State v. Hackmann, 23178.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Woodson
• Citation: 254 S.W. 53,300 Mo. 59
• Parties: STATE ex rel. ZEVELY v. HACKMANN, State Auditor.
• Docket Number: No. 23178.,23178.
• Decision Date: 28 July 1923

254 S.W. 53

300 Mo. 59

STATE ex rel. ZEVELY v. HACKMANN, State Auditor.

No. 23178.

Supreme Court of Missouri, in Banc.

July 28, 1923.

[254 S.W. 54]

Appeal from Circuit Court, Cole County; G. Slate, Judge.

Mandamus by the State, on the relation E. M. Zevely, to compel George E. Heckmann, State Auditor, to audit and pay an account for services performed by relator as secretary of the state board oaf equalization. Judgment for plaintiff, and defendant appeals. Affirmed.

Jesse W. Barrett, Atty. Gen., and J. Henry Caruthers, Sp. Asst. Atty. Gen., for appellant.

Dumm & Cook, of Jefferson City, for respondent.

Statement.

WOODSON, C. J.

This is a proceeding brought in the circuit court of Cole county by the plaintiff against the defendant, George E. Heckmann, state auditor, having for its object a writ of mandamus, to compel the latter to audit and pay an account of $820, alleged to be due the former for services performed by him as secretary of the state board of equalization.

The trial in the circuit court resulted in a judgment for the plaintiff, and in due time and proper form the defendant appealed the cause to this court.

The case was submitted upon the following agreed statement of facts:

"It is hereby stipulated and agreed in the above cause by and between Jesse W. Barrett, Attorney General of Missouri, representing respondent, and E. M. Zevely, relator and petitioner, on his own behalf, as follows:

"That at all times mentioned in relator's petition, respondent, George E. Heckmann, was and now is state auditor of the state of Missouri. That the state board of equalization was at all such times composed of the then incumbents of the state offices therein named and charged with the performance of the duties alleged in said petition.

"That on December 16, 1919, relator, E. M. Zevely, was duly appointed as secretary of the state tax commission of the state of Missouri, under authority granted said commission by section 12841 of the Revised Statutes of Missouri of 1919, and that the order of said appointment was in words and figures as follows, to wit: [Then follows the appointment and qualifications of the plaintiff as such secretary].

"That during all of the time of the rendition of the services and per diem charged for in the' account of relator in sum of $820, as presented to and allowed by the state board of equalization on January 8, 1021, and described in relator's petition, which are hereby admitted to have been performed, said relator was secretary of the said state tax commission.

"That whatever relationship relator may have sustained to the late state board of equalization during the time of the performance of the service and per diem set forth in said account and petition, whether of an official or clerical character, was due to and existed wholly by virtue of the provisions of article 4, of chapter 119, Revised Statutes of 1919, and particularly of section 12842 thereof.

"It is further agreed that the account of relator in the sum therein and in relator's petition mentioned is unquestioned, that same was presented to, approved, and duly allowed in said sum by said late state board of equalization on January 8, 1921, and was ordered by said board to be certified to the state auditor for audit and payment, that same was so certified and presented, and audit thereof was refused by said auditor.

"That funds sufficient for the payment of said account have been conditionally appropriated therefor by the General Assembly of the state of Missouri, and now remain in the treasury of said state, but it is further expressly agreed that the fact that such appropriation has been made shall not be taken into consideration by the court, nor in anywise influence its judgment in the decision of this cause, but the court shall decide the question at issue according to and wholly upon such other and independent provisions and rules of law and construction as it may believe and find to be applicable and pertinent to a correct determination thereof.

"That the only question herein involved is one of law and resolves itself into this, to wit: Was petitioner, E. M. Zevely, at the time he rendered the services and per diem for which he asks payment as secretary of the state board of equalization, an officer of said board in contemplation of section 12856, R. S. 1919?

"And it is agreed that, if the court decides said question in the affirmative, judgment shall he rendered for relator and mandamus shall issue commanding respondent as state auditor to draw his warrant upon the state treasury of this state in payment of relator's aforesaid account in said sum of $820; but, if the court determines said question in the negative, judgment shall go against relator, and his petition shall be dismissed."

Then follows the signatures of the parties to the suit.

Opinion.

Counsel for the respective parties agree that the only proposition presented by this record for determination by the court is: Was respondent, Zevely, at the time he rendered the services for which he asks payment as secretary of the state board of equalization, an officer of said board in comtemplation of section 12856, R. S. 1919? Upon this question respondent respectfully submits the citations following. The above section reads as follows:

"Sec. 12856. The officers and members of said board shall receive the same pay per diem as officers and members of the General Assembly, but no mileage shall be allowed in any case in consequence of their duties as members of said board; and the said board shall meet every year at such time as may be designated."

From the very language of the statute quoted we must approach this question by first ascertaining what is an officer, and whether or not Zevely comes within that application.

Counsel for respondent have collected from all over the country a large number of definitions and adjudications defining "offices" and "officers," and, in my opinion, I can do no better than to reproduce them in this connection.

Mr. Chief Justice Marshall's definition of "office" and "officer," contained in United States v. Maurice, 2 Brock. 103, Fed. Cas. No. 15747, is thus tersely put:

It (an office) is "'a public charge or employment,' and he who performs the duties of the office is an officer."

Or, as Blackstone states it:

"An office is the right to exercise a private or public employment and to take the fees and emoluments thereunto belonging." 2 Bl. Com. 36.

And as extended in Olmstead v. City of New York, 42 N. Y. Super. Ct. 481:

"It implies an authority to exercise some portion of the sovereign power of the state, either in making, administering or executing the laws."

Where a person who is the incumbent of a public position is required by law to perform the duties of another position, not incompatible with the first, he, in the absence of any provision of the law to the contrary, is entitled to receive the compensation attached to each of the positions. Note (2 Ann. Cas. 390) to State v. Grant, 2 Ann. Cas. 382, citing following cases: Seiler v. State, 160 Ind. 605, 65 N. E. 922, 66 N. E. 946, 67 N. E. 448; Love v. Baeher, 47 Cal. 364; State v. Liedtke, 9 Neb. 464, 4 N. W. 72; Scranton School Dist. v. Simpson, 133 Pa. 202, 19 Atl. 359; State v. Roddle, 12 S. D. 433, 81 N. W. 980.

An office is defined by the Century 'Dictionary as a post, the possession of which imposes certain duties on the possessor, and Confers authority for their performance; and by Cochran as a position or appointment entailing certain rights and duties. State v. Brennan, 49 Ohio St. 33. loc. cit. 37, 29 N. E. 593.

A public office is defined to be—

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 who is invested with the authority and is required to perform the duties is a public officer. State ex rel. v. Bus, 135 Mo. 325, loc. cit. 331, 36 S. W. 636, 33 L. H. A. 616, citing Mechem's Public Officers, p. § 1.

The courts have undertaken to give definitions in many cases, and while these have been controlled more or less by laws of the particular jurisdiction, and the powers conferred and the duties enjoined thereunder, still all agree substantially that, if an officer receives his authority from the law, and discharges some of the functions of government, he will be a public officer. State ex rel. v. Bus, supra, 135 Mo. loc. cit. 332, 36 S. W. 636, 33 L. B. A. 616, and cases cited.

An office is a public charge or employment, and the term seems to comprehend every charge or employment in which the public are interested. Every office is considered public, the duties of which concern the public. People v. Hayes et al., 7 How. Prac. (N. Y.) loc. cit. 250.

In the most general and comprehensive sense a "public office" is an agency for the state, and a person whose duty it is to perform this agency is a "public officer." Stated more definitely, a "public office" is a charge or trust conferred by public authority for a public purpose; the duties of which involve in their performance, the exercise of some portion of sovereign power, whether great or small. A public officer is an individual who has been elected or appointed in the manner prescribed by law, who has a designation or title given to him by law, and who exercises the functions concerning the office assigned to him by law. State ex rel., Smith v. Theus, 114 La. 1093, 38 South. 870-872, cited in State ex rel. v. Maroney, 181 Mo. loc. cit. 545, 90 S. W. 141.

A "public office" is an agency far: the state, and the person whose duty it is to perform this agency is a "public officer"; the essence of it is the duty of performing an agency; that is, of doing some act or acts, or a series of acts, for the state. Malone v....