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State v. Cole

December 31, 1915

STATE OF NEVADA, EX REL. ZEB KENDALL, PETITIONER, V. GEORGE A. COLE, STATE CONTROLLER, RESPONDENT.


Geo. A. Bartlett, for Petitioner.

Wm. Woodburn, Sr., Wm. Woodburn, Jr., and Wm. McKnight, for Respondent.

By the Court, Coleman, J.:

[1] The legislature, in 1913, passed an act providing for exhibits at the San Diego and San Francisco expositions (Stats. 1913, c. 128, p. 169), sections 1 and 2 of which read as follows:

“Section 1. On or before the first Monday in May, 1913, the governor of the State of Nevada shall appoint a citizen of the State of Nevada to be known as exposition commissioner of the State of Nevada for the Panama-Pacific International Exposition and the Panama-California Exposition, and the office of said exposition commissioner is hereby created.

“Sec. 2. Tasker L. Oddie, Gilbert C. Ross, and Geo. B. Thatcher shall constitute a board of directors for the State of Nevada for said expositions, whose duty it shall

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be to employ superintendents, directors, clerks and other persons, upon such terms as may be deemed just and equitable, for the purpose of carrying out the provisions of this act, and for the further purpose of cooperating and advising with the exposition commissioner in carrying out the provisions of this act”

—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 filed by elections by the people” —petitioner was disqualified from serving in the position

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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, sec. 5.)

Lord Coke says that an office can only be created by an act of parliament. (2 Inst. 540; 7 Bacon, Abr., p. 281, title. “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 Atl. 145, 52 L. R. A. 406, 84 Am. St. Rep. 524; State v. Broome, 61 N. J. Law, 115, 38 Atl. 841; State v. Jennings, 57 Ohio St. 415, 49 N. E. 404, 63 Am. St. Rep. 723; Miller v. Warner, 42 App. Div. 209, 59 N.Y. Supp. 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

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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. 1; Rowland v. Mayor, 83 N. Y. 372; Bunn v. People, 45 Ill. 397; Ryan v. Mayor, 50 How. Prac. 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 Pac. 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 superintendent, 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:

“A right to exercise a public or private employment, and take the fees and emoluments thereunto belonging.” (2 Black. Comm. c. 3, p. 36.)

“Offices consist of a right and corresponding duty, to execute a public or private trust, and to take the emoluments belonging thereto.” (3 Kent Comm. 454.)

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“A public office is the right, authority, and duty, created and conferred by the 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 on Pub. Officers, sec. 1.)

Professor Wyman of Harvard defines a public office to be:

“The right, authority and duty conferred by law by which, for a given period, either fixed by law or through the pleasure of the creating power of government, 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 warrant to exercise powers is conferred, not by contract, but by law.” (Wyman, Pub. Officers, sec. 44.)

“A right to exercise a public function or employment, and to take the fees and emoluments belonging to it.” (Bouv. Law Dict.)

“And we apprehend that it may be stated as universally true that where an employment or duty is a continuing one, which is defined by rules prescribed by law and not by contract, such a charge or employment is an office, and the person who performs it an officer.” (Shelby v. Alcorn, 36 Miss. 289, 72 Am. Dec. 169.)

An office is:

“An employment on behalf of the government, in any station of public trust, not merely transient, occasional, or incidental.” (In Re Attorneys, 20 Johns. 492.)

“‘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.)

“When an individual has been appointed or elected, in a manner prescribed by law, has a designation or title

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given him by law, and exercises functions concerning the public, assigned to him by law, he must be regarded as a public officer.” (Bradford v. Justices, 33 Ga. 336.)

“While, generally speaking, an officer is one employed on behalf of the government, in a strict legal sense it means an employment on behalf of the government in some fixed and permanent capacity, not in a capacity merely transient, occasional, or incidental. Those engaged in mere transient or occasional employments on behalf of the municipality are more properly employees than officers.” (Bilger v. State, 63 Wash. 457, 116 Pac. 19.)

“Where, however, the officer exercises important public duties, and has delegated to him some of the functions of government, and his office is for a fixed term, and the powers, duties, and emoluments become vested in a successor when the office becomes vacant, such an official may properly be called a ‘public officer.'” (Richer v. Philadelphia, 225 Pa. 511, 74 Atl. 430, 26 L. R. A. n. s. 289.)

“Where, by virtue of law, a person is clothed, not as an incidental or transient authority, but for such time as denotes duration and continuance, with independent power to control the property of the public, or with public functions to be exercised in the supposed interest of the people, the service to be compensated by a stated yearly salary, and the occupant having a designation or title, the position so created is a public office.” (State v. Brennan, 49 Ohio St. 33. 29 N. E. 593.)

Chief Justice Marshall, while on the circuit, in the case of U. S. v. Maurice, 2 Brock. 103 Fed. Cas. No. 15,747, said:

“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 perform a service, without becoming an officer. But, if a duty be a continuing one, which is defined by rules prescribed by the government, and not by contract, which an individual is appointed by government to perform, who enters on the duties appertaining to his station without any contract defining them, if those duties continue, though the person be changed,

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it seems very difficult to distinguish such a charge or employment from an office, or the person who performs the duties from an officer.”

The great weight of authority holds the term “office” to embrace the ideas of tenure, duration, fees, or emoluments, and duties. (Hand v. Cook, 29 Nev. 542, 92 Pac. 3; Burrill's Law Dictionary, 257, title “Office”; Throop, Pub. Officers, secs. 2-10; Foltz v. Kerlin, 105 Ind. 221, 4 N. E. 439, 55 Am. Rep. 197; Chism v. Martin, 57 Ark. 86, 20 S. W. 809; In Re House Bill, 9 Colo. 629, 21 Pac, 473; People v. Nostrand, 46 N. Y. 381; People v. Nichols, 52 N. Y. 485, 11 Am. Rep. 734; People v. Duane, 121 N. Y. 375, 24 N. E. 845; Olmstead v. Mayor, 42 N. Y. Super. Ct. 487; State v. Brennan, 49 Ohio St. 38, 29 N. E. 593; Shaw v. Jones, 6 Ohio Dec. 462; Bryan v. Patrick, 124 N. C. 662, 33 S. E. 151; United States v. Fisher, 8 Fed. 415; Hall v. Wis., 103 U. S. 8, 26 L. Ed. 302; State v. Theus, 114 La. 1097, 38 South. 873; State v. Hocker, 39 Fla. 477, 22 South. 723, 63 Am. St. Rep. 174; Ptacek v. People, 94 Ill. App. 578; Kendall v. Reybould 13 Utah, 226, 44 Pac. 1034; United States v. Hartwell, 6 Wall. 393, 18 L. Ed. 830; Drury, Exr., v. United States, 43 Ct. Cl. 242; State, ex rel. Gruber, v. Champlin, 2 Bailey, 220; Brown v. Russell, 166 Mass. 14, 43 N. E. 1005, 32 L. R. A. 253, 55 Am. St. Rep. 357.)

It also held that the taking of an oath is some indication by which to determine if a position is an office. (Goud v. Portland, 96 Me. 126, 51 Atl. 820; People v. Langdon, 40 Mich. 682; People v. Bidell, 2 Hill, 199; Kavanaugh v. State, 41 Ala. 399; Board v. Goldsborough, 90 Md. 193, 44 Atl. 1058; State v. Gray, 91 Mo. App. 438; Fox v. Mohawk, 165 N. Y. 517, 59 N. E. 353, 51 L. R. A. 681, 80 Am. St. Rep. 767; State v. Slagle, 115 Tenn. 336, 89 S. W. 326; Reg. v. Simpson, 4 Cox C. C. 276; Collins v. Mayor, 3 Hun, 680; Worthy v. Barrett, 63 N. C. 199.)

[2] Section 2, art. 15, of the constitution of Nevada provides that all officers shall take an oath. It does not appear that relator was required to take an oath. Evidently the state officers did not consider relator an officer.

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“Where a doubt may exist as to the proper construction to be placed on a constitutional or statutory provision, courts will give weight to the construction placed thereon by other coordinate branches of government.” (State v. Brodigan, 35 Nev. 39, 126 Pac. 682.)

It is held by a great many courts that to be an officer one must be charged by law with duties involving an exercise of some part of the sovereign power of the state. (High, Extr. Rem. sec. 625; Opinion of Judges, 3 Me. 481; Shelby v. Alcorn, 36 Miss. 284, 72 Am. Dec. 169; Worcester v. Goldsborough, 90 Md. 193, 44 Atl. 1055; Attorney-General v. Drohan, 169 Mass. 534, 48 N. E. 279, 61 Am. St. Rep. 301; Attorney-General v. Jochim, 99 Mich. 367, 58 N. W. 611, 23 L. R. A. 699, 41 Am. St. Rep. 606; State v. Hacker, 39 Fla. 477, 22 South. 721, 63 Am. St. Rep. 177; Wyman, Pub. Off. sec. 44; State v. Jennings, 57 Ohio St. 415, 49 N. E. 409, 63 Am. St. Rep. 723; Com. v. Bush, 131 Ky. 384, 115 S. W. 249; State v. Smith, 145 N. C. 476, 59 S. E. 649; McArthur v. Nelson, 81 Ky. 67; State v. Thompson, 122 N. C. 493, 29 S. E. 720; Sanders v. Belue, 78 S. C. 171, 58 S. E. 763; Shaw v. Jones, 6 Ohio Dec. 462; Richie v. Philadelphia, 225 Pa. 511, 74 Atl. 430, 26 L. R. A. n. s. 289; State v. Valle, 41 Mo. 29; Eliason v. Coleman, 86 N. C. 235; Com. v. Binns. 17 Serg. & R. 244.)

A janitor of a courthouse has been held not to be an officer. (State v. Board of Chosen Freeholders, 58 N. J. Law, 319, 33 Atl. 739.)

A guard in a county jail is not an officer. (State v. Board, 58 N. J. Law, 33 Atl. 943.)

A deputy warden of an almshouse is not an officer. (Stewart v. Hudson, 61 N. J. Law, 117, 38 Atl. 842.)

A janitor of a police station is not an officer. (Dolan v. Orange, 70 N. J. Law, 106, 56 Atl. 130.)

A keeper of a reservoir is not an officer. (Hardy v. Orange, 61 N. J. Law, 620, 42 Atl. 581.)

A janitor of a city hall is not an officer. (Hart v. Newark, 80 N.J. Law, 600, 77 Atl. 1086.)

A school commissioner is not an officer. (Board v. Goldsborough, 90 Md. 193, 44 Atl. 1055.)

[38 Nev. 215, Page 225]

A commissioner under a statute of Pennsylvania to settle compensation of claimants to land was held not an officer. (Sheperd v. Com., 1 Serg. & R. 1.)

A public administrator was held not an officer. (State v. Smith, 145 N. C. 476, 59 S. E. 650.)

An act authorizing the employment of an attorney for the Creek Nation did not create an office. (Porter v. Murphy, 7 Ind. T. 395, 104 S. W. 669.)

An act authorizing the appointment of a person to look after the forests did not create an office. (Opinion of Judges, 3 Me. 481.)

The commissioners appointed pursuant to “An act to fund the floating indebtedness of San Francisco” are not officers. (People v. Middleton, 28 Cal. 604.)

The persons appointed by an act of the legislature as managers to conduct and execute a lottery grant for the benefit of a college are not public ...


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