§ 600. Public office; how secured. A public officer acting as he does as an agent of and for and on behalf of his principal, a public corporation, must necessarily, in order to have good title to his office, have secured his right to perform the duties appertaining to it in some manner prescribed by law 33 and either through an appointment or election. An in it is sufficient to say that every offcer of this state who holds his position by election or appointment and not by contract, and whose duties are defined by statute and are in their nature continuous, and relate to the administration of the affairs of the state government, and whose salary is paid out of the public funds, is a public officer of either the legislative, executive, or judicial department of the government." 33 Thompson v. State, 21 Ala. 48; People v. Waite, 102 Cal. 251, 36 Pac. 518; Pinney v. Brown, 60 Conn. 164; White V. Screven County, 112 Ga. 802; Ward v. Cook, 78 Ill. App. 111. One cannot be city official either de facto or de jure without a legislative act creating such office. People v. Blair, 82 Ill. App. 570; Kiley v. Forsee, 57 Mo. 390. An agent's authority may be implied from the recognition by the corporation of his acts; this rule applied to a deputy city engineer where the statute requiring a certificate of his appointment to be filed with the register had not been complied with. Poinier v. State, 44 N. J. Law, 433. An appointment under an unconstitutional act may be subsequently ratified. Dickinson v. Jersey City, 68 N. J. Law, 99, 52 Atl. 278; People v. Ransom, 56 Barb. (N. Y.) 514. A city corporation has such powers in respect to the appointment of charter officers as 34 the charter affirmatively provides. 34 Ames v. Port Huron Log Driving Co., 11 Mich. 139. "It is diffcult to perceive by what process a public office can be obtained or exercised without either election or appointment. The powers of government are parceled out by the constitution, which certainly contemplates some official responsibility. Every officer not expressly exempted is required to take an oath of office as a preliminary to discharging his duties. It is absurd to suppose that any official power can exist in any person by his own assumption, or by the employment of some other private person; and still more so to recognize in such an assumption a power of depriving individuals of their property. Such claims are inconsistent with any idea of government whatever. And it is plain that the exercise of such a power is an act in its nature public and not private." Kokes v. State, 55 Neb. 691, 76 N. W. 467. The population of a county cannot be ascertained by arbitrarily assuming that the number of voters is a certain proportion of the whole population in order to establish the right of such a county to a certain office because it contains a prescribed population. Baker v. Hobgood, 126 N. C. 149, 35 S. E. 253. An appointment by a public school board made by one afterwards adjudged to be the de dividual cannot assume an office and perform his duties except by authority of law without being considered an intruder.35 The power of appointment will be considered first, and later the rights. to a particular office of an individual derived from an election. The power to appoint may be found either in the constitution 36 or some statute.37 Such provisions vary in their details; some jure board is good as against the appointee of a number of persons claiming to be such board. 35 Town of Plymouth v. Painter, 17 Conn. 585; Hooper v. Goodwin, 48 Me. 80; Tucker v. Aiken, 7 N. H. 113; People v. Station, 73 N. C. 546; Hamlin v. Kassafer, 15 Or. 456, 3 Am. St. Rep. 176; McCraw v. Williams, 33 Grat. (Va.) 510; Town of Plymouth v. Painter, 17 Conn, 585, 44 Am. Dec. 574. 36 Ward v. Churchman, 3 Pen. (Del.) 361, 51 Atl. 49; Taylor v. Canyon County, 7 Idaho, 171, 61 Pac. 521; State v. Hyde, 121 Ind. 20, 22 N. E. 644; State v. Gorby, 122 Ind. 17; State v. Washburn, 167 Mo. 680, 67 S. W. 592. Holding unconstitutional act of June 19, 1899, creating a board of three election commissioners in cities over 100,000 inhabitants to be appointed by the governor. Brady v. West, 50 Miss. 68. An act creating a new county and conferring the power upon the governor to appoint a chancery clerk to continue in office until the next general election is constitutional under Miss. Const. art. 4, § 37, and art. 5, § 13. State v. Bacon, 6 Neb. 286; People v. Lathrop, 71 Hun, 202, 24 N. Y. Supp. 754. The power of appointing the keeper of a prison by the superintendent, agent and warden is subject to legislative control under Const. art. 5, § 4. People v. Blair, 21 App. Div. 213, 47 N. Y. Supp. 495; MacDonald v. City of New York, 42 App. Div. 263, 59 N. Y. Supp. 16. Construing § 151 of Greater New York charter relative to the appointment by the comptroller of an auditor to receive and audit all claims against the city. In re Brenner, 35 Misc. 212, 70 N. Y. Supp. 744, affirming 67 App. Div. 375, 73 N. Y. Supp. 689; People v. Bledsoe, 68 N. C. 457; Taggart v. Com., 102 Pa. 354. City comptroller of the city of Philadelphia is a county officer under the control of the governor and not the city council. State v. Sheldon, 8 S. D. 525, 67 N. Y. 613. Const. of S. D. art. 4. § 8 provides that "When an office shall, from any cause, become vacant and no mode is provided by the constitution or law for filling such vacancy, the governor shall have the power to fill such vacancy by appointment." Under this provision the governor is authorized to fill vacancies in the board of regents as affected by Laws 1890, c. 6, § 1. 37 Johnson v. State, 132 Ala. 43. 31. So. 493; Harwood v. Perrin, (Ariz.) 60 Pac. 891; Higgins v. City of San Diego, 131 Cal. 294, 63 Pac. 470; Brophy v. Hyatt, 10 Colo. 223, 15 Pac. 399; City of Americus v. Perry, 114 Ga. 871, 40 S. E. 1004. A state general assembly can take from a municipal corpoation its charter power respecting the police and their appointment. Sheridan v. Colvin, 78 111. 237; designate with explicitness the source of appointive authority and the manner of its exercise,38 while others grant the authority in broad terms leaving the manner and the time of its exercise to usage and custom or the discretion of the individual in whom the appointive power is lodged. Statutory authority must comply with constitutional provisions regarding special legislation and the passage of laws. A failure in this respect will render the legislation invalid. The power to appoint when once granted by either People v. Inglis, 161 Ill. 256; Adsit v. Osmun, 84 Mich. 420, 48 N. W. 31, 11 L. R. A. 534; State v. Griffen, 69 Minn. 311; State v. Ritt, 76 Minn. 531, 79 N. W. 535. Acts providing for the appointment of officers must comply with constitutional requirements as to special legislation. Laws 1899, c. 140, § 1, relative to the election and appointment of county assessors in counties with a designaed population held unconstitutional as being special legislation regulating the affairs of counties and the attempted classification of population being incomplete, arbitrary and evasive of constitutional provisions. Sales v. Barber Asphalt Pav. Co., 166 Mo. 671, 66 S. W. 979; Moores v. State, 54 Neb. 486, 74 N. W. 823; Foley v. City of Hoboken, 61 N. J. Law, 478; Lowthorp v. City of Trenton, 61 N. J. Law, 484; People v. Scheu, 167 N. Y. 292, affirming 60 App. Div. 592, 69 N. Y. Supp. 597; Cunningham v. Sprinkle, 124 N. C. 638, 33 S. E. 138; State v. Meares, 116 N. C. 582. 38 Polk v. James, 68 Ga. 128; Weir v. State, 96 Ind. 311. Where the statutes provide that the county commissioners shall only elect a secretary after an election, the commissioners cannot elect another person secretary until after the expiration of the year. Eliason V. Coleman, 86 N. C. 235. 39 State v. O'Leary, 64 Minn. 207, 66 N. W. 264. A prospective appointment to a vacancy made by one empowered to fill it when it arises is valid. State v. Irwin, 5 Nev. 111. An appointment to a new office to take effect at some future day, when the act creating the office goes into effect, is valid. Haight v. Love, 39 N. J. Law, 14; Whitney v. Van Buskirk, 40 N. J. Law, 463; Fagan v. City of New York, 84 N. Y. 348; People v. Hasbrouck, 11 Utah, 291, 39 Pac. 918; Smith v. Dyer, 1 Call (Va.) 562. 40 Pittsburgh & S. Coal Co. v. Louisiana, 156 U. S. 590. Act La. 1888, No. 147, providing for the appointment of two coal gaugers does not violate act of congress Feb. 20, 1811, admitting the state of Louisana on an equal footing with the original states and providing that the Mississippi River and other navigable waters leading into it or the Gulf of Mexico shall be free highways. Sabin v. Curtis, 3 Idaho, 662, 32 Pac. 1130; People v. Onahan, 170 Ill. 449; Morrison v. People, 196 Ill. 454. The Illinois civil service act does not violate that provision of the constitution placing the management of the affairs of Cook County in the board of commissioners. Wilcox v. Paddock, 65 Mich. 23, 31 N. W. 609. An act which au the constitution or statutes of a state is not considered a grant of a right which becomes absolute or vested in its nature." The same authority can in a like manner change or wholly take away any right which may have been granted.42 (a) Collateral attack on title to office. Whatever may be the manner in which one obtains his possession and color of title to an office, the presumption of law operates in favor of the validity of his title, and the rule almost universally obtains that the subject of his right to the office and to perform his duties cannot be raised collaterally or in any proceedings except those brought directly to determine the question.** (b) Estoppel. The principle also obtains that one who has exercised the functions of a public office is estopped to deny that he thorizes the judge of probate to appoint a superintendent of the work of improvement on a local river with power to assess taxes upon lands benefited is unconstitutional as an infringement of local selfgovernment. City of St. Louis v. Dorr, 145 Mo. 466, 42 L. R. A. 686; State v. Stuht, 52 Neb. 209; State v. Ruhe, 24 Nev. 251, 52 Pac. 274. An act incorporating a city and naming the first municipal officers is not an infringement on the constitutional right of the state executive to make appointments. Varney v. Kramer, 62 N. J. Law, 483, 41 Atl. 711; Meredith v. City of Perth Amboy, 60 N. J. Law, 134; Johnson v. Martin, 75 Tex. 33, 12 S. W. 321. An act authorizing the governor to appoint public weighers for designated cities as in his judgment may be deemed expedient, does not conflict with constitution, art. 3, § 56, prohibiting the legislature, except as otherwise provided, to pass any local or special law "regulating the affairs of counties, cities, towns, wards or school districts." Richmond May oralty Case, 19 Grat. (Va.) 673; Ice v. Marion County Ct., 40 W. Va. 118, 20 S. E. 809. 41 Sansbury V. Middleton, 11 Md. 296. 42 Kaufman v. Stone, 25 Ark. 336. 43 Pueblo County Com'rs v. Gould, 6 Colo. App. 44, 39 Pac. 895; Delphi School Dist. v. Murray, 53 Cal. 29; Allen v. State, 21 Ga. 217; State v. Nield, 4 Kan. App. 626, 45 Pac. 623; Carter v. Sympson, 47 Ky. (8 B. Mon.) 155; Hutchings v. Van Bokkelen, 34 Me. 126; Callison v. Hedrick, 15 Grat. (Va.) 244. 44 Peyton v. Brent, 3 Cranch, 424, Fed. Cas. No. 11,056; Satterlee v. City of San Francisco, 23 Cal. 314; Parish of St. Helena v. Burton, 35 La. Ann. 521; State v. Brooks, 39 La. Ann. 817; Fitchburg R. Co. v. Grand Junction R. & Depot Co., 83 Mass. (1 Allen) 552; Ballou v. O'Brien, 20 Mich, 304; Tower V. Welker, 93 Mich. 332, 53 N. W. 527; Van Dorn v. Mengedoht, 41 Neb 525, 59 N. W. 800; Bean v. Thompson, 19 N. H. 290; Parker v. Baker, 8 Paige (N. Y.) 428; Crosier v. Cornell Steam Boat Co., 27 Hun (N. Y.) 215; People v. Orleans County was properly appointed or elected for the purpose of escaping liability, and the rule includes as well the sureties on the official bond.46 § 601. Power to appoint. The power to appoint or select subordinate officers or employes. is regarded in its fundamental nature as an executive or administrative act, and is usually vested in an administrative or executive official or body 48 or is exercised in some cases by an executive 47 Ct., 28 Hun (N. Y.) 14; Lopez v. State, 42 Tex. 298; McGregor v. Balch, 14 Vt. 428. 45 People v. Jenkins, 17 Cal. 500; Boone County v. Jones, 54 Iowa, 699, 7 N. W. 155; Taylor v. State, 51 Miss. 79; Kelly v. State, 25 Ohio St. 567; State v. Sellers, 7 Rich. Law (S. C.) 368. 46 People v. Huson, 78 Cal. 154, 20 Pac. 369; Lucas v. Shepherd, 16 Ind. 368; City of Paducah v. Cully, 72 Ky. (9 Bush) 323; Jones v. Gallatin County, 78 Ky. 491; School Directors of Lafayette v. Judice, 39 La. Ann. 896; State v. Powell, 40 La. Ann. 234, 4 So. 46; Horn v. Whittier, 6 N. H. 88; Kelly v. State, 25 Ohio St. 567; King v. Ireland, 68 Tex. 682, 5 S. W. 499. See, also, Shelby v. Alcorn, 36 Miss. 273. 47 Ackley's Case, 4 Abb. Pr. (N. Y.) 35; Dillon v. Whatcom County, 12 Wash. 391, 41 Pac. 174. The power of appointing deputy county officers is discretionary with the board of county commissioners. 48 Oregon v. Jennings, 119 U. S. 74; Conger v. Gilmer, 32 Cal. 75; In re Bulger, 45 Cal. 553; People v. Reid, 11 Colo. 138; Morgan v. City of Denver, 14 Colo. App. 147, 59 Pac. 619. Under the charter of Denver, the city treasurer is not the head of the department but of a bureau and hence has no authority to appoint or remove his subordinate officers: or employes except the deputy. This power rests solely in the common council. In re Inman, 8 Idaho, 398, 69 Pac. 120. An act creating a state board. of medical examiners to be appointed by the governor without the concurrence of the state senate does not violate that provision of the Idaho constitution which forbids any person charged with the exercise of powers properly delegated to either one of the three departments, viz., the legislative, executive or judicial, from exercising powers belonging to others. Keating v. Stack, 116 Ill. 191; Overshiner v. State, 156 Ind. 187;. Davis v. State, 7 Md. 151; Smith v. Thursby, 28 Md. 244; Opinion of Justices, 138 Mass. 601; Rittenhouse v. Bigelow, 38 Neb. 543, 57 N. W. 387; Redell v. Moores, 63 Neb. 219, 88 N. W. 243, 55 L. R. A.. 740; Denver v. Hobart, 10 Nev. 28; Hartshorn v. Schoff, 51 N. H. 316; Bownes v. Meehan, 45 N. J. Law, 189. A retiring board of county freeholders cannot fill an office not becoming vacant during their own term of office. Adams v. Haines, 48 N. J. Law, 25. The board of choosen freeholders of a county may appoint such officers for the management of the |