Bean v. Humphrey

J. Seaborn Holt, J. Herbert Eldridge was appointed by the State Highway Commission as Director of Highways, effective May 1, 1953, at a salary of $1,250 per month, or $15,000 per year, which compensation was duly appropriated by the 1953 Legislature by Act 451. By proper procedure, appellant, taxpayer, brought the present suit to enjoin the State Auditor and State Treasurer from paying Eldridge in excess of $5,000 per year, as provided by § 23, Art. XIX of the Constitution of this State. Trial resulted in a decree dismissing appellant’s complaint for want of equity and this appeal followed. In effect, the questions presented are: Was the Director of Highways (Eldridge) a State officer within the meaning of § 23, Art. XIX, and if not a State officer, then did the General Assembly have the constitutional power to make appropriation to pay the salary of $15,000? After a careful review of the record, we hold that the position of Director of Highways is not a State officer within the meaning of § 23, Art. XIX, above, that such Director, in the circumstances, is an employee only, and that the Legislature had the power to appropriate the Director’s salary in question. Sec. 23, Art. XIX provides: “No officer of this State, nor of any county, city or town, shall receive, directly or indirectly, for salary, fees and perquisites, more than five thousand dollars net profit per annum in par funds, and any and all sums in excess of this amount shall be paid into the State, county, city or town treasury, as shall hereafter be directed by appropriate legislation. ’ ’ The people of Arkansas, by an overwhelming vote (231,529 for, and 70,291 against) on November 4, 1952, adopted Constitutional Amendment 42, which provides: “§ 1. Commission created — Members—Powers.—There is hereby created a State Highway Commission which shall be vested with all the powers and duties now or hereafter imposed by law for the administration of the State Highway Department, together with all powers necessary or proper to enable the Commission or any of its officers or employees to carry out fully and effectively the regulations and laws relating to the State Highway Department.” §§ 2 and 3 have to do ivith the terms of office of the Commission, §§ 4 and 5 with the removal of the Commission and filling vacancies, and § 6 provides: “Director of Highways. — The Commission shall appoint a Director of Highways who shall have such duties as may be prescribed by the Commission or by statute.” Thereafter by enabling Act 123 of 1953, the General Assembly, provided for the appointment of a Director of Highways, who would have control and management of affairs pertaining to the State highways, subject, however, to the control and approval of the Highway Commission. The Director was required to give a bond and take an oath. At the same session of the Legislature, there was enacted, pursuant to the constitutional mandate, an appropriation Act 451, in which it was provided in § 2: “There is hereby established for the State Highway Department, for the 1953-1955 biennium, the following maximum number of regular employees and the maximum annual salaries of such employees; and no greater salary than that established herein shall be paid to any employee from appropriations hereinafter made for said department. Provided further, that it is the intention of this act to make available the maximum salaries provided herein to secure efficient, skilled employees; and in determining the annual salaries of such employees the administrative head of such department shall take into consideration ability and length of service, but it is not the intention of this act that the maximum salaries shall be paid unless such qualifications are complied with and then only within the limitations of the appropriations and funds available for such purpose.” Following this § 2, under the headnote, “Highway Maintenance, Director’s office” is found: “Item No. Title Maximum-No. of Employees Maximum Annual Salary Rate (1) Director and Executive Secretary to Commission 1 $15,000.00 (2) Secretary to Director............... 1 3.600.00 (3) Clerk-Stenographers............... 2 2.400.00 (4) General Counsel........................... 1 6,600.00” It appears that only two witnesses testified, Mr. Orr, Chairman of the Highway Commission, and Director Eldridge. Mr. Orr testified, in effect, that there was no contract entered into between the Commission and Mr. Eldridge, just a verbal understanding. His salary is $15,000 a year. There was no understanding as to the duration of his employment. The Commission" can discharge Mr. Eldridge at any time with or without cause. Mr. Eldridge cannot exercise any functions of sovereignty. He is an employee of the Commission in the same sense as any one else. The Commission itself formulates the policies. Mr. Eldridge supplies the information at the direction of the Commission. Mr. Eldridge was employed by the Commission because of 30 odd years in all phases of highway work, including construction and administration. We needed that experience. It was at the request of the Commission that the Legislature set up this salary of $15,000 to enable the Commission to get an experienced person, and Mr. Eldridge was employed. His. duty is to meet with the Commission at any time it meets, to make any recommendations or suggestions he cares to at any time, and to carry out any policy formulated by the Commission or directions which the Commission may set up, or any requests it may make of him as to work to be done. Mr. Eldridge cannot exercise any independent function. The Commission has complete supervision and control of all and any office duties. The Commission gives him certain work to do and expects him to do it. Mr. Eldridge has made numerous recommendations to the Commission which they did not follow. The Commission formulates the policies and then directs Mr. Eldridge, as Director of the Highway Department, to carry out these policies under the supervision of the Commission. Mr. Eldridge is being paid $15,000 a year. The Commission specifically gave him authority over the personnel. He can fire and hire and replace, as he sees fit. His work is co-extensive with the State of Arkansas. Mr. Eldridge testified that he had no written contract with the Highway Department. The only thing that is written is the Commission’s order that employed me. Every understanding I have had with the Highway Commission has been verbal. The Highway Commission can discharge me at any time without notice, for any cause, or without cause. I have not been assigned any duties which I exercise independently of any supervision of the Commission. At the time I was employed by the State Highway Commission, I was a citizen and resident of the State of Texas. I cannot exercise any prerogative or sovereignty in my work. All authority which I have stems from the Commission and can be granted and taken away on a moment’s notice, and any action in the case in any regard is their action can be modified or rescinded at any time they see fit. I am just performing a ministerial function of carrying out the policy and orders of the Commission. In distinguishing between an officer and an employee, and pointing out the elements or criteria necessary to each, the text writer in 42 Am. Jur., page 888, (in Sections 10 to 12 inclusive), says: “A public officer is one whose functions and duties concern the public, and who exercises some portion of the sovereign power of the state. In this and in other respects he is to be distinguished from a private officer. The latter holds his position not by election or official appointment, but by contract, and his duties are performed at the instance and for the benefit of the individual or corporation employing him. . . . ‘ ‘ G-enerally speaking, the nature of the relation of a public officer to the public is inconsistent with either a property or a contract right. One contracting with the government is in no just and proper sense an officer of the government. “There are points of difference between a public office and a public contract. As observed above, a public office embraces the idea of tenure, duration, and continuity. The duties connected therewith are continuing and permanent. A public contract, on the other hand, is limited in its duration and specific in its objects. Its terms define and limit the rights and obligations of the parties, and neither may depart therefrom without the consent of the other. Unlike a public office, a public contract does not involve a delegation of a function of sovereignty. The fact that the duties of n particular position or governmental function do not depend on contract is itself one of the criteria of a public office. “Public office, as hereinbefore defined and characterized, is in a sense an employment, and is very often referred to as such. But there is a distinction between a public office and a public employment which is not always clearly marked by judicial expression and is frequently shadowy and difficult to trace. The distinction, however, is one which in many instances becomes important and which the courts are called upon to observe. Although every public office may be an employment, every public employment is not an office, and the word ‘employee’ as used in statutes has in many cases been construed as not including officers. “When a question arises whether a particular position in the public service is an office or an employment merely, recourse must be had to the distinguishing criteria or elements of public office. . . . Briefly stated, a position is a public office when it is created by law, with duties cast on the incumbent which involve some portion of the sovereign power and in the performance of which the public is concerned, and which also are continuing in their nature and not occasional or intermittent ; v/hile a public employment, on the other hand, is a position in the public service which lacks sufficient of the foregoing elements or characteristics to make it an office. ’ ’ Here, the Highway Director’s entire actions and powers are absolutely controlled by the Commission. He was employed by an oral contract for no specific term and could draw his salary by performed contract only. His salary, duties, and tenure of employment were left absolutely up to contract with the Highway Commission and dependent on such contract. The Commission could fire him at will. He was a nonresident when appointed, and at the time could not even qualify as an officer. He has no sovereign powers whatever, a necessary requisite to any office, and no such powers have been delegated to him by the Highway Commission or by the Legislature. The fact that Act 123 of 1953 required him to take an oath and give bond is not controlling. In our very recent case of Maddox and Coffman v. State, 220 Ark. 762, 249 S. W. 2d 972, we said: “Since the distinction between a public officer and a public employee tends to become indistinct when the position in dispute has some of the characteristics of each, we have never attempted to frame an inflexible definition of either. Yet the governing principles are well established. A public officer ordinarily exercises some part of the State’s sovereign power. His tenure of office, his compensation, and his duties are usually fixed by law. The taking of an oath of office, the receipt of a formal commission, and the giving of a bond all indicate that a public office is involved, although no single factor is ever conclusive. Rhoden v. Johnston, 121 Ark. 317, 181 S. W. 128; Middleton v. Miller County, 134 Ark. 514, 204 S. W. 421. On the other hand, mere public employment differs from a public office in that some or all of these characteristics are lacking. “ It is clear that a school teacher, whose tenure, compensation, and duties are all fixed by his contract with the school board, is an employee rather than an officer. The position of superintendent comes somewhat closer to the dividing line, but we think that it too lies on the side of employment. . . . “If the superintendent exercises any part of the sovereign power he does so as an agent of the school board and not as one to whom the legislature has delegated authority in the first instance,” and in Rhoden v. Johnston, 121 Ark. 317, 181 S. W. 128, we use this language: “In United States v. Maurice, 2 Brock. 96, Chief Justice Marshall said: ‘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. ’ “ (3) There is a very interesting and useful discussion on this subject in the note to the case of Shelby v. Alcorn, supra, 72 Am. Dec., pp. 179-189, and a consideration of the authorities collated there convinces us that the statute does not create the office- of road overseer, but merely provides for employment. In the first place, there is no definite tenure of office prescribed. The statute merely provides that a contract shall be entered into to cover a period of not exceeding one year. The contract may be entered into either by the county court or by the county judge in vacation, and it may be for a day or for a week, a month or a year. The emoluments of the office, also, are not fixed by statute, but are left purely to the contract to be entered into from time to time. ’ ’ While it appears that the position of Highway Director has been referred to as an office, we think it was intended merely as a description of the position of employment. In Middleton v. Miller County, 134 Ark. 514, 204 S. W. 421, the question was whether a county health officer was an officer within the meaning of Art. XIX, § 5 of the State Constitution. There we said: ‘ ‘ It is true that the position is referred to as an office, but this was manifestly intended merely as a description of the position and not as a declaration of the legislative will as to whether it should be treated as an office or an employment. ’ ’ In short, we hold that essential requirements necessary to constitute the Director of Highways an officer are lacking, and in the circumstances here, he is an employee only, and as such entitled to compensation as provided by the General Assembly, not to exceed the $15,000 appropriated for such purposes. Affirmed.