To the question “May a member of the General Assembly, during his term of office, constitutionally be appointed a deputy prosecuting attorney?”, we answer “No.”
On August 1, 1973, the prosecuting attorney appointed appellee Charles L. Honey, a member of the House of Representatives, to the position of deputy prosecuting attorney for Nevada County. In chancery court appellant Aimer Martindale, Jr., as a citizen and taxpayer, challenged the legality of the appointment.
The chancellor transferred the action to circuit court - “insofar as the question of the defendant’s legal qualifications to be appointed and to serve ... is concerned,” but retained jurisdiction to afford the plaintiff the remedy of an accounting, should the plaintiff’s contentions concerning Honey’s qualifications to serve as deputy prosecuting attorney be upheld. There was no motion to transfer back to chancery court and it is not necessary to discuss or decide the propriety of the transfer to circuit court. Quinn v. Murphy, 181 Ark. 260, 25 S.W. 2d 429 (1930).
Section 10 of Article 5 of the Arkansas Constitution provides:
“No Senator or Representative shall, during the term for which he shall have been elected, be appointed or elected to any civil office under this State.”
By Section 1 of Article 4 the powers of government of the State are “divided into three distinct departments,” legislative, executive and judicial.
Section 2 of Article 4 reads:
“No person, or collection of persons, being one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.”
The Constitution provides for the office of prosecuting attorney and places it in the judicial department. Art. 7, § 24. It is a State office and the prosecuting attorney is an officer of the State. Griffin v. Rhoton, 85 Ark. 89, 107 S.W. 380 (1907); Smith v. Page, 192 Ark. 342, 91 S.W. 2d 281 (1936).
The office of deputy prosecuting attorney has been created and provided for by the legislature, a deputy being appointed by the prosecuting attorney, with the appointment not to take effect until approved in writing by the circuit court. Ark. Stats. Ann. § 24-119 (Repl. 1962).
In previous discussions concerning whether a particular position was an office or a mere employment, we have said that the distinction often becomes indistinct and we have refrained from framing an inflexible definition or drawing a precise line. Lucas v. Futrall, 84 Ark. 540, 106 S.W. 667 (1907); Rhoden v. Johnston, 121 Ark. 317, 181 S.W. 128 (1915); Middleton v. Miller County, 134 Ark. 514, 204 S.W. 421 (1918); Maddox and Coffman v. State, 220 Ark. 762, 249 S.W. 2d 972 (1952); Bean v. Humphrey, State Auditor, 223 Ark. 118, 264 S.W. 2d 607 (1954); Haynes v. Riales, 226 Ark. 370, 290 S.W. 2d 7 (1956).
Somewhat by definition, there is a distinction between deputies and assistants. Ordinarily, a deputy acts officially for another, as a substitute, and by his appointment exercises the office in his principal’s right or name, his acts being of equal force with those of the officer himself. 63 Am. Jur. 2d Public Officers and Employees, §§483 through 487, 67 C.J.S. Officers, §148.
This court has said
“It is true that it is generally said that a deputy prosecuting attorney, legally appointed, is generally clothed with all the powers and privileges of the prosecuting attorney, but he must file the information in the name of the prosecuting attorney. ” Johnson v. State, 199 Ark. 196, 203, 133 S.W. 2d 15, 18 (1939); Bingley v. State, 235 Ark. 982, 363 S.W. 2d 530 (1963).
In the latter case we upheld the validity, under Amendment 21 to the Constitution, of an information where the name of the prosécuting attorney and the word “by” were typewritten and followed by the signature of the deputy prosecuting attorney.
As noted, the office of deputy prosecuting attorney is created by law; deputy prosecuting attorneys regularly exercise some of the State’s soverign power in the judicial department; their duties are statutory rather than contractual; they hold their positions by official appointments, not by contract of hire; and their compensation is fixed or regulated by law. These characteristics of the office, considered collectively, indicate a public office as contrasted with a mere public employment, even though every public office may be an employment.
The circuit judge, after holding that a deputy prosecuting attorney “is not a civil officer within the meaning of the constitutional prohibition,” dismissed the plaintiff’s complaint. Having concluded that a member of the General Assembly is prohibited by our Constitution from being appointed or serving as a deputy prosecuting attorney, we reverse and remand with directions that judgment be entered declaring that the appellee, during his term of office as a member of the General Assembly, is ineligible to be appointed or to serve as a deputy prosecuting attorney.Harris, C.J., disqualified and not participating. Holt, J., disqualified and not participating, Special Justice H. David Blair sitting in his stead. Fogleman and Jones, JJ., dissent.