I concur in the result. A majority of my associates hold that the office of county attorney is not a public office, but a public position only. I incline to the view that it is a public office created by an act of the Legislature; and that the resolution of the board of supervisors dated January 14, 1908, making the county attorney the general legal adviser of the board and its several committees, and authorizing him to prosecute and defend all actions and proceedings brought by or against the county or the board, imposed such duties and elements of sovereignty that the incumbent became a public officer. (People ex rel. Kelly v. Common Council, 77 N. Y. 503, 508.)
' Yn general a public officer is one chosen by election or appointment to a public office duly established by law, in which he is required to perform duties either legislative, executive or judicial; and to have contact with the public acting in some capacity for their benefit in the exercise of such duties — as distinguished from employment in matters of mere administrative detail or in some subordinate clerical or advisory relation to another officer. There is involved in the term, in general, the elements of tenure, duration and emoluments. It implies that the incumbent has taken an oath of office, although this is not an infallible test. Here, as has been said, the county attorney had not only advisory relations with the board of supervisors, but acted in behalf of the public, particularly in the prosecution and defense of actions, in which capacity he must, to a large extent, act upon his own independent judgment.
*494It was duly found at Special Term without exception that the officé was a permissive one. I think that was a correct legal conclusion. The resolution of the board of supervisors did not formally establish the office — it merely made an appointment to fill an office permissive under the statute. The petitioner’s term ended on December 31, 1927. No successor was chosen. Therefore, it was unnecessary under the circumstances to adopt a resolution abolishing the office that had never been formally created. The failure to appoint was as effective in terminating the office as the appointment had been in initiating it.
Further than that, the petitioner acquiesced in the action of the board. So far as it appears, he made no effort to perform his duties and raised no question about the abandonment of the office or his claim to fill it and perform duties and receive a salary, until February 16, 1929. Under the circumstances, I think it was a part of his necessary proof to show that he had either performed the duties of the office, or had been ready and willing to perform them but had been prevented by the act of the board or otherwise. (Colton v. Beardsley, 38 Barb. 29, 50.) In fact, it was stated on ‘the argument that the applicant had not performed any duties of the office. There is implied in the holding of public office, particularly where there are emoluments, that the officer shall render some service for the pay he seeks. Abandonment of an office may occur through nonuser by voluntary relinquishment or by election to another office. The intent is indicated by conduct. I think here there was an abandonment of the office both by the action of the board of supervisors in faffing to fill it when the legal term expired, and by the acquiescence of the petitioner in faffing to perform any duties and in making no claim to the position for more than a year. (Colton v. Beardsley, supra, 41; People ex rel. Kelly v. Common Council, supra, 509; Scofield v. United States, 174 Fed. 1; 22 R. C. L. 560, Public Officers, § 264, and cases cited; 46 C. J. 980.)
Order reversed on the law and the facts and petition dismissed, with costs.
The court reverses the findings of fact numbered 6, 7, 8, 9, 18, 19, 24, 26, 28 (the last three being reversed only in so far as there is an assumption that the position of county attorney is a public office), 29, 37, 38 and 39, and such findings of fact as are stated as conclusions of law; and makes a new finding that the position of county attorney of Albany county is not a public office; that the respondent was employed by the board of supervisors as county attorney until December 31, 1927, when his employment ended, and that he was paid for all services rendered under the employment.