
    FREDERICK LAW OLMSTEAD, Plaintiff, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Defendants.
    I. OFFICE, OFFICER, EMPLOYEE.
    
    1. DEFINITION AND DISTINCTIONS.
    
      (a) Office. It is a right to exercise a public function or employment, and take the fees and emoluments belonging to it. It involves the idea of tenure, duration, fees or emoluments, and powers as well as that of duty. It implies an authority to exercise some portion of the sovereign power of the State, either in making, administrating or executing the laws.
    (6) Officer. One who holds an office.
    (c) Employee. One who receives no certificate of appointment, takes no oath of office, has no term or tenure of office, discharges no duties, and exercises no powers depending directly on the authority of law, but simply performs such duties as are required of him by the persons employing him, and whose responsibility is limited to them, is not an officer and does not hold an office.
    1. This although the persons so employing him we public officers, and his employment is in and about a public worlc or business.
    H. APPLICATION.
    
    1. Landscape architect employed by the Department of Public Parks, does not hold an office, and is nqt an officer within the meaning of the 114th section of chap. 335 of the Laws of 1873.
    Before Sedgwick and Speir, JJ.
    
      Decided June 25, 1877.
    This case comes up on plaintiff’s motion that this court direct a judgment to be entered upon a verdict rendered in favor of the plaintiff, subject'to the opinion of the general term. The plaintiff sued to recover the salary alleged to be due him as landscape architect of the Department of Public Parks from May 31,1876, to July 31, then next, inclusive.
    The plaintiff was by profession a landscape architect, and had been employed many years in that capacity by the Department, which had fixed his salary at the rate of $6,000 per annum, and he had been paid at that rate down to and including May 31, 1876.
    In the year of 1876 (Laws of 1876, p. 196, ch. 193), the legislature created a board known as the “Commissioners of the State Survey,” to hold office for one year, and named the plaintiff one of the commissioners.
    He accepted the office of commissioner and took the oath of office May 31, 1876. He afterwards, on July 18, 1876, resigned. During the time he held the office of commissioner he, without interruption, performed the duties and rendered the services devolved upon and required of him as landscape architect. On August 4, 1876, the Department of Parks passed the resolution referred to in the opinion, whereby it was resolved “ that an allowance or payment be made to him” (the plaintiff) ‘‘ for the services to the Department from May 31, 1876, at the rate of $6,000.”
    
      Smith E. Lane, attorney, and A. J. Vanderpoel, of counsel for plaintiff, urged:
    I. The plaintiff was not an officer within the prohibition of section 114 of the charter of 1873. 1. He did not hold any office under the charter. 2. He was an employee or servant of the Department of Public Parks, having no official relations whatever to the city government. 3. The charter throughout maintains this distinction between employees and officers (§§ 93,94, 95, &c.; Holly v. Mayor, &c. of N. Y., 59 N. Y. 166; Stone v. U. S., 3 Court of Claims, 260 ; Sullivan v. Mayor, &c. of N. Y., 48 How. Pr. 239 ; Sullivan v. Mayor, &c. of N. Y., 53 N. Y. 652, reported in full in 47 How. Pr. 491; Commonwealth v. Binns, 17 Serg. & Rawle, 219; 3 Greenleaf, 481). In this case, and in Bacon’s Abr. Title Officer, a definition OF AN OFFICE AND OFFICER IS GIVEN WHICH EXCLUDES THE CASE AT BAR.
    II. If plaintiff, as landscape architect, shall be deemed to be a city officer, and hence, by his acceptance on May 31, 1876, of the office of a commissioner of the State survey, to have ceased to be such architect, he may still recover for his services rendered at the request of the department of parks for defendants’ benefit, by virtue of the resolutions of August 4, 1876, passed by the commissioners of the department. 1. They had a right to receive such services under the general powers conferred by sections 23 and 83 of the charter. 2. The resolutions of August 4 were a ratification of plaintiff’s employment, and legally made so. The doctrine of ratification applies to municipal corporations (1 Hoff. Laws, 330; Peterson v. Mayor, 17 N. Y. 449 ; Brady v. Mayor, 20 Id. 312 ; In the Matter of Doubleday v. Supervisors of Broome County, 2 Cow. 533 ; Thompson v. Mayor, 7 Robt. 543; Langdon v. Castleton, 30 Vt. 285 ; 1 Dillon's Mun. Corp. § 168, and cases in notes, §§ 168, 169,170, 171). 3. Here there is no illegal contract to contend against. Nelson v. The Mayor, 2 W. Dig. 313, is therefore in point: “Where the city has received property there is, independent of contract, an implied obligation to pay its value.” 4. There remains but the question “what were plaintiff’s services during the 31st of May, and June, and July, 1876, reasonably' worth.” This sum plaintiff should recover. The value of these services is not disputed.
    III. The defense interposed cannot avail after the date of the resignation of plaintiff, viz., July 18, 1876. 1. Failure to fix his compensation was cured by the resolutions of August 4, 1876, referred to in the complaint, and admitted. There is no law which requires the pay of an employee to be fixed in advance.
    
      W. C. Whitney, counsel to the corporation, and Francis Lynde Stetson, of counsel for defendants, urged:
    I. The plaintiff, as landscape architect, in the department of public parks, was “a person holding office,” and his position was an “office under the city government ” within the meaning of section 114 of chapter 335 of the Laws of 1873 (Ryan v. Mayor, &c. of New York, MS. opinion of Judge Freedman, delivered in the superior court, Nov. 11, 1875; Davenport v. The Mayor, &c. of New York, 2 T. & C. 536; affirmed by the court of appeals ; Henly v. Mayor of Lyme, 5 Bing. 91-107; Wood’s Case, 2 Cow. 30, n.). The last two cases give a definition of an office, WHICH WILL INCLUDE THE CASE AT BAR (People v. 
      Hayes, 7 How. Pr. 248 ; Sweeny v. Mayor, &c. of New York, 5 Daly, 274; affirmed, 58 N. Y. 625; Costello v. Mayor, &c. of New York, 63 Id. 48 ; People v. Van Nostrand, 46 Id. 381).
    II. The case of Sullivan v. The Mayor, &c. of New York, 53 N. Y. 652, reported at large in 47 How. Pr. 491, has by above cited authorities been so limited as to be inapplicable to the case at bar.
    III. Applying the doctrine of these cases to the position held by the plaintiff, it seems impossible to consider him a mere servant or employee. He was the landscape architect of the Central Park, a position of dignity in its duties and emoluments. He designed most of the work of the Park; had general supervision of those engaged in carrying it on ; and discharged a great variety of miscellaneous duties. His position, therefore, was one supremely important to the maintenance and extension of the great public work with which he was connected. The original execution of all that made the place a park was confided to his artistic sagacity and discretion. The whole machinery and system of the Central Park had its being and operation solely according to his designs and direction. If the enterprise itself was of a public character it seems impossible to deny that its originator, designer and artistic director was a public officer. The construction and maintenance of. this magnificent public park is. certainly a public undertaking as much as is the construction of the highways.
    IV. The expression of the legislature and the courts alike have demonstrated that the defendants attribute the proper signification to these words, (a) As to the Legislature: By section 21 of chapter 757 of the Laws of 1873, the section of the chapter under consideration was amended as follows : “ Section 114 of said chapter shall not be construed to apply to civil or consulting engineers who may be employed to superintend any specific work on the part of the City of New York.’-’ Under the operation of the maxim ‘' Ex-prés sio unius est exclusio alterius ” the effect of the legislative exception of one class of employees was to leave all others under the operation of the charter rule. If it was necessary to specifically except civil and consulting engineers employed on specific works, why was not the landscape architect bound in absence of any such release ? (i) As to the courts ; The decision in the case of Davenport v. The Mayor (supra), arising upon this very section, is directly in point.
    V. The plaintiff accepted, held and retained a civil office of honor and trust under the government of the State from the 30th day of May to the' 18th day of July, 1876. This was an “office,” and involved his taking the oath prescribed by the constitution.
    VI. From the thirty-first day of May, when he vacated his office, until the fourth day of August, 1876, when he was re-appointed, the plaintiff was not entitled' to compensation for his services. It was not enough that he should render services, but it was necessary also that they should be rendered by the officer designated for that purpose. Neither was it in the power of the board to vote away the salaries of the department to any persons other than those holding office under it.
   By the Court.—Speir, J.

A preamble adopted by the department of parks on the 4th of August, 1876, is set forth in the complaint, reciting that the plaintiff had, without advice as to the effect it might have on his position as landscape architect, accepted the office of commissioner of the State survey; that some doubt had been expressed on the point, and that he had resigned the office, and had without interruption performed the services on which he was employed, and it was resolved that an allowance and payment be made to him for the services to the department, from the 31st day of May, 1876, at the rate of $6,000.

No salary or compensation was attached to the office of commissioner of the State survey. The plaintiff took the oath of office on the 31st of May, 1876, and the board was organized.

The defense is based upon the following provision of section 114 of chapter 335 of the Laws of 1873 : “ Any person holding office, whether by election or appointment, who shall, during his term of office, accept, hold or retain any other civil office of honor, trust or emolument, under the government of the United States (except commissioners for the taking of bail, or register of any court) or of the State (except the office of notary public or commissioner of deeds, or officer of the national guard), or who shall hold or accept any other office connected with the government of the city of New York, or who shall accept a seat in the legislature, shall be deemed thereby to have vacated every office held by him under the city government. No person shall hold two city or county offices, except as expressly provided in this act; nor shall any officer under the city government hold or retain an office under the county government, except when he holds such office ex-officio, by virtue of an act of the legislature ; and in such case he shall draw no salary for such ex-officio office.”

Was the plaintiff, a landscape architect in the Department of Public Parks, an officer within the prohibition of the preceding section ?

An office has been defined to be a right to exercise a public function or employment, and to take the fees and emoluments belonging to it. An officer is one who is lawfully invested with an office (Bacon’s Abridgment, vol. 7, title Office and Officer, p. 279, ed. of 1860; Bouv. Law Dic.). The idea of an officer clearly embraces the idea of tenure, duration, fees or emoluments, and powers, as well as that of duty. The nature of the power and the control over the officer appointed does not at all depend upon the source from which it emailates. The execution of the power, and the control over the officer, depends upon the authority of law, and not upon the agent who is to administer it. The tenure of ancient common law offices, and the rules and principles by which they are governed, have no application in this country. In England the tenure of office depends in a great measure upon ancient usage. Here there is no ancient usage which can apply to, and govern the tenure of officers created by the constitution and laws. In such a case the tenure of the office is determined by the meaning of the statute. Every office under the constitution implies an authority to exercise some portion of the sovereign power of the State, either in making, executing or administering the laws. In the section of the statute there is no ambiguity, and there is no room for construction or interpretation. The words are clear and explicit: “Ho person shall hold two city or county offices, except as provided in this act; nor shall any officer under the city government hold, or retain an office under the county government, except when he holds such office ex-officio, by virtue of an act of the legislature ; and in such case he shall draw no salary for such ex-officio office.” The distinction is plainly taken between a person acting as a servant or employee, who does not discharge independent duties, but acts by direction of others, and an officer empowered to act in the discharge of a duty, or trust, under obligar tions imposed by the sanctions and restraints of legal authority in official life. I can find nothing in all the sections of the charter which does not strictly limit the prohibition to persons included in the foregoing definition given by the elementary writers. The plaintiff received no certificate of appointment—took no oath for the faithful performance of duties—had no term or tenure of office—discharged no duties, and exercised no powers depending directly upon the authority of-law. He was simply the servant of. the commissioners , of the park, and responsible only to them. His responsibility was limited to them, and is in no way distinguishable from that of the carpenter and the mason who are employed to build the bridges or erect the buildings designed by the architect. The nature and dignity of the duties confided to the employees by the commissioners do not determine the character of the position. It is in no proper sense official according to any sense in which the term is used in the statute' above recited.

The justices of the supreme court of Maine, 1822, gave an opinion as to whether certain duties which had been delegated by agents to be appointed by the governor, constituted the appointees officers. The case is reported in the appendix to the first edition of 3 Greenleaf App. No. 2. They say, "There is a manifest difference between an office and an employment under the government. We apprehend that the term ‘ office ’ implies a delegation of a portion of the sovereign power to, and possession of it by, the person filling the office, and the exercise of such power within legal limits constitutes the correct discharge of the duties of such office.” The question was directly put before the learned judges for decision, and they returned a sharply defined answer, wholly disconnected with other matter,' and it seems to me to be conclusive. The courts in this State are in accord with the foregoing opinion.

The plaintiff must have judgment for the amount claimed in the complaint, with costs.  