St. Paul daily globe., 1895-12-27
Ahh ARE AFFECTED
nEN. CHLIDS9 OPINION OF THE
SCOPE OF THE SUTTON
DECISION. ~.~~r
: - sag
i; -
MUNICIPAL As WELL AS STATE
>.
-
OFFICERS ARE INCLUDED IN THOSE
WHICH ARE MEANT BY THE
CONSTITUTION.
AS SWEEPING AS IT CAN BE.
Notary Public, Municipal Officers and
Subordinates, Members of State
Boards Included.

OIIlceS, from lnS CnlS1 executive W liIS
subordinates who asst in the perform
ance of public duties, are by virture
of their positions debarred from hold
ing any other Office under the state
or municipality, however small or in
consequent. Such is the scope of the
opinion of Attorney General Ch1lds,
rendered yesterday in answer to a
number of requests arising from the re-
cent removal Of the state boiler in
spector. Following is the opinion in
full:
In the Matter of Certain Public Offices-In-
uuiries having arisen from several official
sources as TO the scope of article 4, section 3,
of the constitution of this state, in view OF
the decision by the supreme court in the re-
cent case of State VS.. Sutton, l deem it ad-
yisable to reply to such inquiries to cover
them in one opinion rather than several
That the constitution contemplates appoint
I've as we'll as elective offices is settled per-
manently by the above decision. There was
no occasion for the court in that case to de-
fine an Office within the meaning of the con-
stitution, as it was conceded by counsel, and
very property, that the position OF boiler in
spector is an Office
The courts of this country, with slight con-
fct are agreed in defining a public ot1cer
as one who has any duty concerning the
public and he is not the less public officer
its, because 1t is the duty of his office and
the nature of that duty which makes him
public officer, and not the extent of his au-
thority.''
This definition was in vogue long before
the adoption of the constitution Of this state
and may properly be deemed to express the
sense in which the term office is employed
In the section in question. The court EN-
phasiZed the fact that "it was the intention
of the trainers of the constitution by the IAN
guage used to prevent so far as possible Taf-
fixing in public Offices"
1t is therefore obvious that the word of
fce is vested with a meaning as broad as
the evils which the constitution seeks to fore
stall; and it may be noted in this communi-
cation as a significant fact that out OF the
whole category Of official positions the only Of
fee excepted in the prohibition is that OF
postmaster.
The constitution must, in my judgment, be
held to contemplate every office created or
authorized by the constitution or an act of
the legislature. A few cases may be found
which initiate against this view, but 1t is
supported both by reason and weight OF au-
thority. When it is remembered that the
power of the legislature over all statutory Of
fees is supreme, and that at the time of the
adoption Of the constitution the term and
elnouments of all such Offices were subjected
to unrestricted legislative control, am un-
able to discover any just ground for distinc-
ton between them. All Offices therefore
created by authority Of the state, and fall
within the prohibition whether they involve
functions directly pertaining to the govern
ment of the state, or to some political sub
division thereof This will be further demon
strated by what is hereinafter said in connec-
ton with specific Offices
Notary Public-The case with which the COM
mission of a notary public may be obtained,
and the large number of such commissions
which have been issued may have tended
to create the impression in the popular mind
that notary public is not public office If
30, it Is at variance with the fact. Within
the contemplation of the statute which Gre
ates it (Gen. Stat. 1878, chap. 26), it is an Of
flee of great Importance and the appointment
Is presumed to be made with prudence and
D view to the public welfare. The appoint
ment is made by the governor, by and with
the advice and consent of the senate The
term is fixed by law; the appointee is required
'to take and subscribe the oath required by
law and to give a bond to the state and
before entering upon the duties Of his Office
to provide himself with 'the proper official
ZEAL" Provision is further made fer his re-
moval from office. Few Offices are Of more
ancient origin Of wider public recognition.
These views are apparently we'll supported by
the following cases: Kirksey VS.. Bates 81
Am Dec 722; Governor VS.. Gordon, 10 Ala.
~; 10 Am. & Eng. Enc. of Law, 75
1t follows that the Office is within the pro-
hibiton of the constitution.
Municipal Offcers-Muncipal officers, as al
ready suggested, are not excepted from the
prohibition. The constitution of Missouri con-
tained a provision similar to the one in ques-
tion. In the case OF State ex rel. Vale, Al
Mo. 30, 1t was held that the appointment of
one as member Of the board of water COM
missioners Of a certain city was in violation
Of that provision. The court there used the
following language:
"In a certain popular acceptation the words
civil officers under this statute might posi-
bly, be interpreted to mean state officers in the
Bense Of participating directly in the admins
tration Of the state government as such; but
they are none the less civil officers under the
State because their functions are confined to
the local administration. The Offices are Gre
atad and the officers are appointed and their
powers given and their duties defined and
their salaries fixed directly by an act of the
legislature. They exercise and share all the
powers of civil government, and their author
Ity comes directly from the state. They are
to be considered as much civil officers under
this state as the judge Of the court or the
mayor of The city,
The same view was taken in Shelby vs.
Alcorn, SO Miss 273. 1t was there held that:
"a member Of the board Of county police or
Justice Of the peace is as much an officer un-
der the state as the executive, the heads Of
departments or member OF the Judiciary.
1t was precisely to such Offices that the pro-
It does not embrace Offices which it was COM
potent for the legislature to create and which
might be filed by appointment and not by
popular election, most salutary provision OF
the constitution would be utterly nugatory." "
The conclusion seems unavoidable that a
member of the legislature is prohibited from
holding during his term any CITY, village,
county or township Office
State Boards-From what has already been
said, it follows that the constitution prohib-
It's members OF the legislature from occupy
Ing positions Upon the several state boards
created by Law for certain purposes. These
positions are Offices within the purvew of that
instrument. It has been held in other states
that such a character attaches to the follow
Ing positions: "a medical superintendent of
z hospital for the insane (State VS.. Wilson,
90 0. Stat 340; q resident physician for such
m institution people KS. Langdon, Cal. u
commissioners TO construct public road Qeo-
p!e vs. Henry, 20 y. Y. 375; commissioners
10 erect an asylum people ex rel. VS.. Comp
trciler, 20 Wend. $3.50; commissioners to erect
D. new state house (People VS.. kennon, Oh.
Stat 54O u public printer Brown vs.. Tur-
ner, 70 II. G. 93); commissioners to collect
public moneys Commonwealth vs. Evans, "A
Ca ST. 1AD.
The supreme court Of Illinois in Bum vs.
People, IS Ill. 9s7, adopts a view which mill
tates against the doctrine declared in the
cases above cited. That decision did not,
however, receive tho unanimous SUPPORT Of the
members of the court, and the opinion Of the
dissenting justice seems to express the sound
er views and eceords with the settled Weight
of aathesiity IN this Country;
= 1t was held by one of NY predecessors that
member Of a board o. regents is not an Of
Hcer within the pur7iew OF the constitution.
L was there assumed that that body is 2
E.