(dissenting.) — The question to be decided in this case is presented for the first time in this court. No general definition of the term “office” can be given so significant as to determine infallibly its application. Custom and usage have applied it to various employments, with more or less precision. The division into public and private is vague, because the duties of each are often intermingled.
Sections 183-192 of the Revised Code allow the discharge of a surety upon the official bond of any public officer required to be approved by the judge, of the Circuit, Probate, or Chancery Court, without proof of the. allegations which he must make and swear to ; “ and the exoneration of one operates as a discharge of all the other obligors. These sections do not apply to ordinary administrators, who are not deemed officers, and as to whom a different provision seems to be made. R. C. § 2018. Do they apply to the general administrator of the county ? Is he a public officer within their meaning ? In Whitworth v. Oliver (39 Ala. 286), administrators of particular estates are held to be trustees, and not officers. But Chancellor Clarke, before whom the case was primarily heard, ruled that the position was an office, and incompatible with the office of probate judge. The duties of the general administrator are the same as those of other administrators; but his position differs from theirs in the following particulars: 1st. He holds his office at the will of the probate judge. R. C. § 2031. 2d. He may resign the office without relinquishing the administration of the estates previously committed to him. R. C. § 2041. 3d. There can be but one for the county. R. C. § 2042. 4th. He is obliged to take any administration committed to him by the Probate Court. R. C. § 2000. All of these dissimilarities are indicia of a public office.
If he is not a public officer, his sureties are in worse condition than those of the public officers referred to, or of ordinary administrators. The first may surrender their principal at will, while the second, though they cannot do this, may expect the termination of their liability within some reasonable time. Besides, the responsibility is confined to a particular estate, the embarrassments of which they may know when they consent to be bound. The term of the general administrator’s office is indefinite, and may be long protracted.
The sureties of guardians, and of the general guardian for the county, may surrender their principal. R. C. §§ 2418, *92242B. The only reason for the difference, in this respect, between the right of sureties of guardians and of administrators, must be the difference in the probable duration of the respective liabilities.
When an employment may be properly called an office, its public or private character is dependent on the duty to be performed. For instance, a clergyman is a public officer when he performs the marriage ceremony ; and when he acts in his ordinary calling of teaching his congregation he is merely a private person. 4 Conn. 209. It may also be ascertained from its 'incompatibility with another office undoubtedly public. The probate judge could not be the general administrator of his county, because the one is under the control of the other, and may relate to the administration of every estate in the county. 5 Com. Dig. Office, p. 223. Another indication of its character is, that in case of vacancy the duties are to be performed by a public officer. When there is no general administrator, the estates which would fall to him are to be committed to the sheriff.
From all of these considerations, I hold that the general administrator is a public officer, within the meaning of section 183 of the Revised Code.