delivered the opinion of the Court:
The only question presented by this record is this: Are the commissioners appointed by the act of February 25, 1867, entitled “An act to provide for the erection of a new State house,” officers, within the meaning of the twelfth section of the fourth article, and of the twenty-third section of the fifth article, of the Constitution of this State ?
Section 12 is as follows: “ The governor shall nominate, and, by and with the advice and consent of the senate (or majority of all the senators concurring), appoint, all officers whose offices are established by this Constitution or which may be created by law, and whose appointments are not otherwise provided for; and no such officer shall be appointed or elected by the general assembly.”
Section 23 of article 5 is as follows: “The election of all officers, and the filling of all vacancies which may happen by death, resignation or removal, not otherwise directed or provided for by this Constitution, shall be made in such manner as the general assembly shall direct; provided, that no such officer shall be elected by the general assembly.”
The question has been argued with great ability on both sides, and we submit the conclusions to which we have arrived, with some of the reasons therefor.
A solution of the question is attempted by the counsel for relator, by reference to definitions of the term “ office ” as found in law writers and dictionaries, in which there is not entire harmony. It is not pretended that the plaintiffs in error are officers whose offices were created by any law in force prior to the passage of the act in question, but the complaint is, that by the law defining the employment, and designating the persons who are to be employed, in the act itself, was, in effect, the appointment of those persons to an office, the employment being of. such a nature as to render it continuous, and it exists apart from the incumbents, the place remaining though the person that fills it may be removed. It is, say counsel, a place that may be filled or may be vacant; it is a place in fact permanent, since no limit in time has been fixed by law for its termination; a bond is required before they enter upon the performance of their duties, and an oath must be taken for faithful performance, and the place has emoluments, the compensation being fixed at five dollars per day for time of actual service; therefore, they say, the corollary results, that the employment or agency of these commissioners is a continuing one, which concerns the public, and is exercised on behalf of the government, and the rights, powers and duties of which are defined by law.
Books of high authority, Blackstone’s and Kent’s Commentaries, are referred to, giving the definition of an office, both of which definitions counsel admit are faulty in predicating fees or emoluments as attributes of office. Other definitions, by other law writers, are also given, but the best description of an office, in the judgment of counsel, to be found in the books, is that in Carthew’s Reports, 478, 479. There it is said, “ The word offieium principally implies a duty, and, in the next place, the charge of such duty; and it is a rule, that, where one man hath to do with another man’s affairs against his will, and without his leave, that is an office, and he who is in it is an officer.” “ Every man is a public officer who hath any duty concerning the public, and he is not the less a public officer when his authority is confined to narrow limits; because it is the duty and nature of that duty which make him a public officer, and not the extent of his authority.”
References- are then made to adjudged cases supposed to be in harmony with the definitions and with logical corollaries from them.
"We do not propose to go over the whole ground occupied by the counsel on either side, or comment very much on the authorities produced supposed to bear on the question, but shall content ourselves with giving a few reasons why we cannot hold the plaintiffs in error to be officers within the meaning of the Constitution, and that the practice under the Constitution for a long series of years, unchallenged and unquestioned, can be resorted to as affording strong evidence of the meaning of any phrase or term used in it.
Under the first Constitution of this State, nearly all the important offices of government were filled by an election on joint ballot of the two houses, — that is, by the action of the general assembly alone. The evil produced was, that the legislature became the great appointing power, giving rise to injurious combinations affecting the purity of legislation. The passage of a law, or its defeat, might be made to depend on the election of a particular individual to a particular office. When the convention was called by which the present Constitution was framed, one of the great objects to be effected by the call was to deprive the legislature of the power to elect or appoint such officers as had been appointed by that body under the old Constitution, such as judges of the Supreme, Circuit and inferior courts, the auditor and treasurer of State and many others, whose functions were directly connected with some one or more of the departments of government which the Constitution had established, and who were to aid in carrying on the government.
Therefore, when the Constitution says that ho office established by that instrument, or created by law, shall be filled by appointment or election of the general assembly, the framers of it had direct and immediate reference and .application only to such offices as were created for the purpose of administering the three departments of government organized by it. This we establish by reference to the repeated appointment, by the general assembly, to places of public employment, of individuals on whom the appointment devolved by the law itself. A full list of such legislative acts, furnished by the counsel for plaintiffs in error, showing a contemporaneous and continuous action of the general assembly in the appointment of persons to employments or positions not designed to aid either department of the government in exercising its functions, affords strong evidence of the meaning of the term “ such officer,” as used in the Constitution. Such appointments commenced with the first session, held in 1849, under this Constitution, and have been repeated at almost every session since, and they, too, of ‘ every grade of importance, from the appointment of commissioners to locate State roads, in relation to the Supreme Court rooms, in relation to public buildings, to complete the present State house, appointing commissioners to take evidence in relation to claims against the State, to appoint commissioners to build a house for the governor, —in short, for very many public purposes, including the act to locate and build an additional penitentiary, in which the commissioners were named as in the act in question, and provision made for filling vacancies.
These acts, passed by legislatures, and approved by governors of different political sentiments, many of whom were sound constitutional lawyers, and all of them of approved patriotism, and who had been sworn to support the Constitution in all its purity, is strong evidence that such appointees were not “ such officers,” as they were inhibited by that instrument from appointing.
But it is said by defendant’s counsel, that these appointments were of a transient, evanescent character, terminating when the object was accomplished—that there were no continuous duties devolved on them, no vacancies to be filled.
The opinion of that most eminent jurist, Chief Justice Marshall, clarum et venerdbile nomen! delivered on the Circuit, in the case of the United States v. Maurice, reported in 2 Brockenbrough, 103, is cited as a full illustration of this idea. We have read this opinion with great profit, and "have endeavored to fashion this in accordance therewith. It maybe said of that most distinguished man, “ now to the grave gone down,” that, no matter what the subject might be, howsoever intricate or discolor’d, when committed to the wonderful alembic of his mind, drops of purest, brightest distillation, were the uniform result! That case was an action of debt on the official bond of Maurice, who had been appointed agent of fortifications, and his sureties, and they raised the question by demurrer, that such an agent was not an officer. The chief justice, in answer to the question, is the agent of fortifications an officer of the United States % defines what he understands an office to be. “ It is a public charge or employment, and he who performs the duties of the office is an officer. If employed on the part of the United States, he is an officer of the United States. 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. But if a duty be a continuing one, which is defined by rules prescribed by the government, and not by contract, which an individual is appointed by government to perform, who enters on the duties pertaining to his station without any contract defining them, if those duties continue, though the person be changed, — it seems very difficult to distinguish such a charge or employment from an office, or the person who performs the duties from an officer.”
What is here said must be considered with direct reference to the facts in the case admitted by the demurrer. “ The bond on its face purported to be an official bond, and not in the nature of a contract. The condition referred to no contract, stated no undertaking to perform any specific act, refers to nothing, describes nothing which the obligor was bound to do except to perform the duties of an officer. It recites that he was appointed to an office, and declares ‘ that the obligation is to be void, if he shall truly and faithfully execute and discharge all the duties appertaining to the said office.’ ” The bond, then, the chief justice says, “ is, on its face, completely an official bond, given, not for the performance of any contract, but for the performance of the duties of an office, which duties were known, and had been prescribed by law, or by persons authorized to prescribe them ” (p. 99). And the chief justice says, that the attorney of the United States had necessarily taken up that idea and proceeded on it, for in his assignment of breaches he alleges, that he had not performed the duties of the said office. “ On this breach of his official duty, which is alleged to constitute a breach of the condition of his bond, the action is founded.”
On page 104, in answer to the question, has the office of agent of fortifications been established by law, the chief justice says, from the year 1794, to the year 1808, congress passed several acts empowering the President to erect fortifications, and appropriating large sums of money to enable him to carry these acts into execution.
We feel justified in inferring from all that is stated in this opinion, that a system of fortifications for the general defense had been established, and agents appointed “ whose duties partook of those of a purchasing quartermaster, commissary and paymaster,” “ which duties, if not performed by contract, were performed by persons who were considered as officers of the United States, whose offices were established by law.”
The chief justice might well say, that, the duties of this agent being continuous, existing so long as the system should endure, he was an officer connected with the national defense. We hardly think it possible, had the principal obligor in this bond been appointed merely to superintend the erection of a single fortification, his duties ceasing when the work was accomplished, that he would have been held to be an officer.
It is not contended that the magnitude of the object, or amount or varieties of duties imposed to carryt it out, determines the character of the employment, or will convert that which was a mere employment, temporary in its very nature, into an office; it is only their continuous nature that will have that effect. If this be so, then the many road commissioners and the many other agents of the State nominated in the law, out of which the duties spring, are officers (which no one maintains), for their duties are prescribed by the law, and are continuous until the object of their appointment is accomplished.
The agent of fortifications, in the case cited, was connected with a system which formed a part of the system of our national defense, executed a bond as an officer connected with that system whose duties were continuing so long as the system should continue. Those duties were, in no just sense, of a temporary character, but enduring, permanent, and in this sense we apprehend the word continuing ” was used by the distinguished judge. The agent was appointed to aid one of the departments of the government, under whose control was a vast system permanent in its very nature.
It seems to us, that it cannot he predicated of these plaintiffs in error, that their duties are of such a character that a general duty continues, as in the case of the agent of fortifications, although the special duty has been performed. In fact there are no general duties imposed by the act in question on these appointees ; they have only one single special duty to perform, and that is, to superintend the erection of a State house, and when that is performed their functions, ipso fado, are at end. Hot so with the agent of fortifications; his functions were not ended on the completion of one or more fortifications, for they were general and comprehended all the fortifications embraced in the system of defense.
It seems to us, the term “ such officer,” judging from the contemporaneous action and construction of the clause by the legislature, had reference alone to such officers as had some portion of the functions of government committed to their charge. Ho man can certainly say, to which of the three departments of our government these appointees belong. It will not do to say they belong to the executive, because they are required to .execute a law. The same may be said of road commissioners: they execute the laws under which they derive their appointment, and so of the numberless persons necessarily employed by the State in subordinate positions and for a special purpose. So far as we have any knowledge on this subject, or are enabled to judge from the facts of contemporaneous history, no one has ever supposed the legislature had not full power to appoint and employ all such agents as might be deemed necessary by them to perform duties not of a permanent, but of a transient and incidental character, such as we see in abundance in our statute books. Ho one has ever exalted such employees to the position of an officer, though their duties might require months or years for their full performance. There is no enduring element in these employments, nor designed to be; the duty being performed, the place is vacant by the very fact of performance.
The case cited, of Shelby v. Alcorn, 36 Miss. 273, is based upon this case in 2 Brock.,, and was a case where a system of levee protection against the inundations of the Mississippi river was inaugurated, and the functionary to superintend the work was denominated by the law an officer, the tenure of the office established at two years with a salary of $1,500 per annum; and the decision seems to be placed on the fact, that the duties of the office were continuous, and were a part of the permanent administration of the government. On his report as to the cost of the work, the board of police were required to levy a sufficient tax to meet it; and the court held, that the powers attached to the office pertained to the executive branch of the government, that it was of a permanent nature and had a certain tenure prescribed, and the appointees were clothed with a portion of the executive and sovereign power of the State.
This surely cannot be predicated of these appointees. No tenure of office is fixed by the act, no permanency is attached to it, nor is there the slightest connection with the exercise of any portion of the executive power, or of any departmental powers, and no intention manifested in the act itself to establish an office. The appointees are to perform a duty single in itself, which the legislature could not of and by itself perform, — that is, to superintend the erection of a State house, and disburse the moneys the legislature may appropriate to such purpose. No power is given to levy taxes, and no govermental act is to be performed by them. It is only by the advance of civilization and refinement that costly edifices are erected for worship or for legislation. “ The groves were God’s first temples,” and high conclave of the magnates of the land has in former times been held with no other roof tree than the broad canopy of heaven. Government can be administered without such structures, and an agent who superintends their erection cannot, with any propriety, be said to perform a function of government.
The case of The State of Ohio v. Kennon et at., 7 Ohio St. 546, is also referred to, as conclusive on the point.
That was a case where the legislature had bestowed upon the individuals named in the act—Kennon and the others— a portion of the appointing power lodged in the executive department of the government by the Constitution. The court said, and very correctly, the exercise of the power of appointment and removal of State officers and the filling of vacancies which may occur in State offices, is a high public function and trust, and not a private, or casual, or incidental agency, and the officers of a board so created by statute to exercise these public'functions, are vested with official State power, and hold and exercise a public franchise and office.
The ease of Dickson v. The People, etc., 17 Ill. 191, decides that a director of the State institution for the education of the deaf and dumb, holds an office of honor, and hence, accepting an office under the United States, such acceptance vacated the office of director, which was an office of honor, within the meaning of the Constitution. He was nominated by the governor, and appointed by the Senate, and his place was denominated an office.
The ease of The People v. Ridgely et al., 21 id. 65, merely holds that the trustees of the bank whom the governor wished to supersede, were not officers, and of course not subjects of executive power.
The case of The People, etc., v. The Comptroller of the State, 20 Wend. 595, decides, if commissioners to erect a State lunatic asylum are to be regarded as holding an office, they could be removed from office by the power that appointed them; and the court, JSTelsoh, Oh. J., in delivering the opinion, said, he was inclined to think they are to be regarded as holding an office, being recognized as such, twice in the statute, and there being no fixed time during which they were to hold-, they were removable by the power that appointed them.
We deem it unnecessary to examine other cases cited by the counsel for defendants in error, having commented on those regarded as the most leading and authoritative.
Several cases are cited on behalf of plaintiffs in error having a bearing on the question at issue, which we have examined. The first is the case of Sheboygan County v. Parker, 3 Wallace Sup. Ct. U. S. 93. The case was this: The Constitution of the State of Wisconsin provides that “all county officers shall be elected by the electors of the respective counties.” The legislature passed an act authorizing the county of Sheboygan to aid in the construction of a railroad, and constituted certain persons named in the act a board of commissioners for aiding the project, who were authorized to borrow money on the credit of the county, and to issue its bonds therefor. The bonds were to be signed by the president and secretary of this board and countersigned by the clerk of the regular board of supervisors, or by the county treasurer. On a suit being brought on some of the bonds or warrants issued by this board, to enforce their payment, the question was made whether the act constituting the said board was constitutional and the county bound. It was insisted that these persons invested with power to levy taxes on the people of the county were county officers, and should have been elected by the people.
The court said, “ such persons, in the performance of their special duty, are in no proper sense county officers. They do not exercise any of the political functions of county officers, such as levying taxes, etc. They do not exercise continuously, and as a part of the regular administration of the government, any important public powers, trusts, or duties. An officer of the county is one by whom the county performs its usual political functions, its functions of government.”
As illustrating the distinction between an office and an employment merely, the opinion of the judges of the Supreme Court of Maine, reported in 3 Greenleaf, 481, is cited.
The governor of Maine propounded to those judges this question: “ Is the office of agent, under the resolve of the sixth instant, authorizing the governor to appoint one or more agents for the preservation of timber on the public lands, and for other purposes, a' civil office of profit under this State, within the meaning of article 4, part 3, of section 10, of the Constitution,, so that no senator or representative of the present legislature can constitutionally be appointed as agent ? ”
The answer was, and in which Mr. Justice Weston, eminent for all the attributes that distinguish the jurist, concurred, that it was not, such an office. Remarking that, by the Constitution of that State, like our own, the sovereign power resided in three distinct departments, namely, the legislative, executive and judicial, they say there is a manifest difference between an office and an employment under the government; that they understood that the term “ office ” implied a delegation of a portion of the sovereign power to, and a possession of it by, the person filling the office, and the exercise of such power within legal limits constitutes the correct discharge of the duties of such office. The power thus delegated and possessed may be a portion belonging sometimes to one of the three great departments, and sometimes to another; still it is a legal power which may be rightfully exercised, and in its effects will bind the rights of others, and be subject to revision and correction, only according to the standing laws of the State. They say, an employment merely has none of these distinguishing features. And they further say, that every office, in the constitutional meaning of the term, implies an authority to exercise some portion of the sovereign power, either in making, executing or administering the laws.
The question was, of course, decided in the negative.
The doctrine of this opinion has not been questioned, so far as we are advised, by any cotut, and it commends itself to our unqualified approbation by the soundness of the argument by which it is maintained. Other cases decided in Pennsylvania, Delaware, Indiana and Iowa have been referred to as having a bearing on this question, on which we have not time to comment.
We have not been able to bring our mind to the conclusion that the plaintiffs in error are “ such officers ” as were in the contemplation of the convention which framed the Constitution, as the practice under it, ever since it was ordained, strongly tends to show. That it is legitimate and proper to refer to the practice under a law, for a long series of years and unquestioned, so it is equally legitimate and proper to refer to the practice under the Constitution for the same purpose. In the case of Dickson, 17 Ill., the Commonwealth v. Dallas, 3 Yeates, 303, was cited, wherein it will he seen the Supreme Court of Pennsylvania undertook to determine to what the word judge, in the Constitution, was intended to be confined, and they came to the conclusion, that it was not every judicial officer that was included in the prohibition of their Constitution ; that it was intended to be confined to such judges only as were thus distinguished by the existing laws of the State and general language of the country. This court deemed it proper, and so do all courts, to put a construction upon words and terms used in the Constitution, as well as in laws or in private deeds or other written instruments.
We are frank to confess there is ground for two opinions on the points before us, but we are strongly persuaded the plaintiffs in error, though occupying a position of great responsibility, are not officers in the sense of the 12th section of article 4 of the Constitution, but employees for a single purpose, — that of superintending the erection of a new State house, at daily wages, their employment ceasing when the structure is built.
Yor are we entirely satisfied that they have been placed in this employment and service in a mode and manner prohibited by that article.
When we consider the old Constitution, and the mode of appointment to office under it, we will find it was by the joint action of the senate and house of representatives composing the general assembly, thus mailing the legislative power the sole appointing power. That power appointed or elected by joint vote nearly all the most important officers of the government, and it was this mischief this article was designed to remedy. The legislative power dominated the executive power, by theii action in joint conclave, performing what is properly an executive function. Should the general assembly, by the joint action of the two houses, appoint or elect a person to an office established by the Constitution or created by law, no one could doubt such action would be in derogation of this article. In this case, they have done no such thing. In the exercise of their legitimate and most appropriate functions, they have passed a law in strict pursuance of all the requirements of the Constitution, in which law they have given employment to these plaintiffs in error, involving the superintendency of the erection of a new State house, and have agreed to pay them for their services five dollars a day each for time of actual service. ISTo franchise is conferred upon them, nor are they required, as they would have been if the law makers supposed they were officers, to take an oath to support the Constitution of the United States or of this State. Art. 3, § 30. They exercise no governmental functions, but perform duties for a stipulated per diem allowance, which the legislature, in the exercise of their power to make laws, have defined in the law under which they are employed.
We are called upon by the defendants in error, to declare this law enacted by a body composed in great part of eminent lawyers, and all of them sworn to support the Constitution, and approved as a law by the executive, also distinguished in that profession, and sworn also to support the Constitution, that two co-ordinate branches of the government have violated the Constitution in giving these plaintiffs this employment. We cannot oust them from their places without declaring this act to be unconstitutional, null and void.
While the power exists in this court, and must, from the nature of our institutions, and be exercised, to declare an act of the legislature unconstitutional and void, in such an inquiry the principles by which the court should be guided are clear, on well settled authority. The presumption is always, and should be, in favor of the validity of a law.
As this court said in The People, etc., v. The Auditor of Public Accounts, 30 Ill. 434, and has repeated at the last term of this court, in the case of The Board of Supervisors of Bureau County v. The Chicago, Bur. & Quincy R. R. Co., 44 Ill. 229, and in other cases, we always approach questions of this nature with reluctance, and with great diffidence, for the legislature is a co-ordinate department of the government, whose exclusive province it is to make laws. But the Constitution is supreme over all the departments of the government, and it is for the judiciary so to declare, and to bring all enactments of the legislature to that standard — to test them by its provisions when a question is made touching .their validity, always remembering that only in a clear and palpable case will the court pronounce' against the validity of an enactment. If it be doubtful, the doubt is usually solved, and should be, in favor of the legislative power.
There must appear a manifest assumption of authority, and clear incompatibility between the Constitution and the law. In a doubtful case, the interference of the judiciary can never be, and never is, permitted. Such is the doctrine, not only of this court from its earliest origin, but it is the doctrine of all the courts of the several States of this Union.
The case being a clear one, in no degree doubtful, this court has pronounced against a law, but always reluctantly.
We by no means consider this a case demanding the exercise of this mighty power of the court. We are not satisfied the plaintiffs in error are holding an office, in the constitutional meaning of that term, but are employed to perform a special duty under a law which the general assembly had full power and competent authority to pass.
Entertaining these views, the judgment of ouster pronounced against them by the Superior Court must be reversed, and the plaintiffs in error restored to all they may have lost thereby.
Judgment reversed.