Black’s Law Dictionary,
Abridged 6th Edition, p. 1230:
“Essential characteristics of a ‘public office’ are:
Authority conferred by law,
Fixed tenure of office, and
Power to exercise some of the sovereign functions of government.
Key element of such test is that “officer is carrying out a sovereign
Essential elements to establish public position as ‘public office’
Position must be created by Constitution, legislature, or through
authority conferred by legislature.
Portion of sovereign power of government must be delegated to
Duties and powers must be defined, directly or implied, by legislature
or through legislative authority.
Duties must be performed independently without control of superior
power other than law, and
Position must have some permanency.”
Law Dictionary, Abridged 6th Edition, p. 1230]
63C Am.Jur.2d, Public Officers and Employees, §247
“As expressed otherwise, the powers delegated to a public officer
are held in trust for the people and are to be exercised in behalf
of the government or of all citizens who may need the intervention
of the officer.
Furthermore, the view has been expressed that all public officers,
within whatever branch and whatever level of government, and whatever
be their private vocations, are trustees of the people, and accordingly
labor under every disability and prohibition imposed by law upon
trustees relative to the making of personal financial gain from
a discharge of their trusts.
That is, a public officer occupies a fiduciary relationship
to the political entity on whose behalf he or she serves.
and owes a fiduciary duty to the public.
It has been said that the fiduciary responsibilities of a public
officer cannot be less than those of a private individual.
Furthermore, it has been stated that any enterprise undertaken by
the public official which tends to weaken public confidence and
undermine the sense of security for individual rights is against
[63C Am.Jur.2d, Public Officers and Employees, §247]
State ex rel. Nagle v Sullivan, 98 Mont 425, 40 P2d 995, 99
ALR 321; Jersey City v Hague, 18 NJ 584, 115 A2d 8.
Georgia Dep't of Human Resources v Sistrunk, 249 Ga 543, 291 SE2d
524. A public official is held in public trust. Madlener
v Finley (1st Dist) 161 Ill App 3d 796, 113 Ill Dec 712, 515 NE2d
697, app gr 117 Ill Dec 226, 520 NE2d 387 and revd on other grounds
128 Ill 2d 147, 131 Ill Dec 145, 538 NE2d 520.
Chicago Park Dist. v Kenroy, Inc., 78 Ill 2d 555, 37 Ill Dec 291,
402 NE2d 181, appeal after remand (1st Dist) 107 Ill App 3d 222,
63 Ill Dec 134, 437 NE2d 783.
United States v Holzer (CA7 Ill) 816 F2d 304 and vacated,
remanded on other grounds 484 US 807, 98 L Ed 2d 18,
108 S Ct 53, on remand (CA7 Ill) 840 F2d 1343, cert den 486
US 1035, 100 L Ed 2d 608, 108 S Ct 2022 and (criticized
on other grounds by United States v Osser (CA3 Pa) 864 F2d 1056)
and (superseded by statute on other grounds as stated in United
States v Little (CA5 Miss) 889 F2d 1367) and (among conflicting
authorities on other grounds noted in United States v Boylan (CA1
Mass) 898 F2d 230, 29 Fed Rules Evid Serv 1223).
Chicago ex rel. Cohen v Keane, 64 Ill 2d 559, 2 Ill Dec 285, 357
NE2d 452, later proceeding (1st Dist) 105 Ill App 3d 298, 61 Ill
Dec 172, 434 NE2d 325.
Indiana State Ethics Comm'n v Nelson (Ind App) 656 NE2d 1172, reh
gr (Ind App) 659 NE2d 260, reh den (Jan 24, 1996) and transfer den
(May 28, 1996).
The "Trade or Business" Scam-nearly all "taxpayers" under
I.R.C. Subtitle A are "public officers" of the United States Government
Officers of the
United States Within the Meaning of the Appointments Clause,
U.S. Attorney Memorandum Opinion
A Treatise on the Law of Agency in Contract and Tort-George Reinhard, 1902. Google Books
Treatise on Public Offices and Public Officers-Floyd Mechem,
1890. Google Books
26 CFR §1.1402(c)-2: Public Office
26: Internal Revenue
PART 1—INCOME TAXES
TAX ON SELF-EMPLOYMENT INCOME
§ 1.1402(c)-2 Public office.
(a) In general—(1) General rule. Except as otherwise
provided in subparagraph (2) of this paragraph, the performance
of the functions of a public office does not constitute a trade
26 CFR 1.864-7: Definition of office
or other fixed place of business
[Code of Federal Regulations]
[Title 26, Volume 9]
as of April 1, 2006]
From the U.S. Government Printing Office
via GPO Access
TITLE 26--INTERNAL REVENUE
CHAPTER I--INTERNAL REVENUE SERVICE,
DEPARTMENT OF THE TREASURY
PART 1_INCOME TAXES--Table of Contents
1.864-7 Definition of office or other fixed place of business.
(a) In general.
(1) This section applies
for purposes of determining whether a nonresident alien individual
or a foreign corporation that is engaged in a trade or business
in the United States at some time during a taxable year
beginning after December 31, 1966, has an office or other fixed
place of business in the United States for purposes of applying
section 864(c)(4)(B) and Sec. 1. 864-6 to income, gain, or
loss specified in paragraph (b) of Sec. 1.864-5 from sources
without the United States or has an office or other fixed place
of business outside the United States for purposes of applying section
864(c)(4)(B)(iii) and paragraph (b)(3)(i) of Sec. 1.864-6
to sales of goods or merchandise for use, consumption, or disposition
outside the United States.
(2) In making a
determination under this section due regard shall be given to the
facts and circumstances of each case, particularly to the nature
of the taxpayer's trade or business and the physical facilities
actually required by the taxpayer in the ordinary course of the
conduct of his trade or business.
law of a foreign country shall not be controlling in determining
whether a nonresident alien individual or a foreign corporation
has an office or other fixed place of business.
(b) Fixed facilities--
(1) In general. As a
general rule, an office or other fixed place of business is a fixed
facility, that is, a place, site, structure, or other similar facility,
through which a nonresident alien individual or a foreign corporation
engages in a trade or business. For this purpose an office
or other fixed place of business shall include, but shall not be
limited to, a factory; a store or other sales outlet; a workshop;
or a mine, quarry, or other place of extraction of natural resources.
A fixed facility may be considered an office or other fixed place
of business whether or not the facility is continuously used by
a nonresident alien individual or foreign corporation.
(2) Use of another person's office or other fixed place of business.
A nonresident alien individual or a foreign corporation shall
not be considered to have an office or other fixed place of business
merely because such alien individual or foreign corporation uses
another person's office or other fixed place of business,
whether or not the office or place of business of a related person,
through which to transact a trade or business, if the trade or business
activities of the alien individual or foreign corporation in that
office or other fixed place of business are relatively sporadic
or infrequent, taking into account the overall needs and conduct
of that trade or business.
[NOTE: You can't have
a "public office" until you have an "office", and you don't have
one of these either!]
18 U.S.C. §201 Bribery of public officials
TITLE 18 > PART I > CHAPTER 11 > § 201
§ 201. Bribery of public officials and witnesses
(a) For the purpose of this section—
(1) the term “public official” means Member of Congress,
Delegate, or Resident Commissioner, either before or after such
official has qualified, or an officer or employee or person acting
for or on behalf of the United States, or any department, agency
or branch of Government thereof, including the District of Columbia,
in any official function, under or by authority of any such department,
agency, or branch of Government, or a juror
Osborn v. Bank of U.S., 22 U.S. 738 (1824)
“All the powers of the government must
be carried into operation by individual agency, either through the
medium of public officers, or contracts made with individuals.
Can any public office be created, or does one exist, the performance
of which may, with propriety, be assigned to this association
[or trust], when incorporated? If such office exist, or can be created,
then the company may be incorporated, that they may be appointed
to execute such office. Is there any portion of the public business
performed by individuals upon contracts, that this association could
be employed to perform, with greater advantage and more safety to
the public, than an individual contractor? If there be an employment
of this nature, then may this company be incorporated to undertake
There is an employment of this nature.
Nothing can be more essential to the fiscal concerns of the nation,
than an agent of undoubted integrity and established credit, with
whom the public moneys can, at all times, be safely deposited. Nothing
can be of more importance to a government, than that there should
be some capitalist in the country, who possesses the means of making
advances of money to the government upon any exigency, and who is
under a legal obligation to make such advances. For these purposes
the association would be an agent peculiarly suitable and appropriate.
[. . .]
The mere creation of a corporation, does not
confer political power or political character. So this Court decided
in Dartmouth College v. Woodward, already referred to. If I may
be allowed to paraphrase the language of the Chief Justice, I would
say, a bank incorporated, is no more a State instrument, than a
natural person performing the same business would be. If, then,
a natural person, engaged in the trade of banking, should contract
with the government to receive the public money upon deposit, to
transmit it from place to place, without charging for commission
or difference of exchange, and to perform, when called upon, the
duties of commissioner of loans, would not thereby become a public
officer, how is it that this artificial being, created by law for
the purpose of being employed by the government for the same purposes,
should become a part of the civil government of the country? Is
it because its existence, its capacities, its powers, are given
by law? because the government has given it power to take and hold
property in a particular form, and to employ that property for particular
purposes, and in the disposition of it to use a particular name?
because the government has sold it a privilege
U.S. 738, 774] for
a large sum of money, and has bargained with it to do certain things;
is it, therefore, a part of the very government with which the contract
If the Bank be constituted a public
office, by the connexion between it and the government, it cannot
be the mere legal franchise in which the office is vested; the individual
stockholders must be the officers. Their character is not
merged in the charter. This is the strong point of the Mayor and
Commonalty v. Wood, upon which this Court ground their decision
in the Bank v. Deveaux, and from which they say, that cause could
not be distinguished. Thus, aliens may become public officers, and
public duties are confided to those who owe no allegiance to the
government, and who are even beyond its territorial limits.
With the privileges and perquisites
of office, all individuals holding offices, ought to be subject
to the disabilities of office. But if the Bank be a public office,
and the individual stockholders public officers, this principle
does not have a fair and just operation. The disabilities
of office do not attach to the stockholders; for we find them every
where holding public offices, even in the national Legislature,
from which, if they be public officers, they are excluded by the
constitution in express terms.
If the Bank be a public institution of
such character as to be justly assimilated to the mint and the post
office, then its charter may be amended, altered, or even abolished,
at the discretion of the National Legislature. All public offices
775] purely for public purposes, and may, at
any time, be modified in such manner as the public interest may
require. Public corporations partake of the same character. So it
is distinctly adjudged in Dartmouth College v. Woodward. In this
point, each Judge who delivered an opinion concurred. By one of
the Judges it is said, that 'public corporations are generally
esteemed such as exist for public political purposes only, such
as towns, cities, parishes and counties; and in many respects they
are so, although they involve some private interests; but, strictly
speaking, public corporations are such only as are founded by the
government for public purposes, where the whole interest belongs
also to the government. If, therefore, the foundation be
private, though under the charter of the government, the corporation
is private, however extensive the uses may be to which it is devoted,
either by the bounty of the founder, or the nature and objects of
the institution. For instance, a bank, created by the government
for its own uses, whose stock is exclusively owned by the government,
is, in the strictest sense, a public corporation. So, a hospital
created and endowed by the government for general charity. But a
bank, whose stock is owned by private persons, is a private corporation,
although it is erected by the government, and its objects and operations
partake of a public nature. The same doctrine may be affirmed of
insurance, canal, bridge, and turnpike companies. In all these cases,
the uses may, in a certain sense, be called public, but the
corporations are private; as much [22 U.S. 738,
776] so, indeed, as if the franchises were vested
in a single person.[. . .]
In what sense is it an instrument of the government?
and in what character is it employed as such? Do the government
employ the faculty, the legal franchise, or do they employ the individuals
upon whom it is conferred? and what is the nature of that employment?
does it resemble the post office, or the mint, or the custom house,
or the process of the federal Courts?
The post office is established by the general
government. It is a public institution. The persons who perform
its duties are public officers. No individual has, or can acquire,
any property in it. For all the services performed, a compensation
is paid out of the national treasury; and all the money received
upon account of its operations, is public property. Surely there
is no similitude between this institution, and an association who
trade upon their own capital, for their own profit, and who have
paid the government a million and a half of dollars for a legal
character and name, in which to conduct their trade.
Again: the business conducted through the
agency of the post office, is not in its nature a private business.
It is of a public character, and the
U.S. 738, 786] charge
of it is expressly conferred upon Congress by the constitution.
The business is created by law, and is annihilated when the law
is repealed. But the trade of banking is strictly a private concern.
It exists and can be carried on without the aid of the national
Legislature. Nay, it is only under very special circumstances, that
the national Legislature can so far interfere with it, as to facilitate
The post office executes the various duties
assigned to it, by means of subordinate agents. The mails are opened
and closed by persons invested with the character of public officers.
But they are transported by individuals employed for that purpose,
in their individual character, which employment is created by and
founded in contract. To such contractors no official character is
attached. These contractors supply horses, carriages, and whatever
else is necessary for the transportation of the mails, upon their
own account. The whole is engaged in the public service. The contractor,
his horses, his carriage, his driver, are all in public employ.
But this does not change their character. All that was private property
before the contract was made, and before they were engaged in public
employ, remain private property still. The horses and the carriages
are liable to be taxed as other property, for every purpose for
which property of the same character is taxed in the place where
they are employed. The reason is plain: the contractor is employing
his own means to promote his own private profit, and the tax collected
is from the individual, though assessed upon the
U.S. 738, 787] means
he uses to perform the public service. To tax the transportation
of the mails, as such, would be taxing the operations of the government,
which could not be allowed. But to tax the means by which this transportation
is effected, so far as those means are private property, is allowable;
because it abstracts nothing from the government; and because, the
fact that an individual employs his private means in the service
of the government, attaches to them no immunity whatever.”
[Osborn v. Bank of
U.S., 22 U.S. 738 (1824)]
Edmonson v. Leesville Concrete Company, 500 U.S. 614 (1991)
object of the Constitution is to permit citizens to structure their
private relations as they choose subject only to the constraints
of statutory or decisional law. [500 U.S.
these principles, courts must consider from time to time where the
governmental sphere [e.g. “public purpose” and “public office”]
ends and the private sphere begins. Although the conduct of private
parties lies beyond the Constitution's scope in most instances,
governmental authority may dominate an activity to such an extent
that its participants must be deemed to act with the authority of
the government and, as a result, be subject to constitutional constraints.
This is the jurisprudence of state action, which explores the "essential
dichotomy" between the private sphere and the public sphere, with
all its attendant constitutional obligations. Moose Lodge, supra,
at 172. “
[. . .]
Given that the statutory authorization
for the challenges exercised in this case is clear, the remainder
of our state action analysis centers around the second part of the
Lugar test, whether a private litigant, in all fairness, must be
deemed a government actor in the use of peremptory challenges. Although
we have recognized that this aspect of the analysis is often a fact-bound
inquiry, see Lugar, supra, 457 U.S. at 939, our cases disclose certain
principles of general application. Our precedents establish
that, in determining whether a particular action or course of conduct
is governmental in character, it is relevant to examine the following:
the extent to which the actor relies on governmental assistance
and benefits, see Tulsa Professional Collection Services, Inc. v.
485 U.S. 478 (1988); Burton v. Wilmington Parking Authority,
365 U.S. 715 (1961); whether the the actor is performing
a traditional governmental function, see Terry v. Adams,
345 U.S. 461 (1953); Marsh v. Alabama,
326 U.S. 501 (1946); cf. San Francisco Arts & Athletics,
Inc. v. United States Olympic
[500 U.S. 614, 622]
483 U.S. 522, 544 -545 (1987); and whether the injury
caused is aggravated in a unique way by the incidents of governmental
authority, see Shelley v. Kraemer,
334 U.S. 1 (1948). Based on our application of these three principles
to the circumstances here, we hold that the exercise of peremptory
challenges by the defendant in the District Court was pursuant to
a course of state action.
v. Leesville Concrete Company, 500 U.S. 614 (1991)]
McNally v. United States, 483 U.S. 350 (1987)
its elementary common law sense of deceit -- and this is one of the
meanings that fraud bears [483 U.S. 372] in the statute, see United
States v. Dial, 757 F.2d 163, 168 (7th Cir.1985) -- includes the deliberate
concealment of material information in a setting of fiduciary obligation.
A public official is a fiduciary toward the public, including,
in the case of a judge, the litigants who appear before him, and if
he deliberately conceals material information from them, he is guilty
of fraud. When a judge is busily soliciting loans from counsel to one
party, and not telling the opposing counsel (let alone the public),
he is concealing material information in violation of his fiduciary
* * * *
Second, the systematic and
long-continued receipt of bribes by a public official, coupled with
active efforts to conceal the bribe-taking from the public and the authorities
. . . is fraud (again in its elementary sense of deceit, and quite possibly
in other senses as well), even if it is the public, rather than counsel,
that is being kept in the dark. It is irrelevant that, so far as appears,
Holzer never ruled differently in a case because of a lawyer's willingness
or unwillingness to make him a loan, so that his conduct caused no demonstrable
loss either to a litigant or to the public at large. See, e.g., United
States v. Keane, 622 F.2d 534, 541, 546 (7th Cir.1975); United States
v. Lovett, 811 F.2d 979, 985 (7th Cir.1987); United States v. Manton,
107 F.2d 834, 846 (2d Cir.1939). How can anyone prove how a judge would
have ruled if he had not been bribed?
v. United States, 483 U.S. 350 (1987)]