42 Corpus Juris Secundus (1944)

INCUMBENCY. The state or quality of being incumbent; that which is incumbent; the full possession and exercise of any office. The term implies a precedent compliance with statutory requirements to file the official oath and bond.

The right of incumbency has been distinguished from “term of office.”

INCUMBENT. A person who is in present possession of an office; one who holds an office or performs official duties; one who is legally authorized to discharge the duties of an office; and, by statute, the person whom the canvassers have declared elected.

42 Corpus Juris Secundum (1944)

It is sometimes synonymous with “impartial” see ante p 399 note 27; and sometimes contrasted with, or distinguished from, “amendatory” see 3 C.J.S. p 1041 note 94.

“Independent” is also used derivatively as a noun, in the sense of one who acts with independence; one who acts in accordance with his own will, judgment, or conscience. Specifically, in business relationships, as applied particularly to the members of a fishermen’s union, “independents” are those who supply their own boats and gear, being thus distinguished from “company fishermen;" and in politics an “independent” is one who acts independently of any organized party; one who supports or opposes measures or men on independent grounds.

INDEPENDENTLY. The adverb of "independent."

77 Corpus Juris Secundum (1952)

RESULT. As a noun, the term "result” is defined as meaning consequence, effect, conclusion, that which results, that which results as a consequence, effect, issue, or conclusion, the conclusion or end to which any course or condition of things leads, or which is obtained by any process or operation, the outcome of an action, course, process, or agency, whether direct or indirect, casual or rational, also that which springs or rebounds back from some preexisting thing.

DEFINITIONS

Sec. 2 As used in this Act-

(3) The term “contracting officer” means any person who, by appointment in accordance with applicable regulations. has the authority to enter into and administer contracts and make determinations and findings with respect thereto. The term also includes the authorized representative of the contracting officer, acting within the limits of his authority;

67 Corpus Juris Secundus (1950)

OFFICERS

C. DUTIES IN GENERAL

§ 110. In General.

Generally, the duties of a public office include those lying fairly within its scope, those essential to the accomplishment of the main purpose for which the office was created, and those which, although incidental and collateral, serve to promote the accomplishment of the principal purposes.

The duties of a public officer are usually prescribed by statute, but it has been observed that such statues seldom, if ever, define with precise accuracy the full scope of such duties. Generally the duties of a public office include those lying fairly within its scope, those essential to the accomplishment of the main purpose for which the office was created, and those which, although incidental and collateral, serve to promote the accomplishment of the principal purposes. Public officials take their offices cum onere with all responsibilities attached, and in accepting office impliedly contract to perform the duties thereof. As a general rule the duties imposed by law on public officers are functions and attributes of the office, and not of the officer; they remain although the incumbent dies or is changed, and are to be performed by the incumbent although they may have been left undone by the predecessor. A successor in office takes office charged with knowledge of official actions of his predecessor.

67 Corpus Juris Secundum (1950)

§ 5. “Office” and “Employment” Distinguished

While there is a distinction between an officer and an employee, it is sometimes difficult to distinguish in a given case whether an individual is one or the other. An office is a kind of employment, but not every employment is an office.

There is a distinction between an officer and an employee, although it is sometimes difficult to distinguish between those employments which are and those which are not offices, or between a public officer and a public employee. While an office is an employment, and the holder of a public office is in the employment of the public, not every employment or public employment or position is an office, and not all those in the public employment are necessarily public officials or hold public office. It has been said that an employment differs from both an office and a position in that its duties, which are nongovernmental, are neither certain nor permanent.

It is important to distinguish an office from an employment, because in many respects the rules of law governing the relation of employee and employer do not govern the official relation, which is regulated by that part of the law which may be spoken of as the law of officers. The distinction is important, for example, because the courts, adopting the principle of strict construction in applying statutes declaring certain acts on the part of an officer to be crimes, will refuse to regard as an officer a person who, while in the public service, does not occupy a position established as a result of the action, direct or indirect, of the legislature, with a term, duties, and tenure. Statutes applicable to employees under an appointment or contract of hire ordinarily do not embrace public officers unless they are specifically included.

1. In General

Numerous criteria have been resorted to in order to determine whether a person is an officer, although no single one is in every case conclusive and it is not necessary that all the characteristics of an office or an officer as found in various definitions shall be present.

There are numerous criteria which have been resorted to in determining whether a person is an officer, although no single one is in every case conclusive. It is not necessary that all characteristics of an office or an officer found in their various definitions shall be present in order to constitute one an officer. In general, official or unofficial character is to be determined by the nature of the duties, function, or service to be performed; and the power granted and wielded, and other circumstances. Where an office is created, the law usually fixes its incidents, including its term, its duties, and its compensation. The requirement that an individual keep an office at the capital is but a circumstance to be considered, and is not proof that the position in question is a public office.

Official designation. The presence or absence of an official designation is not conclusive as to the official or unofficial character of a person. Designation by the law as an officer is, however, of some significance.

Compensation. One of the factors to be considered in determining whether an individual is an employee or an officer is the source or character of the compensation received, such as whether the compensation is by a salary or fees fixed by law, or by a sum agreed on by a contract of hiring. However, the character of the employment is not necessarily determined by the salary paid to the incumbent.

Mode of selection. Although the character of the employment is not necessarily determined by the manner in which the individual is chosen, one of the tests in determining whether an individual is an employee or an officer is whether his position is created by an appointment or election, or merely by a contract of employment by which the rights of the parties are regulated. An official may be and often is elected by the resident electors, and, while not a necessary adjunct, nevertheless the fact that a person receives his position by appointment is at least persuasive to some extent that the position is an office. An office is generally held by virtue of a commission or other written authority.

Liability for misfeasance or nonfeasance. A factor distinguishing one as a public officer is sometimes a liability to be called to account as such an officer for misfeasance or nonfeasance in office.

2. Delegation and Possession of Sovereign Power

An important distinction between an office and an employment lies in the fact that the creation of an office involves a delegation of some part of the sovereign power or functions of government, either executive, legislative, or judicial, to be exercised by the incumbent of the office for the benefit of the public.

An important characteristic which ordinarily distinguishes an office from an employment or contract lies in the fact that the creation of an office involves a delegation to the person filling the office of some part of the sovereign power or functions of government to be exercised by him for the benefit of the public. A public officer, as distinguished from an employee, must be authorized to exercise functions of either an executive, legislative, or judicial character, and, while the power thus delegated and possessed may be a portion of that belonging sometimes to one of the great departments and still it is a legal power which may be rightfully exercised, which will bind the rights of others, and which is subject to revision and correction only according to the standing laws of the state.

3. Tenure and Permanency of Duties

An important distinguishing characteristic of an officer is that the duties to be performed by him are ordinarily of a permanent character as opposed to duties which are merely, occasional, transient, and incidental; but the element of tenure is not an indispensable requisite.

The term “public office” embraces the ideas of tenure and of duration, or continuance; hence, an important, distinguishing characteristic of an officer is that the duties to be performed by him are of a permanent character as opposed to duties which are occasional, transient, and incidental. However, while the existence or absence of definite tenure may be considered in determining whether a position is a public office, it is not conclusive, and it is held that this element is not essential where the other requisites of officers are present. The right of a successor to the powers, duties, and emoluments is sometimes laid down as one of the criteria in determining whether a person is an officer.

The elements of tenure and duration as requisites of a public office have been held to relate to the office itself, and not to the incumbent. In other words, the requirement that the position have some permanency and continuity has been considered to mean merely that the office itself have some permanency and continuity. Thus, a public office may exist notwithstanding the absence of a definite term of office for the particular incumbent, and notwithstanding the instability of the tenure by which he holds.

4. Creation, and Designation of Powers and Duties, by Law

In general, one of the elements of an office is that it must be created by constitutional or statutory provision, or by a municipality or other body through authority conferred by the legislature, and the powers and duties thereof must be conferred and defined by law.

Generally speaking, one of the requisites of an office is that it must be created by a constitutional or statutory provision, or by a municipality or other body through authority conferred by the legislature. Thus, an important distinction between the status of an officer and that of an employee rests on the fact that an office is created by, and based on, some provision of law, and does not arise out of contract, whereas an employment, although it may be created by law, usually arises out of a contract between the government and the employee; and, where authority is conferred by contract, it is regarded as an employment, and not as a public office, notwithstanding provision for the employment is made by statute.

Designation of powers and duties by law. Whether the duties are designated by law is one of the elements to be considered in determining whether a given individual is an officer. It is necessary, in order that a position constitute an office and the incumbent thereof an officer, that the powers conferred and duties to be discharged be conferred and defined by law, either by the constitution or, directly or impliedly, by the legislature or through legislative authority. Thus, a position, the duties of which are undefined and which can be changed at the will of the superior, is not an office but a mere employment, and the incumbent is not an officer but a mere employee.

5. Oath or Bond

The necessity of taking an oath and giving a bond may be considered in determining whether a particular person is a public officer, although the presence or absence of an oath or bond is not conclusive.

While the necessity of taking an oath or giving a bond may be considered in determining whether a particular person is a public officer, the taking of an oath or the failure to take an oath or the giving of a bond or failure to give a bond, is not conclusive. When no oath is required of the occupant of a position, the voluntary taking of an oath will not make the occupant an officer.

6. Importance, Dignity, and Independence

An officer is sometimes distinguished from an employee in the greater importance and dignity of his position and in the fact that his duties are performed independently and without control of a superior power other than the law. However, the status of an individual as an officer is not necessarily determined by the extent of his authority or the importance of his duties.

In a general way an officer is distinguished from an employee in the greater importance, dignity, and independence of his position. His duties must be performed independently and without control of a superior power other than the law, unless they are those of an inferior or subordinate office, created or authorized by the legislature, and by it placed under the general control of a superior officer or body. The duties of a public officer must be more than those of a mere agent or servant; and must not be merely clerical. A distinction has also been made between an officer and an employee in that the responsibility for results is on the former and not on the latter, and that an officer has the power of direction, supervision, and control.

On the other hand, the status of an individual as an officer or employee is not necessarily determined by the extent of his authority or the importance of the duties which he performs, and a public officer is none the less a public officer because his authority is confined to narrow limits.

The fact that a position is a subordinate one, and that its holder may be accountable to a superior does not always prevent it from being an office, or the incumbent from being an officer as distinguished from a mere employee. In brief, a subordinate or inferior officer is none the less an officer.

67 Corpus Juris Secundus (1950)

§ 105. Review or Control by Courts

1. In General

   The acts or decisions of public officers may, at least to a limited extent, be subject to review by the courts.

   The acts or decisions of public officers may, at least to a limited extent, be subject to review by the courts, particularly acts of a quasi-judicial nature. The acts of an officer may be reviewed to determine whether he has observed and followed the standard or rule of conduct prescribed by statute. The courts will interfere where an officer acts without or beyond his powers and authority, in violation of positive law, or where there has been a failure or refusal to perform an official duty. It has been stated generally that the courts will afford prompt and adequate relief, when an officer acts capriciously, or in bad faith, or in disregard of law, and such action effects personal or property rights.

   Ministerial act. A court has been held not authorized to interfere with a ministerial act of an officer after it has been performed, at least where such an officer made no mistake or committed no unlawful act.

   Collateral attack. A determination of an officer within the scope of his delegated authority ordinarily is not open to collateral attack in a court, and where no law has been violated, and no statute has made good faith essential to valid action, the acts of administrative officers cannot be attacked in judicial proceedings on the ground that in fact those officers were not governed by the highest standards of impartial and unselfish performance of public duty. The void acts of public officials, however, are not immune from collateral attack. It has been stated generally that the determinations of an executive officer in matters relating to the payment of public funds are not conclusive when questioned in a court of justice.

2. Scope of Review
   1. In General

      Ordinarily Judicial review of the determinations of officers is limited to considerations of whether there was a fair hearing and a just and reasonable application of the controlling statute.

      Ordinarily judicial review of determinations of officers is limited to considerations of whether there was a fair hearing and a just and reasonable application of the controlling statute. The function is fully performed when it is determined that there has been a fair hearing, with notice and opportunity to present circumstances and arguments, and an application of the statute in a just and reasoned manner. It has been stated generally that, in the absence of a controlling statutory prescription as to the scope or methods of the particular right of review, there in no limitation on the processes to which the courts may resort in satisfying themselves as to the propriety of the basis of the official action, except such limitations as their own convenience and orderly functioning fittingly suggest.

   2. Discretion

      As a general rule the courts will not review or interfere with the proper exercise of discretion by an officer.

      While courts may, and sometimes do, exercise authority to compel officers to act in matters where discretion is involved, in absence of a statute to the contrary, where the decision of a question of fact has been committed to the discretion of a particular officer, his determination ordinarily will not be interfered with or reviewed by the courts, and they will refuse to substitute their judgment for that of the officer when he is acting within the scope of his authority, even if they might have a different or wiser decision.

      On the other hand, it has been stated that the field within which the discretion of an officer may be exercised unhampered by judicial review is limited, and that, in the absence of a clear expression by the legislature to the contrary, the courts may review the exercise of a discretionary power vested in an officer to determine whether the case discloses circumstances which leave no possible scope for the reasonable exercise of discretion in the manner shown. The courts will interfere in the case of a clear abuse of discretion, as where an officer’s discretion is exercised in an arbitrary, capricious, or unreasonable manner, or in the case of fraud on his part or on the part of the person claiming rights under his act.

   ---

   Public Law 95-563
   1 November 1978

   Contract Disputes Act of 1978

   DECISIONS BY THE CONTRACTING OFFICER

   Sec. 6. (b) The contracting officer's decision on the claim shall be final and conclusive and not subject to review by any forum, tribunal, or Government agency, unless an appeal or suit is timely commenced as authorized by this act.