Harrington v. State

• Decision Date: 07 June 1917
• Docket Number: 6 Div. 572
• Citation: 200 Ala. 480,76 So. 422
• Parties: HARRINGTON v. STATE ex rel. VAN HAYES.
• Court: Alabama Supreme Court

76 So. 422

200 Ala. 480

HARRINGTON v. STATE ex rel. VAN HAYES.

6 Div. 572

Supreme Court of Alabama

June 7, 1917

Rehearing Denied June 30, 1917

Appeal from Circuit Court, Jefferson County; H.A. Sharpe, Judge.

Proceedings by the State, on the relation of Van Hayes, Jr., against F.E Harrington. From the judgment rendered, Harrington appeals. Reversed and rendered.

Samuel D. Weakley and Percy, Benners & Burr, all of Birmingham, for appellant.

A. &amp F.B. Latady, of Birmingham, for appellee.

MAYFIELD J.

The sole question presented for review by this appeal is whether or not the position or place of "all-time" health officer for a county is an "office," within the meaning of section 1467 of the Code of 1907.

That it is an office in some senses and for some purposes there can be no doubt, unless we wholly ignore the common and well-accepted meaning of the words used in the statute; in fact, the position is in terms called "an office," and the person who fills it and performs the duties and functions imposed is repeatedly called "an officer," and "a county officer." It does not follow, however, that the place is an office, or that the incumbent is an officer, within the meaning of section 1467 of the Code, though he be such within the meaning of the health and quarantine statutes. Chapter 22, §§ 698-792, of the Code, and of the later acts amending this chapter, particularly the act amending certain sections thereof, found in Acts 1915, p. 653 et seq.

The words "office" and "officer," as used in certain statutes or constitutional provisions, may include certain positions, places, and persons, which would not be embraced within the meaning of the same words used in other statutes or other constitutional provisions. This difference of meaning and sense in which these words are used has been frequently pointed out by this and other courts. See report of the case of State v. Sanders, 187 Ala. 79-84, 65 So. 378, L.R.A. 1915A, 295, and that of Scholl v Duncan, 162 Ala. 196-198, 50 So. 265, and cases there cited.

The entire statutory system of our health and quarantine regulations, with its history, was reviewed and construed, to some extent, in these cases; and the effect and result of the system was held to evince the legislative purpose to place all matters relating to health and quarantine under the jurisdiction and supervision of the state board of health--a body created by the statutes, and by the statutes invested (so far as they may constitutionally do so) with a part, if not all, of the sovereign power of the state.

The statutes create or authorize to be created a great number of positions and places, and make provision for selecting persons to fill them. Such positions or places are called "offices," and the persons filling them or to fill them are denominated "officers"; but the words are there used in the sense of offices or officers of the state board of health, and not of the state, county, or municipality, though their rights, powers, or duties may be limited and restricted territorially by the boundaries of state, county, or municipality, and in this sense and for this purpose the places and persons are in the statutes denominated state, county, or municipal health officers, or health offices. This is obviously for the purpose of distinguishing such offices or officers of the state board of health from other official positions or persons; and not for the purpose of constituting them state, county, or municipal places or authorities within the meaning of statutory and constitutional provisions on the subject. This was attempted to be pointed out in the case of State v. Sanders, supra.

In the Sanders Case, the incumbent claimed to be a state officer within the meaning of certain provisions of the Constitution, and was repeatedly named in the statutes "state health officer," and authorized or required to keep an office, etc.; but his position was held not to be an office, and he, not an officer, within the meaning of the constitutional provision in question, although it was an office and he was an officer, within the meaning of the health statutes.

There are in legal parlance probably few words that have a greater variety of meanings, or shades of meaning, than the words "office" and "officer." Officers are divided into private and public, civil and military, national, federal, state, county, municipal, and many other classes of territorial designation; and into many other subdivisions and classifications, such as eleemosynary, health, and quarantine. When we speak of a public officer as a state, county, or municipal officer, we usually mean a person who, by lawful authority, has been invested with a part of the sovereign functions of government. A public office is, of course, a public employment; but every public employment is not a public office. The portion of the sovereign power thus delegated to the officer may belong to any of the three governmental departments; that is, legislative, executive, or judicial. A public agent or employé, of course, acts for his principal or employer. A public employment may be created by law, or by contract; but a public office can never be created by contract. Public officers are usually required to take an oath, and often, to make bond, and to keep an office or place of business; but none or all of these requirements do not absolutely determine whether or not a given employment is a public office, within the meaning of a given statute or constitutional provision. This is well stated, verified, and illustrated by notes and cited authorities in all the text-books on the subject of public offices. See Mechem on Pub. Off. §§ 1-10, and Throop on Pub. Off. §§ 1-15. A public employment authorized or created by law may not be a public office within the meaning of the statutes and constitutional provisions governing qualifications for, elections to, and removals from, public offices, state, county, or municipal; or within the meaning of constitutional provisions prohibiting increasing, diminishing, or changing the compensation of officers during their respective terms; and yet it may be that of a member of some board or commission or court or other body clothed by law with a part of the sovereign powers, and for that reason be deemed a public office within the meaning of the statute of its creation. An illustration of this may be found in the case of State v. Sanders, 187 Ala. 79, 65 So. 378, L.R.A. 1915A, 295, and others, in the employments of the president of the University of Alabama, and of other state institutions, and in the positions of clerks and assistant clerks of the house of representatives, secretary and assistant secretaries of the senate, and of the engrossing and enrolling clerks of both houses of the Legislature. The incumbents of these positions are all officers, but officers of the respective bodies or tribunals which select or appoint them, and not of the state within the meaning of section 1467 of the Code, and of many of the constitutional provisions relating to public officers of the state, the counties, and the municipalities.

On account of this variety of meanings attaching to the words "office" and "officer," as used in various written laws, the adjudicated cases do not always nor even often, furnish safe guides by which to determine with absolute certainty whether or not a given employment is an office with the meaning of a given statute or other written law. Every case must of necessity be determined by...