OFFICERS. [See COURTS; GOVERNMENT; WRITS. As to duties in particular cases, see the appropriate general heads of the work.] I. IN GENERAL. POWERS, DUTIES AND LIA- | III. APPOINTMENT AND REMOVAL, S$ 220-256. II. RESIGNATION, SS 201-219. V. MISCELLANEOUS, §§ 334-452. I. IN GENERAL. POWERS, DUTIES AND LIABILITIES. SUMMARY Office and officer defined, § 1.— How offices to be established; agent of fortifications, § 2.- Illegal appointment; liability of appointee, § 3.— Acts requiring judgment and discretion, §§ 4, 5, 7.— Liability of a sheriff as conservator of the peace, § 6. § 1. An office is "a public charge or employment," and he who performs the duties of the office is an officer. If employed on the part of the United States, he is an officer of the United States. Although an office is "an employment" it does not follow that every employment is an office. A man may be employed under a contract, express or implied, to do an act, or perform a service, without becoming an officer. But if the duty be a continuing one, which is defined by rules prescribed by the government, and not by contract, which an individual is appointed by government to perform, who enters on the duties appertaining to his station without any contract defining them, if those duties continue, though the person be changed, it seems very difficult to distinguish such a charge or employment from an office, or the person performing the duties from an officer. United States v. Maurice, §§ 8-17. §2. All offices, except such as are provided for in the constitution, must be established by legislative enactment. The acts of congress from 1794 to 1808, empowering the president to erect fortifications, and appropriating large sums of money to enable him to carry these acts into execution, do not establish the office of agent of fortifications. The army regulations, revised in September, 1816, according to the provisions of the act of April 24, 1816, recognizing such army regulations, and providing for alterations, in connection with the act of March 2, 1821, adopting the revisal of September, 1816, established such office in August, 1818; and the duties of said office were prescribed by such army regulations. Ibid. § 3. An irregular appointment to an office does not absolve the person appointed from the legal and moral obligation of accounting for public money which has been placed in his hands in consequence of such appointment. Ibid. 4. A public officer is not liable to an action, if he falls into error, in a case where the act to be done is not merely a ministerial one, but is one in relation to which it is his duty to exercise judgment and discretion, even though an individual may suffer by his mistake. Kendall v. Stokes, §§ 18–21. 5. In the settlement of accounts properly belonging to the postoffice department, upon which it was the duty of the postmaster-general to exercise his judgment, where he committed an error, in supposing that he had a right to set aside allowances for services rendered upon which his predecessor in office had finally decided, but as the case admits he had acted from a sense of public duty and without malice, his mistake in a matter properly belonging to the department over which he presided can give no cause of action against him. (MCLEAN, J., dissented.) Ibid. § 6. Though the powers and duties of a sheriff as conservator of the peace are not strictly judicial, still the preservation of the peace is a public duty, for neglect of which he is amenable to the public, and punishable by indictment only. To render him liable to a civil action for acts not simply ministerial, the plaintiff must allege and prove, 1, that he had a right or privilege; 2, that by the act of the officer he was hindered from the enjoyment of it; and, 3, that the act was done maliciously. So, in an action upon a sheriff's official bond, where the plaintiff alleged that, while engaged in his lawful business, certain evil-disposed persons came about him, hindered and prevented him, threatened his life, with force of arms demanded of him a large sum of money, and imprisoned and detained him for the space of four days, and until he paid them the sum of $2,500 for his enlargement; that the sheriff being present, plaintiff applied to him for protection, and requested him to keep the peace of the state of Maryland; that the sheriff neglected and refused to protect and defend the plaintiff, and to keep the peace, etc., whereby his bond became forfeited, and action accrued to the plaintiff,— held, that the sheriff was not liable. South v. State of Maryland, §§ 22–24. 7. Report having been made by the warehouse keeper that certain goods were in a perishing condition, the collector directed an examination of them to be made by two United States 33 VOL. XXIV-3 appraisers, and upon report by them that the goods were in a perishing condition, and that an immediate sale was necessary, the collector ordered them to be sold. They were sold at auction, but only on a day's notice, and at prices considerably less than their value. Held, that under the act of congress of August 6, 1846 (Dunlop, U. S. Laws, 1106), providing for the sale forthwith "of goods of a perishable nature, and all gunpowder, firecrackers, and explosive substances" deposited, etc., as to the true condition of the goods, the necessity of a sale, and the degree of promptitude required, the collector was pro hac vice a judicial officer, and if he fell into an error, where the act done was not purely ministerial, but one in relation to which his duty was to exercise his judgment and discretion, he was not liable in an action. If a discretion was reposed in him by law, to render him liable it must be proved either that he exercised the power confided in cases not within his jurisdiction, or in a manner not confided to him, as with malice, cruelty or wilful oppression. The briefness of the notice could not be considered per se sufficient evidence of fraud or corrupt motive. Gould v. Hammond, §§ 25, 26. [NOTES.-See §§ 27-200.] UNITED STATES v. MAURICE. (Circuit Court for Virginia: 2 Marshall, 96-118. 1823.) Opinion by MARSHALL, C. J. STATEMENT OF FACTS.- This is an action of debt brought upon a bond executed on the 18th day of August, 1818, in the penalty of $20,000, with the following condition: "Whereas the said James Maurice has been appointed agent for fortifications on the part of the United States, now, therefore, if the said James Maurice shall truly and faithfully execute and discharge all the duties appertaining to the said office of agent, as aforesaid, then the above obligation to be void," etc. The breach assigned in the declaration is, that large sums of money came to the hands of the said Maurice, as agent of fortifications, which he was bound by the duties of his office faithfully to disburse and account for, a part of which, namely, $40,000, he has, in violation of his said duty, utterly failed to disburse to the use of the United States, or account for; wherefore, etc. The defendants, the sureties in the said obligation, prayed oyer of the bond, and of the condition, and then demurred to the declaration. The plaintiff joined in the demurrer. The defendants also pleaded several pleas, on some of which issue has been made up, and on others demurrer has been joined. § 8. What constitutes a public office. The first point to be considered is the demurrer to the declaration. The defendants insist that the declaration cannot be sustained, because the bond is void in law, it being taken for the performance of duties of an office, which office has no legal existence, and consequently, no legal duties. No violation of duty, it is said, can take place when no duty exists. Since the demurrer admits all the facts alleged in the declaration which are properly charged, and denies that those facts create any obligation in law, it must be taken as true that James Maurice was in fact appointed an agent of fortification on the part of the United States; that he received large sums of money in virtue of that appointment, and has failed to apply it to the purpose for which he received it, or to account for it to the United States. As the securities certainly intended to undertake that Maurice should perform the very acts which he has failed to perform, and as the money of the nation has come into his hands on the faith of this undertaking, it is the duty of the court to hold them responsible, to the extent of this undertaking, unless the law shall plainly interpose its protecting power for their relief, upon the principle that the bond creates no legal obligation. Is this such a bond? The first step in this inquiry is the character of the bond. Does it, on its face, purport to be a mere official bond, or to be in the nature of a contract? This question is to be answered by a reference to the terms in which its condition is expressed. These leave no shadow of doubt on the mind. The condition refers to no contract, states no undertaking to perform any specific actrefers to nothing - describes nothing which the obligor was bound to do, except to perform the duties of an officer. It recites that he was appointed to an office, and declares that the obligation is to be void if he "shall truly and faithfully execute and discharge all the duties appertaining to the said office." Of the nature of those duties no information whatever is given. Whether the disbursement of public money does or does not constitute a part of them is a subject on which the instrument is entirely silent. The bond, then, is, on its face, completely an official bond, given, not for the performance of any contract, but for the performance of the duties of an of fice, which duties were known and had been prescribed by law or by persons authorized to prescribe them. In his declaration the attorney for the United States has necessarily taken up this idea and proceeded on it. In his assignment of breaches he states that the said James Maurice had been appointed agent of fortifications, and alleges that he had not performed the duties of the said office nor kept the condition of his bond, but that the said condition is broken in this, that while he held and remained in the said office divers large sums of money came to his hands, as agent of fortifications, which he was bound by the duties of his office faithfully to disburse and account for; a part of which, $40,000, he has, in violation of his said duty, utterly failed to disburse or account for. On this breach of his official duty, which is alleged to constitute a breach of the condition of his bond, the action is founded. No allusion is made to any other circumstance whatever as giving cause of action. The suit, then, is plainly prosecuted for a violation of the duty of office, which is alleged to constitute a breach of an official bond. The court must, on this demurrer, at least, so consider it, and must decide it according to those rules which govern cases of this description. This being a suit upon an official bond, the condition of which binds the obligors only that the officer should perform the duties of his office, it would seem that the obligation could be only co-extensive with these duties. What is their extent? The defendants contend that no such office exists; that James Maurice was never an officer, , and, of consequence, was never bound by this bond to the performance of any duty whatever. To estimate the weight of this objection, it becomes necessary to examine the constitution of the United States and the acts of congress in relation to this subject. The constitution, article 2, section 2, declares that the president "shall nominate, and, by and with the advice and consent of the senate, shall appoint ambassadors," etc., "and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law." I feel no diminution of reverence for the framers of this sacred instrument when I say that some ambiguity of expression has found its way into this clause. If the relative "which" refers to the word "appointments," that word is referred to in a sense rather different from that in which it had been used. It is used to signify the act of placing a man in office, and referred to as signifying the office itself. Considering this relative as referring to the word "offices," which word, if not expressed, must be understood, it is not perfectly clear whether the words "which" offices "shall be established by law" are to be construed as ordaining that all offices of the United States shall be established by law, or merely as limiting the previous general words to such offices as shall be established by law. Understood in the first sense, this clause makes a general provision that the president shall nominate, and, by and with the consent of the senate, appoint to all offices of the United States, with such exceptions only as are made in the constitution; and that all offices (with the same exceptions) shall be established by law. Understood in the last sense, this general provision comprehends those offices only which might be established by law, leaving it in the power of the executive, or of those who might be intrusted with the execution of the laws, to create in all laws of legislative omission such offices as might be deemed necessary for their execution, and afterwards to fill those offices. I do not know whether this question has ever occurred to the legislative or executive of the United States, nor how it may have been decided. In this ignorance of the course which may have been pursued by the government, I shall adopt the first interpretation, because I think it accords best with the general spirit of the constitution, which seems to have arranged the creation of office among legislative powers, and because, too, this construction is, I think, sustained by the subsequent words in the same clause, and by the third clause of the same section. The sentence which follows, and forms an exception to the general provision which had been made, authorizes congress "by law to vest the appointment of such inferior officers as they think proper in the president alone, in the courts of law, or in the heads of departments." This sentence, I think, indicates an opinion in the framers of the constitution that they had provided for all cases of offices. The third section empowers the president "to fill up all vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session." This power is not confined to vacancies which may happen in offices created by law. If the convention supposed that the president might create an office, and fill it originally without the consent of the senate, that consent would not be required for filling up a vacancy in the same office. The constitution, then, is understood to declare that all offices of the United States, except in cases where the constitution itself may otherwise provide, shall be established by law. $9. Agent of fortifications. Has the office of agent of fortifications been established by law? From the year 1794 to the year 1808, congress passed several acts, empowering the president to erect fortifications, and appropriating large sums of money to enable him to carry these acts into execution. No system for their execution has ever been organized by law. The legislature seems to have left this subject to the discretion of the executive. The president was, consequently, at liberty to employ any means which the constitution and laws of the United States placed under his control. He might, it is presumed, employ detachments from the army, or he might execute the work by contract, in all the various forms which contracts can assume. Might he organize a corps, consisting of laborers, managers, paymasters, providers, etc., with distinct departments of duty, prescribed and defined by the executive, and with such fixed compensation as might be annexed to the various parts of the service? If this mode of execut ing the law be consistent with the constitution, there is nothing in the law itself to restrain the president from adopting it. But the general language of the law must be limited by the constitution, and must be construed to empower the president to employ those means only which are constitutional. According to the construction given in this opinion to the second section of the second article of that instrument, it directs that all offices of the United States shall 'be established by law; and I do not think that the mere direction that a thing shall be done, without prescribing the mode of doing it, can be fairly construed into the establishment of an office for the purpose, if the object can be effected without one. It is not necessary, or even a fair inference from such an act, that congress intended it should be executed through the medium of offices, since there are other ample means by which it may be executed, and since the practice of the government has been for the legislature, wherever this mode of executing an act was intended, to organize a system by law, and either to create the several laws expressly or to authorize the president, in terms, to employ such persons as he might think proper, for the performance of particular services. If, then, the agent of fortifications be an officer of the United States, in the sense in which that term is used in the constitution, his office ought to be established by law, and cannot be considered as having been established by the acts empowering the president, generally, to cause fortifications to be constructed. Is the agent of fortifications an officer of the United States? An office is defined to be "a public charge or employment," and he who performs the duties of the office is an officer. If employed on the part of the United States, he is an officer of the United States. Although an office is "an employment,' it does not follow that every employment is an office. A man may certainly be employed under a contract, express or implied, to do an act, or perform a service, without becoming an officer. But if a duty be a continuing one, which is defined by rules prescribed by the government, and not by contract, which an individual is appointed by government to perform, who enters on the duties appertaining to his station, without any contract defining them, if those duties continue, though the person be changed, it seems very difficult to distinguish such a charge or employment from an office, or the person who performs the duties from an officer. If it may be converted into a contract, it must be a contract to perform the duties of the office of agent of fortifications, and such an office must exist with ascertained duties, or there is no standard by which the extent of the condition can be measured. The army regulations are referred to in acts of congress, passed previous and subsequent to the execution of the bond under consideration. A copy of those regulations, purporting to be a revisal made in the war office in September, 1816, conformably to the act of the 24th of April, 1816, has been laid before the court and referred to by both parties. These regulations provide for the appointment and define the duties of the agents of fortifications. They are to be governed by the orders of the engineer department in the disbursement of the money placed in their hands. They are to provide the materials and workmen deemed necessary for the fortifications, and they are to pay the laborers employed. In the performance of these duties they are directed to make out, first, an "abstract of articles purchased;" secondly, |