OFFICE OF THE AlTORNEY GENERAL OF **TEXAS** / **AUSTIN a-c.mma4**  **J**

lr om*n aI*- January 5, 1939

Mr. E. N. Bender CountyAttorney,Stephens County Breckenridge,Texas Dear Sir:

referred to the writer

hire or lease." requires that all Wchauffears*

**of** thisAct. Seotion 3 sets out those personswho are exempt from payment of chauffeur'slicenses.

## 09

Mr. E. N. Bender, January 5, 1939, page 2

County commissioners are not exempted by any of the provisionsof Section 3. Therefoxe, if a county commissionerwhile drivine an automobile belonsine: to the countv and on countv business is an em lo ee a ent-or inde endent contractoras those terms~'i%%$%n~hen~ coun y commissionerwould be a "chauffeur."

At the outset, we must recognize the fact that a county commissioner is a public officer. We think theoffice of county commissionercomeswithin the definition stated by the Supreme .Court of Texas in the case of Kimbi?ough v. Barnett, 93 Tex. 310, 55 S. W. 122, and quoted by the Commissionof Appeals of Texas in the case of Commissioners* Court of Limestone County V. Garrett, 236 S. W. 970, as follows:

"'Public office is the right, authority, and duty created and conferred by law bywhich, for a given period either fixed by law or enduringat the pleasureof the creatingpower, an individual is investedwith some portion of the sovereign functions of the government to be exercisedby him for the benefit of the public.' The correctness of this definition is nowhere questioned, so far as we know, and it is useless to add supporting authorities." We now must decide whether or not a public officer is such an employee,,

servant, agent or independentcontractoras is referred to in the definition of the word "chauffeur" in Section 1 of,theStatute.

There is very little authority on this question in Texas, but the little that has been written concerning Texas Law on the subjectaswell as the authorities in other states indicate that a public officer is not such an employee,servant, agent or independent contractor. In 34 Tex. Jur. 325, it is said:

Y?here is a material differencealso between a publia ofrice and a public employment. The rela4. \ tion between an office holder and the government

underwhioh he functions is not that of employer and employee, and their respectiverightsare not tobe determined by application of the rules of contracts of employment. As said by Chief Justicd Marshall, 'Althoughan office is an employment, it does not follow that every employmentis an office.'Mr. E. N. Sender,January 5, 1939, page 3

"The most importantdistinction is that the creation and conferring of an office involvesa delegation to the individualof some of the sovereign functions of the government, to be exercised by him for the benefit of the public. Other distinctions are: that an office must be created by law, while an employmentmay be, and frequently is, created by contract; that officersare usually required to take an oath and serve for a definite term; and that the duties of an office are generally continhing and perraanent rather than temporaryand transitory." This reasoning clearly applies to theword "employee",and it no doubt also applies to theword "servantv. Discussing the word "servantW, 29 Tex. Jur. 10, says:

"In the language of the law, however, the word 'servant'is used to embraceall classes of employees. It is synonymouswith 'employee,'and includesall persons of whatever rank or position who are subject to the directionand control of another in any department of labor or business." This is in accordwith what was said in the case of Texas Life Insurance Co. v. Roberts, 119 S. 'N.926,as follows:

"'Theword 'servant'in our legal nomenolaturehaas broad significance,and embraces all persons of whatever rank or positionwho are in the employ and subject to the direction or control of another in any department of labor or business. Indeed, it may in most cases be said tobe synonymous with employe.'" a

The authorities in other states seem to bear out the same rule, that is that a public officer is not an employee or servant in the ordinary sense of thosewords. In 22 Ruling Case Law, 381 it is said:

“.
. . on the whole an officer is distinguished from the employee in the greater importance, dignity,and independenceof his position, inbeing required to take an official oath, and perhaps to give an officialbona, in the more enduring tenure,and in the fact that the duties of the position axe prescribed,bylaw. Furthermore,a~ mere employee does not have theduties or responsibilities of a public officer."Mr. E. N. Bender, January 5, 1939, page 4

In a casewhich decided that a city auditorwas an "officer" and not an "employee" of a city, the Supreme Judicial Court of Massachusetts in the caseof Attorney General vs. Tillinghast, 203 [ass.539, 89 N. E. 1058, said: M "The holder of an officemust 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,butmust be performed in the execution or administrationof the law, in the exercise of power and authority bestowed by the law.

. . .A mere employehas no such duties of.responsibilities."

. In passing on a statutewhich said "that eight hours shall constitutea day'swork for all laborers,workmen, mechanins or other persons now employed",the Supreme Court of Kansas in the case of State V. City of Ottawa, 84 Kan. 100, 113 Pac. 391, said:

"Officers are excludedby the use of theword *emploved;' an officebeing distinguis~hed'from an employment,in"
~.... that it implies tenure, duration, emolument,and

auty;

. . .w
In the case of Nissen v. City of Winston-Se&em, 206 N. C. 888, 175 S. E. 310, the Supreme Court of North Carohina decided the issue of ðer or not the chief of the city'fire department was an nemployeen of the city or an "officerv of the city, it beingprovided by statute that "employees" should be compensated without defining the word "employees". finthat case the court held that the fire chiefwas an employee but recognizedthat certain officers of the citywere not, and said:

"Was the chief of the fire department of the city of Winston-Salem,who was killed in a motor vehicle wreck while answering a fire call, an employeewithin the meaning of the Workmen's Compensation Law?.

. . . *Mc&uillin in his work on Municipal Corporations (2dEd.) vol. 2, p. 38, quotes Judge Cooley, as follows: 'The officeris distinguished from the employee in the greater importance,dignity and independenceof his position; in being required to. take an official oath, and perhaps give an official bond; in the liability to be called to account as a public offender formisfeasance or non-feasance in office,ana usually, though not necessarily in the tenure of his position.*L

Mr. E. N. Bender, January 5, 1939, page 5

"Obviously the mayor of a citywould not become an employeemerely becausehe occasionally pickedUP a piece of hose or occasionally used a shovel or mattock when in the presence of a street force. Desultory-,

disconnected,infrequentacts of manual labor performedby an administrativeofficer ard not reasonablyrequiredby the exigencies of the situation,would not classify such officer as a worIonan.l. The Florida Courts have held that a public officer is not an employee, and in the case of Dade County v. State, 95 Fla. 465, 116 So. 72, the Supreme Court of Florida said:

"An employmentdoes not authorize the exercise in one's own right of any sovereign power or any prescribed independentauthority of a governmental nature; and this constitutesperhaps the most decisive difference between an employment and an office, and between an employeeand an 0fficer.n Similar ruleswere laid down in the cases of Ke&ly v. city of Bridgeport, (Conn.)111 Conn. 667, 151Atl. 268; State v. Clark (Ind.) 208 Ind. 402, 196 N. E. 234; and Bowden v. GumberlandCounty, (Me.)123 Me. 359, 123Atl. 166.

The cases that lmve bee&cited above indicate that public officers are not employees and servants in the ordinary sense of theword. We think that for the same reasons they cannot be held to be agents in the ordinary usage of that word,~especially as it is used in the definitionof chauffeur. The writer has been unable to find any Texas authority on the question,but .itseems that the courts of other states hold that public officersare not agents in the ordinary sensealong with their holdings that public officers are not servants and em10 ees. ;; Wd~is’;;Ui’ 282 Ill. 599+ In the case~of People N E. 54, the Supreme Court : "Inmany cases it is difficult to determine,whether a person is an officer or merely an agent or employe of a municipality. It is even more.difficult to lay down any fixed rule to determine the question, in all cases, as to whether a person is an officer or merely an agent or employe of a municipality. Generally, an officer takes an oath of office,~whilea mere agent or employeedoes not."Mr. E. N. Bender, January 5, 1939, page 6

Similar languagewas used in the case of Lori'llard V. Town of Monroe, (N.Y.) 11 N. Y. 392, 62Am. Dec. 120, in which it was said:

ours) We must finallydecides whether or not a public officer is an "independent contractor...A,well known definition of an independentcontractor is the one stated by the Texas Commission of Appeals in the case of Lone Star Gas Co. v. Kelly, 46 S. W. (2d) 656, as follows:

"As defined by the authorities,an independent contractor is one, who, exercising an independent employment,contracts to do a piece ofwork according to his ownmethods, andwithout being subject to the control of his employer except as to the result of his work."
It will be noticed that one of the elements of the relationship of an independent-contractorto his superior is that of a contract. In otherwords, an independentcontractorholds his position by virtue of a contract. Such is not true of a public officer. This distinction is made clear in 34 Tex. Jur. 324,where it says: "Officershold theirpositions by election or

appointmentand not by contract. As we have seen

i**,.. r** 

Wr. E. N. Bender, January 5, 1939, page 7

above (Par.2), an office involves a delegation to theholder of some portion of the sovereign functions of the government,to be exercisedby him for the benefit of the public,and it embraces the ideas of tenure,duration, emolumentand duties. But a public contract from its nature is necessarily limited in its duration and specific in its objects; the terms agreed upon define the rights and obligations of theparties, neithermay deparkfrom them without the assent of theother. Such a contract is within the protectionof the constitutionalprohibition of the impairment of obligations,but a public,officeis not. The prohiM.tiondoes not preclude the abolition.ofan office or reduction in the compensationannexed to it during the term of an incumbent." Such was the holding in the Texas cases of Bonner v. Belsterling, 137 S. W. 1154; State v. Rigsby, 43 S. W. 1101; and City of Palestinev. West, 37 S. W. 783.

Byvirtue of these authoritiesholding that a public officerdoes not hold his positions under a contract, wemust conclude that a public officer is not under any circumstances an independentcontractor.

There is no doubt thata county commissioner isa public officer, and under the authorities cited above it is our conclusion that a county commissionerbecause of his position as a public officer is not an employee, servant, agent or independent contractoras those terms are used in thedefinition of a chauffeur inArticle 6687a.

It is our conclusion that a county co&missioner while driving an automobile belonging to the county and on county business is not a chauffeurwithin the meaning of Article 6687a, and he does not have to-obtain a chauffeur's license. Very truly yours ATTORNEY GEhTERAL

OF TEXAS

_
.,&i!?ii,@b?f~ Assistant CR-N