officers.

Brown V. Russell, 43 N. E. 1005, 1010, 166 Police officer, marshal, or other poaco Mass. 14, 32 L. R. A. 253, 55 Am. St. Rep. officer.

357. After quoting Henley v. Mayor, 5 Bing. 91, and Case of Wood (N. Y.) 2 Cow. 29, it

By “oficer," as used in the chapter on was said that a railroad policeman employed offenses relating to the arrest and custody by a corporation is a “public officer" within of prisoners, is meant any peace officer, as Const. art. 13, § 5, providing that no public sheriff, deputy sheriff, constable of a beat, officer shall receive a pass over any railroad. marshal, constable, or policeman of a city or Dempsey v. New York Cent. & H. R. R. Co., town, any jailer or guard, or any person 40 N. E. 867, 868, 146 N. Y, 290.

specially authorized by warrant to arrest.

Pen. Code Tex. 1895, art, 243. A policeman of an incorporated town or city is an officer. Proctor v. Blackburn, Road commissioner. 67 S. W. 548, 549, 28 Tex. Civ. App. 351.

A “public office" is a trust or charge, A policeman appointed by the board of created and defined by the public authority. trustees of Brooklyn Bridge, in pursuance A road commissioner elected under the pro to Laws 1875, c. 300, $ 8, authorizing the visions of Pub, St. c. 27, 88 74–77, is not an board to appoint an adequate police force, officer of the town from which he is elected, and to regulate and direct the same for the but is a “public officer,” for whose acts the protection of the bridge and persons, etc., town is not responsible. Clark v. Easton, passing over the same, and conferring on the 146 Mass. 43, 45, 14 N. E. 795. policemen so appointed all the powers of the policemen of the cities of New York and

School district officer. Brooklyn, is a public officer, for whose torts A trustee of a school district is intrusted the cities are not responsible. Woodhull v. with a part of the sovereign function of the City of New York, 44 N. E. 1038, 1039, 150 state, hence his must be a public office, and N. Y. 450.

he would be subject to removal under Rev. The position of assistant superintendent incompetency, etc., of all district attorneys,

St. 1895, art. 3531, providing for removal for of police in the city of Chicago is an office, etc., and, "all other county officers." Hen. and title thereto may accordingly be tested by quo warranto.

dricks v. State, 49 S. W. 705, 20 Tex. Civ. Ptacek v. People, 62 N. E, 530, 194 Ill. 125.

App. 178 (quoting Mechem, Pub. Off.).

School trustees are officers, recognized A policeman appointed by the board of trustees of the Brooklyn Bridge, in pursu

as such by the law of the land, and as such ance of Laws 1885, c. 300, $ 8, authorizing are embraced by Const. art. 3, § 6, which the board to appoint an adequate police charge of any functions as officers of the

requires all persons entering upon the disforce, and to regulate and direct the same state to take and subscribe an oath or affirfor the protection of the bridge and persons mation before entering upon their duties. passing over the same, and conferring on the policemen so appointed all the powers of Childrey v. Rady, 77 Va. 518, 530. policemen for the cities of New York and The term "officer," as used in Crim. Act, Brooklyn, is not a public officer. Woodbull 8 198, making it criminal to bribe any officer

or any other person, is not limited to officers pointed, factory inspectors provided for in of a state or county, but is broad enough to Act June 7, 1893, must be regarded as state include the officers of a school district, or officers or officers of the government Their any other officer referred to in the preceding duties are continuing, and prescribed by statsections of the crimes act. In re Bozeman, ute and not by contract, and some portious 22 Pac. 628, 630, 42 Kan. 451.

of the functions of government are com

mitted to their charge. They seem to come Sheriff or constable.

within the definition of "officers" as given in The word "office,” as used in Virginia the Constitution and as laid down in the statutes probibiting the sale of any office decisions of court. Ritchie v. People, 40 N. or deputation of office touching the adminis. E. 454, 461, 155 Ill. 98, 29 L. R. A. 79, 46 tration or execution of justice or the receipt Am. St. Rep. 315. of payment of the public revenues, or any

The term “public officers," in Rev. Code, clerkship in a court of record, includes the office of sheriff, and therefore prohibits the acts of any person in possession of any pub

p. 138, art. 194, providing that the official sale by the sheriff of his office. Salling v. lic office and exercising the functions thereMcKinney (Va.) 1 Leigh, 42, 44, 19 Am. of are valid and binding as lawful official Dec. 722.

acts in regard to all persons intrusted thereArticle 14 of the amendments to the fed with or affected thereby, whether such pereral Constitution, disqualifying certain person be lawfully entitled to hold such oftice sons from holding offices, includes a sheriff or not, etc., was construed to include memand other officers required by Rev. Code, bers of the Legislature during the War of c. 77, to take and subscribe the oath to sup- Secession. Hill v. Boyland, 40 Miss. 618, port the federal and state Constitutions. 625. Worthy v. Barrett, 63 N. C. 199, 202.

Persons appointed by an act of the LegThe word "officer,” as used in the chap-islature as managers to conduct and execute ter relating to attachments, is meant to ap- a lottery grant for the benefit of a college, ply to constables when the proceedings are although required to enter into bonds and in a justice's court, or the like officer of any render important services from which the other court. Code Iowa 1897, § 3934. state derives a benefit, are not public off

cers, but trustees. State V. Platt (Del.) 4 The word "officer," as used in the act Har. 154. in relation to attachments issued out of jus tices' courts, shall be construed to mean the

"Officer,” as used in the Revision of sheriff, constable, or other officer executing 1838, providing for the punishment of any the process of the court of justice. Mills' officer, clerk, or other person employed in Ann. St. Colo. 1891, § 2745.

the treasury of any county, or in any other

public office within the state, who commits State officer or employé.

any fraud or embezzlement therein, should The office of governor, created by Const. be construed to include the state treasurer.

People v. McKinney, 10 Mich. 54, 85. art. 5, providing that the executive power shall be vested in a governor, who shall The clerks of the different departments hold his office for two years, declaring that of the state are “officers,” within Act April, no person except a citizen of the United 1856, providing that the act shall not apply States and a qualified elector of the state to reduce the salary of incumbents in office, shall be qualified to the office of governor, is but only to every such oficer thereafter an "office,” within the meaning of the term elected. Vaughn v. English, 8 Cal. 39, 41. as used in Rev. St. c. 126, providing for the filing of an information in the nature of quo A stenographer employed temporarily, warranto against any person usurping and and not in pursuance of any law providing intruding into or unlawfully holding or ex- for his employment in permanent or continercising any public office; the word "office," uous discharge of his duties, is not an “offi. as used in the Constitution and in the stat- cer" within Rev. St. U. S. § 1855, providing ute, not being used in its restricted sense, that no law of any territorial legislature but in its most popular and general accept- shall be made or enforced by which the ance, and applying to any place which im- governor or secretary of a territory, or the poses upon him who occupies it the per members or officers of any territorial legisformance of duties of a public nature. lature, are paid any compensation other than Attorney General v. Barstow, 4 Wis. 567, that provided by the laws of the United 661, 745.

States. Braithwaite V. Cameron, 38 Pac.

1084, 1087, 3 Okl. 630. Under Const. art. 5, $ 24, declaring that an office is a public position, created by the The term "officer,” as used in the act Constitution or law, continuing during the to restrain officers in the charge of the fiscal pleasure of the appointing power, or for a affairs of state institutions from contractfixed time, with a successor elected or ap- ing indebtedness beyond certain limits, sball

be taken to include members of the various his negligence to a workman repairing such boards created by law to govern or super- | vessel, especially where there is nothing to Fise the respective state institutions. Mills' show that the commander is incompetent. Aon. St. Colo. 1891, $ 4116.

Riggin v. Brown (U. S.) 59 Fed, 1005, 1006. The term "officer," as used in the act

Tax collector. relating to the accounting for money received and expended by certain officers, shall

A person who collects taxes is a “pubbe construed to include all commissioners, lic officer,” within the constitutional proviboards of commissioners, trustees, boards of sion that no law shall diminish the salary trustees, inspectors, boards of inspectors, of a public officer after his election or apregents, boards of regents, agents, or other pointment. Donobough v. Roberts (Pa.) 15 person or board, of whatever denomination

Phila. 144, 148. or character, receiving or disbursing money for the state for or on account of any build

Superintendent or employé of state in

stitution. ing or work for the state, or for the maintenance or for the use or benefit of any state, definite term, and required to take an oath

It is held that a person appointed for a educational, charitable, reformatory or penal, or other institution or organization, or prescribed by the Constitution of the state, for or on account of any purpose whatsoever, and to reside in the institution that he suunder any act of appropriation or other law perintends, performing the duties prescribeá of the state. Comp. Laws Mich. 1897, i by law, and clothed with the right and cor1210.

respondent duty to execute a public trust

and receive a salary attached to the office, Act March 10, 1892, § 5, appropriated is an officer. State v. Wilson, 29 Ohio St. $65,000 for colleges, which sum should be ex. 347, 348. pended under the direction of the board of construction, which board was to be appoint of Act 1882, c. 410, $ 59, prohibiting any

The word "officer," within the meaning ed, giving bonds, etc. Const. $ 7, declares that the Governor shall nominate, and, by

member of the common council, head of deand with the advice and consent of the Leg: of the city of New York from becoming

partment, chief of bureau, or other officer islative Assembly, appoint all officers not otherwise provided for. Held, that the mem

directly or indirectly interested in the perbers of the board were officers. McCornick formance of any work or business, the ex1. Thatcher, 8 Utah, 294, 301, 30 Pac. 1091, pense or price or consideration of which is 17 L R. A. 243 (citing 4 Jac. Dict. 433).

payable from the city treasury, does not in

clude the medical superintendent of the Pharmacy commissioners appointed un- asylum for the insane at Ward's Island, who der Laws 18th Gen. Assem. C. 75, which au- receives, as such superintendent, his salary thorized them "to make by-laws necessary payable out of the appropriations for the for the proper fulfillment of their duties salaries of the officers and employés of the without expense to the state," elected a department of charities and corrections, and treasurer as provided by by-laws they had therefore such superintendent may properadopted, and fixed the tenure of bis office, ly be employed for a consideration by the and his compensation. Held, that he was district attorney of New York to examine the a mere employé of the commission, and not sanity of one on trial for crime. Macdonald a “public officer" within Code 1873, § 3908, v. City of New York (N. Y.) 32 Hun, 89. providing that a public officer converting money given to him by virtue of his office is

A fireman at the State Soldiers' and Sailguilty of embezzlement, since the Constitu- ors' Home is not employed by the state or tion and statutes neither created nor author any "officer" thereof, within the meaning of ized the creation of his office, nor prescribed Laws 1889, c. 380, § 1, providing that a lapor authorized any one to prescribe his du- borer so employed shall receive not less ties, nor delegated to him sovereign func- than $2 per day. Drake v. State, 39 N. E. tions of government to be exercised by him 342, 144 N. Y. 414. for the benefit of the public. State v.

United States officer or employé. Spaulding, 72 N. W. 288, 289, 102 lowa, 639.

"Public officers," as used in Rev. St. $ Code Md. art. 72, regulating the oyster 3639 (U. S. Comp. St. 1901, p. 2422), requirfishery in the waters of the state, charges the ing the Treasurer of the United States, asboard of public works with the duty of sistant treasurer, and those performing the keeping in repair the vessels of the state | duties of assistant treasurer, collector of fishery force; and Act Md. 1886, c. 296, pro- customs, surveyor of customs, acting also vides for the appointment of commanders as collectors, receivers of public moneys at for such vessels by the board. These com- the several land offices, postmasters, and all manders are required by law to take an oath “public officers” of whatsoever character, to and give bond to the state. Held, that such keep safely all public money collected by a commander is himself a public officer, and them, or otherwise at any time placed in bence the members of the board are not their possession and custody, until the same personally liable for injuries resulting from is ordered by the proper department to be

transferred or paid out, means officers of the ed with money of the United States approUnited States, and does not include a clerk priated for that purpose by Congress, havof a collector of customs, for he is not an ing no duties defined by law, nor discretion oficer of the United States. An officer of to act independently of the direction of the the United States can only be appointed by pension agent, is not “holding an office unthe President, by and with the advice and der the authority of the United States," consent of the Senate, or by a court of law within the meaning of article 2, § 4, of the or the head of a department. A person in Constitution of the state, which renders perthe service of the government who does sons so holding office ineligible to member. not derive his position from one of these ship in the General Assembly, his position sources is not an "officer” of the United not being an office, but merely an employ. States in the sense of the Constitution. ment. State v. Mason, 55 N. E. 167, 61 Ohio United States v. Smith, 8 Sup. Ot. 595, 597, St. 62. 124 U. S. 525, 31 L. Ed. 534.

The situation of paymaster of the UnitA representative in Congress holds a ed States army is an office, and hence it "public office” within the meaning of the follows that where a clerk of a county charter of the city of Brooklyn, which pro- court, which is likewise an office, accepts hibits an alderman from holding any other the position of paymaster, he thereby vacates public office save as excepted, etc. Peo- his clerkship. Taylor v. Commonwealth, 26 ple v. Common Council of City of Brooklyn, Ky. (3 J. J. Marsh.) 401, 407. 77 N. Y. 503, 33 Am. Rep. 659.

An internal revenue supervisor's clerk, An examining surgeon appointed by the appointed pursuant to the authority of the Commissioner of Pensions is not an “officer internal revenue commissioner, under Rev. of the United States. United States v. Van St $ 3160, giving such commissioner powLeuven (U. S.) 62 Fed. 62, 65; United States er to allow supervisors their necessary exV. Germaine, 99 U. S. 508, 510, 25 L. Ed. penses, was held not a "government officer" 482.

within Rev. St. § 1756, requiring all such Act Cong. May 15, 1820 (3 Stat. 592), $

officers to take the oath prescribed there2, providing for the issuance of a distress by. Hedrick v. United States (U. S.) 16 Ct.

Cl. 88, 100. warrant from the treasury department against any collector of the revenue, receive A post office is an office of profit or er of the public money, or any other "officer trust under the authority of Congress, so who shall have received the public money as to prevent a postmaster from holding ad before it is paid into the treasury of the executive or judicial office while continuing United States," describes a person who holds to exercise the office of postmaster. MCan office under government, to whose hands Gregor V. Balch, 14 Vt 428, 39 Am. Dec. the public money comes before it reaches the 231. treasury, and includes no other person than one who was properly designated by the term

OFFICER (Of Corporations). “officer," and hence does not include a purser in the navy. Ex parte Randolph (U. S.) The term "officers," applied to a cor20 Fed. Cas. 242, 254.

poration, refers to those in regular and conLetter carriers in the postal service, tion of the term, one who is engaged to ren

tinual service. Within the ordinary acceptabeing appointed by the Postmaster General der service in a particular transaction is not under authority of the acts of Congress,

an "officer.” It implies continuity of servpractically during good behavior, sworn and

ice, and excludes those employed for a spegiving bond for the fulfillment and per-cial and single transaction. Lewis v. Fishformance of their duties, paid their moneys appropriated by the Congress, their salaries er, 30 Atl

. 608, 610, 80 Md. 139, 26 L. R. A.

278, 45 Am. St. Rep. 327; Louisville, E. & fixed by law, having regulated and pre- St L. R. Co. v. Wilson, 11 Sup. Ct. 405, 407, scribed services to perform, and their du- 138 U. S. 501, 34 L. Ed. 1023. ties being continuing and permanent, not occasional or temporary, are "officers” of the The officers of a corporation not shown United States within the meaning of the to be stock bolders, prima facie, are amendment to section 2 of the judiciary act of agents or servants, having no direct interest March 3, 1887 [U. S. Comp. St. 1901, p. 753), in a suit by or against the corporation which taking away from the Circuit Courts and prevents them being witnesses at common District Courts Jurisdiction of suits against law. Gantt v. Cox, 48 Atl. 992, 199 Pa. 208. the United States by such officers to recover

In a case involving a statute requiring fees or compensation. United States v. MCCrory (U. S.) 91 Fed. 295, 296, 33 C. C. A. certain returns to be made by the officers 515.

of banks, it was said: “When the law re

quires an act to be done, it includes the A clerk in the United States pension power of performance and makes it a duty; agency, serving by appointment for a period and where such duty is imposed on the not exceeding three months, and compensat- officer of the corporation as an official act,

mere

and for a public purpose, they are thereby shall be jointly and severally liable for all constituted officers for that purpose, and will the debts of the corporation contracted while ful disobedience on their part will be a they are officers thereof, "officers” should misdemeanor." Commonwealth v. Dunham be construed to include the directors of the (Mass.) 1 Thacher's Cr. Cas. 519, 578.

corporation, for, in a strict sense, the di

rectors of a corporation are its officers. TorRev. St. c. 126, $ 29, providing that any bett v. Eaton, 1 N. Y. Supp. 614, 616, 49 "officer, agent, clerk or servant of any in- Hun, 209. See, also, Brand v. Godwin, 15 corporated company” embezzling any money Daly, 456, 460, 8 N. Y. Supp. 339. or property of another coming into his possession by virtue of his employment shall be A director of a corporation is an “offdeemed to have committed simple larceny, cer,” within the meaning of Laws 1875, C. should be construed to include a treasurer 611, $ 21, requiring that the annual report in a railroad corporation, for he is an offi- shall be signed by the president and a macer distinctly recognized by law, chosen by jority of the directors. Brand v. Godwin, the directors, and required to give a bond 15 Daly, 456, 458, 460, 8 N. Y. Supp. 339. for the faithful discharge of his trust. Commonwealth v. Tuckerman, 76 Mass. (10 Gray)

By the words “officers of a corporation". 173, 187.

is meant the president, vice president, sec

retary, and others who are invested with a The term "officers," as used in Act 1885, part of the executive authority. The trusp. 127, providing that the officers of any fair tees of a corporation are no doubt in one or agricultural joint-stock company or asso sense "officers," and, when that term is used ciation shall not rent or devote any portion in some connections, it would embrace all of their grounds for gambling purposes, who participate in the exercise of the corpoand imposing a fine on officers who violate rate functions. The word “officers," as used any of its provisions, should be construed in Laws 1881, c. 122, relating to the into designate and include any person or per- corporation of building, mutual loan, and sons duly invested with authority to grant equitable associations, is used in the former privileges on the society's grounds. State v. sense only, for the act itself points out the Johnson, 17 N. E. 910, 912, 115 Ind. 467. distinction between officers and trustees,

The "officers,” agents, or clerks mention and therefore the trustees of such corporaed in article 3, § 42, of the act concerning tions are not "officers” within the intent of

the act. Second Manhattan Bldg. Ass'n v. crimes and punishments, which provides a punishment for any officer, agent, clerk, or Hayes, *41 N. Y. 192, 193. servant of any incorporated company for em

The offices pertaining to a private corbezzlement, etc., means officers, agents, or poration are, as a general rule, defined in its clerks of corporations, and the statute only charter and by-laws. Trustees of an insurauthorizes a conviction in cases where the

ance company, one of whom was its solicitor embezzlement is committed by such officers, and the other its traveling agent, and not agents, or clerks wbile exercising their cor-designated in the charter or by-laws as offporate employment. Hamuel v. State, 5 Mo. cers, are not "officers” within Act Marcb 260, 264.

3, 1860, relating to officers of private corpoIn an action on an insurance policy aft- rations. Commonwealth v. Christian (Pa.) er the death of the assured, the testimony of 9 Phila. 556, 558. a clerk in the office of the agent of the com

The word "officer," as used in Rev. St. pany was admissible as to the terms of an agreement between insured and the agent of embezzlement committed by any cashier

c. 126, § 27, providing for the punishment for a change in the policy, as she was not

or other officer of the bank, includes eman "officer of the company within the bezzlement committed by the president and meaning of the statute excluding testimony directors of the bank. Commonwealth v. by interested parties in actions by or Wyman, 49 Mass. (8 Metc.) 247, 253. against a corporation, and declaring that officers of the corporation should be consid A director is an "officer,” within Code ered interested parties. Krause v. Equitable Civ. Proc. $ 525, allowing verification of the Life Assur. Soc., 105 Mich. 329, 334, 63 N. pleading of a domestic corporation by one W. 440.

of its officers. Eastham v. York State Tele

phone Co., 83 N. Y. Supp. 1019, 86 App. Div. As agent, employé, etc.

562. See "Agent”; “Employe"; "Laborer"; "Servant."

The term "officer," as used in Rev. St.

8 5209 (U. S. Comp. St. 1901, p. 3497), inDirector or trustee.

cludes directors of a national bank. United In Laws 1875, c. 611, $ 21, providing that, States v. Means (U. S.) 42 Fed. 599. if any certificate or report made or public notice given by an officer of a corporation

Family of officer. shall be false in any material representation, The terms “officers" or "employés," in ali the "officers” who have signed the same the exception to the provision of the inter

« SebelumnyaLanjutkan »