LAW OF PUBLIC OFFICERS AND ELECTIONS

BY

EDWIN MAXEY, D.C.L., LL.D.*

INTRODUCTORY.

1. Increasing importance of the subject.—In order that the state may act, it must do so through agents. These agents we call public officers. As the activities of the state increase, because of the massing of population, the number and the duties of the agents through whom the state performs its work must necessarily increase. In a rural community, the functions of government are comparatively limited: there is little which the state must do. The supply of water, food, light, means of transportation, fire protection, prevention of nuisances, may all be regulated with but very little intervention on the part of the government. But not so in a large city, where the conditions of life and organization of industry have so far increased the dependence of all upon the acts of others that rules regulating conduct increase in geometric ratio and the necessity for their enforce

* Professor of Public Law and Diplomacy, University of Nebraska; former Dean of the Aurora Law School; Professor of Public Law, West Virginia University. Author of various articles on public law and diplomacy.

ment becomes a matter of vital concern. An isolated farmer may keep hogs near his house, and the annoyance thereof is a matter which he may endure if he wishes, as it does not vitally concern his neighbors; but this is not so if he lives in a city. His business must then be regulated with a due regard to the health and comfort of others affected by his business. The same is true of one operating a glue factory or slaughter-house. These are but illustrations of a multiplicity of activities which in a city must be regulated under the police power. This increase in the amount of work to be done by public officers is one of the great facts in American life, which means that the number, powers, and duties of public officers are increasing and that therefore the law of public officers is becoming an increasingly important branch of our system of jurisprudence.

The term "administrative law" is used in two senses: a broad and a restricted sense. In the former, it includes all questions of public administration, such as civil service, municipal government, highways, elections, schools, and public revenue. In this sense, it presents problems not merely for the lawyer but for the political scientist as well. As the warrant for the exercise of administrative power must be found in the constitutions or in statutory legislation, questions of administrative law very often resolve themselves into questions of constitutional or statutory construction. On the continent of Europe, all positive statutory law is looked upon as coming within the scope of administrative law. But in the more restricted sense, administrative law deals with

the protection of private rights, the mode of exercising administrative power, and the remedies in case of the abuse of the power. In other words, it deals mainly with the law of public officers and extraordinary legal remedies. It is in this latter sense the term is generally used in the United States. While in England and the United States the courts still exercise a considerable degree of control over the acts of administrative officers, this control has in France been almost entirely removed, and to a considerable extent in the other countries of continental Europe. A comparison of these differences in point of view belongs to the field of comparative administrative law.

Those interested in this phase of the subject will do well to read Comparative Administrative Law, by Frank J. Goodnow, published in 1893. Though the European practice eliminates much of the dissatisfaction and irritation caused by the resistance of the judiciary to the prompt realization of the will of the majority, it does not furnish as good a guarantee for the protection of the rights of the minority, and hence is less conservative than is the American view.

CHAPTER I.

DISTINCTION BETWEEN OFFICE AND EMPLOYMENT.

2. What is an office.-In order that we may distinguish officers from employees, it is necessary that we distinguish an office from an employment. In extreme cases this is not at all difficult. We have no trouble in deciding that the man who works under contract at a dollar a day in digging a ditch to lay water pipes for a city owning its water plant is not exercising the duties of an office, but following an employment. But the matter is not always so free from doubt. The city engineer directing the work may be either an officer or an employee. If the city cares to put him in the latter class, it may do so by entering into a contract with him. This is the view taken by the Supreme Court of the United States in the case of Hall v. Wisconsin.1 Here it was held that if the state had entered into a contract with a surveyor, in accordance with a statute directing the governor to make such a contract, the surveyor was an employee, not an officer. The court quotes with approval from the case of Davis v. Gray: "When a state descends from the plane of its sovereignty and contracts with private persons, it is regarded pro hac vice (for this particular affair) as a private person itself, and is bound accordingly."

1 103 U. S. 5.

2 16 Wall. 203 (U. S.).

3

In United States v. Maurice, Chief Justice Mar

shall says:

*

"An office is defined to be a public charge or employment, and he who performs the duties of the office is an officer. * Although an office is an 'employment,' it does not follow that every employment is an office. A man may certainly be employed under a contract, express or implied, to do an act, or to perform a service, without becoming an officer. But if the duty be a continuing one which is defined by the rules prescribed by the government, and not by contract, which an individual is appointed by government to perform, who enters upon the duties appertaining to his station, without any contract defining them, if those duties continue, though the person be changed, it seems very difficult to distinguish such a charge or employment from an office, or the person who performs the duties from an officer."

And in United States v. Hartwell, the court, speaking through Justice Swayne, says:

*

*

"An office is a public station or employment, conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties. * A government office is different from a government contract. The latter, from its nature, is necessarily limited in its duration and specific in its objects. The terms agreed upon define the rights and obligations of both parties, and neither may depart from them without the assent of the other."

In Clark v. Stanley, we find this definition of a public office:

32 Brock. 96 (U. S.). 46 Wall. 385 (U. S.).

5 66 N. C. 59.