Hall v. State , 39 Wis. 79 ( 1875 )

LyoN, J.

Several questions were ably argued at tbe bar, but tbe one which underlies all tbe others is: Did tbe repeal of tbe act of 1857 (cb. 40), providing for a geological and agricultural survey of tbe state, terminate tbe salaries of tbe commissioners thereby'appointed? If tbe commissioners were public officers, there can be no doubt that tbe repeal of tbe act appointing them, and appropriating money to pay them, terminated both tbe office and tbe right to tbe salaries which pertained to tbe office. In sucb case tbe repeal of tbe act of 1857 does not impair tbe obligation of contracts within tbe meaning'of tbe constitution of tbe United States, which ordains that no state shall pass any law impairing tbe obligation of contracts. Art. I, sec. X, pl. 1. It was so held in tbe Dartmouth College Case, 4 Wheat., 627 to 630, and is tbe settled law.

It may as well be remarked bere as elsewhere, that tbe fact that the law of 1857 provides for tbe making of a formal contract is not considered important or very significant. Every public officer who is required by law to execute, and who does execute, a bond conditioned generally or specifically for tbe faithful discharge of tbe duties of bis office, is equally under contract and equally sustains a contract relation to tbe state; yet, unless prohibited by tbe constitution, there is no doubt of tbe power of tbe legislature to abolish tbe offices and terminate tbe salaries pertaining thereto. Tbe object of requiring tbe commissioners to enter into a contract with tbe governor seems to have been to enable tbe latter to fix tbe specific salary to which each commissioner should be entitled, and to prescribe tbe specific service which should be rendered by each. Had tbe legislature fixed tbe salary and prescribed tbe service in tbe act itself, omitting entirely tbe contract clause, tbe case would have been tbe same in principle.

Tbe question recurs, therefore, "Were tbe commissioners public officers? When tbe law of 1857 was enacted, tbe state was comparatively new. It was known to contain immense agricultural and mineral resources, but tbe extent and value of these, in large portions of tbe state, were not accurately known. It was then (as it now is) tbe policy of tbe state to encourage settlement and tbe investment of capital therein. To this end it was essential that authentic information concerning tbe resources of tbe state should be collected and disseminated. Tbe act of 1857 appointed commissioners (of which tbe plaintiff was one), to collect such information; and other legislation provided for tbe appointment or election of still other commissioners to disseminate abroad tbe information thus collected. Of course, allusion is bere made to commissioners of immigration.

The geological survey commissioners were appointed, directly by the legislature; no specific term of office was fixed (except by tbe governor, whose power to do so may well be doubted); provision was made by law for removing them for cause, and for filling vacancies; their salaries were paid out of the state treasury; and their functions were not of merely private, local or temporary concern, but related to the material and permanent interests of the whole state. The duty imposed upon them was an important public trust, to be exercised for the benefit of all the people of the state, and could only be discharged properly by gentlemen of high attainments in- physical science.

"With this brief statement of the objects of the law of 1857, and the nature of the duties imposed upon the commissioners, we are ready to consider the legal principles which must control the determination of the question under consideration.

It may safely be asserted that any person charged by law with the performance of public functions affecting the general interests of society, especially if he be elected thereto by the people, or appointed directly by the legislature, and who receives his compensation out of the public treasury, is a public officer, and as such can have no vested right in his office, unless secured by the constitution. There is a class of cases which give a more strict construction to the term office, as used in constitutional clauses providing by whom certain officers shall be appointed, and restricting elegibility to office. United States ex rel. Noyes v. Hatch, 1 Pinney, 182, and several Pennsylvania cases there cited, belong to that class.

Put for obvious reasons we think'that no such limited construction should be given to the term in the present case. The legislation of a state affecting its material interests, if wise, will be adjusted to and governed by the ever changing circumstances of the people. As new interests arise they will be properly cared for, and all interests will receive the fostering care of the- legislature within the limits of - legitimate legislative action. To accomplish this it is essential that the legislature should be free to act as the exigencies of particular-circumstances may require, untrammelled by vested rights under previous enactments. If it is in the power of one legislature to create offices involving contract relations, for long terms and with large salaries attached thereto, and to give the incumbents a vested right to the offices and salaries, subsequent legislatures might not be thus free to act as the public good should require. We believe that one legislature has no power thus to tie the hands of a subsequent legislature; and that to hold otherwise would be to introduce a new, unsound and most dangerous principle into the jurisprudence of our state; one which would almost necessarily result in great evil to the state.

It may be entirely proper to adopt the strict rule of construction in cases which concern eligibility or the right to make appointments to public office; but in a case like this, where the question concerns the power of the legislature to abolish the office and terminate the salary, we think the more liberal construction should prevail. It is not conceded, however, that, were the strict rules adopted, the result in this case would be different. We are strongly inclined to think it would not.

It may be difficult to draw the exact line between an office and a mere service or employment; but, as already observed, when public functions are conferred by law upon certain persons elected by the people or appointed by the legislature, if those functions concern the general interests of the state, and are not of a nature merely local or temporary, such persons are public officers, especially if they are paid a salary for their services out of the public treasury; but an officer may be authorized to contract with and employ other persons to render service in his department (as clerks, messengers, agents, and the like), who would not be public officers. I suppose there is no doubt that the regents of the university are officers, but it was held in Butler v. The Regents, etc., 32 Wis., 124, tbat a professor in tbe state university appointed by tbe regents, is not a public officer in any sense tbat excludes tbe existence of a contract relation between bimself and tbe board tbat employs bim. His relation to tbe board was likened to tbat of tbe teacber of any public school to tbe district by whom be is employed, wbicb beyond all question is purely a contract relation. Many other illustrations will readily suggest themselves to tbe mind. :

Without attempting to lay down any rule by wbicb tbe line between an office and a mere employment can always be found, we think it must be held tbat tbe plaintiff was a public officer in such sense tbat be could have no vested right in bis office, and hence tbat tbe office and tbe salary pertaining thereto were abolished by tbe repealing act of 1862. Having reached this conclusion, we are relieved from considering tbe other questions argued by tbe learned counsel.

It follows tbat tbe demurrer to tbe complaint must be sustained.

By the Oowrt. — Demurrer sustained.