State v. Spaulding

• Decision Date: 05 October 1897
• Parties: STATE OF IOWA, Appellant, v. SUEL J. SPAULDING
• Court: Iowa Supreme Court

72 N.W. 288

102 Iowa 639

STATE OF IOWA, Appellant, v. SUEL J. SPAULDING

Supreme Court of Iowa, Des Moines

October 5, 1897

Appeal from Polk District Court.--HON. C. P. HOLMES, Judge.

THE defendant was indicted and tried for the crime of embezzlement of public money. At the close of the evidence for the state the defendant moved the court to instruct the jury to return a verdict of not guilty. The motion was sustained, and a verdict returned accordingly and the defendant discharged. The state appeals.

Affirmed.

Milton Remley, attorney general, James A. Howe, county attorney, and Jesse A. Miller for the state, appellant.

No appearance for appellee.

OPINION

KINNE, C. J.

I.

Section 3908 of the Code of 1873 provides: "If any state county, township, school or municipal officer, or officer of any state institution, or other public officer within the state, charged with the collection, safe keeping, transfer or disbursement of public money, fails or refuses to keep in any place of deposit that may be provided by law for keeping such money, * * * or unlawfully converts to his own use in any way whatever, or use by way of investment in any kind of property * * * or converts to his own use any money that may come into his hands by virtue of his office shall be guilty of embezzlement," etc. The indictment is drawn under this section of the statute, and charges that the defendant, as a public officer, viz., as treasurer of the commissioners of pharmacy for the state of Iowa did embezzle and convert to his own use public money belonging to the state. The only question on this appeal is, was the defendant a "public officer," within the meaning of these words as used in the statute? If so, then the district court erred in sustaining the motion. If he was not such "public officer," the ruling was correct. The commissioners of pharmacy were appointed under and by virtue of the provisions of chapter 75, section 3, of the laws of the Eighteenth General Assembly. That act provided, also "Said commissioners shall have power to make by-laws and all necessary regulations for the proper fulfillment of their duties under this act, without expense to the state." They were also authorized to exact and receive certain fees for registering pharmacists. The act was amended by chapter 83 of the Acts of the Twenty-first General Assembly. The commissioners adopted by-laws which, among other things, provided for the election of a secretary and treasurer. Thereafter the Nineteenth General Assembly (chapter 137) amended the original act, and provided that certain license fees should be paid "to the treasurer of the commission of pharmacy." The foregoing is all of the legislation in any way bearing upon the question of the selection of a treasurer for the pharmacy commission. It is without dispute that the defendant was by the commission elected as its treasurer, and while so acting received a large sum of money belonging to the state, and converted it to his own use. The claim of the state is that he was a "public officer," and as such embezzled the money. The constitution of this state (article 11, section 5) requires that every person elected or appointed to any office shall, before entering upon the duties thereof, take an oath or affirmation to support the constitutions of the United States and of the state, and also an oath of office. The statute prohibits any civil officer from entering on the duties of his office until he has qualified himself by taking such oath and giving a bond. Code 1873, sections 670, 675, 676, 679. It does not appear from the record before us that the defendant ever took such an oath, or in fact any oath whatever. When the commission was created, and at its first meeting, it adopted by-laws providing for the election of a treasurer, but made no provision for his giving bond. Six years thereafter a bond was provided for, and at the time of the conversion of the money for which the defendant is now indicted the by-laws required the treasurer to give a bond to the state in the penalty of five thousand dollars.

II. It may be profitable, in determining the question before us, to refer to some definitions given by courts and text writers as to what in law constitutes a public officer or a public office. "The idea of an officer clearly embraces the idea of tenure, duration, fees, or emoluments, rights and powers, as well as that of duty; a public station or employment confirmed by appointment of government." Burrill, Law Dict. tit. "Office." "A post, the possession of which imposes certain duties upon the possessor, and confers authority for their performance." Century Dict. "A position or appointment entailing certain rights and duties." Cochran, Law Lexicon. "A right to exercise a public function or employment, and to take the fees or emoluments belonging to it." Bouvier's Law Dict. "A special duty trust, charge, or position conferred by authority, and for a public purpose; a position of trust or authority, as an executive or judicial office, or a municipal office." Webster Dict. tit. "Office." "'Office' is defined to be a right to exercise a public or private employment, and to take the fees or emoluments thereunto belonging, whether public, as those of magistrates, or private, as of bailiffs, receivers, or the like." Black, Law Dict. tit. "Office"; 2 Blackstone, Comm. 36; Attorney General v. Barstow, 4 Wis. 567. "A public officer is said to be an officer under the government, as distinguished from an officer of a corporation, or from a private person holding what is sometimes called an office, such as an executor or guardian." Abbott, Law Dict. tit. "Public Officer." "Offices consist of a right, and correspondent duty, to execute a public or private trust, and to take the emoluments belonging to it." 3 Kent, Comm. 454. "An office, such as to properly come within legitimate scope of an information in the nature of a quo warranto, may be defined as a public position, to which a portion of the sovereignty of a country, either legislative, executive, or judicial, attaches for the time being, and which is exercised for the benefit of the public." High, Extr. Rem., section 625. "A public office is 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." Mechem, Pub. Off., section 1. "A public office is an agency for the state, and the person whose duty it is to perform the agency is a public officer." 19 Am. & Eng. Enc. Law, 382. "An office is a public station or employment conferred by the appointment of government. The term embraces his term of tenure, duration, emoluments, and duties." U. S. v. Hartwell, 73 U.S. 385, 6 Wall. 385, 18 L.Ed. 830; Throop, Pub. Off., sections 2-10, inclusive; Brown v. Russell (Mass.) 166 Mass. 14, 43 N.E. 1005, and cases cited. "An employment on behalf of the government in any station or public trust, not merely transient, occasional, or incidental." In re Oaths Taken by Attorneys and Counselors, 20 Johns. 493. "An office is a public charge or employment, and the term seems to comprehend any charge or employment in which the public are interested." Every office is considered public, the duties of which concern the public. People v. Hayes, 7 How. Pr. 248; People v. Bedell, 2 Hill 196. "An office is a public charge or employment. A public officer is one who has some duty to perform concerning the public." Hill v. Boyland, 40 Miss. 618. "The true test of a public office seems to be that it is a parcel of the administration of government, * * * or is itself created directly by the law-making power." Eliason v. Coleman, 86 N.C. 235. "An office is a special trust or charge created by competent authority." Judge Cooley in People v. Langdon, 40 Mich. 673. "All persons who by the authority of law are intrusted with the receipt of public moneys, through whose hands money due to the public, or belonging to it, passes on its way to the public treasury, must be so considered [as public officers], by whatever name or title they may be designated in the law authorizing their appointment, and whether the service be special or general, transient or permanent." Commonwealth v. Evans, 74 Pa. 124. "The term 'officer' in its common acceptation, is sufficiently comprehensive to include all persons in any public station or employment conferred by the government." Vaughn v. English, 8 Cal. 39. "A civil office is a grant and possession of the sovereign power, and the exercise of such power within the limits prescribed by the law which creates the office constitutes the discharge of the duties of the office." State v. Valle, 41 Mo. 29. "'Public office,' as used in the constitution, has respect to a permanent trust to be exercised in behalf of the government, or of all citizens who may need the intervention of a public functionary or officer, and in all matters within the range of the duties pertaining to the character of the trust." In re Hathaway, 71 N.Y. 238. "Whoever has a public charge or employment affecting the public is said to hold or to be in office." Rowland v. Mayor, etc., 83 N.Y. 372. "The word 'officium' principally implies a duty, and, in the next place, the charge of such duty; and it is a rule that where one man hath to do with another man's affairs against his will, and without his leave, that is an officer. Every man is a public officer who hath any duty concerning the public and he is not the less a public officer when his authority is confined to narrow limits because it is the duty and nature of that duty ...