dissenting. It may well be that the majority has reached a desirable result. But even if the answer given should be correct, it has been given to the wrong question. The principal basis of my disagreement is the question as stated by the majority. I humbly submit that the only question presented to the trial court or in the briefs was somewhat different. It was whether the appointment of a representative to the position of deputy prosecuting attorney violates Art. 5 § 10 of the Arkansas Constitution. The judgment was entered upon motions for summary judgment made by each of the parties. Appellant’s motion was based upon the sole contention that the position of deputy prosecuting attorney was a civil office. Appellee’s motion was based upon the contention that the deputy prosecuting attorney was a public employee and not a civil officer. Art. 4 § 2 was never mentioned by anyone except the members of this court. More simply stated, the question at issue in the trial court and submitted to us was: “Is the position of deputy prosecuting attorney a civil office?” I cannot agree with the majority in this respect. As I see it, a deputy prosecuting attorney is an employee, not a civil officer.
Although this court has appropriately avoided any rigid rule in the matter, the importance of certain factors cannot be overlooked. In Maddox v. State, 220 Ark. 762, 249 S.W. 2d 972, cited in the majority opinion, we said:
Since the distinction between a public officer and a public employee tends to become indistinct when the position in dispute has some of the characteristics of each, we have never attempted to frame an inflexible definition of either. Yet the governing principles are well established. A public officer ordinarily exercises some part of the State’s soverign power. His tenure of office, his compensation, and his duties are usually fixed by law. The taking of an oath of office, the receipt of a formal commission, and the giving of a bond all indicate that a public office is involved, although no single factor is ever conclusive. *** On the other hand, mere public employment differs from a public office in that some or all of these characteristics are lacking.
It is clear that a school teacher, whose tenure, compensation, and duties are all fixed by his contract with the school board, is an employee rather than an officer. ***
As in Maddox, some of the important characteristics of a public office (which I take to be included within the definition of a civil office) are missing.
In the first place the deputy prosecuting attorney has no authority to exercise any of the sovereign power in his own name. Whatever power he exercises is in the name of his principal, the prosecuting attorney. It is clear that this power can be limited by the prosecuting attorney. In considering Ark. Stat. Ann. § 24-120 (Repl. 1962) giving the deputy prosecuting attorney the authority to file informations charging persons with criminal offenses, we made it quite clear that there was only a prima facie presumption that a deputy prosecuting attorney has been authorized to file an information. State v. Eason, 200 Ark. 1112, 143 S.W. 2d 22. There we said:
*** Pope’s Digest, § 10885, authorizes deputy prosecuting attorneys to file information in their own names. There is, prima facie, a presumption that a deputy prosecuting attorney acts under direction of his superior. Until the authority is questioned and there is failure of the prosecuting attorney to affirm, the information, being voidable only, is sufficient to bring the defendant before the court, and in consequence such court acquires jurisdiction.
The deputy prosecuting attorney is only required to attend and prosecute charges on behalf of the state when a warrant has been issued by a judicial officer, or when a judicial officer or the prosecuting attorney requests him to do so. See Ark. Stat. Ann. §§ 24-Í21, 123 (Repl. 1962). Thus it may be clearly seen that the deputy prosecuting attorney’s exercise of the sovereign powers of government is in the name of another.
The acts of a deputy in the name of his principal are those of the principal and not of the deputy, and it is the principal not the deputy who is exercising the sovereign power. State v. Christmas, 126 Miss. 358, 88 S. 881 (1921). See also, Jamesville & Washington R. Co. v. Fisher, 109 N.C. 1, 13 S.E. 698, 13 LRA 721 (1891); Oklahoma City v. Century Indemnity Co., 178 Okla. 212, 62 P. 2d 94 (1936). Where the statute confers a power to be exercised only in the name of the principal the deputy is not an officer. 67 CJS 450, Officers § 148. State v. Christmas, supra; State v. Houck, 31 Ohio Cir. Ct. Rep. 15 (1908). See also, Nelson v. Troy, 11 Wash. 435, 39 P. 974 (1895).
The investment of sovereign powers in the incumbent is one of the more important, if not the most important, criteria of public office. 63 Am. Jur. 2d 627, Public Officers & Employees, § 2; 67 CJS 110, Officers, § 5b (2). We have said that sovereign powers are a necessary requisite to any office. Bean v. Humphrey, 223 Ark. 118, 264 S.W. 2d 607.
Tenure is also an important, even if not controlling, characteristic of a public office. A deputy prosecuting attorney has no tenure and cannot be assured any by agreement of the prosecuting attorney. He may be removed by the prosecuting attorney at any time. Ark. Stat. Ann. § 24-120. Sheffield v. Heslep, 206 Ark. 605, 177 S.W. 2d 412. Certainly, it would be hard for one subject to dismissal on a moment’s notice to feel that he had the security of a civil office.
Some duties of the deputy prosecuting attorney are stated by law. As pointed out, those stated are not duties until someone else has acted to make them so. But I am sure that no one would say that his duties are fixed by law, so that other duties could not be assigned by the prosecuting attorney. It is common knowledge that deputy prosecuting attorneys do many things other than those named in the statutes.
There is no requirement that the deputy prosecuting attorney take an oath, were it not for the holding that he holds a civil office bringing him within the purview of Art. 19 § 20. I find no requirement that any formal commission be issued to a deputy prosecuting attorney or that his appointment be formal in any sénsé. It is only required that the appointment be approved, in writing, by the circuit court. Ark. Stat. Ann. § 24-119. No bond whatever is required.
Upon review of the Maddox requirements, I find only one of the criteria for determining whether one is the holder of a public office which is met in this case. That is the fixing of compensation by law. I do not see how such an important determination can rest upon such a slim reed.
To illustrate the importance of the distinction between the question at issue and the question posed and answered by the majority, I point out that if Art. 5, § 10 is applicable, a senator or representative could not even resign before the expiration of his term and accept appointment as a deputy prosecuting attorney. People v. Lennon, 86 Mich. 468, 49 N.W. 308 (1891); Richardson v. Hare, 381 Mich. 304, 160 N.W. 2d 883 (1968); State v. Sutton, 63 Minn. 147, 65 N.W. 262, 30 LRA 630, 56 Am. St. Rep. 459 (1895); Chenowith v. Chambers, 33 Cal. App. 104, 164 P. 428 (1917); Baskin v. State, 107 Okla. 272, 232 Pac. 388, 40 ALR 941 (1925); Annot 5 ALR 117, 120 (1920), S 40 ALR 945 (1926). Cf. Jones v. Duckett, 234 Ark. 990, 356 S.W. 2d 5; Johnson v. Darrell, 220 Ark. 675, 249 S.W. 2d 5. If the majority’s result should be reached by applying Art. 4 § 2, he could.
I would affirm the judgment.
I am authorized to state that Mr. Justice Jones joins in this opinion.