Jones v. City of Battle Creek

Brooke, J. (after stating the facts). The record fails to disclose that under either the new or the old charter of the city of Battle Creek is there any office provided for under the name of “stockkeeper.” It will be noticed, too, that the resolution providing for the plaintiff’s appointment recites simply that: “A stockkeeper be appointed to look after the properties at the city shed at a salary of $12.00 a week.” It seems to us that the contention that one, even though appointed by the mayor and common council, [4] who performs duties such as were performed by the plaintiff in this case, is a public officer, is wholly untenable. The mayor, defining the duties of plaintiff, in his testimony, said: “He had some sort of charge of the city yard where the tools, the road scrapers, plows and tools, brick, and all material are located and fenced in and big gates where the teams drove in. I also found that he had a key to that yard and the little building. There was a little building there in which some of the stuff was kept under cover, and that he let the city employees in with material and out taking material and tools out and that he kept the globes for the street lights in that building and that they were delivered to him by the man who took care of the lights.” We have lately (Blynn v. City of Pontiac, 185 Mich. 35 [151 N. W. 681]) had occasion to inquire with care into the distinction between a public officer and an employee, and the various authorities bearing upon the question will be found there collected. For the purpose of determining the issue in this case it is unnecessary to go further than to cite the case of Throop v. Langdon, 40 Mich. 673. There Justice Cooley said: “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 him 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 [5] 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.’ * * * 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.” See, also, U. S. v. Maurice, 26 Fed. Cas. p. 1211, where 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.” And see City of Ellsworth v. Rossiter, 46 Kan. 237 (26 Pac. 674). Judgment is reversed, and there will be no new trial. Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Person, JJ., concurred.