State ex rel. Brown v. Christmas

• Decision Date: 27 June 1921
• Docket Number: 21969,21968
• Citation: 88 So. 881,126 Miss. 358
• Court: Mississippi Supreme Court
• Parties: STATE ex rel. BROWN v. CHRISTMAS. STATE ex rel. GUESS v. MILLER

88 So. 881

126 Miss. 358

STATE ex rel. BROWN v. CHRISTMAS.

STATE ex rel. GUESS v. MILLER

Nos. 21968, 21969

Supreme Court of Mississippi

June 27, 1921

APPEAL from circuit court of Hinds county, HON. W. H. POTTER, Judge.

Separate proceedings in quo warranto by the state on the relation of B. F. Brown, and of Ben R. Guess against Thomas R. Christmas and R. S. Miller, respectively.From a dismissal of the petition in each case relator appeals.Affirmed.

Affirmed.

In No 21968:

M. A Pilgrim and Crisler & Crisler, for appellant.

Geo Butler and Hamilton & Hamilton, for appellee.

In No. 21969:

M. A. Pilgrim, for appellant.

As we see it the sole question before this court to be determined is whether or not the deputy land commissioner is a public officer.For the convenience of the courtwe here quote chapter 197, Laws of 1910, being the statute creating the office of deputy land commissioner.

"Section 1.Be it enacted by the legislature of the state of Mississippi, that section 2904, of chapter 77, of the Mississippi Code of 1906, be, and the same is hereby amended, so as to read as follows:

"2904.(2566).Land Commissioner.There shall be a land commissioner, who shall be elected as other state officers are at the general election, whose term of office shall be four years, and until his successor shall have been qualified.He shall possess the same qualifications as are required for the secretary of state, and shall qualify as other state officers.The land commissioner shall be entitled to one deputy to assist him in the discharge of his duties, with power and authority to do and perform all acts and duties required by the land commissioner.The appointment shall be made in writing and filed in the office of secretary of state, with a certificate that the deputy has taken oath, and given bond in the sum of five thousand dollars, to faithfully discharge his duties as deputy.The said deputy shall receive such compensation as shall be provided by law."

Now the question as we see it is whether or not the above cited statute created a public office or a mere employment.To determine this fact we shall examine the authorities.After a careful examination of all the leading authorities we can draw no other conclusion than that chapter 197, Laws of 1910, created the office of deputy land commissioner a public office.We quote a few of the leading authorities on this question:

Bouvier's Law Dictionary gives the following definition of an office: "The true test is that it is a parcel of the administration of government. . . .The term includes all persons in any public station or employment conferred by the government.""The term of an officer is not affected by vacating the office of his superior."

In the case of United States v. Hartwell,16 Wal. 393, 18 L. E. D. 830, we find the following: "The duties of an officer are defined by law not by contract."

In the case of United States v. Maurice, 2nd Brock, 96 (U. S.) Chief Justice WHITE gives a very clear and concise definition: "An office is defined to be a public charge or employment, and he who performs the duties of the office is an officer.Although an office is an employment it does not follow that every employment is an office.A man may certainly be employed under a contract, express or implied, to do an act or to perform services without becoming an officer."

Referring to the case of United States v. Hartwell,16 Wal. 385.(U. S.)we find this definition: "An office is a public station or employment, conferred by the appointment of the government.The term embraces the idea of tenure, duration, emolument and duties. . . .A government office is different from 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 from the other."

Clark v. Stanley, 66 N.C. 59, gives the following definition: "A public office is an agency for the state, and the person whose duties it is to perform this agency is a public officer."

Quoting from 3 Words and Phrases, page 696: "The term 'public office' implies permanence and duties of a public nature.An office is a position or station in which a person is employed to perform certain duties, or by virtue of which he becomes charged with the performance of certain duties."Page 698."The general doctrine is that the idea of office clearly embraces the ideas of tenure, duration, fees, or emolument, rights and power as well as that of duty."Page 699."Apart from the statute, the distinction between a public officer and an employee is that the former is charged with duties involving the exercise of some part of the sovereign power in the performance of which the public is concerned, and which are continuing and not occasional, while one merely performing duties required of him under an express contract or otherwise, though the employer is a public officer and the employment being a public work or business, is a mere employee."Page 700.

"While generally speaking, an officer is one employed in behalf of a government; in a strict legal sense, the term implies employment in some fixed and permanent capacity.Those engaged in mere transient or occasional employment being more properly employees than officers.""The term 'office' implies a delegation of a portion of the sovereign power, too, and possession of it by the person filling the office; and exercise of such power within legal limit constitutes the correct discharge of duties of such office."

On page 697, at the bottom of the second column will be found a citation which quotes Meachem on Public Officers at length and from which we quote a part as follows: "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 of the government, to be exercised by him for the benefit of the public that some portion of the sovereignty of the country, either legislative, executive or judicial, attaches for the time being, to be exercised for the public benefit."Page 697.

An office in an abstract sense may be defined as: "A duty, charge, or trust; a place of trust; a position to which certain duties are attached; a right and correspondent duty to execute a public or private trust and to take emoluments belonging to it."29 Cyc. 1361."Opposed to the conceptions of office and officers are those of employment and employee.While an office is based upon some provisions of law, an employment is based upon a contract entered into by the government with the employee."

In Meachem on Public Officers, section 1 a public office is defined as follows: "The right authority and duty, created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government to be exercised by him for the benefit of the public.The individual so invested is a public officer."

As to whether a deputy, in the general sense, is a public officer we quote from Meachem on Public Office, section 38: "Deputies.Whether deputies appointed by public officers are to be regarded as public officers themselves, depend upon the circumstances and methods of their appointment.When such appointment is provided for by law, and a fortiori where it is required by law, which fixes the power and duty of such deputies, and where such deputies are required to take the oath of office and to give bonds for the performance of their duties, the deputies are usually regarded as public officers."

But, we find that we are not left to determine as a general principle of law the correct definition of a public officer, as this point has been definitely settled by this court in many former decisions.

"A public officer is one who has some duty to perform concerning the public, and he is not the less a public officer when his duty is confined to narrow limits, because it is the duty and the nature of that duty which makes him a public officer, and not the extent of his authority.This was laid down by the court in the following cases: Monette v. State,91 Miss. 662, 44 So. 989;Shelby v. Alcorn,36 Miss. 273, 72 Am. Dec. 169;Kiersky v. Kelley,80 Miss. 803, 31 So. 901, andEllis v. Greaves,82 Miss. 36, 34 So. 81, and cited with approval in Yerger v. State, 91 Miss. 802, 45 So. 849.

Having examined all the authorities and definitions of a public officer we find that the deputy land commissioner as created by chapter 197, Laws of 1910, has every requisite of a public officer, required by all the leading authorities, including the former decisions of this court.

Clayton D. Potter, for appellant.

The principal question for determination here is whether or not the office of deputy auditor is an office within the meaning of section 20andsection 175 of the Constitution of the state.

Section 20 is as follows: "No person shall be elected or appointed to office in this state for life or during good behavior, but the term of all offices shall be for some specified period."

Section 175 of the Constitution is as follows: "All public officers, for willful neglect of duty or misdemeanor in office shall be liable to presentment or indictment by a grand jury; and upon conviction, shall be removed from office, and otherwise punished as may be prescribed by law."

If the office of deputy auditor is a state office within the meaning of the constitution then that portion of section 236, Code of 1906, the same being section 3495, of Hemingway's Code,...