STATE OF NEVADA, Ex Rel. ZEB KENDALL, Petitioner, v. GEORGE A. COLE, State Controller, Respondent
State ex rel. Kendall v. Cole
STATE OF NEVADA, Ex Rel. ZEB KENDALL, Petitioner, v. GEORGE A. COLE, State Controller, Respondent.
[No. 2143]
STATE OF NEVADA, Ex Rel. ZEB KENDALL, Petitioner, v. GEORGE A. COLE, State Controller, Respondent.
[148 Pac. 551]
1. States — Officers and Employees — Eligibility—“Office.”
Under Stats. 1913, c. 128, sec. 1, creating the office of exposition commissioner of the state for the Panama-Pacific and the Panama-Oalifornia expositions, and authorizing the governor to appoint an exposition commissioner, and section 2, creating the board of directors for the state for such expositions, whose duty it shall be to employ superintendents, clerks, and other persons upon such terms as may be deemed just and equitable to carry out the provisions of that act, and to cooperate and advise with the exposition commissioner, the position occupied by a superintendent so employed was not an “office” • within Const, art. 4, sec. 8, providing that no senator or member of assembly shall, during the term for which he shall have been elected, uor for one year thereafter, be appointed to any civil office of profit under the state, which shall have been created or the emoluments of which shall have been increased during his term, except such office as may be filled by election by the people, as the term “office” embraces the ideas of continued duration, fees, or emoluments and duties, and such superintendent was intrusted with none of the sovereign power of the state, his compensation, period of employment, and the details of his duties being all matters of contract with the board of directors, especially as he was not required to take an oath as required by Const, art. 15, sec. 2, in the case of officers, indicating that the state officers did not consider him an officer.
2. Constitutional Law — Statutes — Construction — Practical Construction by Other Departments of the Government.
Where a doubt exists 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 the government.
3. Mandamus — Claims for Salary — Refusal to Audit — Remedy.
Where the state controller refused to draw his warrant for the salary of a superintendent, employed by the board of directors for the Panama-Pacific and Panama-California expositions, pursuant to Stats. 1913, c. 128, he could not be compelled to do so by mcmclarmis, the remedy being by action, notwithstanding section 6 of such act, making appropriations for the state’s exhibits at such expositions, and providing that all disbursements from such appropriations should be on certificates of the exposition commissioner, approved by a majority of the directors and by the state board of examiners, when the state controller should draw his warrant and the state treasurer pay the same, as the controller is a constitutional officer and his duty to audit all claims against the state, except obligations fixed by law, is a constitutional one, and cannot be infringed upon by legislative enactment.
Original proceeding in- mandamus by Zeb Kendall, superintendent of Nevada exhibits at the Panama-Pacific exposition, to compel the State Controller to draw a warrant in favor of petitioner as said superintendent.
Petition dismissed.
Geo. A. Bartlett, for Petitioner:
Petitioner was not inhibited by section 8, article 4, of the constitution from holding the position of "superintendent” under the act of 1913 (Stats. 1913, p. 169), authorizing the board of directors of the Panama-Pacific and Panama-California expositions to employ "superintendents, directors, clerks, and other persons,” for the simple reason that such position of " superintendent” is not an office within the meaning of the constitution. {Hand v. Cook, 29 Nev. 542; U. S. v. Hartwell, 6 Wall. 385; Bunn v. People, 45 111. 397; State v. Hooker, 63 Am. St. Rep. 178, and note; Hall v. Wisconsin, 103 U. S. 9; U. S. v. Maurice, 2 Brock. 96; Olmstead v. Mayor, 42 N.Y. Sup. Ct. 481; Shelby v. Alcorn, 72 Am. Dec. 180, and note; Mechem on Officers, sec. 4.)
Wm. Woodburn, Sr., Wm. Woodbwrn, Jr., and Wm. McKnight, for Respondent:
The question to be decided by the court is whether the employment of relator as superintendent at a salary of $300 per month by the board of directors of the Panama expositions named in the act of the legislature approved March 18, 1913, is a civil office of profit. If it is a civil office of profit, relator is disqualified from holding, having been a member of the legislature which created the office. (Const. Nev. art. 4, sec. 8.) The term "office,” in its common acceptation, is sufficiently comprehensive to include all persons in any public station or employment which has any duty concerning the public. It is the duty of .the office and the nature of that duty which makes him a public officer. {Vaughn v. English, 8 Cal. 41; U. iS', v. Hartwell, 6 Wall. 385; State v. Kennon, 7 Ohio St. 557; 15 Eng. Com. Law Rep. 495; 22 L. R. A. 363; People v. Neman, 158 N. Y. 227; Mechem on Public Officers; Roivland v. Mayor, 83 N. Y. 396; Guthrie Daily Leader v. Cameron, 41 Pac. 636; State v. Gooding, 124 Pac. 791; Patton v. Board of Health, 127 Cal. 394; Sacalaris v. E. & P. R. Co., 18 Nev. 161; Clark v. Stanley, 66 N. C. 59; Kenyon v. State, 7 Ohio St. 557; Michael v. State, 50 South. 929.)
In construing this provision of the constitution in its application to the petition at bar, "the courts will not ignore the general spirit of the instrument in construing provisions actually contained therein, for it is the real intent and purpose, rather than the strict interpretation —the essence, rather than the form — that is sought to be ascertained.” {People v. Fancher, 50 N. Y. 288; State v. Conlon, 65 Ky. 478.)
" Courts are not justified in giving a strained construction or an astute interpretation to a constitutional clause, such as will avoid the intent of the framers of the instrument, in order to relieve against any individual hardship.” {Law v. People, 87 111. 385.)
By the Court,
Coleman, J.:
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 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 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 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 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:
"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.)
"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 Diet.)
"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 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.'" (Richie 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, 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.)
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. "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.)
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 officers. (State v. Platt, 4 Harr. 154.)
Members of a bridge commission are not public officers. (State v. George, 22 Or. 142, 29 Pac. 356, 16 L. R. A. 737, 29 Am. St. Rep. 586.)
Commissioners appointed by the legislature to lay a pavement within a city are not public officers. (Greaton v. Griffin, 4 Abb. Prac. N. S. 310.)
It was held that the regents of the University of California were not officers. (Lundy v. Delmas, 104 Cal. 655, 38 Pac. 445, 26 L. R. A. 651.)
"In the case now before us we find the superintendent of public instruction is not appointed by the mayor, nor elected by the people, nor appointed by joint convention of the two branches of the council. He takes no official oath, gives no official bond, has no commission issued to him, and has no fixed or definite tenure of office, but is appointed at the pleasure of the school board. It also appears from an examination of the charter that all the executive power relating to educational matters is vested in a department known as "the department of education,' and this department is composed of the board of school commissioners. The superintendent of public instruction exercises no power except what is derived from and through this board. He is simply, then, an employee or the agent of the school board, and not a municipal official, within the meaning of the charter. " (Baltimore v. Lyman, 92 Md. 591, 48 Atl. 145, 52 L. R. A. 406, 84 Am. St. Rep. 524.) To the same effect, State, ex rel. Barnhill, v. Thompson, 122 N. C. 493, 29 S. E. 720.
The case of Sheboygan Co. v. Parker, 3 Wall. 93, 18 L. Ed. 33, is one growing out of an act of the legislature authorizing the county to aid in the construction of a railroad. The act constituted Lewis Curtis, Billy Williams, and three other persons a board of commissioners for aiding the project. The act authorized the commissioners, after the people had approved such action, to borrow money on the credit of the county and to issue bonds, to be signed by the president and secretary of the commission. The court said:
"Such persons, in performance of their special duty, are in no proper sense ' county officers. ' They do not exercise any of the political functions of county officers, such as levying taxes, etc. They do not exercise 'continuously, and as a part of the regular and permanent administration of the government, any important public powers, trusts, or duties.' An officer of the county is one by whom the county performs its usual political functions; its functions of government."
The case of Town of Salem v. McClintock, 16 Ind. App. 656, 46 N. E. 39, 59 Am. St. Rep. 330, is one in which a man by the name of Craycraft was employed as superintendent of the water-works for the term of one year, and a bond was required of him. The court says:
"The bonds declared upon in appellant's complaint are not official bonds; but the trustees of the town had the right to employ Craycraft as a superintendent in the management of the water-works, and to accept a bond from him conditioned for the faithful performance of his duties as such superintendent, and he became in no sense an officer of the town by such employment. There is nothing in the record of this cause showing that the trustees of the town of Salem had, by ordinance or resolution, creating the office of superintendent of the water-works, or by any ordinance or resolution defined, or attempted to define, the duties of a superintendent of water-works. "
The case of McArthur v. Nelson, 81 Ky. 67, is one in which the circuit judge, pursuant to legislative authority, appointed three commissioners, to hold office at his pleasure, whose duties were to have a courthouse constructed at a cost not to exceed $50,000, and to issue bonds therefor, for the payment of which they were empowered to levy an annual tax. The court says:
"Nor do we think it was necessary for the legislature to prescribe the term of office for the commissioners, although they are made a body corporate and politic, with power to sue and be sued, contract, and be contracted with, under the style of the 'commissioners for the courthouse district. ' They are not district officers within the meaning of section 10 of article 6 of the constitution, but are the mere agents for the district, required by the act to discharge certain duties with reference to the building of the courthouse, and when those duties end their employment terminates. "
In Miller v. Warner, 42 App. Div. 209, 59 N. Y. Supp. 956, it was held that the superintendent of police telegraph system of Rochester was not an officer, the court saying:
"The learned counsel in this action do not cite any statute of this state creating the office of superintendent of the police telegraph system in the city of Rochester, and in the absence of such an act there can be no such officer. Certain incidents pertain to a public office, tenure for life, during good behavior, for years, or at the pleasure of the appointing power."
In the matter of additional compensation (4 Compt. Dec. 697) it was held that one Dickinson, who was a disbursing agent for the World's Columbian commission, and who was also secretary of the commission, was not an officer.
Commissioners appointed by a board of aldermen to lay out a highway under the statute of Rhode Island are not public officers. The court says:
"The cases cited by counsel for relators, bearing upon the question of what constitutes a public office, are all in practical harmony with the view we have taken. We will brieflyrefer to afewof them. Vaughn v. English, 8 Cal. 39, holds that the clerks allowed by law in the offices of the secretary of state, controller, and treasurer are officers. The act under which the respondent in that case was appointed expressly recognized the position as that of an officer. He was appointed by the government, the duties he was required to perform concerned the public, he had a definite tenure of office, and he was paid a salary out of the public treasury. The court, in referring to the act of the legislature in question said: 'The act is entitled " An act to reduce and fix the salaries of officers and members of the legislature, " and the clerks of the different departments are included in the list of officers whose salaries are fixed by the act. ' Bradford v. Justices, 33 Ga. 332, holds that a county treasurer is a public officer. The case shows that the laws of that state provide for the election of such an officer by the people and that he exercises independent functions concerning the public, assigned to him by law. Shelby v. Alcorn, 36 Miss. 273, 72 Am. Dec. 169, holds that a levy commissioner is a public officer. The case shows that said office is one created by statute; that the tenure thereof is two years; that he is required to give bond; that he receives and disburses public funds; and that the act under which he is appointed expressly recognizes him as a public officer. People v. Nostrand, 46 N. Y. 375, holds that commissioners authorized by chapter 905, Laws 1869 (authorizing the construction of a highway in certain towns), as amended by chapter 750, Laws 1870, are public officers. By virtue of said acts the commissioners were authorized to exercise a portion of the functions of government. They had the power of taking private property for public use by right of eminent domain, and, also, to expend a large amount of money in the construction of a public improvement. In short, they possessed every attribute and characteristic of public officers. The vital difference between that case and the one before us, therefore, is so apparent that comment is unnecessary. Gray v. Granger, 17 R. I. 201, 21 Atl. 342, holds that the city engineer of the city of Providence is a public officer. There can be no doubt of the correctness of the decision. His election was authorized by a statute which expressly styles him an officer. He was elected by the city council in joint convention, pursuant to an ordinance of the city, and he was specially charged with the performance of public duties. The other cases cited are similar in principal, the persons held to be public officers being expressly recognized as such by statute and being also clothed with some portion of the sovereign functions of government. " (Attorney-General v. McCaughey, 21 R. I. 346, 43 Atl. 646.) [Italics ours.]
It will be seen from a careful reading of the foregoing quotation that the authorities chiefly relied upon by respondent are not in fact antagonistic to the contention of relator.
It is contended that the case of Vaughn v. English, 8 Cal. 39, is controlling because of the fact that our constitution was taken from California, and because that case was decided before our constitution was adopted. While it is a general rule that when a statute which has received judicial construction by the highest court of the state in which it originated is adopted by another state, such adoption is subject to the construction put upon it by the courts of the state where it originated (36 Cyc. 1154), such is not the situation in the Vaughn-English case. In that case no illusion was made to the constitution of the state, and the act out of which the litigation grew has not been adopted by Nevada. Consequently, while we have no quarrel with the rule, it is not applicable. In the Vaughn-English case, supra, it is said:
"The term 'officer,' in its common acceptation, is sufficiently comprehensive to include all persons in any public station or employment conferred by government."
This is indeed a very broad statement, and one which the Supreme Court of California has practically repudiated several times. In the case of McDaniel v. Yuba County, 14 Cal. 444, it was held that the examining physician of the county hospital was not an officer, but an employee; and in the case of White v. Alameda, 124 Cal. 95, 56 Pa. 795, it was held that a driver of a street wagon, with a salary fixed by the board of trustees, was not an officer, but a mere employee. In the case of Patton v. Board of Health, 127 Cal. 393, 59 Pac. 704, 28 Am. St. Rep. 66, it is said:
" But not all employments authorized by law are public offices in the sense of the constitution. "
Since the court in which the statement alluded to originated has repudiated it three times, we fail to see why it should have any weight with us.
It was held in Bunn v. People, 45 Ill. 397, that the commissioners appointed under an act providing for the erection of a new state house were not officers.
Mr. Justice Garrison, now secretary of war, in Fredericks v. Board of Health, 82 N. J. Law, 200, 82 Atl. 528, distinguished between an office, a position, and an employment, in the following'language:
" An office is a place in a government system, created or recognized by the law of the state, which either directly or by delegated authority assigns to the incumbent thereof the continuous performance of certain permanent public duties.
"A position is analogous to an office, in that the duties that pertain to it are permanent and certain, but it differs from an office in that its duties may be nongovernmental, and not assigned to it by any public law of the state.
"An employment differs from both an office and a position in that its duties, which are nongovernmental, are neither certain nor permanent."
In a comparatively recent case, the Supreme Court of Massachusetts has observed:
"The holder of an office must have intrusted to him some portion of the sovereign authority of the state. His duties must not be merely clerical, or those only of an agent or servant, but must be performed in the execution or administration of the law, in the exercise of power and authority bestowed by law. " (Attorney-General v. Tillinghast, 203 Mass. 539, 89 N. E. 1060, 17 Ann. Cas. 449.)
This court, in the case of State v. Clark, 21 Nev. 337, 31 Pac. 546, 18 L. R. A. 313, 37 Am. St. Rep. 517, had occasion to determine if a notary public was a civil officer, and it held that he was. It uses this language:
" He [a notary public] is also recognized and called an officer in our statutes; is to be appointed for a definite term; is required to take the official oath; to give a bond the same as other officers; to keep a record of his official acts; and for his services may charge certain fees, which are regulated by law. Clearly he is an officer. In fact, we do not understand it to be particularly contended that a notary is not a public officer, nor even that he is not a civil officer, but rather, notwithstanding he may be such, that it was not the intention of the makers of the constitution to include that office in the prohibition contained in this section. This position is based, first, upon the proposition that the office of notary does not come within the mischief intended to be guarded against, and consequently should not be held to be within its terms. In construing a constitution, the same as any other instrument, we are not always to be guided by the letter of the act. We are to seek for the meaning that the words were intended to convey, and endeavor to carry out the intention of those adopting it. But a fundamental principle in all construction is that, where the language used is plain and free from ambiguity, that must be our guide. We are not permitted to construe that which requires no construction. It is possible that when the convention adopted this section, they did not have the office of notary in mind, and that if they had, it would have been excluded; but, on the other hand, it is also possible that it would not have been excluded, for there is really as much reason for including this office as that of many other minor positions, which are admittedly covered by the section. At any rate, it was within the power of the constitution makers, whether sufficient reason did or did not exist for their doing so, to include this office. The language they have used clearly does include it, and, under the circumstances, that is the end of the,controversy. We are not permitted to speculate further as to what their real intentions were. (Cooley, Const. Lim. 69; End. Interp. St. sec. 6; Sturges v. Crowninshield, 4 Wheat. 204, 4 L. Ed. 529; Gibbons v. Ogden, 9 Wheat. 217, 6 L. Ed. 23.)"
Upon the oral argument, counsel for the respondent contended that it was the intention of the framers of the constitution to prevent a legislator from benefiting through employment afforded by virtue of any act passed while he was a member of the legislature, and therefore we should so construe the words "civil officer" as to embrace the position held by relator. The paragraph last quoted answers the contention.
In the more recent case of Goldfield Con. M. Co. v. State, 35 Nev. 178, 127 Pac. 77, this court had occasion to assert the same rule — that if the words of the statute embody a definite meaning, there is no room for construction. (U. S. v. Graham, 110 U, S. 219, 3 Sup. Ct. 582, 28 L. Ed. 126.)
' "It is the duty of courts [in construing a statute] to confine themselves to the words of the legislature, nothing adding thereto, nothing diminishing. " (Eddy v. Morgan, 216 Ill. 437, 75 N. E. 174.)
In view of the great caution exercised by the constitutional convention in the choice of its words, as shown by the debates, and in view, of the ease with which it could have said " civil office of profit or employment, " we are forced to the conclusion that the words "civil office of profit" were used advisedly, and that they must receive their ordinary construction.
After a careful consideration of the authorities, we are satisfied that not one element of an office enters into the position held by relator. None of the sovereign power of the state is intrusted to him. His compensation, period of employment, and the details of his duties, are all matters of contract with the board of directors. For, while the act says the board may "employ superintendents, directors, clerks, and other persons" for the purpose of carrying out the provisions of the act, " and for the further purpose of cooperating and advising with the exposition commissioner," it is apparent that the board had the authority to contract as to what the specific duty of each employee should be, otherwise there would be a corps of advisers, and none to execute.
This court, in the cases of State, ex rel. Mighels, v. Eggers, 36 Nev. 364, 136 Pac. 104, and State, ex rel. Abel, v. Eggers, 36 Nev. 372, 136 Pac. 100, 104, held that if the salary of an officer was not fixed, by law, the state controller had a right to audit the claim, and, this being true, the petitioner had an action at law, and therefore the court was without jurisdiction to issue a mandamus. This rule was suggested to counsel by the court at the time of the oral argument, and, as we understand, counsel conceded the correctness of the rule and its application to this case, save that it is contended that the case is taken out of the rule because of the following language in section 6 of the act providing for the exhibit at the expositions, which reads:
" And all disbursements from each of said - appropriations shall be on certificates of the exposition commissioner, approved by a majority of the board of directors and by the state board of examiners, when the state controller shall draw his warrant and the state treasurer pay the same."
The question here involved was considered at length by this court in the case of Lewis v. Doron, 5 Nev. 399, and at a time so soon after the adoption of the constitution that the question should be held settled for all time. It was there' held that the state controller is a constitutional officer, and that his duty to audit all claims against the state, except obligations fixed by law, is a constitutional one, and cannot be infringed upon by legislative enactment. For a thorough understanding of the case it is necessary that it be read at length; consequently we will not quote from it. See, also, Love v. Baehr, 47 Cal. 367.
We are satisfied that this court is without jurisdiction to entertain these proceedings, and that relator should be left to his legal remedy.
It is to be hoped that attorneys will not make applications to this court in the future in matters in which the court is without jurisdiction, as we will not consider them further than to determine the jurisdictional question, unless it be in cases of great public concern.
It is ordered that the petition be dismissed, at the cost of relator.