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Carr, Auditor, v. The State, ez rel. Stewart.

pellant's answer herein, nor by the general term in affirming such ruling.

The State Board of Health of this State, as we have seen, was organized on the 3d day of November, 1881, under the provisions of an act of our General Assembly, approved March 7th, 1881, which took effect and became a law on September 19th, 1881. That act or law contains fifteen sections, and these sections, as they appear in the Revised Statutes of 1881, are sections 4986 to 5000, inclusive.

On behalf of the appellant, the learned attorney general and his associate counsel, as we understand their arguments oral and written, rest his defence to the suit of appellee's relatrix upon what they regard as the proper construction of section 7 of such act or law, being section 4992. R. S. 1881. This section reads as follows:

"The State Board of Health shall have supervision of the system of registration of births, deaths, and marriages as herein provided, and they shall make up such forms, and shall, from time to time, recommend such legislation as they may deem necessary for the thorough registration and report of vital and sanitary statistics throughout the State. The secretary of the board shall be superintendent of all such registration: and the clerical duties and safe-keeping of the Bureau of Vital and Sanitary Statistics, thus created, shall be provided for by the secretary of state, upon requisition of the secretary of the State Board of Health, approved by the president thereof."

It is claimed on behalf of appellant, (1) that the clerical duties of the Bureau of Vital and Sanitary Statistics, which, under this section of the statute, must " be provided for by the secretary of state," can only be performed by a clerk; (2) that such clerk is an officer, whose appointment must be made, under the statute, by the secretary of state; (3) that, as the duration of the office of such clerk is not provided for in the Constitution, and is not declared by law, under section 2 of article 15 of our State Constitution (section 224, R. S. 1881), Carr, Auditor, v. The State, ex ret. Stewart.

"such office shall be held during the pleasure of the authority making the appointment;" and (4) that the power of removal from an office is a necessary incident of the power to make an appointment to such office.

It is a clear proposition, which will hardly be controverted, and, certainly, needs no argument to sustain it, that where a law contemplates or provides for the performance of " clerical duties" in any office or bureau,and does not in terms direct the appointment or employment of a clerk to perform such duties, the law impliedly authorizes the appointment or employment of a clerk for the discharge of such duties, and would be so construed. Here, it is declared in the section of the statute under consideration, that " the clerical duties * * * of the Bureau of Vital and Sanitary Statistics * * * shall be provided for by the secretary of state." Doubtless, this provision of the statute not only authorized the secretary of state, but made it a part of his official duty, to provide for the performance of " the clerical duties * * * of the Bureau of Vital and Sanitary Statistics," by the appointment or employment of a suitable clerk for that purpose, but only "upon requisition of the secretary of the State Board of Health, approved by the president thereof."

Whether or not the clerk, so appointed or employed by the secretary of state, upon such requisition approved as aforesaid, is an officer within the meaning of that word as used in the organic and statutory laws of this State, is a question which might, perhaps^ admit of some debate, but which we do not find it necessary, in the view we take of this case, to consider or decide. For, whether such clerk be an officer or merely an employee, it is certain that, under the statute, whoever performs " the clerical duties * * * of the Bureau of Vital and Sanitary Statistics," he must " be provided for" the discharge of such duties, and, therefore, must be appointed or employed, in the sense of selecting, designating or naming him, "by the secretary of state, upon requisition of the secretary of the State Board of Health, apCarr, Auditor, v. The State, a rd. Stewart.

proved by the president thereof." But after this clerk, whether he be officer or employee, has been selected, designated or named by the secretary of state, he has no further connection with such secretary in any way, is not made subordinate to him, renders no services in his office, and is not dependent upon him for his salary, wages or compensation. After such clerk has been named, appointed or employed, he enters upon the discharge of " the clerical duties * * * of the Bureau of Vital and Sanitary Statistics," of which bureau the statute declares that the secretary of the State Board of Health "shall be superintendent." He must agree with the State Board of Health for his salary, wages or compensation for his services, to which board alone he is authorized by law to look for such compensation. He is subordinate to the State Board of Health, and its secretary and superintendent, and in the performance of the clerical duties of the Bureau of Vital and Sanitary Statistics, he must obey and comply with the orders and directions of such state board and the superintendent of such bureau. It must be held, we think, that such clerk, whether officer or employee, holds his office, place or employment at the pleasure of the State Board of Health, and that it was not within the power of the secretary of state to remove such clerk from such office or employment.

Of course, we recognize the general rule that the power of removal from an office is a necessary incident of the power of appointment to fill such office. It will be seen, however, from the section of the statute above quoted, under which appellant claimed, in his answer herein, that the secretary of state acted in his attempted removal of the relatrix, Florence M. Stewart, from her office or employment as clerk of the Bureau of Vital and Sanitary Statistics, that the power of appointment to such office or employment is not given to the secretary of state absolutely and alone, and that such power of appointment can not be exercised by such secretary of state, except "upon requisition of the secretary of Carr, Auditor, v. The State, ex rel. Stewart.

the State Board of Health, approved by the president thereof." It is clear, we think, that, without such requisition, the secretary of state would have no power whatever, under such section of the statute, to provide for the performance of “the clerical duties * * * of the Bureau of Vital and Sanitary Statistics," either by the appointment or employment of a clerk, or in any other manner. Where, therefore, as here, the power of appointment to an office by one person or officer is made to depend upon some precedent or.concurrent action of other persons or officers, it can not be said, as it seems to us, that the power of removal from the office is a necessary incident of such power of appointment.

We are of opinion, therefore, that the attempted removal, by the secretary of state, of appellee's relatrix, Florence M. Stewart, from the performance of “the clerical duties *** of the Bureau of Vital and Sanitary Statistics," was not authorized by any law of this State, and was, therefore, void and of no effect.

The second question for decision in this case, hereinbefore stated, may be re-stated as follows: Under the provisions of section 4992, supra, above quoted, was the secretary of state authorized and empowered to designate, name or appoint any person for the performance of “the clerical duties * *** of the Bureau of Vital and Sanitary Statistics,” except “upon requisition of the secretary of the State Board of Health, approved by the president thereof?” That this question, as here stated, will admit only of an answer in the negative, is too plain, we think, for argument; indeed, this much is virtually admitted by the effort of the secretary of state, as shown in appellant's answer herein, to base his appointment of James D. Walker, to perform the clerical duties of the Bureau of Vital and Sanitary Statistics, upon an old requisition of the secretary of the State Board of Health, approved by its president, issued more than two years ago, and addressed to Honorable William R. Myers, then secretary of state. It Carr, Auditor, v. The State, ex rel. Stewart.

was shown, however, by the matters and things set forth in appellant's answer herein, that this old requisition had long since performed its office, and was functus officio. The answer of appellant further showed that, by this old requisition, two clerks were then required for service in the office of the State Board of Health, and that the then secretary of state had then supplied and filled such requisition by the appointment of two clerks for such service, of whom appellee's relatrix herein was one.

It was not alleged in appellant's answer, that additional clerical aid was necessary to perform the clerical duties of the Bureau of Vital and Sanitary Staiistics, or that the two clerks so appointed, on such old requisition, were not capable and satisfactory to the State Board of Health ; on the contrary, it was alleged by appellee's relatrix, Florence M. Stewart, in her verified complaint herein, and as it was not controverted by appellant, in his answer herein, it was by him admitted, that since May 9th, 1885, continuously until the filing of her complaint in this cause, she had fully performed her clerical duties in the “ Bureau of Vital and Sanitary Statistics” to the entire satisfaction, and under the orders and direction, of the State Board of Health.

In conclusion, we are of opinion that the secretary of state is not authorized, except upon requisition of the secretary of the State Board of Health, approved by the president thereof,to name or appoint any person to perform the clerical duties of the Bureau of Vital and Sanitary Statistics; and that the old requisition issued two years since to William R. Myers, then secretary of state, and filled by him at the time, afforded no authority whatever to the present secretary of state to name or appoint James D. Walker to perform such clerical duties.

The court at special term committed no error in sustaining the demurrer of appellee's relatrix to appellant's answer herein, nor did the general term err in affirming such ruling

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