State Ex Rel. Zevely v. Hackmann , 300 Mo. 59 ( 1923 )

This is a proceeding brought in the Circuit Court of Cole County by the relator against the defendant, George E. Hackmann, State Auditor, having for its object a writ of mandamus, to compel the latter to audit and pay an account of $820 alleged to be due the former for services performed by him as secretary of the State Board of Equalization. The trial in the circuit court resulted in a judgment for the plaintiff, and in due time and proper form the defendant appealed the cause to this court.

The case was submitted upon the following agreed statement of facts:

"It is hereby stipulated and agreed in the above cause by and between Jesse W. Barrett, Attorney-General of Missouri, representing respondent, and E.M. Zevely, relator and petitioner, on his own behalf, as follows:

"That at all times mentioned in relator's petition, respondent, George E. Hackmann, was and now is State Auditor of the State of Missouri; that the State Board of Equalization was at all such times composed of the then incumbents of the state offices therein named and charged with the performance of the duties alleged in said petition.

"That on December 16, 1919, relator, E.M. Zevely, was duly appointed as secretary of the State Tax Commission of the State of Missouri under authority granted said commission by Section 12841, Revised Statutes 1919, and that the order of said appointment was in words and figures as follows, to-wit: [Then follows the appointment and qualifications of the plaintiff as such secretary.]

"That during all of the time of the rendition of the services and per diem charged for in the account of relator in the sum of $820 as presented to and allowed by the State Board of Equalization on January 8, 1921, and described in relator's petition, which are hereby admitted to have been performed, said relator was secretary of the said State Tax Commission.

"That whatever relationship relator may have sustained to the late State Board of Equalization during the time of the performance of the service and per diem set forth in said account and petition, whether of an official or clerical character, was due to and existed wholly by virtue of the provisions of Article 4 of Chapter 119, Revised Statutes 1919, and particularly of Section 12842 thereof.

"It is further agreed that the account of relator in the sum therein and in relator's petition mentioned is unquestioned, that same was presented to, approved and duly allowed in said sum by said late State Board of Equalization on January 8, 1921, and was ordered by said board to be certified to the State Auditor for audit and payment; that same was so certified and presented and audit thereof was refused by said Auditor.

"That funds sufficient for the payment of said account have been conditionally appropriated therefor by the General Assembly and now remain in the treasury of said state, but it is further expressly agreed that the fact that such appropriation has been made shall not be taken into consideration by the court, nor in anywise influence its judgment in the decision of this cause, but the court shall decide the question at issue according to and wholly upon such other and independent provisions and rules of law and construction as it may believe and find to be applicable and pertinent to a correct determination thereof.

"That the only question herein involved is one of law and resolves itself into this, to-wit: was petitioner, E.M. Zevely, at the time he rendered the services and per diem for which he asks payment as secretary of the State Board of Equalization, an officer of said board in contemplation of Section 12856, Revised Statutes 1919?

"And it is agreed that if the court decides said question in the affirmative, judgment shall be rendered for relator and mandamus shall issue commanding respondent as State Auditor to draw his warrant upon the State Treasury of this State in payment of relator's aforesaid account in said sum of $820; but if the court determines said question in the negative, judgment shall go against relator and his petition shall be dismissed."

Then follow the signatures of the parties to the suit.

I. Counsel for the respective parties agree that the only proposition presented by this record for determination by the court is: Was respondent, Zevely, at the time he rendered the services for which he asks payment as secretary of the State Board of Equalization, an officer of said board in contemplation of Section 12856, Revised Statutes 1919? Upon this question respondent respectfully submits the citations following. The above section reads as follows:

"Sec. 12856. The officers and members of said board shall receive the same pay per diem as officers and members of the General Assembly, but no mileage shall be allowed in any case in consequence of their duties as members of said board; and the said board shall meet every year at such time as may be designated."

From the very language of the statute quoted we must approach this question by first ascertaining what is an officer, and whether or not Zevely comes within that application.

Counsel for respondent have collected from all over the country a large number of definitions and adjudications defining "offices" and "officers," and in my opinion, I can do no better than to reproduce them in this connection.

Mr. Chief Justice MARSHALL'S definition of "office" and "officer" contained in United States v. Maurice, 2 Brock, 103, Fed. Case No. 15747, is thus tersely put: "It [an office] is a public charge or employment, and he who performs the duties of an office is an officer." Or, as Blackstone states it: "An office is the right to exercise a private or public employment and to take the fees and emoluments thereunto belonging." [2 Bl. Com. 36.] And as extended in Olmstead v. Mayor, 42 N.Y. Sup. Ct. (10 Johns. C.) 481: "It implies an authority to exercise some portion of the sovereign power of the State, either in making, administering, or executing the laws."

Where a person who is the incumbent of a public position is required by law to perform the duties of another position, not incompatible with the first, he, in the absence of any provision of the law to the contrary, is entitled to receive the compensation attached to each of the positions. [Note, 2 Ann. Cas. 390, to State ex rel. v. Grant, 2 Ann. Cases 382, citing following cases: Seiler v. State, 160 Ind. 605; Love v. Baehr,47 Cal. 364; State v. Liedtke, 9 Neb. 464; Scranton School Dist. v. Simpson, 133 Pa. 202; State v. Roddle, 12 S.D. 433.]

An office is defined by the Century Dictionary as a post, the possession of which imposes certain duties on the possessor, and confers authority for their performance; and by Cochran as a position or appointment entailing certain rights and duties. [State ex rel. v. Brennan, 49 Ohio St. 33, l.c. 37.]

A public office is defined to be 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 who is invested with the authority and is required to perform the duties is a public officer. [State ex rel. v. Bus, 135 Mo. 325, l.c. 331, citing Mechem's Public Officers, p. 1, sec. 1.]

The courts have undertaken to give definitions in many cases, and while these have been controlled more or less by laws of the particular jurisdiction, and the powers conferred and the duties enjoined thereunder, still all agree substantially that if an officer receives his authority from the law and discharges some of the functions of government he will be a public officer. [State ex rel. v. Bus, supra, l.c. 332, and cases cited.]

An office is a public charge or employment, and the term seems to comprehend every 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. Prac. (N.Y.) l.c. 250.]

In the most general and comprehensive sense a "public office is an agency for the State and a person whose duty it is to perform this agency is a "public officer." Stated more definitely a "public office" is a charge or trust conferred by public authority for a public purpose, the duties of which involve in their performance the exercise of some portion of sovereign power, whether great or small. A public officer is an individual who has been elected or appointed in the manner prescribed by law, who has a designation or title given to him by law, and who exercises the functions concerning the office assigned to him by law. [State ex rel. Smith v. Theus, 38 So. 870-72, 114 La. 1098; cited in State ex rel. v. Maroney, 191 Mo. l.c. 545.]

A "public office" is an agency for the State, and the person whose duty it is to perform this agency is a "public officer;" the essence of it is the duty of performing an agency; that is, of doing some act or acts, or a series of acts, for the State. [Malone v. Williams, 103 S.W. 798.]

An "officer" is simply an agent of the public, whose power of attorney is the law, which prescribes his duties and limits his authority to such acts only as are necessary and incidental to a proper discharge of such duties as it imposes. [Callaghan v. McGown, 90 S.W. (Tex.) l.c. 327.]

In Michael v. State ex rel. Welch, 163 Ala. 425, 433, it is said:

"In Henly v. Lynne, 5 Bing. 91, Lord Chief Justice BEST, defining who is a public officer, said: ``Every one who is appointed to discharge a public duty, and receives compensation, in whatever shape, from the crown or otherwise, is a public officer:' See also Bac. Abr. l.c. ``Offices and Officers.' As Mr. Chief Justice MARSHALL in United States v. Maurice, 2 Brock. 102, said: ``If a duty be a continuing one, which is defined by rules prescribed by the government, and not by contract, it seems very difficult to distinguish such a charge or employment from an office, or the person who holds it from an officer.' An office is a public charge or employment, and the term seems to comprehend every charge or employment in which the public is interested." [Citing Shelby v. Alcorn, 36 Miss. 273; People v. Hayes, 7 How. Prac. (N.Y.) 248; State v. Valle, 41 Mo. 29; 2 Cow. (N.Y.) 13, 29, note B; People v. Bedell, 2 Hill (N.Y.) 196; People v. Lee, 28 Hun (N.Y.) 469, Carthew's Report, l.c. 479.]

Attention is respectfully called to the following additional Missouri cases in point on the question before the court: State ex rel. Atty. Gen. v. Valle, 41 Mo. l.c. 32; State ex rel. Cannon v. May, 106 Mo. l.c. 505; State ex rel. Ponath v. Hamilton, 240 S.W. 445, 447.

And to the citations under "Office," page 4923, and "Officer," page 4933, 6 Words and Phrases Judicially Defined.

The foregoing definitions and adjudications having imparted to us a fair knowledge as to what are "offices" and "officers," it becomes our duty to decide in their light, whether or not the position occupied by respondent was an office under the laws of this State; also, as to whether or not the duties the statutes imposed upon him constitute him an officer.

Section 12841, 12842 and 12843, Revised Statutes 1919, create the office of secretary of the Tax Commission, defines his qualifications and prescribes the duties for him to perform.

The first section mentioned authorized the Tax Commission to appoint respondent secretary thereof, and fixed his salary at $2400 per annum. The same section also prescribed his qualifications, namely, a qualified accountant, and having experience in matters pertaining to the valuation, assessment and taxation of property. Said section also authorizes the Tax Commission in addition, to employ clerks, stenographers and agents from time to time as may be necessary, and to prescribe their duties and to fix their compensation, not to exceed what they were at the time receiving.

In passing it may not be inappropriate to state that, if I understand the position of the Attorney-General, he contends that the respondent was nothing more or less than a clerk of the Tax Commission, also of the Board of Equalization, and that the $2400 salary per annum compensates respondent for all the services performed for the Tax Commission and for the Board of Equalization. If that is true why did the Legislature designate him "secretary" of the Tax Commission, and fix his salary at $2400, and in the same section give the commission power to employ others as clerks, stenographers, and to fix theircompensation, etc.? Besides I have never heard of a clerk being employed who had to be an experienced accountant, and experienced in the valuation, assessment and taxation of property.

The second section of the statute referred to requires the secretary of the Tax Commission to take and subscribe to an oath, just as all other officers are required to do, but the clerks, stenographers and agents the commission is authorized to appoint are not required to take or subscribe to any oath at all.

I will now proceed to state in order the duties the secretary, Mr. Zevely, was required by said statute to perform for the Board of Equalization, which were outside and beyond those required of him to be performed for the Tax Commission, viz:

(a) To keep the record of the board.

(b) Discharge such duties as the board may require — Ibid.

(c) Administer oaths when required by the board — Sec. 12853.

(d) To keep an accurate account of all the board's proceedings and orders, and file same, together with all their papers in the office of the State Auditor — Sec. 12853.

(e) To officially sign the record of the proceedings and decisions of the board as its secretary, and file said record in the office of the State Auditor on its adjournment — Sec. 13025.

The agreed statement of facts shows that respondent performed all of these duties while he was secretary of the Tax Commission and ex officio secretary of the Board of Equalization.

The mere fact that the statute required the secretary to sign the records of the Board of Equalization is practically a legislative interpretation that he was an officer of that board. [State ex rel. Mosconi v. Maroney, 191 Mo. 531; People v. Hayes, 7 How. Pr. (N.Y.) l.c. 249; State ex rel. v. Harter,188 Mo. 528.]

In view of the facts and authorities cited in this case I am unable to conceive how any rational mind can reach any other conclusion, except that the respondent was an officer of the Board of Equalization within the meaning of Section 12856, Revised Statutes 1919.

Nor does the fact that respondent was paid $2400 annually for his services as secretary of the Tax Commission bar his right to recover compensation for services performed as secretary exofficio of the Board of Equalization. If that were true, then none of the other members of that board could recover anything for their services performed while acting on that board, for the reason that they are state officers, and draw their compensation for services performed as members of the Board of Equalization. [State ex rel. McGrath v. Walker, 97 Mo. l.c. 163.] Finding no error in the record, the judgment of the trial court is affirmed. Walker and James T. Blair,JJ., concur; Ragland, J., concurs in result; Graves, J., concurs in separate opinion; White, J., absent.