Smith, C. J.,
delivered the opinion of the court.
Aaron Shelby, on the second day of December, 1852, entered into a contract with the board of levee commissioners, of Coahoma county, by which he obligated himself, for a stipulated price, to construct a certain line of levee in said county, according.to the survey, plan, and specifications, as to height and base, &c., of the engineer of the commissioners. By the terms of the agreement, the levee was to be completed by the first of February, 1854. The commissioners paid or advanced to Shelby upon his contract, eight thousand dollars in money, and sixteen thousand acres of land scrip, estimated at fifty cents per acre. On the 4th of July, 1853, the same parties entered into another agreement, by which Shelby was bound to construct, upon the terms and conditions specified in the previous contract, an additional line of levee in said county. This levee was to be completed by the first of February, 1855; and the time for completing the first levee, was extended to the same time.
By an act of the legislature, approved March 2d, 1854, it was provided that the president of the board of police of Coahoma county, [287]*287should convene said board on tbe first Monday of May thereafter, for the purpose of appointing (in lieu of the board of levee commissioners theretofore provided for by law) a single levee commissioner, who, when appointed, should hold his office under such-restrictions as were thereinafter prescribed, for the term of two years. Acts of 1854, p. 186.
The board of police met pursuant to the directions of the statute, and when so assembled, appointed James L. Alcorn, levee commissioner. Alcorn immediately qualified, and entered upon a discharge of the duties of the office, and, on the 28th of March, 1855, brought this suit in the Circuit Court of Coahoma, to recover back from Shelby the sum of sixteen thousand dollars. The ground of recovery was the alleged total failure of Shelby to construct the said levees, agreeably to the terms of his contracts.
The defendant pleaded in abatement, averring that the plaintiff was a member of the legislature by which the law was enacted, creating the office of levee commissioner, and that during the term for which he was elected a member of 4the legislature as aforesaid, the board of police of Coahoma county appointed him levee commissioner, a civil office of profit under the State, and that the appointment was void. To this plea a demurrer was filed, which was sustained by the court. Whereupon a demurrer to the complaint was filed by the defendant, which was overruled; and judgment of respondeat ouster was entered.
The defendant then filed his answer to the complaint, setting forth various matters in defence to the action. During the subsequent progress of the litigation, other answers or pleas, alleging additional grounds of defence, were filed by the defendant. But neither these, the pleadings of the opposite party, nor the action of the court in reference thereto, is it material, more particularly, to notice, before we come to consider the questions which are thereby presented.
The cause having been submitted to a jury upon the issues joined between the parties, a verdict was rendered in favor of the plaintiff, for the sum of $19,293 64, and judgment was accordingly entered. A -motion for a new trial was made, which was overruled, and the defendant excepted, and sued out this writ of error.
The numerous questions presented by the exceptions to the judg[288]*288ment, have been, by the respective counsel, argued with distinguished learning and ability. Of these questions, the first which demands our.consideration, is the question arising upon the plea in abatement; that is, whether the defendant in error had title to maintain the action.
The statute creating the office of levee commissioner, was approved on the 2d of March, 1854. On the first Monday in May of that year, the defendant in error was appointed to that office, by the board of police of Coahoma county. He was a member of the legislature of this State, when the said statute was enacted. A salary of fifteen hundred dollars per annum is attached by law to the office of levee commissioner. And it is hence insisted, that his appointment falls under the constitutional provision, “ that no senator or representative shall, during the term for which he shall have been elected, nor for one year thereafter, be appointed to any civil office of profit under this State, which shall have been created during the term, except such offices as may be filled by elections of the people.”
It is not to be disputed that, if the place or post of levee commissioner be an office, in the true legal meaning of the term, it is also a civil office of profit. But it is contended that the place, post, or office of levee commissioner is not a civil office of profit under the State, within the true intent and meaning of the constitution.
This ' position presents two questions for consideration : 1. Whether the place or post of levee commissioner, according to the legal acceptation of the term, is an office; 2. If so, whether it is an office under the State to which the constitutional prohibition was intended to be applied.
1. The term office has no legal or technical meaning attached to it, distinct from its ordinary acceptations. An office is a public charge or employment; but, as every employment is not an office, it is sometimes difficult to distinguish between employments which are, and those which are not offices. It is generally, if not universally true that a duty or employment arising out of a contract, and dependent for its duration and extent upon the terms of such contract is never considered an office. An officer, as defined by Blackstone, is a right to exercise a public or private employment, and to take the fees and emoluments thereunto belonging, whether public, [289]*289as those of magistrates, or private, as bailiffs, receivers, and the like. 2 Blacks. Com. 36. And it is laid down “ that a public officer is one who has some duty to perform concerning the public; and he is not the less a public officer when his duty is confined to narrow limits, because it is the duty, and the nature of that duty, which makes him a public officer, and not the extent of his authority.” 7 Bac. Ab. 280 ; Carthew, 479. And we apprehend that it may be stated as universally true, that where an employment or duty is a continuing one, which is defined by rules prescribed by law and not by contract, such a charge or employment is an office, and the person who performs it is an officer.
This was the rule applied by Chief Justice Marshall, in the case of the United States v. Maurin, in which it was held that an agent of fortifications was an officer. 2 Brock. Rep. 102.
Applying this principle to the question before us, there can be no doubt that the place or post of levee commissioner is an office, and the person appointed to fill it an officer.
The law itself provides that the levee commissioner shall hold his office for the term of two years, under such restrictions as are therein prescribed. He is required to give bond, and to discharge the duties of treasurer, in which position he is entitled to receive large sums of public money. The board of police, upon the report of the levee commissioner as to the cost of the work to be done, is required to levy a sufficient tax to meet it; and he is required to take an oath “ that he will, in all things touching his office, seek to promote the best interests of his county and the State of Mississippi.” These directions, of themselves, without doubt, define the character of the place of levee commissioner, and determine it to be an office. But, in fact, the several acts on the subject contemplate the performance of duties to the public, which are prescribed by law, for a stated compensation. See Acts, 1850, p. 218 ; Acts, 1854, pp. 186, 576; and the Act of the November session, 1850, extending the provisions of the first-recited act to Coahoma county.
2. Having ascertained that the levee commissioner is an officer, and his place an office, according to the true legal meaning of the term, we will proceed to inquire whether it falls under the prohibition contained in the 26th Sect. 3d art., of the Constitution.
The powers vested in the government of the State of Mississippi [290]*290are either legislative, judicial, or executive; and these respective branches of power have been committed to separate bodies of magistracy. It follows, hence, that whether an office has been created by the constitution itself, or by statute enacted pursuant to its provisions, the incumbent, as a component member of one of the bodies of the magistracy, is vested with a portion of the power of the government, whether the portion of the power of the government which he is thus entitled to exercise is legislative, judicial, or executive in its character.
It is, therefore, undeniably true, as maintained by the counsel for the defendant in error, that the words “civil office under the State,” contained in the article of the constitution above referred to, import an office in which is reposed some portion of the sovereign power of the State, and, of necessity, having some connection with the legislative, judicial, or executive departments of the government. It is a conclusion which is the necessary and logical result of the theory of the government itself. But, it is very evident that this conclusion can, in no wise, strengthen the position that the office of levee commissioner does not fall under the prohibition in the constitution, unless it can be farther shown that it is not an office, under the laws or government of the State of Mississippi.
Upon this point, the opinion of the judges of the Supreme Court of the State of Maine, on a question submitted to them by the governor, is principally relied on.
The question was, whether the office of agent, under a resolve of the Legislature of Maine, authorizing the governor to appoint one or more agents for the preservation of timber on the public lands, was a civil office of profit, within the meaning of the constitution of that State, so that no member of the legislature, by whom the resolve was passed, could be constitutionally appointed as such agent ? 3 Maine Rep. 481.
The opinion held, that the office of timber-agent, created by the said legislative resolve, was not an office within the meaning of the constitution, and “ nothing more than a service, or employment, under executive authority; not essentially different from the office, or employment, of State printer, or a contract to build a State house, or a State prison; and hence, the response was in the negative.”
The competency of a member of the Legislature of Maine to re[291]*291ceive and hold the appointment of timber-agent, depended exclusively on the question, whether the agency was, or was not, an office, within the meaning of the constitution of that State ? And it was determined to be a mere employment under the discretionary directions of the governor, and not an officer. Assuming, as we have held, that the place of levee commissioner is, in the proper sense of the term, an office, it is evident that the decision has no relevancy whatever to the question, whether it does not fall under the constitutional provision. But, on the other hand, in view of the fact, that the authority and power attached to the office of levee commissioner are extensive and important, and such as no one could claim to exercise, except in virtue of a legislative enactment; that the public of one county is, directly, and the whole State, indirectly, interested in the due administration of the office; that the powers and duties of the levee commissioner are defined and prescribed by law; that he is required to take an oath for the faithful discharge of his duties; and that he is subject to removal from office for malfeasance, or misfeasance, by the board of police, the argument employed by the learned judges, to show that the agency was not an office, proves, conclusively, that the place of levee commissioner, in the constitutional meaning of the term, is an office under the State. They say, that “ there is a manifest distinction 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, and the 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 power thus delegated and possessed, may be a portion belonging sometimes to one of the three great departments, and sometimes to another; still, it is a legal power, which may be rightfully exercised, and in its effects will bind the rights of others, and be subject to revision and correction only according to the standing laws of the State. An employment, merely, has none of these distinguishing features. A public agent acts only on behalf of his principal, the public, whose sanction is generally considered necessary to give the act performed the authority and power of a public act or law. And if the act be such as not to require such subsequent, sanction, still it is only a species of service performed under public authority, [292]*292but not in execution of any standing laws. ... It appears, then, that every office, in the constitutional meaning of the term, implies an authority to exercise some portion of the sovereign power, either in making, administering, or executing the laws.”
It is manifest, that the local and limited power and duties of the levee commissioner, can have no effect in determining the question, whether his office is not an office under the State. A member of the board of county police, or a justice of the peace, is as much an officer under the State as the executive, the heads of department, or a member of the judiciary. The powers attached to the office of levee commissioner evidently pertain to the executive branch of the government. Clothed with a portion of the power vested in that department, the commissioner, in the discharge of his proper functions, exercises as clearly sovereign power as the governor, or a sheriff, or any other executive officer, when acting within his appropriate sphere.
The object of the constitutional prohibition is too manifest to require comment. The office of levee commissioner is so clearly within the mischief which it was intended to guard against, that it does not admit of dispute. It was precisely to such offices that the prohibition was intended to be applied. For, if it does not embrace offices which it was competent for the legislature to create, and which might be filled by appointment, and not by popular election, a most salutary provision of the constitution would be utterly nugatory ; as every office provided for in the constitution, except that of clerk of the High Court of Errors and Appeals, is made elective by the people; and all offices filled by popular elections are excepted from its operation. There would not, upon any other construction, be a single class of offices, or appointments, to which it could apply.
Upon the admitted facts, the prohibition applied as well to the board of police, who held the appointing power,-as to the defendant in error. It did not simply render him ineligible to the office of levee commissioner. It operated, also, upon the board, and incapacitated it from making the appointment. It is of the very nature and essence of the fundamental law of a State, that it avoids every act, performed in violation of its provisions. The act of appointment was, therefore, void. It was void, for want of capa[293]*293city in the appointee to accept, and for want of power in the board of police.
As the appointment was not, merely voidable, but absolutely void, it would seem, necessarily, to follow, that the appointee could not claim to exercise any right attached to the office.
But the defendant in error was the actual incumbent of the office, holding in virtue of an appointment, made by the board of police, in whom the authority to appoint was legally vested. It is. hence insisted, that he held the office colore officii, and that in such case, his acts are not only binding upon third persons, but that his title to sue, cannot, in this proceeding, be questioned.
It was anciently laid down, that “ where a person claims to hold an office, his title to the office shall not come in question, in an action to which he is not a party; but while he holds the office de facto, his acts aud doings therein will be deemed good.” Bacon, 283.
“ In the case of public officers, says Chancellor Kent, who are such de facto acting under color of office by an election or appointment not strictly legal, or without having qualified themselves by the requisite tests, or by holding over after the period prescribed for a new appointment, as in the case of sheriffs, constables, &c., their acts in respect to the public and third persons, who have an interest in them, are held valid, in order to prevent a failure of justice.” 2 Kent, 339.
This is the' settled rule at common law, and it is the doctrine recognized by the courts of this confederacy. Fowler v. Barber, 9 Mass. 231; 15 Ib. 180; The People v. Collins, 7 John. 549; Keyser v. McKissam, 2 Rawle, 13; Riddle v. Bedford County, 7 S. & R. 392; Taylor v. Shrine, 3 Brevard, 516; Beard v. Cameron, 3 Murphy, 181; Lyons v. State Bank, 1 Stew. 442; Bush v. Elliott, 3 Brevard, 516 ; Wickwire v. The State, 19 Conn. R. 477.
In some of the courts this principle is applied to the acts of officers defacto, where the appointment was not simply irregular and voidable, but where it was not only illegal, but absolutely void. 3 Brevard, 516 : 19 Conn. B. 477. In this court, so broad an operation has never been given to the rule. It is intended, only, to cases in which the common law, on the subject, has not been repealed. Where the constitution or a statute has interposed and [294]*294declared, that the official acts of persons, who have not been duly appointed to office, or who have not qualified, by the requisite tests, shall be. absolutely void of necessity, a different rule must he applied. In such cases, no court could he justified, upon an assumed principle of public expediency, in disregarding the imperative declarations of the law.
In McNutt v. Lancaster, et al. it was expressly held, by the late chief justice, that the official bond of a person, who had been duly elected to the office of tax-collector, but who had not qualified, by taking the oath prescribed by statute, was absolutely void: and that, too, in a suit upon the bond by the governor, against the makers.
The statute out of which the question in that case grew, declared that all acts performed by the officer, before taking the prescribed oath, should be void. And the chief justice, recognizing the general rule upon which acts performed under color of office are held valid,, said, “ But I cannot admit, that the acts, either of officers defacto or de jure, are valid, when the law declares them void. ‘ The statute, like a tyrant, when he comes he makes all void.’ It is not at all uncommon for a law to declare, that if an officer do not perform a certain thing in the prescribed mode, his acts shall be void; and they are uniformly held to.be so in such cases.” 9 S. & M. 594.
In that case the court were divided; Judge Clayton holding, that when a person performs the duties of an office, it is only necessary to prove the acts of one, in order to make him responsible for their consequences: that, as to the officer, no evidence was necessary as to his election or qualifications, and that this was the doctrine in regard to actions against him, but that where he was the plaintiff, the law was different. -
This case’, though no authority in favor of the doctrine that, under the jurisprudence of this State, the acts of an officer defacto may he collaterally investigated and declared void, for want of legal authority in the person by whom they are performed, is directly in point, to show that here, according to the principles and practice of this court, the right of the defendant in error, to maintain the suit, may be called in question and decided, especially upon the allegation, that his appointment was absolutely void.
[295]*295But this court, in several cases previously decided, went farther, and inquired into the validity of the appointment of officers, where their acts, performed colore officii, were brought in question in a collateral proceeding. Thomas v. The State, 5 How. 20; Smith v. Halfacre, 6 Ib. 582; Royster v. Houston, 7 Ib. 543.
In the case of Smith v. Halfacre, the right to a seat upon the Circuit Court bench was decided upon a plea in abatement, in an ordinary suit, setting out the grounds upon which the title of the judge defacto was contested.
In a case recently decided, the case of Sam v. The State, the validity of an executive appointment of a circuit judge was examined, upon a plea in abatement to an indictment found by a grand jury, and passed upon.
These cases must be held as settling the principle of this court, that where a law, an appointment to office, or any other act, made absolutely void by the constitution, or by legislative enactment, whenever it comes, even incidentally, in question, may be so declared.
Having ascertained that the appointment of the defendant in error to the office of levee commissioner, being made in direct violation of a prohibitory provision of the constitution, and holding, as we do, that the validity of the appointment was a proper subject of examination, under this proceeding, the necessary result is that in our opinion, the demurrer to the plea in abatement should have been overruled in the court below.
As our determination of this question will put an end to the controversy as between these parties, it becomes unnecessary to examine any other question in the cause.
Judgment reversed, and cause remanded.
A re-argument was asked for, but refused.