dissented, and delivered the following opinion :
I cannot concur with the majority of the court in the construction of the ninth section of the act of 1859, 1 G. & H. 472. That the “person” whose appointment is provided for by section 7, is an officer, seems to me plain. The English definition of an officer, as given by the courts and text writers of that conntry, is, of course, not applicable here, because, under our institutions, officers can only be public. The American definition, as given, is, “ the right to exercise a public function or employment, and take the emoluments belonging to it,” 2 Bouv. L. Dic. 260; 3 Serg. & R. 149. An officer, then, is one lawfully exorcising the functions of an office. That he might be removed at the pleasure of the .board of control does not change the matter, for the power of removal of an officer at -will is incident to the power of appointment, unless the statute has otherwise provided. Ez parte Hennen, 13 Pet. 230. In this case his duties are public, are exceedingly important and responsible, and his pay is not the subject of contract, but is fixed by law. I know not what more is necessary to constitute an officer. If an officer, then he was required by law to take an oath of office. 1 G. & H. 163. It was a singular oversight in legislation that a bond was not required of him, holding, as lie does, the key which admits the contractors to the public treasury, and charged also, as he is, for a time, at least, and I think, during his continuance in office, with the duties of warden.
He must, under the control of the board, discharge the duties of warden of the prison. How long? Not until the board think proper to lessen his duties by appointing a warden, but so long as he remains in office, — “until his successor is elected and qualified, or until he shall be removed, and a new appointment be made by the board, who are hereby (by the act,) invested with full power for that purpose.” If he be not out of office, he can have no successor; nor can he be removed, and yet continued, without *192interruption, in the same office, though relieved of a portion, and the least pleasant, of his duties. If it had been intended to empower the board so to relieve him, by electing a warden, whenever, in their judgment, that would be desirable, it seems to me in the highest degree improbable that the legislature would not have employed language better calculated to express that purpose.
There was, and yet is, an obvious reason for charging the person who superintends the construction of the prison with the duties of warden, and providing that he should be removable at the will of the board. It was contemplated that the prisoners would labor upon the structure. They should be controlled by the person who superintends the work, that the best interests of the state may be subserved, by securing harmony in the use of this force which labors for the state, and thus insuring its greatest efficiency; and by making the duration of that person’s office depend upon the will of the board of control, who are provided for the express purpose of guarding the public interests, he is put immediately under their direction, with the strongest motive to deserve their full confidence. A warden, whose official term, in the old prison, is four years, and who cannot be removed except for cause, and who is the chief executive officer of the institution, would be more independent. The new prison thus officered, while being built, would have too many executives, with danger of the usual result thereof, as all experience proves, divided counsels and consequent inefficiency in accomplishing the chief end sought, which was the erection of the prison, by no means accomplished in 1863, or even now.
I believe that this person, who is to superintend the work, and also discharge the duties of warden, by the act of 1859, has, from the beginning, in the official public reports, been called “warden,” though the act does not give a name to his office. Doe. Jour. 1861, pp. 443, 438, 440, 446-455, 494; Doc. Jour. 1863, vol. 1, part 2, pp. 54, 56, 63, 67, 141. The legislature itself, in a public law, *193passed two years before any attempt was made to confer npon him the term of four years, belonging to the warden in the old prison, so designated his office. Acts Special Ses. 1861, § 1, p. 81. By this designation it seems that both Wood and Selby were appointed. For brevity, it is, perhaps, as appropriate a term as any to indicate the office, and certainly it is sufficiently definite for that purpose. The law fixes its tenure and points out its duties, and it is clear that the directors, by giving it a name, could not change either the one or the other, nor could they, by electing him for four years, deprive themselves, or their successors, of whatever power of removal may be conferred by law.
If I am correct in the foregoing observations, the conclusion inevitably results, that the person whose appointment is provided for in section 7 of the act, must discharge-the duties of warden of the northern prison, and that he may be removed at the pleasure of the board of control. It would follow'that the board had power to remove the-appellant, as they did, and appoint the appellee, and that the latter is now entitled to exercise the duties of his-appointment. This conclusion is somewhat confirmed by the history of the passage of the act through the legislature. It appears by the journals that it originated in the-House of Representatives, and passed that body without the-thirteenth section, which extends the laws relating to the-old prison to the new one, so far as applicable. It is thus-quite evident that section 9 was not framed with any view to confer authority npon the board of control to take the-duties of warden from the person whom section 7 requires to-be appointed. Section 13 was added in the senate, as an amendment. Senate Jour. 1859, p. 920. That it was not intended thereby to change the effect of the language employed in section 9, seems clear to me. It was, I think, merely designed to cover what was omitted in the bill as it passed the house, by providing additional and necessary machinery for the organization and management of the new institution, *194which should he entirely in harmony with the provisions already contained in the bill.
J. E. McDonald and A. L. JRoache, for appellant. A. Ellison, for appellee.