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state commerce act forbidding the giving of Professors and instructors are not mempasses, that nothing in the act shall be con-bers of the corporation of a college, but are strued to prevent railroads from giving free "officers” of the college, within the meaning carriage to their own officers and employés, of the statute exempting from taxation the cannot be construed to include the families real estate of the college when occupied of officers or employés. Ex parte Koehler by It or by its officers. From the nature (U, S.) 31 Fed. 315, 321.
of the institution, the members of the board Under a statutory provision (Rev. St. would not occupy real estate in person for
of trustees, except the president, usually c. 126, § 27) providing for the punishment the purpose of instruction. Professors or of embezzlement committed by any cashier instructors impliedly are called "officers" of or "other officer” of a bank, it is held that the college in the charter, and, when they the phrase "other officer” includes the presi- occupy real estate for the purposes of the dent and directors of the bank. Common college, the occupation may be said to be wealth v. Wyman, 49 Mass. (8 Metc.) 247, by the college, or by them as its officers. 253.
Williams College v. Assessors of Williams
town, 46 N. E. 394, 395, 167 Mass. 505. General agent or attorney. Code, $ 525, providing that the petition
A professor in a college is not properly for condemnation of property, where the pe
an "officer” of the corporation, but a pertitioner is a domestic corporation, shall be son in its employment, within Act April verified in its behalf by an "officer of the 29, 1819, regulating the taxation of officers corporation,” does not mean a general offi- of a corporation. Union County v, James, cer, but should be construed to include a duly 21 Pa. (9 Harris) 525. authorized attorney and agent appointed
A professor in the University of Wisconby the corporation to verify petitions and sin is not a “public officer" in such a sense pleadings in its behalf for the institution as prevents his employment as such creatof condemnation proceedings and otherwise, ing a contract relation between himself and and who was its agent for the purpose of ac- the board of regents. He stands in the same quiring real estate by condemnation proceed relation to the board that a teacher in a ings. His relation to the company was that public school occupies with respect to the of a general agent in respect to those mat- school district by which such teacher is emters, acting under an appointment from the ployed, and that is purely a contract relacorporation. He was not simply an attor- tion. Butler v. Regents of the University, ney acting under an ordinary retainer, but 32 Wis. 124, 131. was engaged in a special department of the corporate business, having the general man
As public officer. ageinent thereof. In re St. Lawrence & A.
The office of the chief engineer of a R. Co., 31 N. E. 218, 220, 133 N. Y. 270.
railroad company is not a public office, though Manager or managing director.
the power to make all necessary by-laws and Code Civ. Proc. § 525, subd. 1, pro- charter, and the stockholders have, under
regulations is invested in the company by its riding that, where the party is a domestic its authority, created the office and declared corporation, pleadings must be verified by the salary. Eliason v. Coleman, 86 N. C. an "officer" thereof, does not mean a gen
240. eral manager or managing agent, since the word “manager" is not synonymous with A director of an ordinary business cor"officer.” Thomas F. Meton & Sons v. Isham poration is not a public officer, but is mere Wagon Co., 4 N. Y. Supp. 215, 216, 15 Civ. ly an agent of the shareholders, selected, Proc. R. 259.
conformably to the organic law of the comThe managing director of a foreign cor- of its affairs. Unless there is some provision
pany, to represent them in the management poration is an "officer" within Code, $ 258, in the charter or by-laws to the contrary, providing that, when a corporation is a party, like the agent of an ordinary partnership, he the verification of pleadings may be made by an officer thereof. Best v. British & manifest his purpose by oral notice as well
can renounce his agency at will, and can American Mortg. Co., 42 S. E. 456, 131 N. C.
as by a formal written resignation, and can 70.
terminate the relation without the consent
of his principal. A statute giving stockholdMinister or teacher.
ers authority in general meeting to remove The term "office under a corporation," any director to fill the vacancy, and providin a statute authorizing the assessment of ing that, unless so removed, the directors a tax on the salary of any one holding of- shall continue in office until the next annual fice under a corporation, does not include meeting of the stockholders and until their ministers of incorporated congregations or successors shall be appointed, does not preteachers in the common schools. Common- vent a director from resigning at any time. wealth v. Cuyler (Pa.) 5 Watts & S. 275, Fearing v. Glenn (U. S.) 73 Fed. 116, 119, 276.
19 C. C. A. 388.
By an "officer of the law," as used in A secretary is not necessarily an “offi- an article designating all offenses committed cer" of the corporation. He may hold such by officers of the law as “malfeasance in position and yet be without authority to office," unless otherwise designated, is meant bind the corporation. Karsch V. Pottier any magistrate, peace officer, or clerk of & Stymus Mfg. & Imp. Co., 81 N. Y. Supp. the court. Pen. Code Tex. 1895, art. 297. 782, 783, 82 App. Div. 230.
A magistrate is included under the term
"officer of the law.” Gordon v. State, 2 Tex. OFFICER, CIVIL OR MILITARY. A pp. 154, 158 (citing Pen. Code, art. 351).
The court of claims is not an "officer, civil or military," within the meaning of OFFICER OF THE POLICE. Rer. St. U. S. $ 5438 (U. S. Comp. St. 1901, p. 3674), prohibiting every person from
See “Police Officer."
See "Revenue Officer."
See "School Officers."
OFFICER MAKING SALE.
OFFICIAL "Officer making such sale," as used in statutes in reference to execution sales, wbich While the term "official" sometimes apspeaks of the "officer making such sale," plies to persons holding tiduciary positions, "refers to an officer legally authorized to to distinguish their transactions in such relasell.” It does not include a deputy sherift, tions from their purely private business, yet as the latter cannot act in his own right, in the statutes relating to official bonds the but only for the sheriff. Wilson v. Russell, word is clearly confined to the bonds of 31 N. W. 645, 650, 4 Dak. 376.
public officers. Bissell v. Durfee, 24 N. W.
886, 887, 58 Mich. 237. OFFICER OF COURT.
Statutes, in speaking of the "official Attorney at law as, see "Attorney at who levies” executions or attachments, "reLaw.”
fer to an officer authorized by law to levy Clerk of court as, see "Clerk of Court." upon property. It does not include a deputy Executor as, see "Executor."
sheriff, as the latter can only act for and
in the name of the sheriff." Wilson v. RusOFFICER OF THE CUSTOMS.
sell, 31 N. W. 645, 650, 4 Dak. 376. See "Customs Officer."
Public officials are merely agents of the state for the carrying out of public purposes,
and their selection and the fixing of the time OFFICER OF THE LAW.
for which they shall serve are matters of
public convenience, and do not fall within Receiver as, see "Receiver."
the scope of the term "contract" as applied "Officers of the law," as used in Pub. to individuals. Duer V. Dashiell, 47 Atl. Laws, c. 508, $ 31, which gives permission 1040, 1041, 91 Md. 660. to officers of the law to bring complaints for the violation of said chapter (508) without OFFICIAL ACT. giving recognizance for costs, refers only to such officers as are designated in other sec
"Official act," within the object of a bond tions of the same chapter, and does not in- given by a deputy sheriff to make the sure clude a deputy chief of police. State v. Col. ties responsible for the due performance of lins, 12 R. I. 478.
his official acts, does not mean a lawful act
of the officer in the service of process. If An "officer of the law" is any magis- ! so, the sureties would never be responsible. trate, peace officer, or clerk of a court. Pen. It means any act done by the officer in his Code, art. 351. A sheriff is a peace officer. official capacity under color and by virtue Code Cr. Proc. art. 53. Therefore a sheriff of his office. Turner v. Sisson, 137 Mass. is included in the phrase "officer of the law"
191, 192, as used in Pasch. Dig. art. 348a, providing that if any officer of the law shall willfully By an official act is not meant the lawor negligently fail to perform any duty im- ful act of an officer in the service of process, posed on him, etc., he shall be guilty of for if this were so the sureties who became a misdemeanor. Gordon v. State, 2 Tex. liable for his official acts would never be reApp. 154, 158.
sponsible. It means any act done by the
officer in his official capacity, under color of dertake that he shall discharge a public duty
The commissioner of pensions bas the to obtain indemnity against the misuse of authority to appoint examining surgeons and an official position for wrong purposes; and to organize boards of surgeons. Therefore that which is done under color of office, and the person thus appointed acts under or by which would obtain no credit, except for its virtue of the authority lawfully exercised appearing to be a regular official act, is by the pension office through its head, the within the protection of the bond. Hall v. commissioner, the same being an office of Tierney, 95 N. W. 219, 220, 89 Minn. 407 (cit- the government. The authority under which ing Murfree, off. Bonds, $ 211).
they act is derived from the office of penUnder Rev. St. art. 4897, making the sions, and their action 18 official in that they sheriff responsible for the official acts of act on behalf of an office of the governtheir deputies, the Legislature, in the use ment; and they act in an official capacity of the term “official,” will be presumed to because they are representatives of the penhave had knowledge of the well-defined dis- sion office, and their services are in aid of tinction between official acts and acts done the official duties committed to that office. colore officii-a distinction on which many
A person may act in an official capacity be of the apparently conflicting cases may per
cause he is an officer lawfully appointed and haps be reconciled—and to have intended to qualified and acts as such, or he may act include responsibility for mere usurpation of in an official capacity because he lawfully authority on the part of the deputy. Mad- performs duties which are of an official chardox v. Hudgeons, 72 8. W. 414, 415, 31 Tex. acter. Therefore members of boards of sur Cif. App. 291.
geons come within the provisions of section 5501, Rev. St. (U. S. Comp. St. 1901, p. 3709),
which impose a penalty on any one acceptOFFICIAL ACTION.
ing a bribe while acting in an official caSeparate individual action on the part pacity. United States v. Van Leuven (U. S.) of the members of a municipal board, even 62 Fed. 62, 65. though all might concur, is not an official
Code, $ 92, subd. 1, requiring actions action, and does not bind a municipality. against a sheriff in respect to liabilities inBurkett v. City of Athens (Tenn.) 69 S. W. curred by reason of acts in his official ca. 667, 668.
pacity to be brought within three years, con
strued to include a trespass by the sheriff OFFICIAL BALLOT.
in levying on property not belonging to the In statutes relative to elections the term judgment debtor, though the liability arises "official ballot" shall mean a ballot prepared in tort Cumming v. Brown, 43 N. Y. 514,
515. for any election or caucus by public author. ity at public expense. Rev. Laws Mass.
Code Civ. Proc. 385, which provides 1902, p. 104, c. 11, $ 1.
that an action against a sheriff or coroner
upon a liability incurred by him by doing OFFICIAL BOND.
an act in his official capacity, or by the omisA bond taken in pursuance of a public ment of money collected upon an execution,
sion of an official duty, except the nonpay. statute falls under the description of an
must be brought within one year, refers to "official bond." Faurote v. State, 11 N. E.
a liability incurred by official malfea sance 472, 474, 110 Ind. 463.
or misfeasance, but not to a liability arising An official bond is an obligation under out of a mutual contract voluntarily entered which the sureties may, on default of their into by a sheriff or coroner, for his own conprincipal, become liable to pay money to venience, with another. Rice v. Penfield, 2 another. Connor v. Corson, 83 N. W. 588, N. Y. Supp. 641, 49 Hun, 368. 591, 13 S. D. 550.
The fact that a schedule of fees bas The term "official bond," as used in Act been prescribed for the services of an offiMarch 21, 1871, providing that the remedy cer is not an invariable test that the enuagainst the sheriff for failure to collect and merated services are the only ones rendered pay over the tax listed to him by the tax in his “official capacity," within the meancollector shall be by motion or suit on his ing of an act providing that his salary shall "official bond," should be construed to in- be in full for all services rendered in his clude every bond executed by the sheriff in official capacity.” Hennepin County Com'rs obedience to law, by which bis sureties un- v. Dickey, 90 N. W. 775, 776, 86 Minn. 331.
formance of the duties of his office," was
complied with by a bond conditioned that The certificate of an invoice for the con- he should "faithfully perform all the duties venience and security of the collector of cus of his office according to law and the bytoms and the government, which was
laws of the institution,” as the condition rememorandum between the officers in the cus- quired nothing which could not have been tomhouse as a part of their system of checks required under the statutory bond. Bank of and authentications, and was not an official Carlisle v. Hopkins, 17 Ky. (1 T. B. Mon.) document required by the merchant, nor 245, 246, 15 Am. Dec. 113. given to him, is not an official certificate, for which the collector is entitled to fees. Coch The words “duties" and "duties of their ran v. Schell, 2 Sup. Ct. 301, 307, 107 U. S. office" as used in the act of 1868 relating to 617, 27 L. Ed. 490.
elections and electors—section 18 providing for the punishment of any person who, with
out just and reasonable cause, neglects or OFFICIAL DEED.
refuses to perform any of the duties required A certificate of the county auditor exe- of him by the act, and section 3 providing cuted under section 19, c. 2, Gen. Laws 1874, that all registrars and deputy registrars assigning the right of the state to lands bid shall, before entering on the duties of their in at tax sale, is an “official deed,” within office, take the oath by law provided for the meaning of Gen. St. 1878, c. 75, § 15. executive and judicial officers — have the Pfefferle v. Wieland, 56 N. W. 824, 55 Minn. same meaning, and comprehend only official 202
acts to be done by the officer after being duly sworn, and do not include the taking of the
oath by a registrar of election, the refusal OFFICIAL DUTY.
to take which does not render him liable Oficial duties are the duties imposed on to the penalty. State v. Maynard, 41 Conn. officers of the government. In Owners of
540, 541. Land v. People, 113 Ill. 296, it is said official duties are supposed to be susceptible of OFFICIAL FUNCTION. classification under three heads of legislative, executive, and judicial, corresponding
A secret service operative, employed by to the three departments of government bear the Secretary of the Treasury to aid in the ing the same designation; but the classifica- detection, prosecution, and suppression of tion cannot be very exact, and there are crimes against revenue laws, with which many officers whose duties cannot be prop- duty the secretary is charged while in the erly, or at least exclusively, arranged under performance of such service, is acting, on either of these heads. People v. Hoffman, behalf of the United States, in an “official 5 N. E. 596, 603, 116 III. 687, 56 Am. Rep. function” of the Secretary, within Rev. St. 793.
$ 5451 [U. S. Com St. 1901, p. 3680], mak
ing it a criminal offense to bribe, or attempt The phrase "faithful performance of of- to bribe, any officer of the United States or ficial duty,” as used in a bond requiring a any person acting for or on behalf of the faithful performance of official duty, should United States in an official function under be construed as equivalent to a recital of all or by authority of a department or office of the statutory duties of the officer in the bond, the government thereof. It does not require and is as binding on the principal and sure that one who exercises an official function ties as if such duties were inserted. State should be an officer of the United States. v. Neyin, 7 Pac. 650, 651, 19 Nev. 162, 3 Am. The official function is not necessarily a St. Rep. 873.
function belonging to the office, held by the Where a law requires surveyors to give person acting on behalf of the United States. bond for the faithful disbursement of public It may also be a function belonging to the money, it is evident that it contemplates office held by his superior, which function such surveyors as disbursing officers. Nev. has been committed to the subordinate, ertheless, where the statute requires that whether to a lower officer or to a mere embond be given both for the disbursement of ployé for the purpose of being executed. money and for the faithful discharge of the United States v. Ingham (U. S.) 97 Fed. 935, duties of the office, and in fact the bond is 936. conditioned only on the latter, a serious question arises as to whether it was not OFFICIAL MISCONDUCT. open to prove that the disbursement of money was not known as one of the "duties of
See, also, “Misconduct in Office." the office," and included in the general words. Farrar v. United States, 30 U. S.
Const, art. 5, § 8, provides that the dis(5 Pet.) 373, 388, 8 L Ed. 159.
trict court shall have original jurisdiction
in cases of misdemeanor involving official An act requiring a bond by the cashier misconduct. Rev. St. art. 3393, declares that of a bank, conditioned for “the faithful per- "by 'official misconduct,' as used in this title
with reference to county officers, is meant , viction involving misconduct which not only
The words “official misconduct," as used
must be construed as not to embrace the plied to an indictment of a sheriff that char- case provided for in section 308, providing ged bim with negligently permitting the es- that any judge of probate who shall willfully cape of persons in his legal custody, who fail or neglect to discharge the duties and were charged or convicted of felonies less perform all the services which are required
of him by law shall be indicted. State V. than capital, the court said: “The Legislature baving defined official misconduct, such Green, 30 S. E. 683, 684, 52 s. C. 520. definition materially restricts the general sig- The phrase "official misconduct," in Rev. nification of the term as used in the Consti- St. arts. 3388, 3389, authorizing removal from tution, if it was so used in its common office on account of official misconduct, does acceptation, and thus limits the jurisdiction not include drunkenness, inasmuch as drunkof the district court to that class of misde enness in itself does not indicate corruption meanors which involve unlawful official be or neglect of duty. Craig v. State, 31 Tex. bavior on the part of a county officer, will. Cr. R. 29, 30, 19 S. W. 504. ful or corrupt in its character, no matter whether it is an act or omission. It was
OFFICIAL NEWSPAPER. not the intention of the Constitution to burden the district court with every possible Official newspapers are those designated act or omission of the officer for which the by state or municipal legislative bodies, or law fixed no penalty, and the omission of agents empowered by them, in which the which may have been prompted by casual public acts, resolves, advertisements, and noinadvertence instead of corrupt or willful de tices are required to be published. Albany sign or negligence"-and held that the in- County Com’rs v. Chaplin, 37 Pac. 370, 372, dictment did not charge an offense of which 5 Wyo. 74. the district court had any jurisdiction. Watson v. State, 9 Tex, App. 212, 214, 216, 217.
OFFICIAL RECORDS. By "official misconduct," as used in the
Certificates of death fled in the health title relating to the removal of officers, with reference to county officers, is meant any Code Civ. Proc. $ 959, providing that cer.
department are "official records," within unlawful behavior in relation to the duties tain official records shall be presumptive eviof his office, willful in its character, of any dence of their contents. Robinson v. Suofficer intrusted in any manner with the administration of justice or the execution of 79 N. Y. Supp. 13, 16, 77 App. Div. 215.
preme Commandery, Order of Golden Cross, the laws; and under this head of official misconduct are included any willful or corrupt failure, refusal, or neglect of an officer OFFICIAL SERVICE. to perform any duty enjoined on him by law.
The term “official service," as used in Rev. St. Tex. 1895, art. 3534.
acts of Congress and the regulations of Where a jailer, being an officer, is char- United States consuls, and providing that ged with the custody and safe-keeping of a only the prescribed fees may be collected for person who has been accused or convicted official service, includes only such services of a capital offense, he is charged with the required by law or by the regulations, and performance of a duty imposed by law, and, such services specified in any tariff of fees if he negligently permits such person to es
or official service. United States v. Mosby, cape, he is guilty of a violation of the law, 10 Sup. Ct. 327, 330, 133 U. 8. 273, 33 L. constituting a misdemeanor involving "offi- Ed. 625. cial misconduct," within the meaning of the Constitution, declaring that the district court OFFICIAL STENOGRAPHER. shall have original jurisdiction in cases of misdemeanors involving official misconduct.
An official stenographer is an officer of Hatch v. State, 10 Tex, App. 515, 517.
the court charged with the duty of carefully
reporting all the proceedings on the trial, Under such statutory definition of "off- and bis certificate is entitled to the same cial misconduct" an officer who willfully de force and credit as that of any other officer. mands fees not allowed by law is guilty of The transcription of his notes, when certified official misconduct, willful in its character, to by him and filed by the clerk of the court and a conviction of that offense is a con- , where the cause was tried, becomes a part