Starr, J.
These four appeals were consolidated for briefing by leave of this Court and but one brief has been filed on behalf of the appellants. Although each appellant has filed his transcript and perfected his appeal, due to the similarity of these cases, we have attempted to incorporate in this opinion our decision in each of these appeals.
Each of these actions is an action in mandate against Alvan V. Burch as Auditor of the State of Indiana. The relator in Cause No. 28,433 is Clyde R. Black; in Cause No. 28,434, Elmer C. Weller; in Cause No. 28,435, Charles T. Miser; and in Cause No. 28,436, Beecher Conrad. From an adverse judgment in each casé each appellant has appealed.
The records disclose by stipulation, that the said Clyde R. Black at the general election held in November, 1944, was elected to the Senate of the General Assembly of Indiana for a term of four years com
mencing on the 8th day of November, 1944; that on January 4, 1945, he qualified as such member by taking the oath of office and served as such during the 84th Session of the General Assembly held in 1945, also during the 85th Session of the General Assembly held in 1947; that he received his salary as such senator for the year 1947 in the sum of $1,200 which was paid in two installments of $600 each; the first of which was on January 15, 1947, and the balance on February 15, 1947, and that he has received a warrant for $300 for the salary as such member of the General Assembly for the first quarter of 1948; that the payment of salary was made at the time and in the amount as provided by § 34-201b, Burns’ 1933, 1947 (Supp.); that on April 27, 1945, he was duly appointed as Secretary of the Indiana Flood Control and Water Resources Commission under and by authority of § 27-1106 Burns’ 1933, (1945 Supp.); that he immediately entered upon the performance of his duty as such secretary and has continued to perform said duties since that date except during the 85th Session of the General Assembly; that on January 8, 1947, and before the opening day of said 85th Session in which he served, he resigned as such secretary; that after the close of the 85th Session, to-wit: on March 7, 1947, he was reappointed and re-entered upon the performance of his duties as such secretary and has since that date continued to perform these duties.
It also appears by stipulation that the relator, Elmer C. Weller, was elected a member of the House of Representatives of the General Assembly at said election held in November, 1944; that he qualified and served in the regular session of said 84th General Assembly; that on April 1, 1945, after the close of said session, he was appointed by the Public Service Commission of
Indiana as Director of its Motor Vehicle Department at a stipulated monthly salary; that his duties as such director consist principally of such matters as the assignment of hearing days for hearing applications and petitions for motor vehicle carriers under the Motor Vehicle Act of the State of Indiana, and to hear the same or to assign hearing examiners for hearing such petitions and draft orders following such hearings in the name of said Commission subject to the approval thereof by said Commission. The department of which he is director is the supervising department of said Commission and is staffed by clerks, stenographers, investigators, examiners and other employees to perform and work in this department under his general supervision and direction as such director. Also included in the work of said department is the receiving and filing of applications, petitions, and other papers by motor vehicle carriers; the registration of motor vehicles; the docketing of hearings; the writing of recommended orders for submission to the Public Service Commission of Indiana for approval; and other work and services incident to the administration of the Motor Vehicle Act, such as the preparation and delivery of certificates of public convenience and necessity to such carriers, and the filing of reports and bonds of carriers.
Said Weller was again elected a member of said House of Representatives at the general election held in November, 1946, and qualified and served as such member during the 85th Session of said General Assembly; that before the opening day of said Session, to-wit: on the 8th day of January, 1947, he resigned his position as such director of said Motor Vehicle Department; that he received his salary of $1,200 for the year 1947 as a member of the General Assembly at the
same time as the said Clyde R. Black received his salary; that on the 11th day of April, 1947, after the close of said 85th Session of the General Assembly he was reappointed as such director of the Motor Vehicle Department effective at said date at a monthly salary and did, at said time, resume his duties as such director, and has ever since continued to perform and carry out this position.
It is also stipulated that the relator, Charles T. Miser was elected as a member of the House of Representatives of the General Assembly at the same times and at the same elections as the said Elmer C. Weller. He also served in the 84th and 85th Sessions of the General Assembly as did the said Weller, and collected his salary in the same amounts and at the same times as did the said Weller; that on October 1, 1945, said relator was appointed by the State Highway Commission of the State of Indiana as Superintendent of Maintenance at a stipulated monthly salary; that he served as such superintendent from the date of his appointment to and including January 8, 1947. Before the opening of the 85th Session of the General Assembly, to-wit: on January 8, 1947, he resigned his position as such superintendent; that after the close of said session, to-wit: March 18, 1947, he was reappointed to said position of Superintendent of Maintenance at a stipulated monthly salary and resumed the performance of his duties and is still employed in this position; that as such superintendent he is under the direction and orders of the State Highway Commission and has the supervision of the maintenance of the state highways, which maintenance requires the service of approximately 2,500 employees and is authorized by the Commission to employ and discharge personnel below the district or sub-district
level. He is also authorized to prepare plans and specifications for highway maintenance.
It is further stipulated that the relator, Beecher Conrad, was elected as a member of the House of Representatives of the General Assembly at the same times and at the same elections as the said Weller and Miser were so elected, and also served along with them in the 84th and 85th Sessions of the General Assembly, and collected his salary in the same amounts and at the same times as they collected theirs; that on July 1, 1945, he was appointed as a barber inspector by the State Board of Barber Examiners of the State of Indiana at a stipulated monthly salary and has performed his duties continuously from the date of his appointment to and including Januray 8, 1947; that before the opening day of the 85th Session of the General Assembly, to-wit: on January 8, 1947, he resigned his position as such barber inspector; that on April 1, 1947, said Board of Examiners reappointed him as such barber inspector at a stipulated monthly salary and he has ever since said date, continued to perform the functions of said inspector; that his duties as such inspector, as appears in the minutes of a certain meeting of said Board beginning June 18, 1945, were to conduct inspections of barber shops located in territories assigned to such inspector by the Board and to make written reports to the Board as to his inspections.
It is admitted also, that during all the time since the reappointment of each of the relators, as above set out, the respective positions and the salaries fixed therefor, have been a part of the payroll appropriation law; that there has been duly appropriated by the Legislature from the general funds of the State of Indiana, and there has at all times been available and on hand
by the State, funds for the payment of relators’ respective salaries.
The records also disclose that each of these relators was employed at the pleasure of those making the appointment and for an indefinite period; that they resumed the performance of their respective duties without taking an oath of office or being required to furnish bond for the performance of their duties and that none of them has been requested by his employer to take such oath or furnish bond. Each relator has requested the respondent, Alvan V. Burch, as Auditor of the State, to issue warrants for his salary accrued since his reappointment, which request as to each relator has been, and still is, refused by said respondent although each relator has satisfactorily performed the services for which he was hired.
The selection and powers- and duties of the Secretary of the Flood Control and Water Resources Commission are provided for as follows:
“The secretary and the chief engineer of the commission shall be employees, selected and their compensation fixed by the commission with the approval of the governor, to serve during the pleasure of the commission. The secretary shall prepare and keep the minutes of all meetings, and a record of all proceedings, orders and transactions of the commission, and of the executive committee, have custody of all the records of the commission and executive committee, which shall be kept and maintained in the office of the commission, and perform such other duties as the commission may direct.” §27-1106 Burns’ 1933, 1945 Supp.
The selection and employment of Elmer C. Weller by the Public Service Commission, is authorized by §54-118 Burns’ 1933, 1947 Supp., which provides:
“The Commission is authorized to employ such counsel or attorneys, engineers, examiners, ex
perts, clerks, accountants and other assistants as it may deem necessary, at such rates of compensation as it may determine upon, subject, however, to the approval of the governor.”
The position of relator, Charles T. Miser, as Superintendent of Maintenance of the State Highway Commission, is provided for by § 36-168 Burns’ 1933, 1947 Supp. The applicable portion of said section is as follows:
“As soon as practicable after the first meeting of the commission, the commission shall appoint: . . . the chief of the division of maintenance, known and designated in this act as ‘superintendent of maintenance,’ who shall be a competent civil engineer, experienced and skilled in highway and bridge maintenance and repair; . . . The superintendent of maintenance acting under the direction of the commission shall have supervision of matters pertaining to highway and bridge maintenance and improvement . . . the superintendent of maintenance . . . shall perform such other duties as may be prescribed by the commission.”
This section further provides that such superintendent shall serve at the pleasure of the commission.
As to the position of the relator, Beecher Conrad, we find nothing in our statutes providing for the position of barber inspector. Under the act creating the Board of Barber Examiners, § 63-301 Burns’ 1933, 1943 Repl., et seq., we find § 63-322 which, among other things, provides:
“The board shall have authority to employ not less than four (4) and not to exceed eight (8) registered barber deputies, not to exceed two (2) stenographers, not to exceed two (2) clerks and fix their compensation, tó be paid from the barber fund, as it may deem necessary to carry out the provisions of this act; provided, that all deputies
appointed shall work under the direct supervision of the board.”
We cannot say, from the record before us, that the said Conrad was appointed as a deputy member of the Board. In the absence of such showing we cannot presume that he is a deputy.
State of Montana ex rel. Barney
v.
Hawkins
(1927), 79 Mont. 506, 257 Pac. 411. We must assume that he was acting as a clerk as provided by the last mentioned section, as his- duties were certainly not those of a stenographer.
After examining the foregoing stipulations and statutes, we agree with the appellants that their jobs, all as above described and provided for, are not public offices, nor do they in their respective positions, perform any official functions in carrying out their duties in these respective jobs; they were acting merely as employees of the respective commission or boards by whom they were hired.
In performing their respective jobs none of these relators were vested with any of the functions pertaining to sovereignty. “< . . An office is a public charge or employment, in which the duties are continuing, and prescribed by law and not by contract, invested with some of the functions pertinent to sovereignty, or having some of the powers and duties which inhere within the legislative, judicial or executive departments of the government, and emolument is a usual, but not a necessary element thereof.”
Wells
v.
State
(1911), 175 Ind. 380, 94 N. E. 321.
See also
Shelmadine
v.
City of Elkhart
(1921), 75 Ind. App. 493, 129 N. E. 878;
Tucker
v.
State
(1941), 218 Ind. 614, 35 N. E. 2d 270;
Freyermuth
v.
State ex rel. Burns
(1936), 210 Ind. 235, 2 N. E. 2d 399;
State ex rel. Wickens, Prosecutor
v.
Clark
(1935), 208
Ind. 402, 196 N. E. 234;
State ex rel. Coffing
v.
Abolt
(1934), 206 Ind. 218, 189 N. E. 131. See also Note, 53 A. L. R. 595 as to distinction between office and employment.
The respondent has refused to issue warrants for the payment of these salaries in question because he contends, under the Constitution of Indiana, the relators are disqualified from serving in their respective capacities while at the same time being members of the General Assembly. His contention is predicated on § 1 of Art. 3 of the Constitution of Indiana which reads as follows:
“The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial; and no person, charged with official duties under one of these departments shall exercise
any of the functions of another,
except as in this Constitution expressly provided.” (Our italics.)
It being established that each of the relators is a member of the General Assembly, and that each of them is now employed in the administrative department of government in a non-official job, it now becomes necessary for this Court to determine what is the meaning of the phrase “any of the functions of another,” as set out in the above quoted section of the Constitution.
In order to properly determine the meaning of the said § 1 of Art. 3, we should consider the purpose which induced its adoption. 11 Am. Jur., Constitutional Law, § 62; 50 Am. Jur., Statutes §§ 303, 305. It has to do solely with the separation of powers. Separation of powers has been one of the paramount purposes to be accomplished by our
various State Constitutions and our Federal Constitution. All of our State Constitutions, so far as we can discover, as well as the Constitution of the United States, contain provisions to guarantee the separation of powers similar to those contained in said Art. 3 of our Constitution.
As reasons why the principle of separation of powers has been so generally approved and adopted, we have decided, as was done in the case of
Saint
v.
Allen
(1930), 169 La. 1046, 126 So. 548, to quote from The Federalist, Vol. 1, p. 51 (Hamilton or Madison) pp. 353, 354, viz.:
“In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own, and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. . .
“It is equally evident that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the Legislature in this particular, their independence in every other would be merely nominal.”
And again in the same volume, p. 340, No. 48, the intention of Madison, viz.:
“As the legislative department alone has access to the pockets of the people, and has in some constitutions full discretion, and in all a prevailing influence over the pecuniary rewards of those who will fill the other departments, a dependence is thus created in the latter, which gives still greater facility to encroachments of the former.”
And in No. 57 at page 338 of the same volume, we find Madison’s admonition with regard to the preservation of each department of government, viz.:
“It is equally evident that, in reference to each other, neither of them ought to possess, directly or indirectly, an overruling influence in the administration of their respective powers. It will not be denied that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.”
In the case of
O’Donoghue
v.
United States
(1933), 289 U. S. 516, 77 L. ed. 1356, 53 S. Ct. 740, at page 1360 of the Law Edition, Mr. Justice Sutherland, speaking for the court in words which cannot be surpassed, had this to say as to the distribution and separation of powers as provided by the Federal Constitution:
“The Constitution in distributing the powers of government, creates three distinct and separate departments—the legislative, the executive, and the judicial. This separation is not merely a matter of convenience or of governmental mechanism. Its object is basic and vital, . . . namely, to preclude a commingling of these essentially different powers of government in the same hands.
“If it be important thus to separate the several departments of government and restrict them to the exercise of their appointed powers, it follows, as a logical corollary, equally important, that each department should be kept completely independent of the others—independent not in the sense that they shall not cooperate to the common end of carrying into effect the purposes of the Constitution,
but in the sense that the acts of each shall never be controlled by, or subjected, directly or indirectly, to, the coercive influence of either of the other departments.
James Wilson, one of the framers of the Constitution and a justice of this court, in one of his law lectures said that the independence of each de
partment required that its proceedings
‘should be free from the remotest influence, direct or indirect, of either of the other two powers.’
1 Andrews, Works of James Wilson (1896) p. 367. And the importance of such independence was similarly recognized by Mr. Justice Story when he said that in reference to each other, neither of the departments
“ought to possess, directly or indirectly, an overruling influence in the administration of their respective powers.’ ”
(Our italics.)
The Court of Appeals of New York has had before it a case which required it to determine whether the word “function,” as used in a New York statute, applies only to officers or whether it also applies to employees performing duties not involving the exercise of sovereignty. The case is
People
v.
Salomon
(1914), 212 N. Y. 446, 106 N. E. 111, 113. One Daniel Rooney was a process server in the office of a district attorney, and an order for the examination of a party in supplementary proceedings was granted and delivered to Rooney to serve. Defendant was convicted of an attempt to commit the crime of bribery because he offered to pay Rooney a consideration to postpone service of the order. The question was whether the acts of defendant were made a crime by a section of the Penal Law of New York, which requires that the offer to give a bribe must be made “To a person executing any of the functions of a public office.” After disposing of other questions, the Court of Appeals of New York said, “We are next to inquire: (a) Was Rooney a person executing any of the functions of a public office?” And the Court answering used the following language:
“Rooney, while not a public officer, was an employe or a subordinate appointed by the district attorney for the performance of such work in the
office of the district attorney in the nature of process serving or clerical work as he might be called upon to perform. It was the duty of the district attorney to enter judgment upon the forfeited recognizance and take proceedings by law to collect the same by execution and proceedings supplementary thereto, and while, under the provisions of the Code, any adult was qualified to make due service of an order in supplementary proceedings, the district attorney, in the institution of the proceeding and conduct of the same, and in procuring the service of the order, was acting in the performance of duty imposed upon him, not as an individual but as a public officer in the performance of such duty, and anything necessary to complete performance thereof would of necessity be a function of the office held by him; i.e., a public office.
“Function” is defined by the Century Dictionary as ‘that which one is bound or which it is one’s business to do; business; duty; employment.’ It was a function of the office of the district attorney to collect the judgment recovered in favor of the people. The duty thus imposed by law extended to every employment essential to a complete performance thereof. Had the district attorney, as a public officer, undertaken the task of personally serving the order on the judgment debtor, he would still be engaged in executing the functions of a public office, not because he was the district attorney, but by reasons of his act in carrying out the obligation imposed upon the office occupied by him; and if, in the personal attempt by the district attorney to serve such order, a bribe had been offered him, would it be a defense to the charge that service might have been made by an adult?
“The district attorney is authorized to appoint and employ subordinates to aid him in the discharge of the obligations of said office, and may delegate to an appointee certain employment in such office, and, so far as the labor of said appointee is conducive to the carrying out of the duty imposed upon the office of the district attorney, it seems to us that it is the business and employment of said office and a function thereof,
and the
appointee or employe performing such duty is thereupon executing the functions of that public office.”
(Our italics.)
The case of
Saint
v.
Allen, supra,
is very similar to the case which we are now considering. This was a suit brought on behalf of the State of Louisiana by two taxpayers to prevent persons holding office in one of the departments of the state government from being employed to exercise powers or functions belonging to another of the three departments. The facts disclosed that among others, there were three state senators employed by the State Highway Commission on a monthly salary; one as an attorney, one as chief enforcement officer, and the other as assistant to the general maintenance superintendent.
Section 1 of the Constitution of Louisiana provided that the powers of government should be divided into three distinct departments: legislative, executive and judicial. Section 2 provided that “No one of these departments, nor any person or collection of persons holding office in one of them,
shall exercise power properly belonging to either of the other,
except in the instances hereinafter expressly directed or permitted.” (Our italics).
As was done in the cases before us, counsel for the defense in that case argued that the three members of the Legislature so employed by the highway commission, were not “exercising power” belonging to the executive department; they were not officers, but only employees of the highway department. In answering this contention and in deciding for the plaintiffs, the Court stated:
“. . . The language of article 2 of the Constitution, however, leaves no doubt that it is not a law against dual office holding. It is not necessary, to constitute a violation of the article, that
a person should hold office in two departments of government. It is sufficient if he is an officer in one department and at the same time is employed to perform duties, or exercise power, belonging to another department. The words “exercise power,” speaking officially, mean perform duties or functions.”
It will be noted that § 2 of the Louisiana Constitution provides that an office holder in one department shall not exercise
power
properly belonging to either of the other departments, while § 1, Art. 3 of our Constitution instead of the word “power” uses the word “functions.”
It is interesting to note that when this particular article of our Constitution was reported in its original form by the committee on miscellaneous provisions on January 21, 1851, the word “power” was contained therein instead of the word “functions.” 1 Kettleborough,
Constitution Making in Indiana
309;
Convention Journal
1850 p. 732. It would seem to us that these two words are interchangeable but, if there is any distinction, the term “functions” would denote a broader field of activities than the word “power.”
In view of the fact that it is obvious that the purpose of all these separation of powers provisions of Federal and State Constitutions is to rid each of the separate departments of government from any control or influence by either of the other departments, and that this object can be obtained only if § 1 of Art. 3 of the Indiana Constitution is read exactly as it is written, we are constrained to follow the New York and Louisiana cases above cited. If persons charged with official duties in one department may be employed to perform duties, official or otherwise, in another department the door is
opened to influence and control by the employing department. We also think that these two cases are logical in holding that an employee of an officer, even though he be performing a duty not involving the exercise of sovereignty, may be and is, executing one of the functions of that public office, and this applies to the cases before us.
In making this decision we are not unmindful of the fact that in one jurisdiction at least an opposite result has been reached. See
State of Montana ex rel. Barney
v.
Hawkins, supra.
Nor have we overlooked the fact that the questions now confronting us were touched upon by this Court in the case of
Branham
v.
Lange, Auditor, etc.
(1861), 16 Ind. 497. There our Legislature in 1861, had appropriated the sum of $1,-000,000 to defray the expenses growing out of the civil war and other purposes. By the same act a committee composed of three members of the Legislature was set up as an auditing committee to examine the accounts for war expenses to be paid out of this fund. This committee was given well defined powers. The time and place of their meetings were provided and their salary of three dollars per day, for the days they were necessarily employed, was also fixed; and without their audit the Auditor of State was prohibited from paying any of these accounts. The Auditor of State refused to pay one of the members of this committee his compensation as such member; he, thereupon, brought his action in mandate to compel payment. As a defense, among others, the respondent auditor contended that the involved statute was in violation of said Art. 3 of the Constitution, for the reason that it provided for a commitee composed of members of the legislative department to perform
administrative duties. Without stating any reasons, and after holding the members of this committee were not officers in performing this single job of auditing, this Court held that all of the respondent’s contentions were without merit; to the extent, if at all, that this case seems to be in conflict with the position taken in this opinion, the same is hereby overruled.
Appellants each contend that even though the Constitution prohibits their employment they occupy these positions as “de facto public employees” as they have acted without dishonesty or fraud, and that they should be allowed to recover as such “de facto employees.” All the cases cited by the appellant in support of this position have to do with de facto public officers. We do not know of de facto or de jure public' employees. For a discussion of the right of a de facto officer to recover salaries or other compensation from the public see 43 Am. Jur., Public Officers, § 488, p. 237; Note 151 A. L. R. 952. Also
Edington
v.
Bd. of Commrs. Martin County
(1938), 105 Ind. App. 156, 13 N. E. 2d 895.
The state and the public are interested in having a public office filled; hence the reason for recognizing de facto officers. This reason does not apply to public employees who are not officers and the law applicable to de facto officers has no application to employees in the situation that the appellants now find themselves. We know of no case that holds that where a person is barred by the Constitution from lawfully performing services for which he seeks payment, that payment of salary on a de facto basis is j warranted; to the contrary see
Bailey
v.
Turner
(1921), 108 Kan. 856, 197 Pac. 214.
In view of the conclusion we have reached it is un
necessary for us to determine whether or not the action of mandate will lie in a case such as the ones before us; nor, for the same reason, will it be necessary to consider the cross errors assigned herein by the appellee.
Judgment in each case is affirmed.
O’Malley, J., concurs in the result.
Emmert, J., dissents.
Note.—Majority Opinion reported in 80 N. E. 2d 294.