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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 Army or militia officer. election, in the election district in which he
The position of colonel in the Fourth shall at the time bave been for ten days Regiment New Jersey Volunteers of the a resident, for all officers that now are or United States army is an "office" within the hereafter may be elective by the people,” meaning of the statute creating the board of etc., means the executive or administrative street and water commissioners, which proagents of the state or governmental subdi- vides that, if such commissioner shall accept visions thereof. State v. Johnson, 91 N. W. any other appointment to “public office,” his 840, 841, 87 Minn. 221, 14 Am. St. Rep. 718. office of commissioner shall thereupon be
Under a constitutional provision that the come vacant. Oliver v. City of Jersey City, General Assembly, in cases not provided for 42 Atl. 782, 784, 63 N. J. Law, 96. in the Constitution, shall fix the term of
Although, by Rev. St. U. S. $ 1094, an office and the compensation of all officers, officer on the retired list is declared to be a it is beld that the term "officers” cannot be part of the army, and though he may, by regarded as comprebending more than such other provisions, be appointed to certain duoffices as may be created to aid in the per- ties, under certain circumstances, in conmanent administration of the government, nection with the Soldiers' Home, he does not and does not include all agencies which the "hold office” within the meaning of Laws General Assembly may authorize municipal 1898, c. 584, § 1, providing that the person and other corporations to employ for local appointed to the office of aqueduct commisand temporary purposes. Walker V. City sioner shall hold no other federal, state, or of Cincinnati, 21 Ohio St. 14, 50, 8 Am. Rep. municipal office. His mere eligibility to the 24.
appointment as an officer of the Soldiers' The Constitution adopted in 1846, art. Home is not equivalent to holding another 10, $ 2, declared: “All county officers, whose office. From other sections of the Revised election or appointment is not provided for Statutes it appears that such retired officer is by this Constitution, shall be elected by the deprived of all the functions of the office electors of the respective counties, or ap- previously beld by him, and divested of all pointed by the board of supervisors or other its authority, and wholly discharged from the county authorities, as the Legislature shall performance of all its duties. People v. direct. All city, town and village officers Duane, 55 Hun, 315, 318, 8 N. Y. Supp. 439, whose election or appointment is not pro
440. vided for by this Constitution, shall be elected by the electors of such cities, towns, or
Assigneo, receiver, or trustee. villages, or of some division thereof, or ap Gen. St. 1872, c. 167, authorized the court pointed by such authorities thereof as the to appoint a new trustee in case of the “vaLegislature shall designate for that purpose. cancy in office thereof." It was held that, All other officers whose election or appoint- inasmuch as at the time the statute was enment is not provided for by this Constitution, acted it had become common to speak of and all officers whose offices shall hereafter some trusts as "offices," where a trustee be created by law, shall be elected by the under a voluntary assignment for the benpeople or appointed as the Legislature may efit of creditors died, the court bad power direct." Held, that the officers and offices to appoint a new trustee. Ex parte Ballou, designated in the first two sentences of the 11 R. I, 359, 360, 363. section were those instituted and existing 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 the state district court, and, as long as he embraced in the last clause, all officers of is in possession of the property, the marshal every description, both local and general, whose offices were to be thereafter created of the federal court cannot interfere with by law. People v. Pinckney, 32 N. Y. 377, claim. McCaffrey v. The J. G. Chapman (U.
such possession, even to enforce a maritime 381.
S.) 62 Fed. 939, 940. The reference to any “officer" shall include any person authorized by law to per. s. Comp. St 1901, p. 3710), providing that
"Officer," as used in Rev. St. § 5504 (U. form the duties of such office. U. S. Comp. St. 1901, p. 3; Ballinger's Ann. Codes & ot: every clerk or other officer of a United States Wash. 1897, $ 4787.
court who fails to deposit money belonging
in the registry of the court, etc., with the "Officer,” as used in the bankruptcy act, treasurer, assistant treasurer, or a designated shall include clerk, marshal, receiver, rel-depository of the United States in the name
and to the credit of the court, or who retains member of either House during his continuor converts to his own use, etc., any such ance in office, and it has never been questionmoney, is guilty of embezzlement, etc., does ed that practicing as an attorney or counselor not include an assignee in bankruptcy. While in the federal courts is inconsistent with such a person is an officer of the court, the holding at the same time the office of senator funds of the estate which come into his or representative in Congress. Ex parte Law hands are not required to be deposited in (U. S.) 15 Fed. Cas. 3, 4, 35 Ga. 285. any of the places designated in this section in the name of the court and to its credit
An attorney at law is a public officer. Hence, he is not an “officer” within the In re Leigh (Va.) 1 Munf. 468, 479; Merritt meaning of the statute. United States v.
v. Lambert (N. Y.) 10 Paige, 352, 356; Wa. Bixby (U. S.) 6 Fed. 375, 376.
ters v. Whittemore (N. Y.) 22 Barb. 593, 595 ;
but the practice of law is not an office or Officers appointed under an act of the place, under the statute to suppress dueling. Legislature to close up the affairs of the in- In re Leigh (Va.) 1 Munf. 468, 479. solvent State Bank of Illinois were not "officers,” but merely trustees. People v. Ridg
An attorney at law is not an officer. ley, 21 Ill. (11 Peck) 65, 68.
In re Bland & Giles County Judge (Va.) 33
Grat. 443. The commissioners appointed under the
An officer is a person who performs any statute of March 14, 1842, providing for the liquidation of banks, are not public officers. public duty, and an attorney at law is not Conrey v. Copland, 4 La. Ann. 307, 308.
an officer, and does not hold a public trust.
Maxey v. Wright, 54 S. W. 807, 811, 3 Ind. T. A receiver is not a common-law officer, 243. and his functions have no relation to the title to the exercise of a franchise, which
A lawyer is a "public officer" in the sense is the sole question raised upon quo war
of that clause of the Constitution requiring ranto. Commonwealth v. Order of Vesta,
that all executive and judicial officers of the
United States and of the several states shall 27 Atl. 14, 15, 156 Pa. 531.
be bound by oath or affirmation to support "Officer," as used in Code Iowa, $ 3915, that Constitution. So far as the legal proproviding for the punishment of any per- fession is an occupation open to all, there son who knowingly annuls, and without is no reason to consider a lawyer as a public authority of law takes, carries away, se- officer. The exercise of his profession is in cretes, or destroys, any property or chattels part an occupation in which every person is while the same are in the lawful custody of free to engage, but it is not so in respect any sheriff, coroner, marshal, constable, or to proceedings in the courts of justice, as other “officer," or rightfully held by such the admission of an attorney is a general apofficer by virtue of any execution, writ of pointment to conduct cases before the courts, attachment, or other legal process issued un- a station having its peculiar powers, privider the law of lowa, cannot be construed leges, and duties, and it thus becomes an to include a receiver. State v. Rivers, 13 office in the administration of justice. In re N. W. 73, 74, 60 Iowa, 381.
Wood (N. Y.) 2 Cow. 29, 30, note. Attorney at law.
Attorneys are in a certain sense “pubIn Lord Coke's time and prior thereto lic officers,” but are not within the statute an attorney was considered a public officer. (1 Rev. St. 122, & 36) providing, among othAfterwards Lord Holt (1 Salk. 87) held that er things, that every "office" shall become vahe was not compelled to appear for any one cant by the incumbent ceasing to be an inunless he takes his fee or backs his war
habitant of a state. Richardson v. Brookranty. In Seymour v. Ellison (N. Y.) 2 lyn City & N. R. Co. (N. Y.) 22 How. Prac. Cow. 13, and Merritt v. Lambert (N. Y.) 10
368, 369. Paige, 352, practitioners of the law are said The term “public office," within the to be public officers, but in other cases they common-law rule which excludes women are held not to be such, and as remarked from government by withholding electoral by Platt, J., in Re Attorneys' Oaths (N. Y.) and official power, does not include vocation 20 Johns. 492: "As attorneys and counselors, of a member of the bar as an attorney and they perform no public duties on behalf of officer of the court. In re Ricker, 29 Atl. the government; they execute no public 559, 66 N. H. 207, 24 L. R. A. 740. 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
An attorney is an officer of the court, 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.
cers," does not apply to attorneys. Ingersoll | form no duties on behalf of the government; 1. Howard, 48 Tenn. (1 Heisk.) 247, 251. they execute no public trust.” In re Attor
neys' Oaths (N. Y.) 20 Johns. 492, 493. Const. $ 30, art. 16, provides that all terms of office not otherwise fixed by the The term "office or public trust," in the Constitution are limited to two years. Held clause of the Constitution providing that that, since the office of an attorney is one neither the chancellor nor justice of the Sufor life, he cannot be regarded as a consti- preme Court, nor any circuit judge, sball tutional officer. Neither can he be regarded hold any other office or public trust, includes as a public officer, for his duty appertains an attorney or counselor. Seymour v. Ellionly to the court in which he is authorized son (N. Y.) 2 Cow. 13–29. to practice. Ex parte Williams, 20 S. W. 580, 581, 31 Tex. Cr. R. 262, 21 L. R. A. 783
An attorney or counselor at law holds (citing Ex parte Garland, 71 U. S. [4 Wall.] an “office or public trust,” within the mean333, 18 L. Ed. 366; Ex parte Law, 35 Ga. ing of the terms as used in the Constitution. 285, 15 Fed. Cas. 3; Ex parte Yale, 24 Cal. In re Wood (N. Y.) Hopk. Ch. 6, & 241, 85 Am. Dec. 62).
Attorneys at law belong properly to the Const, art. 11, $ 3, prescribes the form of class of judicial officers, and derive their oath to be taken by officers and persons exe office by appointment Ex parte Faulkner, cuting public trusts, which is that such off-1 W. Va. 269, 297. cer 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 tined 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
Counselors and attorneys are not “pubtrust. Ex parte Yale, 24 Cal. 242, 244, 85 lic officers" within the meaning of the ConAm. Dec. 62.
stitution, prohibiting certain courts from appointing public officers to office.
In re "Officer," as used in Act 1827, authoriz A. B., 5 N. Y. Leg. Obs. 136, 138. ing the recovery of specific bank paper wbich bas appreciated in value while in the posses
The power of a court to appoint attorsion of the officer collecting the same, in- neys as a class of public officers was condudes attorneys at law. Bank of Common- ferred originally, and has been from time wealth v. Patton's Ex'r, 27 Ky. (4 J. J. to time regulated and controlled, in England Marsh.) 190, 192.
by statute. In this state it seems that attor
neys, prior to the Revolution, were appointAn attorney at law is not, Indeed, in ed by the Governor of the colony. The Conthe strict sense, a public “officer,” but he stitution of 1846 provided that judges “shall comes very near it. As was said by Lord not exercise any power of appointment to Holt, the office of an attorney concerns the public office. Any male citizen of 21 years public, for it is for the administration of of good moral character, etc., shall be entijustice. In re White, 6 Mod. 18. By our tled to admission to practice in all the statutes he is required, upon his admission, courts of this state.” The object of this to take and subscribe in open court the provision is plain. Attorneys, solicitors, etc., oaths to support the Constitutions of the were public officers; the power of appointing United States and of this commonwealth, them had previously rested with the judges, as well as the oath of office. This oath, and this was the principal appointing power the form of which has remained without sub- which they possessed. In re Cooper (N. Y.) stantial change since the time of Lord Holt, 20 How. Prac. 1, 11, 13, 14. nearly 180 years, pledges him to conduct himself in the office of an attorney within
While it is true that an attorney is in the courts according to the best of his knowl. some sense an "officer" of the court, he is edge and discretion, and with all good fidelity, certainly not a public officer, so that while as well to the courts as to his clients, and he may be required, as incident to the privhe becomes by his admission an officer of ilege of practicing, to discharge certain duties the courts, and holds his office during good imposed upon him by statute, as, for inbehavior, subject to removal by the court for stance, to defend a criminal, he is under no malpractice. In re Robinson, 131 Mass. 376, obligation to give his services to the public 379, 41 Am. Rep. 239 (citing Gen. St. c. 121, Code, 325, providing that proceedings to
without compensation; and hence, under ti 30, 31).
remove an attorney may be commenced by "An attorney or counselor does not hold direction of the court, who must direct some an office,' but exercises a privilege or fran- attorney to draw up the accusation, an attor. chise. As attorneys or counselors, they per. ney appointed to prosecute disbarment pro
ceedings may recover from the county a Legislature might choose to subject to simireasonable compensation for his services, lar regulations. Byrne's Adm'rs v. Stewart's though there is no statutory provision for Adm’rs (8. C.) 3 Desaus. 466, 478. compensation. Hyatt v. Hamilton County, 96 N. W. 855, 856, 121 Iowa, 292, 63 Le R. A court, and in a sense officers of the state, for
Members of the bar are officers of the 614.
which the court acts. Officers charged with In Re Wood (N. Y.) Hopk. Ch. 6, Chancel- the general business of the state within the lor Sandford held that a solicitor in chancery state must be residents of the state. Under was an "officer” within the meaning of the ordinary circumstances, members of the bar new Constitution, and therefore could not be of other states are permitted to argue causes compelled to take any other oath than that in the Supreme Court without any general prescribed therein. And in Seymour v. Elli- license to practice. In re Mosness, 39 Wis son (N. Y.) 2 Cow. 13, Chief Justice Savage, 509, 510, 20 Am. Rep. 55. in a concurring opinion, held that an at
The word "office,” in the constitutional torney was an “officer” within the meaning clause providing that “neither the chancelof the phrase probibiting chancellors and justices of the Supreme Court and circuit lor nor justices of the Supreme Court, nor judges from holding any other office. The
any circuit judge shall hold any office or pubopinion of the court, as delivered by Jus- lic trust,” does not apply to an attorney or
counselor. Seymour V. Ellison (N. Y.) 2 tice Woodworth, however, was decided on
Cow. 13, 28. other grounds. In Re Leigh (Va.) 1 Munf. 468, it was decided that an attorney was
Candidate for office. not an "officer" within a statute requiring
St. 1884, c. 299, § 43, prescribing a punevery person appointed to any office to take an anti-dueling oath. In Re Dorsey (Ala.) ishment for any person who shall alter a 7 Port. 293, it was held that the provision ballot cast for “any officer," includes the alof the statute empowering the General As- teration of a ballot cast for one who was sembly to disqualify from office for dueling merely a candidate for office and was not did not extend to attorneys and counselors elected, and cannot be limited to existing offiat law. And it was held in Re Cooper, 22 cers who might be candidates for re-election. N. Y. 67, 84, 92, that the provision of the Commonwealth v. McGurty, 14 N. E. 98, statute forbidding judges to exercise any
101, 145 Mass. 257. power of appointment to public office did not prohibit the appointment of attorneys. Under
Commissioner of highways. these authorities an attorney at law is not Commissioners appointed by the act of an "officer" within the meaning of the Con- the Legislature to lay out and build a road stitution, providing that a certain oath there for the use of the public are public officers. in set forth shall be the only oath or test re- People v. Hayes (N. Y.) 7 How. Prac. 248, quired as a qualification for any office or 250. public trust, and could therefore be compelled by the Legislature, before being admitted aldermen to lay out a highway under Gen.
Commissioners appointed by a board of to practice, to take another and more com Laws R. I. c. 71, § 2, providing that for the prehensive oath. Cohen v. Wright, 22 Cal. Que marking out of any highway the town 293, 301, 315, 320.
council shall appoint three suitable and disin. If a statute excluded from "office” one terested men, are not public officers, but mere convicted of a particular offense, and used statutory servants and agents of the board no other term or designation, the profession appointing them. Attorney General v. Me of a lawyer would not be included within Caughey, 43 Atl. 646, 647, 21 R. I. 341. the meaning of the term as generally used, because he can no more be said to hold an ferred by appointment of government, and
“An office is a public employment con"office” than one who follows the profession in the performance of its functions the citi. of a physician, the avocation of a teacher, or who discharges the function of an administra. the exercise of both a private right, or privi.
zen selected to represent the sovereign is in tor. In re Dorsey (Ala.) 7 Port. 293, 365.
lege, and a public duty." United States v. An attorney at law is not a public offi. Patrick (U. S.) 54 Fed. 338, 349. cer; he is not appointed by the Legislature, nor is he amenable to it, nor does he possess tions conferred by public authority and for
The term "office" has reference to funcany portion of the public authority, and can be construed in no other light than that of 141, 142, 51 La. Ann. 290.
a public purpose. Moll v. Sbisa, 25 South. a private agent for the citizens of the country who might employ him to do their The position of commissioner, under legal business in the court; and though the Laws 1869, c. 905, relating to the construclaw requires of him certain qualifications, tion of a highway in the county of Queens, and he receives a license from the judges, yet is an office, and hence vacated by the combis office is no more a public one than would missioner's acceptance of the office of sterbe any other profession or trade which the ift, Const. art. 10, $ 1, declaring that sheriffs
shall hold no other ofice. People v. Nos- The term “public officer," in Rev. Code, trand, 46 N. Y, 375, 381.
§ 183, which authorizes the discharge of sure
ties 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 oficers, and not servants of the town, al- office, while under our law an administrator though the work was ordered by the county is a trustee whose duty it is to be employed commissioners upon petition by the town. McManus v. Inhabitants of Weston, 41 N. wholly about private affairs." Mitchell v.
Nelson, 49 Ala. 88, 89. 1 301, 302, 164 Mass. 263, 31 L. R. A. 174.
The word "officer," as used in Const. art. Corporation.
8, requiring officers to take an oath of office, Sess. Laws 1895, p. 47, § 25, providing includes a county treasurer. Riddle v. Bedthat all printing, binding, etc., which is paid ford County (Pa.) 7 Serg. & R. 386–391. out of the territorial treasury shall be done and furnished by the State Capitol Print
The post of deputy warden of a county ing Company, of Guthrie, does not make the almshouse is not an office, but a position. State Capitol Printing Company a public State v. Board of Chosen Freeholders, 38 Atl. officer. Guthrie Daily Leader v. Cameron, 842, 61 N. J. Law, 117. 41 Pac 635, 636, 3 Okl. 677.
The term “office," within the meaning of
the Constitution, does not include a levee inCounty oficor or employé.
spector. State v. Green, 9 South. 42, 43, 43 The term “officer" held not to include La. Ann. 402. commissioners of a county, in a statute against bribery, reading “any member of the The exercise of the duties of the clerk General Assembly, or any officer of this com- of the poor-law commissioners materially afmonwealth, judge, juror, justice, referee or fects a great body of persons, and the pubarbitrator,” who shall accept a bribe shall lic within his district have an interest in be punished (Pen. Code, $ 48), the phrase be- such exercise. The office is therefore one of ing evidently intended to include none but a public nature. Reg. v. Guardians of Poor state officers or officers of the common- of St. Martin's in the Fields, 17 Q. B. 149, wealth, as distinguished from merely local 160. or county officers. Commonwealth v. Neely (P&.) 3 Pittsb. R. 527, 530.
The board of supervisors of a county is
not a “public officer" within the statute in A member of the county board of edu- reference to double costs. People v. Niagara cation is a public officer under Const. art. 14, County Sup’rs (N. Y.) 50 How. Prac. 353, 354. $ 7, providing that no person holding an office or place of trust shall hold or exercise Any man is a public officer who is apany other. Barnbill v. Thompson, 29 S. E. pointed by the government and has any duty 720, 721, 122 N. c. 493.
to perform concerning the public; nor is he
any the less a public officer because his auUnder an act regarding honorably dis- thority or duty is confined to parrow limits. charged soldiers and sailors, and which de Persons who, under an act of the General clares that no person of that description who Assembly of October 17, 1870, bad been apholds a position or office within the state pointed commissioners to purchase a tract of shall be removed except for cause, it is held land at the place selected for a county site, that a janitor of the county courthouse does to lay off the same into town lots, sell them, not hold an office. State v. Board of Chosen and to apply the proceeds to the building of Freeholders of Salem County, 42 Atl. 844,
a courthouse and jail for the county, were 845, 63 N. J. Law, 57.
"officers" under the law. Polk v. James, 68 The right to exercise the duties, and take Ga. 128. the compensation therefor, of county recorder, is an office; and equally so the right to the purchase and safe-keeping of the station
A stationery storekeeper charged with the employment and pay of a county commissioner. Dailey v. State (Ind.) 8 Blackl. 329, ery required by a county is a public officer. 330.
A public officer is one who exercises, in an
independent character, a public function in A law authorizing the appointing of a the interest of the people by virtue of law, practicing physician for a certain county, fix- which is only saying in another form that he ing the term for which he shall be appointed, exercises a portion of the sovereignty of the providing for his salary, and prescribing his people delegated to him by law. State v. duties, creates an office. People v. Harring. Jennings, 49 N. E. 404, 405, 57 Ohio St. 415, ton, 63 Cal. 257, 260.
63 Am. St. Rep. 723. WDS. & P.