OFFICE. A right to exercise a public function or employment, and to take the fees and emoluments belonging to it. Shelf. Mortm. 797; Cruise, Dig. Index ; Com. v. Sutherland, 3 S. & R. (Pa.) 149. An office is a public charge or employment ; U. S. v. Maurice, 2 Brock. 102, Fed. Cas. No. 15,747, per Marshall, C. J. An office may exist without an incumbent; People v. Stratton, 28 Cal. 382.
An office is a legal entity and may exist in fact although it be without an incumbent ; Childs v. State, 4 Okl. Cr. 474, 113 Pac. 545, 33 L. R. A. (N. S.) 563. Compensation is no part of an office; it is merely incident thereto; id.
Judicial offices are those which relate to the administration of justice, and which should be exercised by persons of sufficient skill and experience in the duties which appertain to them.
Military offices are such as are held by soldiers and sailors for military purposes. Ministerial offices are those which give the officer no discretion as to the matter to be done, and require him to obey the mandates of a superior. Vose v. Deane, 7 Mass. 280. See Savacool v. Boughton, 5 Wend. (N. Y.) 170, 21 Am. Dec. 181; Waldo v. Wallace, 12 Ind. 569. It is a general rule that a judicial office cannot be exercised by deputy, while a ministerial may.
Political offices are such as are mot con nected immediately with the administration of justice or the execution the mandates of a superior officer : the offices of the presi dent of the United States, of the heads of departments, of the members of the legisla ture, are of this number.
In the United States, all offices, accord ing to the above definition, are public; but in another sense employments of a private nature are also called offices : for example, the office of president of a bank, the office of director of a corporation.
Subject to *constitutional provisions or pro hibitions the authority of the legislature over public offices is complete and absolute; Lee v. Board of Com'rs, 3 Wyo. 52, 31 Pac.
1045.
Where the appointment or election is made for a definite term or during good behavior and the removal is to be for cause, it is said that the power of removal cannot, except by clear statutory authority, be exercised with out notice and hearing ; but that the exist ence of the cause for which the power is to be exercised must first be determined after notice has been given to the officer of the charges made against him, and he has been given an opportunity to be heard; Mechem, Pub. Officers, § 454; Coleman v. Glenn, 103 Ga. 458, 30 S. E. 297, 68 Am. St. Rep. 108; Dullam v. Willson, 53 Mich. 392, 19 N. W. 112, 51 Am. Rep. 128. But, where the stat ute gives such authority, officers may be re moved without notice; Trainor v. Board of Auditors, 89 Mich. 162, 50 N. W. 809, 15 L. R. A. 95; Trimble v. People, 19 Colo. 187, 34 Pac. 981, 41 Am. St. Rep. 236; People v. Whitlock, 92 N. Y. 191; State v. McGarry, 21 Wis. 496 ; State v. Cheetham, 19 Wash. 330, 53 Pac. 349.
The prevailing rule is that title to a pub lic office will not be tried by mandamus; State v. Callahan, 4 N. D. 481, 61 N. W. 1025 ; People v. Infant Asylum, 122 N. Y. 190, 25 N. E. 241, 10 L. R. A. 381; State v. John, 81 Mo. 13; Hartwig v. Manistee, 134 Mich. 615, 96 N. W. 1067; Gorley v. Louis ville, 104 Ky. 372, 47 S. W. 263 ; Hagan v. Brooklyn, 126 N. Y. 643, 27 N. E. 265; but contra, Keough v, Board of Aldermen, 156 Mass. 4()3, 31 N. E. 387; Eastman v. House holder, 54 Kan. 63, 37 Pac. 989; Harwood v. Marshall, 9 Md. 83. Where the writ is in voked to enforce a specific duty and remedies at law are not adequate, aid will not be re fused merely because occupancy or incum bency or title is incidently involved. The court will act under such circumstances as does equity and inquire into and determine rights so far as, but no further than, may be necessary to the relief sought ; Morton v. Broderick, 118 Cal. 474, 50 Pac. 644.
For the incompatibility of office, see IN