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article relating to the executive, and the word as there used has reference to the subdivision of the power of the executive into departments, for the more convenient exercise of that power. One of the definitions of the words given by Worcester is, “a part or division of the executive government, as the Department of State, or of the Treasury.” Congress recognized this in the act creating these subdivisions of the executive branch by giving to each of them the name of a department. Here we have the Secretary of State, who is by law the head of the Department of State, the Departments of War, Interior, Treasury, etc. And by one of the latest of these statutes reorganizing the Attorney General's office and placing it on the basis of the others, it is called the Department of Justice. The association of the words "heads of departments” with the President and courts of law strongly implies that something different is meant from the inferior commissioners and bureau officers, who are themselves the mere aids and subordinates of the heads of the departments. Such, also, has been the practice, for it is very well understood that the appointments of the thousands of clerks in the Departments of Treasury, Interior, and the others, are made by the heads of those departments, and not by the heads of the bureaus in those departments.

So in this same section of the Constitution it is said that the President may require the opinion in writing of the principal officer in each of the executive departments, relating to the duties of their respective offices.

The word "department," in both these instances, clearly means the same thing, and the principal officer in the one case is the equivalent of the head of department in the other.

While it has been the custom of the President to require these opinions from the Secretaries of State, the Treasury, of War, Navy, etc., and his consultation with them as members of his cabinet has been habitual, we are not aware of any instance in which such written opinion has been officially required of the head of any of the bureaus, or of any commissioner or auditor in these departments.

United States v. Hartwell, 6 Wall. 385, is not, as supposed, in conflict with these views. It is clearly stated and relied on in the opinion that Hartwell's appointment was approved by the Assistant Secretary of the Treasury as acting head of that department, and he was, therefore, an officer of the United States.

If we look to the nature of defendant's employment, we think it equally clear that he is not an officer.

He is but an agent of the Commissioner, appointed by him, and removable by him at his pleasure, to procure information needed to aid in the performance of his own official duties. He may appoint one or a dozen persons to do the same thing. The compensation may amount to five dollars or five hundred dollars per annum. There is no penalty for his absence from duty or refusal to perform, except his loss of the fee in the given case. If Congress had passed a law requiring the commissioner to appoint a man to furnish each agency with fuel at a price per ton fixed by law high enough to secure the delivery of the coal, he would have as much claim to be an officer of the United States as the surgeons appointed under this statute.

We answer that the defendant is not an officer of the United States and that judgment on the demurrer must be entered in his favor. Let it be so certified to the Circuit Court.

The wording of particular statutes has an important influence on the determination whether for the purpose of the statutes a particular position is an office or not. Compare United States v. Mouat, 124 U. S. 303 and United States v. Hendee, Ibid. 309, which hold that the same position is an office for one purpose but not for another.



Supreme Court of Indiana, November, 1900.

156 Ind. 187.

HADLEY, J. Appellant was convicted of practicing dentistry without a license, or certificate of registration, in violation of the provisions of the act of 1899 approved March 6, 1899 (Acts 1899, p. 479). The section involved is in these words: “Section 2. A board of examiners consisting of five reputable practicing dentists shall be appointed on or before the last Tuesday of June, 1899,

*The legislature may in the absence of constitutional restriction establish any office and may delegate its powers to establish offices to a local corporation. Blue v. Beach, 155 Ind. 121. Every office must originate in a law. United States v. Maurice, 2 Brock. (U. S.) 96.

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and biennially thereafter, one by the governor, one by the state board of health, and three by the Indiana state dental association, said board to serve for the term of two years from the date of such appointment. When convened said board shall examine all applications, issue certificates thereon, and also may examine all applicants for certificates of qualification and issue such certificates to all such applicants as shall pass a satisfactory examination.” Appellant assails the judgment upon the ground that the statute upon which it rests is violative of section 1, article 3; section 1, article 5; section 18, article 5, and section 3, article 6 of the state constitution and the fourteenth amendment of the federal Consti. tution. Appellant admits that he practiced dentistry without the license required by the statute under which he is prosecuted and that the judgment is right if that statute is constitutional.

It is here asserted that the statute is bad for being in conflict with the various provisions of the Constitution above set out, the contention being that the appointment by the state dental association of three members of the board of examiners was void for want of authority in the legislature to confer the power of appointment on a private corporation, or individual outside the executive department.

The constitution is silent upon the subject of general appointments to office. It is provided by section 1, article 5, that "the executive powers of the state shall be vested in a governor" and by section 18, article 5, “when, at any time, a vacancy shall have occurred in any other state office, [except appointment vested in the general assembly) or in the office of judge of any court, the governor shall fill such vacancy by appointment, which shall expire when a successor shall have been elected and qualified" and by section 1, article 15 that, “All officers whose appointments are not otherwise provided for in this constitution shall be chosen in such manner as now is, or hereafter may be, prescribed by law.

Three things are clearly apparent from these provisions: (1) The power of appointment to some offices is committed to the general assembly; (2) the power to make temporary appointments to fill vacancies in any state office, or in the office of judge, until such officer can be regularly chosen as provided by law, and thus, to avoid a suspension of the functions of such office, is conferred upon the governor, and (3) all other officers whose appointments are not specially provided for in this constitution shall be chosen in such manner as the legislature may deem expedient. It cannot be contended that the appointment to the office of state dental examiner is fixed by the constitution, for no such office was in existence when the constitution was adopted. The appointments to that office, therefore, come within the purview of section 1, article 15, and shall be made in such manner as may be hereafter prescribed by law. The manner prescribed by law is that the state board of dental examiners shall consist of five members, one to be appointed by the governor, one by the board of health, and three by the state dental association.

It is claimed that the statute must fail for the reason that the legislature has no constitutional warrant for bestowing the police power upon a private corporation to be by it exercised upon the citizens of the state. We perceive no reason why a corporation, such as the one complained of, may not prove itself a repository of power, as safe and salutary as an individual. The corporation is composed of practicing dentists, organized for the promotion of scientific knowledge and skill in the practice of the profession of dentistry, and which association thus stands in an intimate and well informed relation to the subject, and possessed of a peculiar interest in the successful administration of the law. It is difficult to conceive of an appointing power with higher qualifications, or likely to be swayed by more laudable motives, and that it is an organization of persons mutually interested in the enforcement and proper administration of the law surely furnishes no reason for its condemnation.

In the case known as the Slaughter House Cases, 16 Wall. 36, the legislature of Louisiana had granted a corporation the exclusive right for twenty-five years to maintain slaughter-houses, landings for cattle, and cattle yards, within certain parishes of the state, including the city of New Orleans, requiring all animals offered for sale or slaughtered to be brought to the yards of the corporation, authorizing the corporation to charge fees, and prohibiting all other persons from maintaining such places within said territory. In holding that the legislature had constitutional authority within its police powers to confer these public duties upon the corporation, the court, by Justice Miller, uses this language.

If this statute had imposed on the city of New Orleans precisely the same duties accompanied by the same privileges, which it has on the corporation it created it is believed that no question would have been raised as to its constitutionality. In that case the effect on the butchers in pursuit of their occupation


and on the public would have been the same as it is now. Why cannot the legislature confer the same powers on another corporation, created for a lawful and useful public object, that it can on the municipal corporation already existing! That wherever the legislature has the right to accomplish a certain result, and that result is best attained by means of a corporation, it has the right to create such a corporation, and to endow it with the powers necessary to effect the desired lawful purpose, seems hardly to admit of debate." See, also, Louisville Gas Co. v. Citizens Gas Co., 115 U. S. 683, 6 Sup. Ct. 265, 29 L. Ed. 510; Commonwealth' v. Vrooman, 164 Pa. St. 306, 30 Atl. 217, 25 L. R. A. 250.

For many years state officers, or officers performing state functions, have been chosen by private corporations under legislative authority, without question. Some of these are, three members of the board of trustees of Purdue University, two by the state board of agriculture, and one by the state board of horticulture (Acts 1875, p. 120, section 6176 Burns 1894); grain inspector by the board of trade or other commercial bodies of the county (Acts 1875, p. 172, 8718 Burns 1894); sextons of churches, and officers of fairs, who ex officio are made by law peace officers (Acts of 1881, p. 174, section 2074 Burns 1894); the state chemist by Purdue University Board (Acts 1881, p. 511, section 6618 Burns 1894); the state live stock sanitary commission by the state board of agriculture (Acts 1889, p. 380, section 2871 Burns 1894); the superintendents of schools of three of the largest cities of the state, with the governor and presidents of the higher state schools, shall constitute the board of education with power to grant state certificates of qualification to teachers. Acts 1875, p. 130, section 5849 Burns 1894.

We hold, therefore, that the General Assembly in conferring upon the state dental association power to appoint three members of the state board of dental examiners did not transcend its constitutional power, and that appointments to said board of examiners by said association are valid.

Judgment affirmed.

But the legislature may not provide a method of filling an office which is inconsistent with the provisions of the constitution. State ex rel. Worrell v. Peelle, 121 Ind. 495, infra.

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