State Ex Rel. Key v. Bond, (No. 4915.)

CourtSupreme Court of West Virginia
Citation118 S.E. 276
Docket Number(No. 4915.)
PartiesSTATE ex rel. KEY. v. BOND, State Auditor.
Decision Date12 June 1923

118 S.E. 276

STATE ex rel. KEY.
v.
BOND, State Auditor.

(No. 4915.)

Supreme Court of Appeals of West Virginia.

June 12, 1923.


(Syllabus by the Court.)

Generally speaking, a "public office" is a position created by law, with duties cast upon the incumbent which involve an exercise of some portion of sovereign power and in which the public is concerned, continuing in their nature, and not merely occasional or intermittent. It is this sense in which the term is used in section 8, art. 4, of the Constitution.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Office.]

One occupying such a position is a "public officer"; but to be a public officer, his office must be created by law.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Officer.]

An "agent" in the restricted and proper sense is a representative of his principal in business or contractual relations with third persons; while a "servant" or "employee" is one engaged, not in creating contractual obligations, but in rendering service, chiefly with reference to things but sometimes with reference to persons when no contractual obligation is to result.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Agent; Employe; Servant]

Under section 8, art. 4, of the Constitution, the term "public agent" means one engaged temporarily and specially in the perform-

[118 S.E. 277]

ance of public duties, prescribed by law, and, as such, vested for the time being with some portion of sovereign authority to represent the state in contractual relations with third persons; the chief distinction between a "public officer" and a "public agent, " as the terms are there used, is that the duties of the former are generally continuing in their nature, while those of the latter are special and occasional or intermittent.

But one who merely performs duties required of him by a public officer or a public agent, under contract, though his employment be in doing public work, is not himself a public officer or public agent, but a mere "employee"; or in some instances an "independent contractor."

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Independent Contractor.]

One employed by the Secretary of State, and designated by him as his "chief clerk, " but whose position as such is not created by law, and who takes no oath, executes no bond, has no fixed tenure, and performs no duties except such as may be required by the Secretary of State is not a "public officer, " or "public agent, " within the meaning of section 8, art. 4, of the Constitution, but a mere employee.

Section 3, c, 87, Acts 1882, in so far as it attempts to place a limitation upon the amount of moneys that may be expended for clerk hire in the office of the Secretary of State, never has been and is not now binding law.

The appropriation bill passed at the extraordinary session Of the Legislature in 1921 (Acts 1921, Ex. Sess. c. 1) was a "budget bill, " and not a "supplementary appropriation bill, " under section 51, art. 6, of the Constitution, commonly known as the "Budget Amendment."

The act by which the budget bill was passed, entitled "An act making appropriations of public moneys out of the treasury" (Acts 1921, Ex. Sess. c. 1), is constitutional; though such construction does not necessarily apply to each item embraced in the budget bill.

But the item embraced therein, appropriating the sum of $21,000 "for expenses of Sec retary of State's office, including compensation of clerks, stenographers and other expenses, " is sufficiently itemized and classified within the terras of the Budget Amendment and therefore a valid appropriation.

(Additional Syllabus by Editorial Staff.)

Mandamus by the State, on the relation of Frances P. Key, against John C. Bond, State Auditor, to require defendant to honor a requisition for the salary of petitioner, as chief clerk in the office of the Secretary of State. Writ awarded.

John T. Simms, of Charleston, for relator.

Geo. E. Price and Joseph E. Chilton, both of Charleston, for respondent.

W. E. R. Byrne, of Charleston, amicus curiæ.

MEREDITH, J. The petitioner, Miss Frances P. Key, who in this proceeding is called the "chief clerk" in the office of the Secretary of State, has applied for a writ of mandamus to require the State Auditor to honor a requisition for her salary for the month of May, 1923. This requisition is shown to have been regularly drawn in her favor by the Secretary of State, upon the Auditor. To the alternative writ heretofore issued by this court, requiring the Auditor to issue his warrant on the State Treasurer for the amount of the requisition, in favor of the petitioner, or show cause why he refuses to do so, the Auditor answers in effect that there is no law authorizing such payment. Various reasons why this is so are urged by him in his return. These will be taken up in their order.

The first reason assigned is that petitioner is a public officer or agent, and that her salary has not been fixed by any general law passed by the Legislature, as required by section 8. art. 4, of the Constitution, which reads as follows:

[118 S.E. 278]

"The Legislature, in cases not provided for in this Constitution, shall prescribe, by general laws, the terms of office, powers, duties and compensation of all public officers and agents, and the manner in which they shall be elected, appointed and removed."

It may be admitted that there is no general law fixing a specific salary to be paid the petitioner or to be paid to the person who performs the duties of her position. If she is a "public officer" or "agent" within the meaning of the constitutional provision, her term of office or agency, her powers, duties, and compensation have not been fixed by general law. We find no law specifically or generally creating the office or agency of chief clerk to the Secretary of State; nor is there any such provision for her election, appointment, or removal. It therefore becomes necessary to inquire whether, within the meaning of that provision, she is a "public officer" or "agent." If she is a public officer or a public agent, and within the terms of this provision, then no matter how valuable her services may have been, she cannot enforce payment out of the public treasury, since the "term of office, powers, duties and compensation" have not been fixed by law, and no payment can be made from the treasury unless it is authorized by law. But to be a public officer there must be a public office. We find no provision in the law creating the office of "chief clerk" to the Secretary of State. If there be such, astute counsel have overlooked it. The Secretary of State is not authorized to create it. The character of an office cannot be attached to a position by name merely. Whether it be an office or not depends upon the nature and character of the duties attached to it by law. State v. Jennings, 57 Ohio St. 415, 49 N. E. 401, 63 Am. St. Rep. 723. Now what are the facts shown in the instant case? The petitioner is a capable, efficient, and faithful clerk, employed by the Secretary of State, in his office. It may be, as alleged in respondent's return, that, under his supervision and direction, she has many responsible duties; that she has in her immediate custody the Great Seal of the State of West Virginia and affixes it to official papers, charters, and other documents issued by the state; yet all these things, if done by her, are under the immediate direction and control of the Secretary of State; her acts are his acts. They are not done independently of his will, but in accord with his will. A ease very much in point is that of Throop v. Langdon, 40 Mich. 673. It was claimed there that a "chief clerk" to an assessor was a public officer. Judge Cooley, in writing the unanimous opinion of the court, holding that he was not an officer, said:

"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 depends upon the name. * * * 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 put 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."

But our own decisions, binding on us, are to the same effect. In Heath v. Johnson, 36 W. Va. 782, 15 S. E. 980, we held that the occupation of a teacher of a free school in this state is not a public office, but an employment; and in Hartigan v. Board of...

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