CHAPTER II.

CREATION AND FILLING OF OFFICES.

5. How an office is created.-Having examined the nature of an office and attempted to distinguish it from an employment and from a property right, the next matter for consideration is the way in which offices are created. The very important ones have been created by the Constitution. But these are a relatively small portion of the whole number. By far the greater number of offices are created by the legislature. In doing this no particular form is necessary, nor is this a power which the legislature may not delegate to a municipality. For it would, indeed, be unwise for a legislature to attempt to say just what officers are needed by a large city. Considerations of expediency make it advisable that considerable latitude be left to the judgment of the municipality in determining what agents it shall use in performing its governmental functions. The reason for the existence of a city government rests upon the fact that in a densely populated area a special set of problems arise which demand special treatment, and that whether a given function is of sufficient importance to demand the creation of a special agency for performing it can best be judged by those who can study the situation at close range. It would be a

9 State v. Hyde, 129 Ind. 296; Miller v. Warner, 42 N. Y. App. Div. 208.

hardship upon a municipality for the legislature to create offices which the local situation did not demand, but the expense of which would have to be borne by the locality. Sinecures are bad enough when created by those who have to bear the expense, but intolerable when created by those who do not have to bear the burdens.

6. Who is a public officer.-Since there is a lack of definiteness as to what is a public office there is, of course, the same indefiniteness as to who is a public officer. The following are the principal definitions of the words "office" and "officer," which have been given in England: "It is said that the word 'officium' principally implies a duty, and in the next place the charge of such duty, and that it is the rule that where one man hath to do with another's affairs, against his will and without his leave, that this is an office, and he who is in it is an officer. Officers are public or private; and it is said that every man is a public officer who hath any duty concerning the public; and he is not the less a public officer, where his authority is confined to narrow limits, because it is the duty of his office, and the nature of that duty which makes him a public officer, and not the extent of his authority." 10

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"In my opinion," said Lord Chief Justice Best, "every one who is appointed to discharge a public duty, and receives compensation, in whatever shape, from the crown or otherwise, is a public officer." Blackstone includes offices among incorporeal hereditaments, and defines an office to be "a right to ex10 Throop, Public Officers, § 2.

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ercise a public or private employment, and to take the fees and emoluments thereunto belonging." In a case involving the question of whether or not an "attendant" upon a court of record in the city of New York is a public officer, the Supreme Court of that state, speaking through Justice Danforth, in the case of Rowland v. Mayor of the City of New York, says: "He not only owes a duty to it (the court), and is to perform such duties as are by it required to be performed, but as we have already said, those duties are in aid of the proper business of the court * and his employment is one in which the public are interested; its proper exercise requires capacity, diligence, and attendance. Whether we look into the dictionary of our language, the terms of politics, or the diction of common life, we find that whoever has a public charge or employment, or even a particular employment affecting the public, is said to hold or be in office. However, therefore, the signification of the word used is ascertained, it will comprehend the position of the plaintiff as stated in the record, for although his functions may be those of service, his employment is by the public, and the duties intrusted to him are official and a public charge."

The extent of the territory within which the duties are to be exercised is, of course, immaterial; provided the duties are such that the state is charged with the task of performing them, the agent through which it acts is a public officer.12 It is also clear that as the state may require service gratis, the presence or ab

11 83 N. Y. 372.

12 People v. Bedell, 2 Hill 196 (N. Y.).

sence of emoluments is no test. It is equally clear that, as the state may dictate the conditions under which the services may be rendered, the requirement of or the failure to require an official oath is not at all conclusive.13 In Commonwealth v. Evans,11 the Supreme Court of Pennsylvania, speaking through Justice Sharswood, says: "All persons, who by authority of law, are intrusted with the receipt of public moneys, through whose hands money, due to the public or belonging to it, passes on its way to the public treasury, must be so considered, by whatever name or title they may be designated in the law authorizing their appointment, and whether the service be general or special, transient or permanent." But the fact that one handled no money for the public would, of course, not prove that he was not a public officer. Upon the question of whether or not attorneys, solicitors, counsellors, and barristers, are public officers, we have, in this country, a conflict of authority. In Ex parte Garland,15 the Supreme Court of the United States holds that they are not. The Supreme Court of New York has decided in 2 Cowen 29 that they are and in 20 Johnson 492 that they are not. In England they are generally regarded as public officers. In Walmesley v. Booth, Lord Hardwicke says: "They are to be considered as public officers and ministers of justice." 16 The weight of authority in the United States is that they are not public officers.

13 People v. Langdon, 40 Mich. 673.

14 74 Pa. St. 124.

15 4 Wall. 333 (U. S.).

16 Barn. Ch. 475 (Eng.).

7. Classification of public officers.-Officers are classified by Bacon into (1) civil and military; (2) public and private; (3) ancient and those of new creation; (4) judicial and ministerial. The third division is not recognized in the United States. Judge Cooley divides public officers into legislative, executive, judicial, administrative, and ministerial, but admits that an accurate classification is difficult, if not impossible. He says:17 "The duties imposed upon the officer are supposed to be capable of classification under one of these heads: the legislative, executive, or judicial; and to pertain accordingly to one of the three departments of the government designated by those names. But the classification cannot be very exact, and there are numerous officers who cannot be classified at all under these heads. The reason will be apparent if we name one class as an illustration. Taxing officers perform duties which in strictness are neither executive nor judicial, though in some particulars they merely execute the orders of superiors, and in others they judge for themselves what is to be done. But sometimes, also their duties partake of the legislative. All such officers are usually called administrative, while inferior executive officers are designated ministerial.”

Justice Clifford, speaking for the court in Fitz Patrick v. United States,18 makes the following classification: "Offices may be and usually are divided into two classes-civil and military. Civil offices are also usually divided into three classes-political, ju

17 2 Southern Law Review U. S. 531.

18 37 Ct. of Cl. 332.