The defendant appeals from a final order of peremptory mandamus and judgment which directs the payment to the petitioner of “ back salary for the office of county attorney of the county of Albany for each and every month of the years of 1928, 1929, and the months of January and February of the year 1930,” with interest and costs.
On January 14, 1908, the board of supervisors of Albany county adopted a resolution providing for the appointment of a county attorney pursuant to chapter 280 of the Laws of 1907. Chapter 280 was incorporated in the County Law (Laws of 1909, chap. 16) as section 210 thereof. The salary was fixed and the duties to be performed were described as follows: “ Third, that it shall be the duty of such county attorney to be general legal advisor of the Board of Supervisors of said County and its several committees; to prosecute and defend all actions and proceedings brought by or against the *491county of Albany or said Board of Supervisors, and its several officers and committees, and to perform such other duties as from time to time may be prescribed by law or directed by this Board.” Chapter 280 of the Laws of 1907 reads: “ § 210. Appointment, term of office and duties of county attorneys. The board of supervisors in any county may appoint a county attorney who shall be removable at its pleasure. The term of office of a county attorney so appointed shall be two years, unless sooner removed, and his salary shall be fixed by the board of supervisors and be a county charge. The board of supervisors may, by local law, prescribe the duties of the county attorney, which duties may include the services to town boards and town officials when not in conflict with the interests of the county.” This section was amended (Laws of 1918, chap. 573) so that an incumbent could be removed during his term of office only for inefficiency, neglect of duty or misconduct, and after notice and an opportunity to be heard.
The petitioner was first appointed for part of an unexpired term and has been twice appointed for a full term of two years. The last appointment was by a resolution of the board of supervisors adopted on January 12, 1926, which provided for a term beginning on that date and ending on December 31, 1927. The record is barren of information as to what services, if any, the petitioner has rendered since December 31, 1927, but it appears that the clerk of the board of supervisors in a letter dated March 22, 1928, to the State Civil Service Commission, written in reply to a request by the Commission for information as to the reason that petitioner’s name was not certified on the payroll of the county, stated that the board of supervisors had failed to designate a county attorney, and in substance that there was nothing due to the petitioner or any other person therefor. Nothing was done by the petitioner in connection with the salary until February 16, 1929, when he wrote defendant demanding his salary for the entire year 1928 and the month of January, 1929.
The trial court has determined that the position of county attorney is a public office, and that the petitioner was and is a public officer within the purview and intent of section 5 of the Public Officers Law which, in so far as it applies, provides: “ Holding over after expiration of term. Every officer * * * having duly entered on the duties of his office, shall, unless the office shall terminate or be abolished, hold over and continue to discharge the duties of his office, after the expiration of the term for which he shall have been chosen, until his successor shall be chosen and qualified,” and that petitioner’s right to receive a salary followed as of course. (Emmitt v. Mayor, etc., of New York, 128 N. Y. 117.) *492The line between a public office and public employment has not been too clearly marked by judicial expression, probably because the distinction is not too clear. The holder of a public office is in the employment of the public, but all those who are in the public employment are not public officials and do not hold public office. The duties of a public official involve some exercise of sovereign power — those of a public employee do not. The one has independent official status; the other has rights under a contract of employment. (People ex rel. Hoefle v. Cahill, 188 N. Y. 489, 494; Fisher v. City of Mechanicville, 225 id. 210; People ex rel. Corkhill v. McAdoo, 98 App. Div. 312; People ex rel. O’Toole v. Hamilton, Id. 59; People ex rel. Jacobus v. Van Wyck, 157 N. Y. 495; Grieb v. City of Syracuse, 94 App. Div. 133; Matter of Flynn, 65 Misc. 233; Attorney-General v. Drohan, 169 Mass. 534.)
Attorneys at law, before engaging in practice, public or private, are required to take an oath of office. In performing the duties incident even to private practice, they are engaged in the administration of justice; thus they come very near to being public officers. (Robinson’s Case, 131 Mass. 376, 379.) An attorney while working for a private client is a quasi-public official and a recognized instrumentality in government so far as his client is concerned. But this official status as an attorney used under the direction and on behalf of a client with governmental powers does not make him a public official as those words are used in section 5 of the Public Officers Law. The board of supervisors of Albany county and its committees unquestionably did exercise sovereign power. This petitioner, as counsel and legal adviser to these bodies, counseled with them as to the scope of their power and the acts which they might legally do, and the supervisors, having consulted an expert in law as to their functions, acted. The status of a lawyer in such advisory capacity is not different from that of an engineer or architect. In giving advice or acting in court he exercised no sovereign power. His duties related not to the public but to the board of supervisors and its committees. (People ex rel. Corkhill v. McAdoo, supra.)
Whether or not an official oath is required is sometimes considered in determining whether an incumbent is an employee or an official. (Meyers v. Mayor, etc., of New York, 69 Hun, 291.) This petitioner took such an oath, but it was not required, either by the statute or the resolution of the board of supervisors. “ An officer generally takes an oath of office, and an employee does not, and the defendant took such an oath. But one may not, by taldng an oath of office, create an office of the United States and make himself its incumbent.” (Martin v. United States, 168 Fed. 198, 203.) “ Nor do *493we 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.” (People ex rel. Throop v. Langdon, 40 Mich. 673, 685.)
The exact question presented here has not been determined in this State, but under a quite similar statute it was held that a village attorney was an employee (Fisher v. City of Mechanicville, supra) and that the attorney for an Indian tribe, designated by the chief under statutory authority, was an employee (Adams v. Murphy, 165 Fed. 304, 308.)
The judgment and order should be reversed on the law and facts and petitioner's petition dismissed, with costs.
All concur; Davis, J., in the result, with an opinion.