Unless otherwise provided each deputy possesses the powers *Page 169 and may perform the duties attached by law to the office of his principal. Secs. 418 and 4733, Rev. Codes of Montana 1935.
Except when the duration is not fixed by law the office is held at the pleasure of the appointing power. Sec. 422, Rev. Codes.
Deputies must take and file an oath of office in the manner required of their principals (sec. 435, Rev. Codes) and they may be required to file an official bond. Sec. 507, Rev. Codes.
In the case at bar the appellant was by the sheriff appointed deputy sheriff subject to the provisions of the above Code sections and appellant's appointment was not revoked during the time of his illness but such appointment was still in force when he filed his affidavit as required by section 4891, Revised Codes.
The affidavit and application of the relator states that the deputy sheriff filed the affidavit required by section 4891, and in the absence of a denial of such averment we must presume that such affidavit contained all the information and statements of fact required by the statute.
The statute does not confer upon the county commissioners the authority to determine whether the various deputies in the divers county offices had earned their salaries before ordering same paid. It simply says: "The board must not order the payment of the compensation of any deputy until he has signed and filed with the county clerk the * * * affidavit" the form of which affidavit is set forth in the statute. Sec. 4891, Rev. Codes 1935.
The affidavit was not intended as a substitute for a claim against the county for it provides for no statement as to the value of the services rendered or the sum due therefor. It simply requires the deputy to swear that he had "rendered services as deputy." In this case the affiant swears that he has "rendered services as a deputy sheriff" for the months of April, May and June, 1945, and that he is "entitled to receive the full sum of my compensation for the same" for his own use and benefit and that he has not made any rebate, kickback *Page 170 or other reward or gift to his principal the sheriff or to any other person for his "appointment to office, or the emoluments thereof." The purpose of the statute is to guard against corrupt politics whereby a deputy may be appointed to office by his principal or some other person with the understanding that such deputy shall give a portion of his salary either to the principal or to some political boss or machine who may have assisted him in obtaining his appointment.
It is true that this court and other courts have held that a deputy such as a deputy sheriff is not a "public officer" within the meaning of section 31, Article V of the Constitution. However such cases are not authority for holding that such deputy is not a "public officer" under other circumstances and conditions as said section of the Constitution applies to officers who hold offices for a fixed term and who are therefore not subject to removal at any time by the appointing power. This question was considered in State ex rel. Kane v. Johnson, 123 Mo. 43,27 S.W. 399, 400, where the court held that the relator therein was entitled to the salary, saying: "Counsel for relator concede in their brief that he is a public officer within the meaning of the general definition of a public officer, and that he performs public duties, and offices and functions of a public character; but they contend that he is not an officer within the meaning of the section of the constitution quoted. It will be observed that this section of the constitution only embraces within its provisions officers who are elected or appointed for some specific or definite time, and that it has no application whatever to the case in hand, when the relator's term of office is not fixed by any law or ordinance, and when he simply holds at the pleasure of the appointing power."
The above quotation was quoted with approval in Board of Commissioners of Muskogee County v. Hart, 29 Okla. 693,119 P. 132, 37 L.R.A., N.S., 388. See note to this case in L.R.A.
The above is the effect of the holding of this court in Adami v. County of Lewis and Clark, 114 Mont. 557, *Page 171 138 P.2d 969, wherein this court quoted with approval from 43 Am. Jur. page 144, section 351.
In 43 Am. Jur., "Public Officers," page 136, section 342, it is stated: "Compensation does not constitute any part of the public office to which it is annexed. It is a mere incident to the lawful title or right to the office, and belongs to the officer so long as he holds the office. When an office with a fixed salary has been created, and a person duly elected or appointed to it has qualified and enters upon the discharge of his duties, he is entitled, during his incumbency, to be paid the salary, fees, or emoluments prescribed by law. The public body cannot by any direct or indirect course of action deprive such incumbent of the right to receive the emoluments and perquisites which the law attaches to the office, and effect will not be given to any attempt to deprive him of the right thereto, whether it is by unauthorized agreement, by condition, or otherwise, or by a wrongful removal or suspension."
Again, the same text, 43 Am. Jur., page 222, section 465, note 15: "But a deputy appointed by an officer to hold during the pleasure of such principal does not hold for a term, within the meaning of a constitutional prohibition against the change of the salary or emoluments of any public officer after his election or appointment, or during his `term of office,' except by operation of law enacted prior to such election or appointment."
The foregoing as well as 46 C.J. 1015 and Wynne v. City of Butte, 45 Mont. 417, 123 P. 531, 532, are authorities to the effect that the salary is an incident to the office. Therefore if the appellant deputy sheriff is a "public officer" although not a public officer with a definite fixed term within the meaning of section 31, Article V of the Constitution, then he was and is entitled to his salary during the three months he was ill.
In Wynne v. City of Butte, supra, the court in considering the office of chief of police under appointment by the mayor said: "He was not an employe, but an officer. The salary is *Page 172 an incident to the office, and, if entitled to the office, his right to the salary follows."
For the definition of "public officer" see Pope v. Com'r of Internal Rev., 6 Cir., 138 F.2d 1006; Martin v. Smith,239 Wis. 314, 1 N.W.2d 163, 140 A.L.R. 1063 and note; State ex rel. Barney v. Hawkins, 79 Mont. 506, 257 P. 411, 53 A.L.R. 583 and note.
A deputy sheriff possesses the powers and may perform the duties attached by law to the office of sheriff. Secs. 418 and 4733, Rev. Codes. In short, when called upon by a citizen or other person, a deputy sheriff without awaiting directions or instructions from the sheriff may immediately proceed to perform any of the duties imposed on the sheriff by sections 4773 and 4774, Revised Codes, and he is therefore a "public officer" under the definitions of that term recognized by the foregoing authorities. Deputy sheriffs have been held such officers in: Maxwell v. Andrew County, 347 Mo. 156, 146 S.W.2d 621; Gray v. DeBretton, 192 La. 628, 188 So. 722; Gowens v. Alamance County,216 N.C. 107, 3 S.E.2d 339. See also Southern Ry. Co. v. Hamilton County, 24 Tenn. App. 32, 138 S.W.2d 770.
Appellant was a duly appointed deputy sheriff during the months of April, May and June, 1945, and as such in my opinion was entitled to receive the salary incident to such office.