People ex rel. Throop v. Langdon

40 Mich. 673 | Mich. | 1879

Cooley, J.

If the position of chief clerk in the office of the assessor of the city of Detroit is not an office it is conceded that this proceeding cannot be supported. We are an of opinion that it is not.

An office is a special trust or charge created by competent authority. If not merely honorary, certain duties will be connected with it, the performance of which will be the consideration for its being conferred upon a particular individual, who for the time will be the officer. The officer is distinguished from the employee in the greater importance, dignity and independence of his position ; in being required to take an official oath, and perhaps to give an official bond; in the liability to be called to account as a public offender for misfeasance or nonfeasance in office, and usually, though not necessarily, in the tenure of his position. In particular cases other distinctions will appear which are not general.

In this case the facts are stipulated, and are given in the margin.^* We find among them no evidence that an office known as chief clerk in the office of the assessor of Detroit has ever been created. A person has been appointed, and has acted under the designation of chief clerk, but no statute or ordinance has given bim. that title, and if he were now to be called and to style himself in the discharge of his duties head clerk, or leading clerk, or assistant to the assessor, or assessor’s amanuensis, it would, for aught we can discover, be equally well, for nothing whatever depends upon the name. Indeed, we can discover no necessity for his making use of the title at all, except perhaps to indicate to those with whom he was transacting business that he was not an intruder in the assessor’s office.

Nor do we find in the facts stipulated or in any law or ordinance the requirement of an official oath. It is said that the usual oath of office has sometimes and perhaps always been administered, but why administered we do not understand. The fact of its being taken cannot prove that the clerk is an officer; at most, it could only evidence his belief that he was one, or perhaps his caution to observe all forms that possibly might turn out to be essential. It was, we think, a needless ceremony.

Nor do the duties usually performed by the chief clerk indicate an office rather than an employment. Nothing but custom has defined them, and custom has certainly not been very specific, except in excluding him from all “the official functions, power and authority appertaining to the office of assessor,” and from “representing the assessor in any official act or duty.” But while thus excluded he is still wholly subordinate to the assessor, having no independent functions; his duties are those of “ a mere clerkship, and consist of writing out and copying the annual assessment rolls of the city, from minutes and field notes furnished by the assessor and his assistants, and also special assessment rolls,” and he is distinguished from the other clerks in the office in that “he gives out and divides the work among the other clerks, and superintends the work for the purpose of making the work systematic and efficient, and of having it properly performed.” Surely these cannot be called official functions; they are properly described as those of a mere clerk, and a mere clerk is not an officer.

But the duties, such as they are, can be changed at the will of the superior, since no rule of law or well defined custom forbids it. The assessor may distribute his own work and oversee it himself, and if he were to restrict the clerk, now called the chief clerk, to some particular class of duties without making others subordinate to him, we cannot see that the incumbent would have any legal ground of complaint. The law has put nobody under the chief clerk, and the title is as applicable to the assessor’s confidential assistant, who is “chief” because of the special confidence reposed, as it is to one who is “chief” because of having a certain authority over others. The word “ chief,” in other words, defines no duties, and the title “clerk” is properly that of an employee. We know of no case in which it is conferred as a title of office where the duties are undefined. Nor is there anything significant in the fact that the chief clerk is independent of the assessor in the tenure of his position. The common council might give the assessor a janitor equally independent in that particular, but the janitor would not be an officer.

As these views require us to render judgment for defendant, it does not become necessary to consider the applicability to the case of the remedy which was sought. But it is proper to say that it is at least doubtful whether the proceeding by information is applicable to the case of any office not created by the State itself. In People v. DeMill, 15. Mich., 164, 182, we had occasion to point out that there may be many cases apparently within the words of the statute which cannot be within its real intent and meaning.

Judgment will be entered for the defendant, but without costs.

The other Justices concurred.

* Statement oe Facts. — 1. That the city of Detroit is a municipal corporation, existing under and by virtue of an act entitled “An act to revise the charter of the city of Detroit,” approved February 5, 1857, and the acts amendatory thereof.

2. That from 1861 to July 13, 1877, the city assessor was authorized by an ordinance of the common council of said city to employ such clerks to assist him in the business of his office as were necessary, and a true copy of said ordinance, being section seven of an ordinance relative to the city assessor and his assistants, approved Dec. 30, 1861, and amended by an ordinance approved March 22, 1864, is recited and set forth in the second plea of the defendant in this cause.

3. That from the adoption of said ordinance of Dec. 30, 1861, down to July 13, 1877, the clerks in the office of the city assessor were employed by the assessor, without any intervention or interference on the part of the common council, and the said power and authority were so exercised by him by virtue of his office and the ordinance as aforesaid.

4. That on the 13th day of July, 1877, the mayor of said city approved an ordinance duly passed by the common council of said city, entitled “An ordinance relative to the appointment of assistants, clerks and other employees,” and a true copy of said ordinance is set forth in the said second plea of the defendant herein.

5. That at the time said ordinance of July 13th, 1877, was adopted, the Hon. H. H. Leroy was city assessor, and there were five or six clerks in his office, who had been employed by him under said ordinance of Dee. 30, 1861, and they remained in his office with him until the expiration of his official term on the 28th day of March, 1878; at which time he was succeeded in office by the Hon. Geo. W. Gilbert, the present city assessor of the city of Detroit.

6. That on the 29th day of March, 1878, the said Geo. W. Gilbert, as city assessor, sent a communication to the common council nominating and recommending Thomas F. Langdon for the position of chief clerk of the assessor’s office, and on the 2d day of April, 1878, said nomination was confirmed by the council, and thereupon the said Thomas F. Langdon entered upon the discharge of his duties as such chief clerk, and from thence hitherto has continued to perform said duties.

7. That the common council of said city has never fixed or proscribed the duties of the chief clerk or of the other clerks in the assessor’s office, but as a matter of fact the duties of the chief clerk are those of a mere clerkship, and consist of writing out and copying the annual assessment rolls of the city from minutes and field notes furnished by the assessor and hté assistants, and also special assessment rolls prepared in the office of the city assessor.

That the chief clerk exercises none of the official functions, powers or authority appertaining to the office of assessor, and he does not act for or represent the assessor in any official'act or duty.

That the clerks in the assessor’s office are'only necessary because the assessor and Ms assistant assessors provided by the charter cannot do all the -writing- and copying required in the office.

That the only distinction between the chief clerk and the other clerks in the office is that the chief clerk gives out or divides the work among all the other clerks, and superintends the work for the purpose of makieg the work systematic and efficient, and of having the work properly performed, but the eMef clerk cannot sign the name of the assessor or determine any matter' within his official judgment or discretion, and in point of fact is merely his chief amanuensis and copyist.

8. That on the 14th day of January, 1879, the common council of said city passed a resolution purporting to remove the defendant and a large number of other clerks, officers and employees, from their respective offices and positions, and a true copy of which resolution is set forth in the replication of the people to the defendant’s second plea.

9. That on the 22d day of January, 1879, the common council adopted the following resolution by a vote on the call of the roll of 14 yeas to 11 nays:

“Resolved, That William A. Throop be and is hereby appointed chief clerk in the assessor’s office.”

That on the then next session of the common council the mayor of said city sent to the council the veto message, a true copy of which is set forth in the third plea of the defendant herein, and that such resolution has never been passed over the said veto.

10. That the common council has never taken any other or different proceedings to create the office of chief clerk of the assessor’s office than those herein set forth.

11. - The statement contained in the third subdivision of this stipulation is modified by the following:

At a session of the common council on the 13th day of January, 1874, Aid. Baxter moved that James 0. Oldfield be appointed chief clerk in the assessor’s office.

The motion was adopted on a call of the yeas and nays by a majority vote of all the aldermen elect.

At the then next session of the common council the following-proceedings took place:

“ SUSPENSION 03? THE HULES.”

“On motion of Aid. Coots, the rules were suspended for the purpose of reconsidering the vote by which the resolution was adopted appointing James 0. Oldfield chief clerk in the assessor’s office.

“Aid. Coots moved that the vote be reconsidered.

“Aid. Welch moved that the whole matter be laid upon’the table until the next session. The motion prevailed.”

No further proceedings were had in the council in regard to the matter, and Mr. Oldfield-never entered upon the discharge of the duties of chief clerk in the assessor’s office.

12. That the chief clerk in the assessor’s office is paid by a salary of $1400 per year, and the other clerks a salary of $940 per year.