People ex rel. Throop v. Langdon

• Decision Date: 24 April 1879
• Citation: 40 Mich. 673
• Court: Michigan Supreme Court
• Parties: The People ex rel. William A. Throop v. Thomas F. Langdon

40 Mich. 673

The People ex rel. William A. Throop v. Thomas F. Langdon

Supreme Court of Michigan

April 24, 1879

Submitted April 16, 1879

Submitted April 16. Decided April 24. [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Judgment entered for the defendant, but without costs.

Alfred Russell for the relator. An office is a right to exercise a public employment and to take the fees or emoluments belonging to it, Bouv. Law Dict., tit. Office: it is any employment in behalf of the government in any station of public trust not merely transient, occasional or accidental, Jackson v. Healy, 20 Johns. 495; a clerk of the Secretary of State is an "officer," Vaughn v. English, 8 Cal. 39; so is a clerk appointed by the Assistant Treasurer of the United States (United States v. Hartwell, 6 Wall. 385), or by the Comptroller of the Treasury (Exp. Smith, 2 Cr. C.C., 693); so is a pilot appointed by a board of commissioners under a statute (Palmer v. Woodbury, 14 Cal. 43), or a sail-maker appointed by the Secretary of the Navy, Sanford v. Boyd, 2 Cr. C.C., 78; quo warranto lies for any office of a public nature that is not merely the function of a deputy or servant held at another's pleasure (Darley v. The Queen, 12 Cl. & Fin., 541), and the title to the office cannot be tested collaterally in any suit for the salary, Auditors v. Benoit, 20 Mich. 176.

City Attorney Wm. C. Maybury and City Counselor F. A. Baker for the defendant. All public employments are not offices, Bunn v. People, 45 Ill. 397; Matter of Hathaway, 71 N.Y. 238; People v. Ridgley, 21 Ill. 65; the chief clerk of the assessor of Detroit is merely the assessor's servant, and an information in his behalf in the nature of a quo warranto will not lie for the clerkship, The King v. Corp. of Bedford Level, 6 East, 356; The King v. Justices of Herefordshire, 1 Chitty 700; Com. v. Dearborn, 15 Mass. 125; State v. Utter, 14 N.J. Law, 84.

Cooley, J. The other Justices concurred.

OPINION

Cooley, J.

If the position of chief clerk in the office of the assessor of the city of Detroit is not an office it is conceded that this proceeding cannot be supported. We are an of opinion that it is not.

An office is a special trust or charge created by competent authority. If not merely honorary, certain duties will be connected with it, the performance of which will be the consideration for its being conferred upon a particular individual, who for the time will be the officer. The officer is distinguished from the employee in the greater importance, dignity and independence of his position; in being required to take an official oath, and perhaps to give an official bond; in the liability to be called to account as a public offender for misfeasance or non-feasance in office, and usually, though not necessarily, in the tenure of his position. In particular cases other distinctions will appear which are not general.

In this case the facts are stipulated, and are given in the margin. ^[*] We find among them no evidence that an office known as chief clerk in the office of the assessor of Detroit has ever been created. A person has been appointed, and has acted under the designation of chief clerk, but no statute or ordinance has given him that title, and if he were now to be called and to style himself in the discharge of his duties head clerk, or leading clerk, or assistant to the assessor, or assessor's amanuensis, it would, for aught we can discover, be equally well, for nothing whatever depends upon the name. Indeed, we can discover no necessity for his making use of the title at all, except perhaps to indicate to those with whom he was transacting business that he was not an intruder in the assessor's office.

Nor do we find in the facts stipulated or in any law or ordinance the requirement of an official oath. It is said that the usual oath of office has sometimes and perhaps always been administered, but why administered we do not understand. The fact of its being taken cannot prove that the clerk is an officer; at most, it could only evidence his belief that he was one, or perhaps his caution to observe all forms that possibly might turn out to be essential. It was, we think, a needless ceremony.

Nor do the duties usually performed by the chief clerk indicate an office rather than an employment. Nothing but custom has defined them, and custom has certainly not been very specific, except in excluding him from all "the official functions, power and authority appertaining to the office of assessor," and from "representing the assessor in any official act or duty." But while thus excluded he is still wholly subordinate to the assessor, having no independent functions; his duties are those of "a mere clerkship, and consist of writing out and copying the annual assessment rolls of the city from minutes and field notes furnished by the assessor and his assistants, and also special assessment rolls," and he is distinguished from the other clerks in the office in that "he gives out and divides the work among the other clerks, and superintends the work for the purpose of making the work systematic and efficient, and of having it properly performed." Surely these cannot be called official functions; they are properly described as those of a mere clerk, and a mere clerk is not an officer.

But the duties, such as they are, can be changed at the will of the superior, since no rule of law or well defined custom forbids it. The assessor may distribute his own work and oversee it himself, and if he were to restrict the clerk, now called the chief clerk, to some particular class of duties without making others subordinate to him, we cannot see that the incumbent would have any legal ground of complaint. The law has pet nobody under the chief clerk, and the title is as applicable to the assessor's confidential assistant, who is "chief" because of the special confidence reposed, as it is to one who is "chief" because of having a certain authority over others. The word "chief," in other words, defines no duties, and the title "clerk" is properly that of an employee. We know of no case in which it is conferred as a title of office where the duties are undefined. Nor is there anything significant in the fact that the chief clerk is independent of the assessor in the tenure of his position. The common council might give the assessor a janitor equally independent in that particular, but the janitor would not be an officer.

As these views require us to render judgment for defendant, it does not become necessary to consider the applicability to the case of the remedy which was sought. But it is proper to say that it is at least doubtful whether the proceeding by information is applicable to the case...