and they returned a sharply defined answer, wholly disconnected with the other matter, and it seems to me to be conclusive. The courts in this state are in accord with the foregoing opinion. The plaintiff must have judgment for the amount claimed in the complaint, with costs. BROWN V. TURNER. Supreme Court of North Carolina. January, 1874. Application for a mandamus, heard before Watts, J., at Chambers in the city of Raleigh, on the 20th day of January, 1874. In his complaint the plaintiff alleges that he has been duly appointed Public Printer by his Excellency, the Governor, and asks for a mandamus directed to the defendant, Howerton, the Secretary of State, commanding him to deliver the public laws, etc., to the plaintiff, and also praying that he be restrained from delivering the same to the defendant, Turner. Howerton answers the complaint, raising no question of fact or law. Turner demurs to the complaint: 1st. Because of a defect of parties plaintiff, for that the Attorney General, in the name of the people of the State, should have brought the action. 2d. Because the complaint does not state facts sufficient to constitute a cause of action, in this, that the Governor of the State has no right to appoint a public printer, and that the plaintiff has never been duly appointed Public Printer or contractor. 3d. That mandamus is not the proper remedy for the case made by the complaint. His Honor, at the hearing overruled the demurrer and gave judgment for the plaintiff; from which judgment defendants appealed. BYNUM, J. To enable the plaintiff to recover he must maintain three propositions: 1. That what he claims is a public office. 2. That he has the legal title to it. 3. That he is prosecuting his claim by the right form of action. 1. Is it an office? Ch. 43, Acts of 1869-'70, enacts "That the office of State Printer be and the same is hereby abolished, and all laws and parts of laws in conflict with this act are hereby repealed." Ch. 180, Acts of 1871-'72, enacts "That the Joint Committee on Printing of the two Houses of the General Assembly are directed and instructed to make, execute and deliver a contract for the public printing, on the part of the State," at the rates specified in this act. There is an act positively abolishing the office of Public Printer, eo nomine, which, according to Hoke v. Henderson, 4 Dev. 1, is constitutional in form and substance, because it disturbs no vested right or term of an incumbent. But it is said that an office cannot be abolished by indirection, leaving all its duties to be performed by a person called a "contractor" of public printing. There is no magic in the word "office." 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; therefore, when that stamp was effaced by the repealing act of 1869-'70, it shrank to the level of an undefined duty. The authority that invested these duties with the name and dignity of a public office, afterwards divested them of that name and dignity. There being now no law of the land declaring it to be a public office, our next inquiry is, do the duties of the Public Printer constitute it an office? The place is really sui generis, and therefore the ordinary criteria by which we distinguish and classify public offices cannot aid us to a conclusion here. It occupies that neutral ground where it may "shade into" a legislative or executive function, without disturbing the harmony of either. It comes within the definition of a public office because its duties relate to the public and are prescribed by public law, but so may the duties of a contractor or workman upon a public building. It seems not to be an office, because all the duties of Public Printer as prescribed by law are mechanical only, as much so as those of a carpenter or brickmason, calling for neither judgment or discretion, in a legal sense, and which may be performed by employes, men, women and children, in or out of the State, and on his death every unfinished duty of the printer can and must be, under existing law, completed by his personal representative. If it is an office, there is no law prescribing the term or duration of it, and it may be held for life as well as a term of years, which puts it out of harmony with the whole genius and spirit of our political institutions, a conclusion which can be forced upon us, only on the most evident necessity. Assuming, as most favorable to the plaintiff, that this anomalous collection of duties, has vibrated upon the dividing line between two departments, a closer view will show that it has finally assumed a state of rest, upon the legislative side of the line. The office of State Printer, as such, was abolished in 1870. From that time to this, each political party, when it gained the ascendency in the legislature, claimed and exercised the exclusive control over the public printing by their own election of, or contract with, the printer. In 1873, the question was raised in a direct proceeding for that purpose, before Judge Moore, and it was then decided by him, in a well considered opinion, to be not an office, and that judg ment was acquiesced in by the contestant and all the branches of the government. It would seem, then, that this action and acquiescence of all the departments of the government had fixed the true position of this place, in a manner not to be shaken. There is nothing in the nature of the duties to be performed to excite the jealousy of the other departments, or to disturb the equilibrium of either one of the three co-ordinate divisions of the supreme authority of the State. While it is true that "the executive, legislative and supreme judicial powers of the government ought to be forever separate and distinct," it is also true that the science of government is a practical one; therefore, while each should firmly maintain the essential powers belonging to it, it cannot be forgotten that the three co-ordinate parts constitute one brotherhood, whose common trust requires a mutual toleration of the occupancy of what seems to be a 'common because of vicinage," bordering the domains of each. It would seem as natural for the department which enacts the laws to control the publication of its labor, as for an author to secure a copyright of his work, and to control its publication. Printing and publishing are a necessary part of the enactment of laws so essential that laws would be incomplete and valueless without being thus made known to those who are bound to observe them. We are not, therefore, disposed to go into a more curious and critical inquiry upon this question, where no great principle is involved and where such inquiries are more calculated to confuse than to answer any useful purpose. We hold that the legislature has the right to let out the public printing by contract. An office is based on a law, i. e., the constitution, a statute or an ordinance. See Bradford v. Justices, 33 Ga. 336. The nature of the duties is not a criterion. Thus a mere clerk may be an officer. Vaughn v. English, 8 Cal. 39. Salary or other emolument is not a criterion. State v. Stanley, 66 N. C. 59. UNITED STATES V. GERMAINE. Supreme Court of the United States. October, 1878. Mr. Justice MILLER delivered the opinion of the court. The defendant was appointed by the Commissioner of Pensions to act as surgeon, under the act of March 3, 1873, He was indicted in the District of Maine for extortion in taking fees from pensioners to which he was not entitled. The law under which he was indicted is thus set forth in sect. 12 of the act of 1825 (4 Stat. 118): "Every officer of the United States who is guilty of extortion under color of his office shall be punished by a fine of not more than $500, or by imprisonment not more than one year, according to the aggravation of his offence." The indictment being remitted into the Circuit Court, the judges of that court have certified a division of opinion upon the questions whether such appointment made defendant an officer of the United States within the meaning of the above act, and whether upon demurrer to the indictment judgment should be rendered for the United States or for defendant. The counsel for defendant insists that art. 2, sect. 2 of the Constitution prescribing how officers of the United States shall be appointed, is decisive of the case before us. It declares that "the President shall nominate, and by and with the advice and consent of the Senate, shall appoint, ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for and which shall be established by law. But the Congress may, by law, vest the appointment of such inferior officers as they may think proper, in the President alone, in the courts of law, or in the heads of departments." The argument is that provision is here made for the appointment of all officers of the United States, and that defendant, not being appointed in either of the modes here mentioned, is not an officer though he may be an agent or employe working for the government and paid by it, as nine-tenths of the persons rendering services to the government undoubtedly are, without thereby becoming its officers. The Constitution for purposes of appointment very clearly divides all its officers into two classes. The primary class requires a nomination by the President and confirmation by the Senate. But foreseeing that when offices became numerous, and sudden removals necessary, this mode might be inconvenient, it was provided that, in regard to officers inferior to those specially mentioned, Congress might by law vest their appointment in the President alone, in the courts of law, or in the heads of departments. That all persons who can be said to hold an office under the government about to be established under the Constitution were intended to be included within one or the other of these modes of appointment there can be but little doubt. This Constitution is the supreme law of the land, and no act of Congress is of any validity which does not rest on authority conferred by that instrument. It is, therefore, not to be supposed that Congress, when enacting a criminal law for the punishment of officers of the United States, intended to punish anyone not appointed in one of those modes. If the punishment were designed for others than officers as defined by the Constitution, words to that effect would be used, as servant, agent, person in the service or employment of the government; and this has been done where it was so intended, as in the sixteenth section of the act of 1846, concerning embezzlement, by which any officer or agent of the United States, and all persons participating in the act, are made liable. 9 Stat. 59. As defendant here was not appointed by the President or by a court of law, it remains to inquire if the Commissioner of Pensions by whom he was appointed, is the head of a department, within the meaning of the Constitution, as is argued by the counsel for plaintiffs. That instrument was intended to inaugurate a new system of government, and the departments to which it referred were not then in existence. The clause we have cited is to be found in the |