1906-1908 Ind. Op. Att'y Gen. p. 134b

MEDICAL REGISTRATION AND EXAIINATION -INDIANA BOARD OF-SALARY OF CLERK. March 23, 1907. Dr. W. T. Gott, Secretary of the State Board of Medical Regis- tration and Examination, Indianapolis, Indiana: Dear Sir.-I am in receipt of your communication of March 21 requesting my opinion as to whether the Indiana Board of Medical Registration and Examination is empowered under the law to pay its regular clerk more than $500.00 per annum. Section 7322 Burns' Annotated Indiana Statutes 1901, among other things provides: "Said board may employ a clerk and fix his salary at not more than five hundred dollars ($500.00) per an- num.' I know of no law amending the above provision, and since it clearly prohibits the board from paying a greater salary than $500.00 -per annumn, such board in my opinion has no power to do. so. LUCRATIVE OFFICES-M\IEMBER OF GENERAL ASSEMBLY AND SECURITIES CLERK IN AUDITOR OF STATE'S OFFICE. March 23, 1907. Hon. John C. Billheimer, Auditor of State, Indianapolis, Indiana: Dear Sir.-In answer to your inquiry as to whether the ap- pointment of a member of the last general assembly to the position of securities clerk in your office would be in violation of section 30. article 4, of the constitution of the state of Indiana, I beg to advise the only existing law with reference to the position re- ferred to is found in the appropriation act, which is as follows: "Salary of securities clerk $2,500.00." And again near the con- clusion of the act it is provided: "Whenever it is provided by statute that the salary of any officer, clerk 6r employe, for which an appropriation is herein made, shall be in excess of the amount here in appropriated, such officer, clerk or employe shall receive," etc. The prohibition contained in the section of the constitution referred to relates to officers and offices, and not to clerks and employes. The language last above quoted from the appropria- tion act names two classes, officer, clerk or employe. It will be ob- served that clerk and employe are used as synonomous terms, and the language as above quoted from the appropriation act designates the position as that of "securities clerk" and brings it squarely within the second clause, or within the class of clerks and employes. Vol. 23 Am. and Eng. Encyc. of Law, page 324, under the subtitle, Distinction between officers and employes, states the dis- tinction between an officer and employe as follows: "Where an employment or a duty is a continuing one defined by rules prescribed by law, and not by contract, such a charge or employment is an office. A .duty or em- ployment arising out of a contract dependent for its dura- - tion and extent upon the terms of such contract, is not an office. And again in distinguishing between these terms it has been said that an office differs from an employment in that the former implies a delegation of a portion of the sovereign power to and the possession of it by the person filling the office." See also Meacham on Public Offices and Officers, page 3, sec- tion 2 and succeeding sections to the same effect. After a careful examination of the authorities bearing upon this question, I am of the opinion that the question as to whether a position is an office or an employment depends largely upon the character of' service to be rendered. There are many other matters that may be considered in reaching a conclusion, but this seems to be the vital question. If the service to be rendered is a public service, and one to be rendered to the public, and not to the principal, the authorities uniformly hold that the position is an office, regardless of the manner of appointment or compen- sation, the duration of the term, the importance of the service, or whether the duties of the position are defined by law. In this instance, however, there are none of the elements above referred to which are usually considered in determining these questions, except the presumption that may arise as to the char- acter of service to be rendered by the name of the position, and the fact that the position is one in a state office, which is devoted exclusively to public service, and the further fact that a salary is provided for in the appropriation act. In view of the express classification made by the appropriation act heretofore referred to, making a distinction between officers and clerks, and making the term clerk synonomous with employe, and the name of the position itself coming within the latter classification, and there being no provision made for the manner of the selection of a securities clerk, it is my opinion that the position is not an office but a mere employment. CUSTODIAN-WHETHER CERTAIN REPAIRS SHALL BE MADE UNDER CONTRACT OR BY MATERIALS PUR- CHASED BY CUSTODIAN, LEFT TO SOUND DISCRE- TION OF CUSTODIAN. March 26, 1907. Hon. 0. A. Baker, Custodian of Public Buildings and Grounds: Dear Sir.-Your communication of March 25th received stat- ing that you desire my opinion as to whether you are required to advertise for bids and have certain repairs to the state house and grounds done by contract, or whether under the law you are authorized to buy materials and have the same done by day labor. Section 7782 Burns' Annotated Indiana Statutes 1901 pro- vides: "It shall be the duty of the custodian to take charge of and protect the capitol building and all its furniture and other property connected therewith; to preserve the same from injury, and constantly to keep every part there- of cleaned and in proper order," etc. And it is provided by section 7783 of said statutes, that: "The custodian is hereby empowered, and it shall be his duty, from time to time to purchase such needed sup- plies as are required, under the orders of the auditor of state, and to furnish, superintend and cause such repairs to be made to the capitol or other property in his care as shall be deemed necessary to its protection, subject to the approval of the auditor of state." Section 7784 Burns' Annotated Indiana Statutes 1901, among other things, provides: "The custodian is authorized and empowered to con- tract for and have supplied all water, ice, telegraph and telephone service required -in the convenient and efficient discharge of the duties of the legislative, executive and judicial and other officers of the state boards, and other