OFFICE, in law, may be ministerial or judicial, and is in law the right and duty of one or more persons to discharge the functions of some position of trust or honor, and to receive the emoluments appertaining thereto. An office is ministerial when its exercise depends on the command or direction of others; judicial, when the officer,is called upon to employ his own discretion. An example of the first is a sheriff, of the second a judge of a court of law. The two are sometimes united in one. The office is held for the benefit of the public, may be abolished by legislation, unless such action be expressly forbidden by the constitution; and cannot be the subject of sale or devise, though in England certain ministerial offices are regarded as the property of the incumbent and may descend in the family. When the office is in its nature judicial, the duties cannot be performed by deputy, as the personal skill or judgment of the officer are the reasons for his holding the office. With ministerial offices the reverse is the ease. Thus a sheriff or other court officer may appoint deputies, and their acts are good in law; while the appointing officer remains responsible for such acts. Statutes in most of the states pro vide that offices shall not be sold, and such a sale would be void anywhere as contrary to the policy of the common law. So any agreement between the officer and one who by influence procures his appointment. to divide the compensation received, would be altogether void. It was a principle of the common law that no term of office should be created so as to begin at a certain time in the future, nor for a fixed term of years, but should be held for life or during good behavior, This was to prevent the holding of office after competency to perform the duties had ceased, and to render it impossible that the office should survive the officer. It is common in this country to limit the term to the life of the incumbent and to the attaining of a certain age, as 70 years. Two offices cannot bq held by the game person where one is in the nature of its duties incon sistent with the other. This'iticonsiatettey maybe patebt the nature of the offices or it may be declared to exist by act of legislation. Where an office is filled in common by several persons, it has been held that if the office is of a public character all the cfficers must meet for consultation, but that a majority may act, while if the office is private, all must concur; but this is often- governed by statute, and a decision by a majority, or even a majority of those present at any meeting, made binding. _Members of state or national legislature are not usually termed officers, the word being confined in usage to those having executive or judicial authority. A de. facto officer is one who is in possession of the authority and emoluments of an office without a good title thereto, while a de jure officer is one who has the legal right but not necessarily actual possession. It is evident that it would make much confusion and cause great injustice if all official acts of a de facto officer were to be considered as of no effect. Thus, in the case of a judge who was wrongfully on the bench, it would be a great hardship if all judgments given by him, and all criminal convictions of his court, should be set aside. But if suit be brought by a de facto officer in his public capacity, he may be debarred from recovery on the ground of defect in title, and the de jure offices may test the question of title by bringing a writ of quo 'warrant°.
Public officers are appointed in the United States, under the provisions of the consti tution, by the president with the advice and consent of the senate, with the exception that to congress is given the power to vest in the president alone, or in the heads of departments or courts of law, the appointment of " inferior ofiicers." Ambassadors, public ministers and consuls, and supreme court judges are specified as not belonging this "inferior" class, but beyond that the distinction is not clearly defined. In the various states the appointment of public officers is regulated by statutes, and even in the case of supreme court judges election is common. The appointee in most cases is required to take an oath to perform faithfully the duties of the office. A bond is often required where the officer has charge of financial interests or his duties affect property rights. Where lie performs official acts before giving bond or taking oath, such acts will be valid unless he has been specially prohibited by statute or constitution from holding the office before the bond was filed or the oath administered. Compensation of
officers may be fixed by law or may be obtained from fees. It is provided in the United States 'statutes that no officer of the government who holds an office with a salary of $2,500 or more shall receive extra compensation for performing the duties of any other office unless expressly authorized by law. Where an officer has been removed his salary will continue until proper notice of the appointment of his successor has been given him. Compensation does not begin until an officer is liable to duty. The law will pre sume that a public officer is acting within the scope of his duty until the reverse has been shown. Where discretionary power is given, the officer is made the exclusive judge of the facts. The officer is liable for wrongful acts both to the injured party and to the state. In the first cast remedy is by action, in the second by indictment or impeachment. The order of a superior is no bar to an action arising from an unlawful act of the inferior, nor is negligence on the part of a subordinate ground for holding the head officer responsible. Contracts made by public officers are governed by the general law of agency and they cannot bind the government beyond the extent of their legal authority. If an appropriation is exceeded, the officer is liable. A court officer cannot be held if acting under the proper order of a court having jurisdiction, but may be where there is no jurisdiction. If a sheriff seize property which is by law exempt, he is personally responsible. Fraud and embezzlement are made criminal offenses by statute. Forfeiture of office will follow such offenses, the proceeding ,being by information or quo warranto. The method of removing a public officer is not pro vided for in the constitution, and the question arises whether the power belongs to the president alone or whether he must receive he consent of the senate. Such " inferior" officers as may be appointed by congress may also be removed by proper legislation. It is said on the ouc hand, as to other officers, that there is a distinction between the right to nominate and the power of appointment, and that therefore the consent of the senate must be obtained in removing any officers in whose appointment it had a share. On the other hand, it is urged that removal is an executive act-, that the power of nominating implies the power to remove, and that the public interest demands that the president should have power to dismiss an incompetent or dishonest official without the delay which would be entailed by awaiting the action of the senate. The question has several times come before congress, and the power of the president to act alone was sustained by a very close vote. In the contest of authority between president Andrew Johnson and congress the discussion on this point was hitter. By statutes of 1867 and 1869 it was provided that a civil officer appointed by the advice and consent of the senate shall.• hold his place until removed by the same authority, but that during a recess of the senate the president may suspend such officer and appoint another to fill the duties of the position. The president is to make a nomination within 30 days after the beginning of the next session of the senate; and in case the senate directly refuse to confirm, he may nominate another person. These statutes are known as the tenure-of-office acts. State officers may in many cases be removed by the governor; time subject is governed by statutory enactments, which vary greatly in the different states. Elective offices can not be vacated by an execitti:ye ofOcer without 'cause, such as malfeasance or embezzlement. 'A terns oroftee nfay be extended or reduced by action of the legislature unless it be prescribed by constitutional provision or be elective in its nature. Officer!' of the United States courts hold during good behavior, but those of the territorial courts do not fall within the clause of the constitution already referred to, and depend upon the action of congress for the limitation of their terms. If neither state nor national constitution prescribe the length of a term, the subject is Under legislative control, and may be extended or shortened, or the office altogether abolished.