State v. Cole
Citation | 148 P. 551,38 Nev. 215 |
Decision Date | 29 April 1915 |
Docket Number | 2143. |
Parties | STATE EX REL. KENDALL v. COLE, STATE CONTROLLER. |
Court | Nevada Supreme Court |
Original mandamus proceeding by the State, on relation of Zeb Kendall against George A. Cole, State Controller. Petition dismissed.
George A. Bartlett, of Carson City, for petitioner.
Wm Woodburn, Jr., and Wm. McKnight, both of Carson City, for respondent.
The Legislature, in 1913, passed an act providing for exhibits at the San Diego and San Francisco Expositions (S. L. 1913, c 128, p. 169), sections 1 and 2 of which read as follows:
--and making appropriations therefor. Thereafter the Governor appointed an exposition commissioner, and on the 29th of April, 1914, the board of directors employed petitioner as superintendent, and fixed his salary at $300 a month. Petitioner entered upon the discharge of his duties in the month of May, 1914, and in due time presented his bill to the exposition commissioner for his salary for said month, which was approved by said commissioner, and later approved by the board of examiners. The bill so certified and approved was presented to Jacob Eggers, the then state controller, who refused to draw his warrant for the same. Petitioner thereafter made this application for a peremptory writ of mandamus to compel respondent to draw a warrant in his behalf for the amount of his claim, alleging his employment as superintendent, the agreed monthly salary, and the rendition of services for the month for which recovery is sought. Respondent filed an answer, in which it is alleged that petitioner was at the time of the passage of the act mentioned a member of the State Senate and voted for the bill, and was such senator at the time of his appointment as superintendent, and during the month of May, when he rendered the services alleged, and contends that under section 8, art. 4, of the Constitution, which reads:
"No senator or members of Assembly shall during the term for which he shall have been elected, nor for one year thereafter, be appointed to any civil office of profit under this state which shall have been created, or the emoluments of which shall have been increased during such term, except such office as may be filled by elections by the people,"
--petitioner was disqualified from serving in the position to which he was appointed, and from receiving a salary from the state. The constitutionality of the act under which it is alleged that relator was employed is not questioned, nor is it contended that relator acted in bad faith in voting for the bill, or had any expectation that he would be in any way benefited by its passage. It is purely a question of whether or not relator is precluded from holding the position by virtue of the section of the Constitution quoted, and in arriving at a conclusion we need only to determine if the position of superintendent is a civil office. An office does not spring into existence spontaneously. It is brought into existence, either under the terms of the Constitution, by legislative enactment, or by some municipal body, pursuant to authority delegated to it. "All public offices must originally have been created by the sovereign as the foundation of government." 3 Cruise's Dig. p. 109, § 5. Lord Coke says that an office can only be created by an act of Parliament. 2 Inst. 540; 7 Bacon, Abr., p. 281, tit. Offices and Officers; Eliason v. Coleman, 86 N.C. 235; White v. Clements, 39 Ga. 274; Ex parte Lambert, 52 Ala. 79; People v. Murray, 70 N.Y. 521; State v. Kennon, 7 Ohio St. 547; Gosman v. State, 106 Ind. 203, 6 N.E. 349; Hall v. Wis., 103 U.S. 5, 26 L.Ed. 302; People v. Langdon, 40 Mich. 673; State v. Bus, 135 Mo. 325, 36 S.W. 636, 33 L. R. A. 616; State v. Brennan, 49 Ohio St. 33, 29 N.E. 593; Shelby v. Alcorn, 36 Miss. 273, 72 Am. Dec. 169; Baltimore v. Lyman, 92 Md. 591, 48 A. 145, 52 L. R. A. 406, 84 Am. St. Rep. 524; State v. Broome, 61 N. J. Law, 115, 38 A. 841; State v. Jennings, 57 Ohio St. 415, 49 N.E. 404, 63 Am. St. Rep. 723; Miller v. Warner, 42 A.D. 209, 59 N.Y.S. 956.
It seems to us that since an office is a creature of the Constitution, of legislative enactment, or of some municipal body, we must look to the instrument which it is alleged created the position to determine the intent of the body creating, which, in this case, is the Legislature. It would certainly be a remarkable situation if the Legislature by the act in question created an office without any intention so to do. Indeed, it has been held that, in determining whether or not the Legislature in fact created an office, we must look to the intent of the Legislature. Shepherd v. Com., 1 Serg. & R. (Pa.) 1; Rowland v. Mayor, 83 N.Y. 372; Bunn v. People, 45 Ill. 397; Ryan v. Mayor, 50 How. Prac. (N. Y.) 91.
"When the Legislature created and called it an 'office' it was an office, not because the peculiar duties of the place constituted it such, but because the creative will of the law-making power impressed that stamp upon it." Brown v. Turner, 70 N.C. 99.
In arriving at the intent of the Legislature there is an old rule which is well recognized, "Expressio unius est exclusio alterius." State v. Blasdel, 6 Nev. 40; State v. Hamilton, 13 Nev. 389; In re Bailey's Estate, 31 Nev. 381, 103 P. 232, Ann. Cas. 1912A, 743. If this is a safe rule, then why is it not equally safe to conclude that where the Legislature specifically designates one position provided for thereunder as an "office," and does not so designate another, the one not so designated was not intended by the Legislature to attain to the dignity of an office? To us this theory is logical. It will be noted that in the act in question the "office of said exposition commissioner" is expressly created, while the board of directors are empowered to " employ superintendents, clerks and others." If the rule contended for is sound, as we are confident it is, there is no doubt but that the Legislature did not intend to create the office of superintendent, and relator is not a civil officer.
While it may appear to be a simple matter to determine whether a position is an office or not, the courts have experienced a good deal of trouble in doing so. Blackstone defines an office to be:
Prof. Wyman, of Harvard, defines a public office to be:
An office is:
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