CHAPTER VIII. PUBLIC OFFICE AND OFFICERS. I. COMMENCEMENT AND NATURE OF OFFICIAL LIFE. II. TERMINATION OF OFFICIAL LIFE. (For Complete Analysis of this subdivision see p. 1532.) III. THEIR POWERS, DUTIES AND RIGHTS. (For Complete Analysis of this Subdivision see p. 1560.) 621. Official bonds; their filing and approval. 622. Liability of sureties. 623. Liability on official bonds; the less strict rule. 624. Liability of the surety; the element of time considered. 625. 626. 627. 628. New or additional duties. Different offices or funds. The right of action. Parties. § 596. In general. A public corporation is an artificial person and must, of necessity, act through natural persons serving as its agents. These are variously termed and perform the duties attending their respective offices whether legislative, administrative or judicial, the designation of an official in many cases indicating to a greater or less extent the character of his duties. The corporation having been created by the sovereign power, that power logically includes the lesser one of creating public officials,1 also that of designating their duties, tenure of office and rights, including that of compensation. The sovereign people in this country act primarily through a constitution and provide in this instrument for many public offices which are termed because of this fact, constitutional offices. A constitution may also authorize the legislative branch of the government, under the proper restrictions, to create still other offices, generally subordinate ones, and to establish tenure of office, duties, the manner of selection and official rights including that of compensation. We have, therefore, the sovereign 1 Kavanaugh v. State, 11 Ala. 399; State v. Finn, 8 Mo. App. 341; State Revenue Agent v. Hill, 70 Miss. 106. 2 Benford v. Gibson, 15 Ala. 521; Reynolds v. McAfee, 44 Ala. 237; Robinson v. White, 26 Ark. 139; Allen v. State, 32 Ark. 241; People v. Addison, 10 Cal. 1; People v. Squires, 14 Cal. 12; State v. Dews, R. M. Charlt. (Ga.) 397; State v. Hyde, 129 Ind. 296, 28 N. E. 186, 13 L. R. A. 79. In the creation of an office, it is not necessary that the legislature shall prescribe either the duties or the emoluments. State v. Champlin, 2 Bailey (S. C.) 220. The continuous recognition of an employment for many years with an appropriation for compensation will not constitute such employment an office. 3 Kavanaugh v. State, 41 Ala. 399; Beebe v. Robinson, 52 Ala. 66; People v. Hunt, 41 Cal. 435; Patton v. Board of Health of San Francisco, 127 Cal. 388; Dunbar v. Canyon County, 6 Idaho, 725, 59 Pac. 536; Meller v. Logan County Com'rs, 4 Idaho, 44, 35 Pac. 712; Overshiner v. State, 156 Ind. 187, 59 N. E. 468, 51 L. R. A. 748; State v. Spaulding, 102 Iowa, 639; State v. Judge of Civil Dist. Ct., 50 La. Ann. 655, 23 So. 886; Com. v. Certain Intoxicating Liquors, 110 Mass. 172; State Revenue Agent v. Hill, 70 Miss. 106; State v. Woodbury, 17 Nev. 337; Warner v. People, 2 Denio (N. Y.) 272; People v. Draper, 15 N. Y. 532; State v. Stanley, 66 N. C. 59; State v. Bacon, 14 S. D. 284, 85 N. W. 225. A state constitution may provide the term of office, number and qualifications of members of a board with authority for holding over. Anderson v. Tyree, 12 Utah, 129, 42 Pac. 201. 4 Board of Revenue v. Barber, 53 Ala. 589; State v. McDiarmid, 27 Ark. 176; Meek v. McClure, 49 Cal. 624; People v. Burns, 53 Cal. 660; People v. Mullender, 132 Cal. 217, 64 Pac. 299; Ford v. State Harbor acting directly through the constitution and creating certain specified offices and indirectly through legislative bodies creating still others. Upon the manner of their origin in this respect will depend their mutual obligations, duties and rights in connection with the public whom they are to serve and whose servants they are. § 597. Legislative control. A public office is created by law and not by contract. The rights and duties appertaining to it, therefore, do not partake of the nature of contract rights or duties and if the office with its Com'rs, 81 Cal. 19. The power may be delegated by the legislature to a board in respect to the selection of their subordinate officials or employes. El Dorado County v. Meiss, 100 Cal. 268; Quigg v. Evans, 121 Cal. 546; Parks v. Commissioners of Soldiers' & Sailors' Home, 22 Colo. 86, 43 Pac. 542; Walker v. City of Cincinnati, 21 Ohio St. 14. Discussing distinction between annexing an additional power or duty on an existing office and creating or filling a new one. State v. Dillon, 42 Fla. 95, 28 So. 781; State v. Peelle, 124 Ind. 515, 24 N. E. 440, 8 L. R. A. 228. The office of the chief of the Indiana bureau of statistics is a state and not a legislative one. Wilson v. Clark, 63 Kan. 505, 65 Pac. 705; Page v. Hardin, 47 Ky. (8 B. Mon.) 648; Sweeney v. Coulter, 109 Ky. 295, 58 S. W. 784; Hope v. City of New Orleans, 106 La. 345, 30 So. 842. The legislature may authorize the creation of a board of civil service commissioners. Act No. 89, of 1900, providing one for the city of New Orleans held not repugnant to the constitution, arts 319, 320. Rose v. Knox County Com'rs, 50 Me. 243; People v. Hurlbut, Mich. 55; People v. Lothrop, 24 Mich. 235; Speed v. Common Council of Detroit, 100 Mich. 92, 58 N. 24 W. 638; Common Council of Detroit v. Schmid, 128 Mich. 379, 87 N. W. 383; Ex parte Lucas, 160 Mo. 218, 61 S. W. 218. The legis lation creating a board of commissioners for the regulation of barbers and authorizing the governor to appoint the members of the board, does not contravene Mo. Const., art. 14, § 9. Gooch v. Town of Exeter, 70 N. H. 413, 48 Atl. 1100; Kokes v. State, 55 Neb. 691; Pacific Exp. Co. v. Cornell, 59 Neb. 364, 81 N. W. 377; Nebraska Tel. Co. v. Cornell, 59 Neb. 737, 82 N. W. 1, affirming on rehearing judgment in 58 Neb. 823, 80 N. W. 43; People v. Pinckney, 32 N. Y. 377; State v. Dunn, 73 N. C. 595; State v. Covington, 29 Ohio St. 102; State v. Baughman, 38 Ohio St. 455; In re Campbell's Registration, 197 Pa. 581, 47 Atl. 860; Lloyd v. Smith, 176 Pa. 213; State v. Tucker, 54 S. C. 251; State v. Bacon, 14 S. D. 394, 85 N. W. 605; Reals v. Smith, 8 Wyo. 159, 56 Pac. 690. 5 Standeford v. Wingate, 63 Ky. (2 Dew.) 440; Farwell v. City of Rockland, 62 Me. 296. 6 United States v. Hartwell, 73 U. S. (6 Wall.) 393. “An office is a public station, or employment, conferred by the appointment of gov ernment. The term embraces the ideas of tenure, duration, emolu duties, rights and emoluments has been created by a legislative body, that body can abolish or change these at its pleasure,' the reason being the nature of a public office. "Public offices are created for the purpose of effecting the ends for which govern ernment office is different than 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." Crenshaw v. United States, 134 U. S. 99; Taylor v. Beckham, 178 U. S. 548; United States v. Maurice, 2 Brock. 96, 102, 103, Fed. Cas. No. 15,747; Kavanaugh v. State, 41 Ala. 399; Beebe v. Robinson, 52 Ala. 66; Lane v. Kolb, 92 Ala. 636; Humphrey v. Sadler, 40 Ark. 100; Vincenheller v. Reagan, 69 Ark. 460, 64 S. W. 278; Ford v. State Harbor Com'rs, 81 Cal. 19; Hall v. Burks, 96 Ga. 622; Kreitz v. Behrensmeyer, 149 Ill. 496, 24 L. R. A. 59; People v. Kipley, 171 Ill. 44, 41 L. R. A. 775; State v. Hyde, 129 Ind. 296, 13 L. R. A. 79; Bryan v. Cattell, 15 Iowa, 538; Lynch v. Chase, 55 Kan. 367; Sinking Fund Com'rs v. George, 104 Ky. 260; Goud v. City of Portland, 96 Me. 125; Attorney General v. Jochim, 99 Mich. 358, 23 L. R. A. 699; Hennepin County Com'rs v. Jones, 18 Minn. 199 (Gil. 182); Kendall v. City of Canton, 53 Miss. 526; State Revenue Agent v. Hill, 70 Miss. 106; State v. Evans, 166 Mo. 347; Lloyd v. Silver Bow County, 11 Mont. 408; Douglas County V. Timme, 32 Neb. 272; State V. Trousdale, 16 Nev. 357; Kenny v. Hudspeth, 59 N. J. Law, 320; People v. Vilas, 36 N. Y. 459, 93 Am. Dec. 520; Nichols v. MacLean, 101 N. Y. 526; Koch v. City of New York, 152 N. Y. 72; State v. Hawkins, 44 Ohio St. 98; State v. Ware, 13 Or. 402; Kilgore v. Magee, 85 Pa. 401; Com. v. Weir, 165 Pa. 284; Jones v. Shaw, 15 Tex. 577; Foster v. Jones, 79 Va. 642, 52 Am. Rep. 637; State v. Douglas, 26 Wis. 428; Reals v. Smith, 8 Wyo. 159. 7 Butler v. Pennsylvania, 10 How. (U. S.) 402; Beaman v. United States, 19 Ct. Cl. 5; Oldham v. City of Birmingham, 102 Ala. 357, 14 So. 793; Hawkins v. Roberts, 122 Ala. 130, 27 So. 327; Lovejoy v. Beeson, 121 Ala. 605; State v. Crow, 20 Ark. 209; People v. Haskell, 5 Cal. 357; People v. Squires, 14 Cal. 12; People v. Banvard, 27 Cal. 470; In re Bulger, 45 Cal. 553; People v. Davie, 114 Cal. 363; People v. Osborne, 7 Colo. 605; State v. Burris, 4 Pen. (Del.) 3, 49 Atl. 930; People v. Auditor of Public Accounts, 2 Ill. (1 Scam.) 537; People v. Cook County Com'rs, 176 Ill. 576, 52 N. E. 334; Walker v. People, 18 Ind. 264; Lawson V. Reno County Com'rs, 47 Kan. 271, 27 Pac. 998; Harvey v. Rush County Com'rs, 32 Kan. 159; Board of Councilmen of Frankfort v. Brawner, 100 Ky. 166, 37 S. W. 950, 38 S. W. 497. A municipal legislative body may abolish at any time the board of public works which it has established under a discretionary power conferred by statute. Prince v. Skillin, 71 Me. 361, 5 L. R. A. 756; Davis v. State, 7 Md. 151; Taft v. Adams, 69 Mass. (3 Gray) 126; Attorney General V. Marr, 55 Mich. 445; Attorney General v. Bolger, 128 Mich. 355, 87 N. W. 366; Kendall v. City of Canton, ment has been instituted, which are the common good, and not the profit, honor, or private interest of any one man, family, or class of men. In our form of government it is fundamental that public offices are a public trust and that the persons to be appointed shall be selected solely with a view to the public welfare."8 The in 53 Miss. 526; State v. Hermann, 11 Mo. App. 43; People v. Van Gaskin, 5 Mont. 352; Denver v. Hobart, 10 Nev. 28; People v. Woodruff, 32 N. Y. 355; Queens County v. Petry, 54 App. Div. 115, 66 N. Y. Supp. 447. Statutory powers of a board of supervisors may be taken away although such board is created by the constitution. Phillips v. City of New York, 88 N. Y. 245; People v. Whitlock, 92 N. Y. 191; State v. Beardsley, (N. C.) 35 S. E. 241; Ter. v. Pyle, 1 Or. 149; Kilgore v. Magee, 85 Pa. 401; State v. McDaniel, 19 S. C. 114; Ex parte Cross, 84 Tenn. (16 Lea) 486. The legislature, however, cannot, by repealing a town charter, lessen the term of a justice of the peace elected before the passage of the repealing legislation. State v. Buchanan (Tenn. Ch. App.) 52 S. W. 480; City of Palestine v. West (Tex. Civ. App.) 37 S. W. 783; Mullen v. City of Tacoma, 16 Wash. 82, 47 Pac. 215; State v. Hundhausen, 26 Wis. 432. See, also, authorities cited in preceding note. 8 Brown v. Russell, 166 Mass. 14, 32 L. R. A. 283; Beebe v. Robinson, 52 Ala. 66. An office is not to be regarded as property but a mere public trust created and existing for the benefit and advantage of the state and not for the personal advancement or profit of the officer. Bradford v. Justices of Inferior Ct., 33 Ga. 332; Opinion of Justices, 3 Me. (3 Greenl.) 481. In defining the term "office," the court said: "We apprehend that the term 'office' im plies a delegation of a portion of the sovereign power to, and possession of it by the person filling the office; -and the exercise of such power within legal limits, constitutes the correct discharge of the duties of such office. The power thus delegated and possessed, may be a portion belonging sometimes to one of the three great departments, and sometimes to another; still it is a legal power, which may be rightfully exercised, and in its effects it will bind the rights of others, and be subject to revision and correction only according to the standing laws of the state." And further in the same opinion in distinguishing an office from an employment, "An employment merely has none of these distinguishing features. A public agent acts only on behalf of his principal, the public, whose sanction is generally considered as necessary to give the acts performed the authority and power of a public act or law. And if the act be such as not to require such subsequent sanction, still it is only a species of service performed under the public authority and for the public good, but not in the execution of any standing laws which are considered as the rules of action and guardians of rights." Mechem, Pub. Off. § 4. "The most important characteristic which distinguishes an office from an employment or contract is that the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions |