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TJIB LAW OJ' OFFI0lS AND OFI'WBB.8. (Book I.'

OHAPTER II.WHO ARE PUHLlC OFFICERS.

I17. Purpoae of tlrla Chapter.28. Assessors.29. Attorneys at Law.SO . Attendants upon CourtL81. Clergymen.82. Clerks.88. Collectors.84. Conege Profesaora.M. Oommission8n.88. Contractora.87. Oourt Crier.88. Deputies.89. H ealth O fficers.4 : 0 . Judges and Justices.41. Mall Carriers.42. Medical Superintendent.48. Members of MUnicipal Hoards

and Bodies.44. Mesaengers.

45. Merchant Appralsen.48. N avy O f ficers.47. Notary Public.48. Pension Agents.49. Pilots.GO.Postmaster .In. PubUc Printer.52. Receivers.5S . RefereeLM. Representatives inLegislatures.Mi. School O fficers.56. Selectmen.57. Special Commilllon8n.58. State and other Treasurers.59. Surgeons.60. Superintendents of Canale.81. Trustees of State Institutions.62. Walehmen of Public Buildings.

27. Purpose of this Chapter.- IIaving in the precedingchapter, ascertained the definitions, divisions and distinctionswhich govern this question, it will be now attempted to show,by practical illustrations, how they have been applied, particularreference being paid to those cases which lie upon debatable ordoubtful ground.

28. Assessors.-Assessors of taxes are independent publicofficers with duties prescribed by law.' 29. Attorneys at Law.- "An attorney at law;' says GUY,

O. J.,'" is not indeed, in the strictest sense, a public officer. Buthe comes very near it. As was said by Lord Holt,' , the office1Lorillard Town of Monroe, 11

N. Y. 899, 62 Am. Dec. 120.IIn Robinson's case, 181 Maas.876,

~ Am . Rep. 289. See also 1b pam12

Yale, 24 Cal. 241, 83 Am. Dec. GI,wlike effect. White's case, 6 Mod. 18.

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Chap. II.] WHO ARB PUBLIO Oll'J'IOERS. 31.of an attorney concerns the public, for it is for the administra-tion of justice.'" And RYAll, O . J., says "that attorneys andcounsellors of a court, though not properly pubZio officers aregua8i officers of the State whose justice is administered by thecourt." In a few cases, however, they have been held to bepublic officers.' An attorney at law does not hold a lucrativeoffice nor an office of profit and emolument under the govern-ment. 30. Attendants upon Courta.- Whether attendants upon

courts are public officers is a question upon which there haabeen a difference of opinion, and one to be determined largelyby reference to the duties involved and by a construction ofthe particular statutes creating them. In some cases suchattendants have been spoken of as mere servants of the court,'but in certain later cases, it has been held that an atteudant upona court whose duty it is to be present at its sittings, to executeita commands, secure order and attend on juries, is a publicofficer.' 31. Clergym.en.- A clergyman in the administration ofmarriage is a public civil officer, and his acts in the celebrationof marriage are admissible asprima facie evidence of his officialcharacter. I But the office of a clergyman is a merely spiritual orecclesiastical one where no temporal right, such as the enjoymentof an endowment or emolument, is attached to it; and thewrongful exclusion from such au office does not involve anylegal right of which a court of law can take cognizance. ' WhereIIn matter of Mosnes8, 89 Wis. 509,20 Am. Rep. M. See also, Bradley's

case, 7 Wall. (U. S.) 864, 878, 879;Thomas e, Steele, 22 Wis. 207; Co-thren e. Connaughton, 24 Wis. 184;Auatin'. CMe, 3 Rawle (penn.) 191,18 Am. Dec. 667.

'Wood'. case, 2 Cow. (N. Y.) 29,note; Seymour e, Ellison,2 Cow. (N.Y .) 1 9; Matter otWood, 1 Hopk. os,(N. Y. )7; Richardson v. Brooklyn, &:c.R. R. Co. 22 How. Pr. (N. Y.) 868.But aee MaUer ot Oath 20 Johns.(N. Y.) 492: Matter of Doney, 7Port. (Ala.) 298.

'Leigh'. case, 1 Munf. (Va.) 468,488.f See Sweeney e, Mayor. 38 N. Y.

6~; Holley v. Mayor, lI9 N. Y. 166;Brennan tI. Mayor, 62 N. Y. 863;Wines fl. Mayor, 9 Hun (N. Y.) 65~Rowland flo Mayor, 44N. Y. Super.Ot. M9.IRowland v. Mayor, SSN. Y. 872;Moser e, Mayor, 21 Hun (N. Y.)163.IGoshen v. Stonington, " Conn.

209, 10 Am. Dec. 121.'Union Church fl. Banders, 1Houston (DeL) 100, 68 Am. Dec. 187.

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32. THE LAW OJ' OJ'J'IOES AND OJ'J'IOER8. [Book 1any temporal rigbt is attached, however, which is affected bysuch exclusion, a legal right is involved, and where no otheradequate remedy is furnished, mandamm will lie to restore himto his office.' 3i. Clerks.-Aclerk in the office of an assistant treasurer

of the United States, appointed by the assistant treasurer withthe approbation of the secretary of the treasury pursuant to lawand whose compensation is fixed by law and whose duties arecontinuing and permanent, is a public officer.' A clerk of thefractional currency counter in the treasury departmentappointed with the approbation of the secretary and chargedwith the safekeeping of public funds is an officer of the UnitedStates.'A clerkship in the treasury department and one in theattorney-general's office, are offices, within a provision forbid-ding one person from drawing the salary of two different offices.tA clerk in the office of the secretary of state is an officer,' andso is an assistant clerk of the board of aldermen of New Yorkcity, appointed by authority of a statute.'

A paymast.er's clerk, appointed by a paymaster in the navy,with the approval of the secretary of the navy, but there beingno statute authorizing the secretary of the navy to appoint sucha clerk, nor any act requiring his approval of such an appoint-ment, is not an officer of the United States;' nor is a clerk of thecollector of customs, holding his position at the will of the latterand discharging only such duties as may be assigned to him bythat officer.'A clerk of the United States district court is an "inferior"

IUnion Church fl. Bandera, 1 Hous-ton (Del.) 100, 68 Am. Dec. 187;Runkel fl. Winemiller, Gen'l Ct. 4H.&MeH. (Md.) 429,1 Am. Dec. 411. United States fl. Hartwell,6 Wall.C U . S.) 88IJ.'United States fl. Bloomgart, tBen. C U . S. D. C.) 856. But see UnitedStates e. Smith, IN U. S. ti23 ; Uni-ted States fl. Mouat, 124 U. S. 808.

tTalbot fl. United States, 10 Ct. of01.426.

'Vaughn fl. English, 8 Cal. 89. Collins e. Mayor,3 Hun (N. Y.)680.'United State. e. Mouat, IN U. 8.808.'United Stat.e. Smith,1M U. 8.ti21S.

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Chap. 11.1 WHO ABE PUBLIO OJ'nOERS. 85.officer; 1but the enrolling clerk of the house of representativesof a state is not a public officer.'The chief clerk in the office of the assessor of the city of De-troit was held not to be R public officer.' 33. Collectora.-Colle~ors of taxes are independent publicofficers, whose duties are prescribed by law.4 34. College Profeasora.-A professor in a state university

is Dot a public officer.1 35. Commiaaionera.-A levee commissioner in Mi88i88ippi'is a U civil officer under the State;" I a commissioner for the

construction of a public highway, is a public officer,' and so is acommissioner appointed by an act of the legislature to layoutand build a public road,' and so are commissioners appointed bythe governor to construct a public building.'

But a commissioner appointed to make a State survey onder anact anthorizing the governor to enter into a contract with thecommissioner for doing the work, is not a public officer; 10 norare commissioners appointed to superintend the erection of aBtate honse;" nor are commissioners to fund a city debt;" norare commissioners appointed for an indefinite time," Canalcornmiesioners are not "cidl officers;"'4 nor are commissionersto make a survey of state land offices in contemplation of a stat-ute forbidding judicial officers from holding any other office ofprofit. 'I Commissioners appointed to conduct a lottery arc notpublic officers; II nor are bank commissioners appointed for the

, lib pMu Hennen, 18 Pet. (U. S.)980State fl. Gardner, 48 Ala. 2M.

Throop fl. Langdon, 40 Mich: 67ftC LorUlard fl. Town of Monroe, 11

N. Y. 892, 69 Am. Dec. 120; Morsee. Lowell. 7 Mete. (lIasa.) 1119;PeopIe fl. Bedell. 9 Hill (N. Y.) 196;State fl. WallOn, 69 Me. 106.IButler 0. Board of Regents, 82W I& 194. Shelby fl. A.. lcorn, s a Misa. 978, 79Am . Dec. 189.'People fl. Nostrand, 46 N. Y.881; People .. Hurlburt. 94 Mich. 09,"Am. Rep. 108.

People D. Hayes, 7 How. Pro (N.Y.)248. People fl. Comptroller,20 Wend .(N. Y.) 59~

1Hall V. Wisconsin, 108 U. S. G;overruling 89 Wi&. 79... Buun fl. People, 4 I i I ll. 897..1People e. Middleton, 28 Cal. 603.IIMcA.rthur fl. Nelson, 81 Ky. 67.14 United States e. Hatch. 1Pinn.

(Wis.) 189..1Shepherd fl. Commonwealth, 1

Serg. & R. (penn.) 1I'State .. Platt. 4 Barr. (Del.1M.

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36. THE LAW OF OFFICES AND OFFICERS. [Book I.liquidation of insolvent banks; I nor are commissioners appointedto determine upon the purchase by the State of interestingrelics.' The office of commissioner of loans of a county isa county office;' but commissioners appointed by the State tosign city treasury warrants which were to circulate as money,were held to be State and not city bfficers; and commissionersappointed by the legislature to lay city pavements are not officersof the city;' nor are special commissioners appointed by thelegislature to act for counties in aiding railroads, county officers.'The office of county commissioner is a "lucrative" one;' andthe office of a commissioner of the United States CentennialOommission is an " office of trnst.'" 36. Contraotors.-As has been seen,' persons whose powersand duties are conferred and created by contract, are not public

officers. A contractor for carrying the mail is, therefore, not apublic officer. 10 37. Court Crier.-A court crier appointed by the courtunder statutory authority, his salary being payable by the boardof supervisors, is a public officer.II 38. Deputies.- Whether deputies appointed by public offi.

cers are to be regarded as public officers themselves, depends nponthe circumstances and method of their appointment, Wheresuch appointment is provided for by law, and ofortiori where itis required by law, which fixes the powers and duties of suchdeputies, and where such deputies are required to take the oathof office and to give bonds for the performance of their duties,the deputies are usually regarded as public officers. Thusdeputy postmasters appointed and qualified according to law,IConrey fl. Copland, 4 La. Ann.807. IPeople fl. Nichols, 52 N. Y. 478,

11 Am. Rep. 734.Matter of Carpenter, 7 Barb. (N.Y.) 30.

C Garnier fl. St. Louis, 37 Mo. 554.IGreaton fl. Grillln, 4 Abb. Pr.N.

8. (N. Y.) 810.ISheboygan County fl. Parker, 8

Wall. C U . S.) 98. See also, Walker fl.

Cincinnati, 21 Ohio St. 14, 8 Am.Rep. 24.7Dailey fl. 8tate,8 Blackf. (Ind.)

8 29 '[n r, Corliss, 11 R. I. 688, 28Am. Rep. 538. B ee anti, 5.10 Sawyer fl. Corse, 17 Gratt. (Va.)

280, 94 Am. Dec. 445.IIRicketts fl. New York, 67 How.Pr. (N. Y.) 820.

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Chap. II.] WHO :ABE PtI'BLIO OJ'J'IOEK8. 48.are pub li1 ! o ffid eJ '8 .1 80 Ie , deputy marshal f8 an officer of thoUnited Stites: and deputy sherH!s are recognized by the stat-utes 'of mOS t States is independent public officers.'

Bot where the deputy is appointed merely at the will andpleulll'e of his prineipal to eerveaome purpose of the latter, heis not a public officer but a mere servant or agent. So a specialdeputy employed only in a particuJar case is not a public officer. 39. Health omce1'8.-The health officer of a port does net

become an officer of the United States by virtue of the surreu-der to him, by the United States naval authorities, of an infectedvessel.' 40. Judges-and J1Utioe&--.JudgM of courts' and JUB'_of the peace' are public omeel"B. 41. K&fl Oairl8r.~AiDail carrier is not a public officer but

'he private agent of the eontraetor for ~rryiog themail 4~. J[edioa! Buperintendent.-The medical superintendento f 'an uylllm for & he inB&D e,hokiing a poeition whose ,powera..ed dmiSB areproviaed for by'Rtatute isapubUcoftieer.1I. ' 43 . ilitembe1'8O tilun1olpal Boards and Bodi8l.~ The mem-bers of municipal boards, like a board of poblic works, 'are pub-lic officers.u So are members of a common eonneil.I"ILane . 'cottOn, 1 Ld. Raym. 846;Schroyer! . LYnCh, SWalls (penn.)

463i WlQina II. Hathawa,Y, 6 Barb.(N. ' 1 ' . ) es2; Dunlop Monroe, 7Craneh (U. 8.) 242; Bolan II.WUliamson, 1 Brev. (8. 0.) 181; Muwell". ')lcllvoy,"2 Bibb. (Ky.) 211;B e e Conwell . Voorh., 18 Ohio , GAm. Dec;2G8. United Statea fl. lIarttn, 17 Fed.Rep. 100; United States fl. Tinkle-paugh, 8 BlaiCh. (U. B. C. C.)480.

'BaRman Curtla, " Vt. 616;DaywD Lynea, 80 Conn. 861;Towns .. HarriB,18 Tu. 807Kavanaugh State, 41 Ala. 8 1 1 9 ;Sawyer CoI'I8. 17 Gratt. (Va.) 2~8," . A m . Dec. 445. Deputy clerkship

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fa not an office. Jeffrlea II. Harring.ton. "-Colo. '..:-17 Pac. Rep~G03. Kavanaugh fl. State, 41 Ala. 899."Delano e. Gooawln,.a N.H. 208.

But see Cox fl. United 8tates, 14 Ct.of C 1. 3 12.T Commonwealth Gamble. 61

Penn.8t. 848, 1 Am. Rep. 492 People fl. Ranaom, 38 Cal. ~38.'Sawyer fl. COree, 17 GraU. (Va.)

230, 94 Am. Dec. 445.I,8tate fl. Wllaon, 29 Ohio St. 847.Bee also Dullam II.WillsoD,38 Mich.392, 51 Am. Rep. 128.IIPeople II. Hurlburt, 14 Mich. 39,

9 Am. Rep. 103 ." State . Andel'lJOn. - Ohio at. -.

12 N. E. Rep. M6.17

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'I'Im LAW OJ' OJ'll'IOBS AND OJ'J'IOBBI. [BookL 44. )[8888ngera.-A" messenger to the president of the

board of aldermen" in the city of New York is not a publioofficer, there being no statute creating such an office or definingits dutiea.' 45. )[erohaDt Appraisers.-A merchant appraiser is not &pu blic officer.I 4 : 6 . Navy moen.-Navy officers are officers of the UnitedStates. I-- c 4 : 7 . Notary Publio.-A notary public is a public officer.'--A8. Pension Agent8.-A pension agent of the United

States, not being required to take an oath of office or to perfonnany other services than such as are confided to him by the wardepartment, is not an 'officer of the United States. I 4 : 9 . PIloto-Pilots are not public officers.I 50. P08tmaater.-A. United States postmaster Is a publicofficer.'.' . 51. Publio Print8r.-It is entirely competent for the legi ..lature to make the public printer a state officer, and where theyhave expressly done 80 he will be so considered;' but where thepublic printing is by law to be "contracted for" the person em-ployed is not a public officer.' 69. BeoeiV4Jrs.-The receiver of a national bank, appointed

in accordance with an Act of Congress, is an officer of the UnitedStates, II and receivers of public money are public offlcers,"I8. Beferee -Referees appointed to examine witnes&ea,ISmith e. Mayor, 67 Barb. (N. Y.)

228.IAuftmord, e. Hedden, 80 Fed.

Rep. 860 Armstrong e. United Statel, Gilp.{O . B. D.O.) 899.

'Ktrkseye. Batea. 7Pol1 . (A .1 a.)1 S 29 .81 Am. Dec. 722; Governor fl. Gor-don, lIS Ala. 72 .ILindsey .. Attorney General, 88

lliu. I S O & .

IDean fl. Healy, 66 G IL . IS OB.'Spence fl. Harvey, 220aL 888,88Am. Dec. 69. Ellil fl. State, 4 Ind. 1.IBrown e. Turner, 70 N. O. 98.

See Detroit Free Press Co. fl. StateAuditors, 47 Mlcb. ISIS. Pia" fl. Beach. 2 Ben. (U. B. D.C .) 8O B.IICommonwealth .. li:V&DI, 74

Penn. St. 124.18

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I9. [Book Lof theltigialiittire fo 'act for cltles in 'givIng 'liftl to railroads are-Dot public o ffic ers .I1ft. ;W atohmenofpublioBuUc'ifD8I.-A ntght'watahman ofa ledelal'pOstoffioo 'building, appointed b y the Fedefal treasury

department and receiving a monthl.,Y salary, does Dot "llold aD01800 of'tnet or profit under the United States.'"IWalker... OincluaU, Bl Ohio S&. lD071e .. 41derm8ll o J . RaleIgh ...

1 " 8 :A iD . Rep~i4. N . 0. 1 8 8 . . 4 1 Am. Rep. m.20

who are public officers

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