Untitled Texas Attorney General Opinion ( 1939 )

OFFICE OF THE AlTORNEY GENERAL OF TEXAS
/ AUSTIN
a-c.mma4 J
l r o m*n a I*-
January 5, 1939
Mr. E. N. Bender
County Attorney, Stephens County
Breckenridge, Texas
Dear Sir:
referred to the writer
hire or lease."
requires that all Wchauffears*
of this Act.
Seotion 3 sets out those persons who are exempt from
payment of chauffeur's licenses.
09
Mr. E. N. Bender, January 5, 1939, page 2
County commissioners are not exempted by any of the pro-
visions of Section 3. Therefoxe, if a county commissioner while
drivine an automobile belonsine:to the countv and on countv business
is an em lo ee a ent-or inde endent contractor as those
terms ~'i%%$%n~hen~ coun y commissioner would
be a "chauffeur."
At the outset, we must recognize the fact that a county
commissioner is a public officer. We think the office of county
commissioner comes within the definition stated by the Supreme
.Court of Texas in the case of Kimbi?oughv. Barnett, 93 Tex. 310,
55 S.W. 122, and quoted by the Commission of Appeals of Texas
in the case of Commissioners* Court of Limestone County V.
Garrett, 236 S.W. 970, as follows:
"'Public office is the right, authority, and
duty created and conferred by law by which, for a
given period either fixed by law or enduringat
the pleasureof the creating power, an individual
is invested with some portion of the sovereign
functions of the government to be exercised by
him for the benefit of the public.' The correct-
ness of this definition is nowhere questioned,
so far as we know, and it is useless to add sup-
porting authorities."
We now must decide whether or not a public officer is such
an employee,,servant, agent or independent contractor as is re-
ferred to in the definition of the word "chauffeur" in Section 1
of, the Statute.
There is very little authority on this question in Texas,
but the little that has been written concerning Texas Law on the
subject aswell as the authorities in other states indicate that
a public officer is not such an employee, servant, agent or in-
dependent contractor. In 34 Tex. Jur. 325, it is said:
Y?here is a material difference also between a
publia ofrice and a public employment. The rela-
4.
\ tion between an office holder and the government
under whioh he functions is not that of employer
and employee, and their respective rights are not
to be determined by application of the rules of
contracts of employment. As said by Chief Justicd
Marshall, 'Although an office is an employment,
it does not follow that every employment is an
office.'
Mr. E. N. Sender, January 5, 1939, page 3
"The most important distinction is that the crea-
tion and conferring of an office involves a delega-
tion to the individual of some of the sovereign
functions of the government, to be exercised by
him for the benefit of the public. Other distinc-
tions are: that an office must be created by law,
while an employment may be, and frequently is, created
by contract; that officers are usually required
to take an oath and serve for a definite term; and
that the duties of an office are generally continh-
ing and perraanentrather than temporary and transi-
tory."
This reasoning clearly applies to the word "employee", and
it no doubt also applies to the word "servantv. Discussing the
word "servantW, 29 Tex. Jur. 10, says:
"In the language of the law, however, the word
'servant' is used to embrace all classes of employees.
It is synonymous with 'employee,' and includes all
persons of whatever rank or position who are sub-
ject to the direction and control of another in
any department of labor or business."
This is in accord with what was said in the case of Texas
Life Insurance Co. v. Roberts, 119 S. 'N. 926, as follows:
"'The word 'servant' in our legal nomenolature haasa
broad significance, and embraces all persons of
whatever rank or position who are in the employ
and subject to the direction or control of another
in any department of labor or business. Indeed,
it may in most cases be said to be synonymous with
employe.'"
The authorities in other states seem to bear out the same
rule, that is that a public officer is not an employee or servant
in the ordinary sense of those words. In 22 Ruling Case Law, 381
it is said:
“. . . on the whole an officer is distinguished
from the employee in the greater importance,
dignity, and independence of his position, in be-
ing required to take an official oath, and perhaps
to give an official bona, in the more enduring
tenure, and in the fact that the duties of the
position axe prescribed,by law. Furthermore, a~
mere employee does not have the duties or respon-
sibilities of a public officer."
Mr. E. N. Bender, January 5, 1939, page 4
In a case which decided that a city auditor was an "officer"
and not an "employee" of a city, the Supreme Judicial Court of
Massachusetts in the case of Attorney General vs. Tillinghast, 203
M[ass. 539, 89 N.E. 1058, said:
"The holder of an office must have intrusted to him.
some portion of the sovereign authority of the state.
His duties must not be merely clerical, or those
only of an agent or servant, but must be performed
in the execution or administration of the law, in
the exercise of power and authority bestowed by
the law. . . . A mere employe has no such duties
of.responsibilities."
.
In passing on a statute which said "that eight hours shall
constitute a day's work for all laborers, workmen, mechanins or
other persons now employed", the Supreme Court of Kansas in the
case of State V. City of Ottawa, 84 Kan. 100, 113 P. 391, said:
"Officers are excluded by the use of the word *emploved;'
an office being distinguis~hed'froman employment, in"
~... . that it implies tenure, duration, emolument, and
auty; . . .w
In the case of Nissen v. City of Winston-Se&em, 206 N. C.
888, 175 S.E. 310, the Supreme Court of North Carohina decided
the issue of ðer or not the chief of the city'fire department
was an nemployeen of the city or an "officerv of the city, it
being provided by statute that "employees" should be compensated
without defining the word "employees". fin that case the court
held that the fire chief was an employee but recognized that certain
officers of the city were not, and said:
"Was the chief of the fire department of the city
of Winston-Salem, who was killed in a motor vehicle
wreck while answering a fire call, an employee within
the meaning of the Workmen's Compensation Law?.
. . .
*Mc&uillin in his work on Municipal Corporations
(2d Ed.) vol. 2, p. 38, quotes Judge Cooley, as fol-
lows: 'The officer is distinguished from the em-
ployee in the greater importance, dignity and
independence of his position; in being required to.
take an official oath, and perhaps give an official
bond; in the liability to be called to account as
a public offender for misfeasance or non-feasance
in office, ana usually, though not necessarily in
the tenure of his position.*
L
Mr. E. N. Bender, January 5, 1939, page 5
"Obviously the mayor of a city would not become an
employee merely because he occasionally picked UP
a piece of hose or occasionally used a shovel or
mattock when in the presence of a street force.
Desultory-,disconnected, infrequent acts of manual
labor performed by an administrative officer ard
not reasonably required by the exigencies of the
situation, would not classify such officer as a
worIonan.l.
The Florida Courts have held that a public officer is not
an employee, and in the case of Dade County v. State, 95 Fla.
465, 116 So. 72, the Supreme Court of Florida said:
"An employment does not authorize the exercise
in one's own right of any sovereign power or any
prescribed independent authority of a governmental
nature; and this constitutes perhaps the most
decisive difference between an employment and
an office, and between an employee and an 0fficer.n
Similar rules were laid down in the cases of Ke&ly v. city
of Bridgeport, (Conn.) 111 Conn. 667, 151 A. 268; State v. Clark
(Ind.) 208 Ind. 402, 196 N.E. 234; and Bowden v. Gumberland County,
(Me.) 123 Me. 359, 123 A. 166.
The cases that lmve bee&cited above indicate that public
officers are not employees and servants in the ordinary sense of
the word. We think that for the same reasons they cannot be
held to be agents in the ordinary usage of that word,~especially
as it is used in the definition of chauffeur. The writer has been
unable to find any Texas authority on the question, but .it seems
that the courts of other states hold that public officers are not
agents in the ordinary sense along with their holdings that public
officers are not servants and em10 ees. In the case~of People
;; Wd~is’;;Ui’ 282 Ill. 599+ N E. 54, the Supreme Court
:
"In many cases it is difficult to determine,whether
a person is an officer or merely an agent or employe
of a municipality. It is even more.difficult to lay
down any fixed rule to determine the question, in
all cases, as to whether a person is an officer or
merely an agent or employe of a municipality. Gen-
erally, an officer takes an oath of office,~while a
mere agent or employee does not."
Mr. E. N. Bender, January 5, 1939, page 6
Similar language was used in the case of Lori'llardV.
Town of Monroe, (N. Y.) 11 N.Y. 392, 62 Am. Dec. 120, in which
it was said:
ours)
We must finally decideswhether or not a public officer
is an "independent contractor... A,well known definition of an
independent contractor is the one stated by the Texas Commission
of Appeals in the case of Lone Star Gas Co. v. Kelly, 46 S. W.
(2d) 656, as follows:
"As defined by the authorities, an independent
contractor is one, who, exercising an independent
employment, contracts to do a piece of work accord-
ing to his own methods, and without being subject
to the control of his employer except as to the
result of his work."
It will be noticed that one of the elements of the rela-
tionship of an independent-contractor to his superior is that of a
contract. In other words, an independent contractor holds his
position by virtue of a contract. Such is not true of a public
officer. This distinction is made clear in 34 Tex. Jur. 324, where
it says:
"Officers hold their positions by election or
appointment and not by contract. As we have seen
i
,.. r
Wr. E. N. Bender, January 5, 1939, page 7
above (Par. 2), an office involves a delegation
to the holder of some portion of the sovereign
functions of the government, to be exercised by
him for the benefit of the public, and it embraces
the ideas of tenure, duration, emolument and duties.
But a public contract from its nature is necessarily
limited in its duration and specific in its objects;
the terms agreed upon define the rights and obliga-
tions of the parties, neither may deparkfrom them
without the assent of the other. Such a contract
is within the protection of the constitutional pro-
hibition of the impairment of obligations, but a
public,office is not. The prohiM.tion does not
preclude the abolition.of an office or reduction
in the compensation annexed to it during the term
of an incumbent."
Such was the holding in the Texas cases of Bonner v.
Belsterling, 137 S.W. 1154; State v. Rigsby, 43 S.W. 1101;
and City of Palestine v. West, 37 S.W. 783.
By virtue of these authorities holding that a public
officer does not hold his positions under a contract, we must
conclude that a public officer is not under any circumstances
an independent contractor.
There is no doubt that a county commissioner is a public
officer, and under the authorities cited above it is our con-
clusion that a county commissioner because of his position as
a public officer is not an employee, servant, agent or independent
contractor as those terms are used in the definition of a
chauffeur in Article 6687a.
It is our conclusion that a county co&missioner while
driving an automobile belonging to the county and on county
business is not a chauffeur within the meaning of Article
6687a, and he does not have to-obtain a chauffeur's license.
Very truly yours
ATTORNEY GEhTERALOF TEXAS _
.,&i!?ii,@b?f~
Assistant
CR-N