In 1836, the State of Pennsylvania passed a law directing canal
commissioners to be appointed, annually, by the governor, and that
their term of office should commence on the 1st of February in
every year. The pay was four dollars
per diem.
In April, 1843, certain persons being then in office as
commissioners, the legislature passed another law providing,
amongst other things, that the
per diem should be only
three dollars, the reduction to take effect upon the passage of the
law, and that, in the following October, commissioners should be
elected by the people.
The commissioners claimed the full allowance during their entire
year, upon the
Page 51 U. S. 403
ground that the state had no right to pass a law impairing the
obligation of a contract.
There was no contract between the state and the commissioners,
within the meaning of the Constitution of the United States.
The object was to test the constitutionality of an act passed by
the Legislature of Pennsylvania on 18 April, 1843, entitled "An act
to reduce the expenses and provide for the election of the Board of
Canal commissioners." The allegation was that the act was repugnant
to the Constitution of the United States.
The plaintiffs in error were, on 1 February, 1843, severally
appointed and commissioned by the governor of Pennsylvania to be
canal commissioners for one year, by separate commissions from the
governor, all of similar tenor and date, of one of which the
following is a copy:
"PENNSYLVANIA,
ss."
"David R. Porter Governor of the said commonwealth, to John B.
Butler sends greeting: "
"Whereas, in and by an act of the general assembly of this
commonwealth, passed 28 January, 1836, the governor is empowered
and required, on or after the first day of February, 1836, and
annually thereafter, to appoint three canal commissioners, and, in
case of vacancy, to supply the same by new appointments, whose
powers, duties, and compensation shall be the same as those of the
then present board, and shall commence on the first day of
February, 1836, and on the first day of February annually
thereafter, and whose term of service shall continue for one year:
"
"Now, therefore, be it known, that, having full confidence in
your integrity and ability, I, the said David R. Porter Governor of
said commonwealth, in pursuance of the power and authority to me by
law given, have, and by these presents do, appoint you, the said
John B. Butler, to be a canal commissioner for the term of one year
from the day of the date of these presents, if you shall so long
behave yourself well. Hereby giving and granting to you, in
conjunction with the other commissioners, all the rights, powers,
and emoluments of the said office, and authorizing and requiring
you to unite with the said commissioners in the execution and
performance of all the duties of a canal commissioner, agreeably to
the several laws of this commonwealth."
"Given under my hand and the great seal of the said commonwealth
&c., the first day of February, A.D. 1843. "
Page 51 U. S. 404
This appointment was made in pursuance of the act of assembly
passed 6 April, 1830 Pamph.Laws, 218; Internal Improvement Laws 65,
and of the Act of 28 January, 1836 Pamph.Laws 23; Int.Imp.Laws
145.
The first of these acts, § 1, provides,
"That on or before the first Monday of June next, and annually
thereafter, the governor shall appoint three canal commissioners,
and, in case of vacancy, supply the same by new appointments, whose
powers and duties shall be the same as those of the present board,
and shall commence on the first Monday in June, and shall continue
in office for one year, and who shall receive, as a full
compensation for their services and expenses, the sum of four
dollars each per day,"
&c.
The second act provides
"That it shall be the duty of the governor, on or after the
first day of February next 1836 and annually thereafter, to appoint
three canal commissioners, and in case of vacancy supply the same
by new appointments, whose powers, duties, and compensation shall
be the same as the present board, and shall commence on the 1st of
February next, and whose term of service shall continue for one
year,"
&c.
On 18 April, 1843, the Legislature of Pennsylvania passed an act
in the following words, to-wit:
"An act to reduce the expenses and provide for the election of
the board of canal commissioners."
"§ 1. Be it enacted by the Senate and House of Representatives
of the Commonwealth of Pennsylvania in general assembly met, and it
is hereby enacted by the authority of the same that, at the next
annual election, the qualified voters of the several counties of
this commonwealth shall vote for three persons as canal
commissioners, who shall perform all the duties now by law enjoined
upon the canal commissioners of this commonwealth; the persons so
elected shall decide by drawing from a box ballots numbered one,
two, and three, which of them shall hold his office one, which two,
and which three years; the commissioner who shall draw the ballot
numbered three shall hold his office three years; he who shall draw
the ballot numbered two shall hold his office two years; and the
other shall hold his office one year; on the second Tuesday in
October in each year thereafter, there shall be elected one person
as canal commissioner, who shall hold his office for three years;
the elections of canal commissioners shall be conducted by the
officers authorized by law to conduct the general elections in the
several election districts; a return of the votes given for said
office shall be made to the secretary
Page 51 U. S. 405
of the commonwealth in the manner now provided for the
transmission of returns of elections of Representatives; the
secretary of the commonwealth, on receipt of all the returns, shall
notify the persons so elected, who shall enter upon the duties of
their office on the second Tuesday in January succeeding their
election; if any vacancy shall occur in the said Board of canal
commissioners by death, resignation, or otherwise, the governor
shall appoint a suitable person to supply the vacancy until the
next general election, when a person shall be elected for the
unexpired term of him whose death, resignation, or removal shall
have caused a vacancy, and that the pay of the said canal
commissioners, as well as the present canal commissioners, from and
after the passage of this act, shall each be three dollars per
day."
The remaining sections are omitted as relating to the
subordinate officers.
At the annual election in October, 1843, three gentlemen were
elected canal commissioners, who, on 9 January, 1844, assumed upon
themselves the duties of the office to which they had been
elected.
The plaintiffs error continued in the exercise of the duties of
the office the said 9 January, 1844, and were ready and willing to
serve out the balance of the term for which they were commissioned,
but were then superseded by the persons elected in October, 1843,
pursuant to the said statute of 18 April, 1843.
On 22 March, 1844, the Auditor General and State Treasurer
settled the accounts of the plaintiffs in error, as late canal
commissioners, in which they allowed them each $4 per day from 1
February, 1843, to 18 April, 1843, inclusive, and $3 per day from
18 April, 1843, to 8 January, 1844, resulting in a balance due the
commonwealth of $1,071.
From this settlement the plaintiffs in error appealed to the
Court of Common Pleas of Dauphin County, pursuant to the provisions
of the act of assembly.
The cause came on for trial in the Common Pleas of Dauphin
County on 25 October, 1847, when the foregoing facts were given in
evidence, when the court charged the jury as follows:
"The defendants were appointed canal commissioners for the term
of one year commencing on the first day of February, 1843, at which
time their compensation was fixed by law at four dollars per day.
On 18 April, 1843, the legislature, by an act entitled 'An act to
reduce the expenses, and provide for the election of canal
commissioners,' Pamphlet
Page 51 U. S. 406
Laws of 1843,p. 337, reduced the pay of canal commissioners from
four to three dollars per day. The Auditor General and State
Treasurer settled the accounts of the canal commissioners in
pursuance of this act. The canal commissioners contend that this
act is unconstitutional, so far as it relates to reducing their pay
after their appointment to office, and this is the only question
that is presented in this case. The court instruct the jury that
the act in question is not unconstitutional; and, as there is no
other dispute, they should find for the commonwealth. To this
charge the defendants' counsel excepts, and it is filed at their
request."
"N. B. ELDRED,
Pres. Judge"
The jury, under this charge, found a verdict in favor of the
commonwealth for $1,301.26, the amount stated to be due from the
plaintiffs in error by the Auditor General and State Treasurer,
with interest accrued thereon.
The commissioners carried the case to the Supreme Court of
Pennsylvania, which, on 30 June, 1848, affirmed the judgment of the
court of common pleas.
A writ of error brought the case up to this Court.
Page 51 U. S. 414
MR. JUSTICE DANIEL delivered the opinion of the Court.
This is a writ of error to the Supreme Court of the State of
Pennsylvania under the twenty-fifth section of the Judiciary Act of
1789 for the purpose of revising a judgment rendered by the court
above mentioned at the May term of that court in the year 1848,
against the plaintiffs in error, in a certain action of assumpsit
instituted against those plaintiffs on behalf of the Commonwealth
of Pennsylvania.
By authority of a statute of Pennsylvania of 28 January, 1836,
the plaintiffs in error were by the governor of the state appointed
to the place of canal commissioners, and by the same statute, the
appointment was directed to be made annually on 1 February, and the
compensation of the commissioners regulated at four dollars
per
diem each. Under this law, the plaintiffs in error, in virtue
of an appointment of 1 February, 1843, accepted and took upon
themselves the office and duties of canal commissioners. By a
subsequent statute, of 18 April, 1843, the appointment of canal
commissioners was transferred from the governor to the people upon
election by the latter, and the
per diem allowance to be
made to all the commissioners was by this law reduced from four to
three dollars, this reduction to take effect from the passage of
the act of April 18, 1843, which as to the rest of its provisions
went into operation on the second Tuesday of January following its
passage, that is, on the second Tuesday of January in the year
1844. Upon a settlement of their account as canal commissioners,
made before the Auditor General of the state, the plaintiffs in
error, out of money of the state then in their hands, claimed the
right to retain compensation for their services at the rate of four
dollars
per diem, for the full term of twelve months from
the date of their appointment by the governor; whilst for the
state, on the other hand, it was refused to allow that rate of
compensation beyond 18 April, 1843, the period of time at which, by
the new law, the emoluments of the appointment were changed. In
consequence of this difference, and of the refusal of the
plaintiffs in error to pay over the balance appearing against them
on the account as stated by the Auditor General, an action was
instituted against them in the name of the state, in the Court of
Common
Page 51 U. S. 415
Pleas of Dauphin County, and a judgment obtained for that
balance. This judgment, having been carried by writ of error before
the supreme court, was there affirmed, and from that tribunal, as
the highest in the state, this cause is brought hither for
revision.
The grounds on which this Court is asked to interpose between
the judgment on behalf of the state and the plaintiffs in error are
these. That the appointment of these plaintiffs by the Governor of
Pennsylvania, under the law of January 28, 1836, was a positive
obligation or contract on the part of the state to employ the
plaintiffs for the entire period of one year, at the stipulated
rate of four dollars
per diem; and that the change in the
tenure of office and in the rate of compensation made by the law of
April 18, 1843 within the space of one year from the first of
February, 1843, was a violation of this contract, and therefore an
infraction of the tenth section of the first article of the
Constitution of the United States. In order to determine with
accuracy whether this case is within the just scope of the
constitutional provision which has thus been invoked, it is proper
carefully to consider the character and relative positions of the
parties to this controversy, and the nature and objects of the
transaction which it is sought to draw within the influence of that
provision.
The high conservative power of the federal government here
appealed to is one necessarily involving inquiries of the most
delicate character. The states of this Union, consistently with
their original sovereign capacity, could recognize no power to
control either their rights or obligations, beyond their own sense
of duty or the dictates of natural or national law. When,
therefore, they have delegated to a common arbiter amongst them the
power to question or to countervail their own acts or their own
discretion in conceded instances, such instances should fall within
the fair and unequivocal limits of the concession made. Accordingly
it has been repeatedly said by this Court, that to pronounce a law
of one of the sovereign states of this Union to be a violation of
the Constitution is a solemn function, demanding the gravest and
most deliberate consideration, and that a law of one of the states
should never be so denominated, if it can upon any other principle
be correctly explained. Indeed it would seem that if there could be
any course of proceeding more than all others calculated to excite
dissatisfaction, to awaken a natural jealousy on the part of the
states, and to estrange them from the federal government, it would
be the practice, for slight and insufficient causes, of calling on
those states to justify, before tribunals in some sense foreign to
themselves, their acts of general legislation. And
Page 51 U. S. 416
the extreme of such an abuse would appear to exist in the
arraignment of their control over officers and subordinates in the
regulation of their internal and exclusive polity, and over the
modes and extent in which that polity should be varied to meet the
exigencies of their peculiar condition. Such an abuse would prevent
all action in the state governments, or refer the modes and details
of their action to the tribunals and authorities of the federal
government. These surely could never have been the legitimate
purposes of the federal Constitution. The contracts designed to be
protected by the tenth section of the first article of that
instrument are contracts by which
perfect rights, certain
definite, fixed private rights of property, are vested. These
are clearly distinguishable from measures or engagements adopted or
undertaken by the body politic or state government for the benefit
of all, and from the necessity of the case, and according to
universal understanding, to be varied or discontinued as the public
good shall require.
The selection of officers, who are nothing more than agents for
the effectuating of such public purposes, is matter of public
convenience or necessity, and so too are the periods for the
appointment of such agents; but neither the one nor the other of
these arrangements can constitute any obligation to continue such
agents, or to reappoint them, after the measures which brought them
into being shall have been found useless, shall have been
fulfilled, or shall have been abrogated as even detrimental to the
wellbeing of the public. The promised compensation for services
actually performed and accepted during the continuance of the
particular agency may undoubtedly be claimed, both upon principles
of compact and of equity, but to insist beyond this on the
perpetuation of a public policy either useless or detrimental, and
upon a reward for acts neither desired nor performed, would appear
to be reconcilable with neither common justice nor common sense.
The establishment of such a principle would arrest necessarily
everything like progress or improvement in government, or if
changes should be ventured upon, the government would have to
become one great pension establishment on which to quarter a host
of sinecures. It would especially be difficult, if not
impracticable, in this view ever to remodel the organic law of a
state, as constitutional ordinances must be of higher authority and
more immutable than common legislative enactments, and there could
not exist conflicting constitutional ordinances under one and the
same system. It follows, then, upon principle that in every perfect
or competent government there must exist a general power to enact
and to repeal laws and to create, and change or discontinue, the
agents designated for the execution
Page 51 U. S. 417
of those laws. Such a power is indispensable for the
preservation of the body politic and for the safety of the
individuals of the community.
It is true that this power or the extent of its exercise may be
controlled by the higher organic law or constitution of the state,
as is the case in some instances in the state constitutions, and as
is exemplified in the provision of the federal Constitution relied
on in this case by the plaintiffs in error, and in some other
clauses of the same instrument; but where no such restriction is
imposed, the power must rest in the discretion of the government
alone. The Constitution of Pennsylvania contains no limit upon the
discretion of the legislature, either in the augmentation or
diminution of salaries, with the exceptions of those of the
governor, the judges of the supreme court, and the presidents of
the several courts of common pleas. The salaries of these officers
cannot, under the Constitution, be diminished during their
continuance in office. Those of all other officers in the state are
dependent upon legislative discretion. We have already shown that
the appointment to and the tenure of an office created for the
public use, and the regulation of the salary affixed to such an
office, do not fall within the meaning of the section of the
Constitution relied on by the plaintiffs in error; do not come
within the import of the term "contracts," or, in other words, the
vested, private personal rights thereby intended to be protected.
They are functions appropriate to that class of powers and
obligations by which governments are enabled, and are called upon,
to foster and promote the general good; functions therefore which
governments cannot be presumed to have surrendered, if indeed they
can under any circumstances be justified in surrendering them. This
doctrine is in strictest accordance with the rulings of this Court
in many instances, from amongst which may be cited its reasoning in
the important and leading case of
Charles
River Bridge v. Warren Bridge, in 11 Pet. 420, and
in the case of
State of Maryland v.
Baltimore & Ohio Railroad Company, 3 How. 552,
to which might be added other decisions upon claims to monopoly, as
ferry privileges, in restraint of legislative action for public
improvement and accommodation. In illustration of the doctrine here
laid down may also be cited the very elaborate opinion of the
supreme court of New York in the case of
People v. Morris,
reported in 13 Wend. 325. The precise question before us appears to
have been one of familiar practice in the State of Pennsylvania --
so familiar, indeed, and so long acquiesced in as to render its
agitation at this day somewhat a subject of surprise, and the
reasoning of the supreme court upon it in the case of
Commonwealth
Page 51 U. S. 418
v. Bacon, 6 Serg. & R. 322, is at once so clear and
compendious as to render it well worthy of quotation here. "These
services," says Duncan, Justice, in delivering the opinion,
"rendered by public officers do not in this particular partake
of the nature of contracts, nor have they the remotest affinity
thereto. As to a stipulated allowance, that allowance, whether
annual,
per diem, or particular fees for particular
services, depends on the will of the lawmakers, and this whether it
be the legislature of the state or a municipal body empowered to
make laws for the government of a corporation. This has been the
universal construction, and the constitution puts this question at
rest in the provision for the salary of the governor and judges of
the supreme court and of the presidents of the courts of common
pleas. The governor is to receive at stated times, for his
services, a compensation which shall neither be increased nor
diminished during the period for which he shall have been elected.
The judges and presidents shall at stated times receive for their
services an adequate compensation, to be fixed by law, which shall
not be diminished during their continuance in office. These
provisions are borrowed from the Constitution of the United States.
It is apparent that the compensation of the governor and judges is
a matter of constitutional provision -- that of all other officers
is left open to the legislature. The allowances, the compensation,
the salary, the fees of all other officers and members of the
legislature, depend on the legislature, which can and which does
change them from time to time as they conceive just and right."
So in the case of
Commonwealth v. Mann, 5 Watts &
S. 418, the court said
"that if the salaries of judges and their title to office could
be put on the ground of contract, then a most grievous wrong has
been done them by the people by the reduction of a tenure during
good behavior to a tenure for a term of years. The point that it is
a contract, or partakes of the nature of a contract, will not bear
the test of examination."
And again, in the case of
Barker v. City of Pittsburgh,
the court declared it as the law
"that there is no contract express or implied for the permanence
of a salary is shown by the constitutional provision for the
permanence of the salaries of the governor and judges as
exceptions."
4 Pa.St. 51. We consider these decisions of the state court as
having correctly expounded the law of the question involved in the
case before us, as being concurrent with the doctrines heretofore
ruled and still approved by this Court -- concurrent, too, with the
decision of the Supreme Court of Pennsylvania now under review,
which decision we hereby adjudge and order to be
Affirmed.
Page 51 U. S. 419
MR. JUSTICE McLEAN.
In this case, I think we have no jurisdiction. There was no
contract which could be impaired within the provision of the
Constitution of the United States. This is clearly shown in the
opinion of the Court. In such a case, I suppose the proper entry
would be to dismiss the writ of error. By the affirmance of the
judgment of the Supreme Court of Pennsylvania, we take
jurisdiction.
Order
This cause came on to be heard on the transcript of the record
from the Supreme Court of Pennsylvania and was argued by counsel.
On consideration whereof it is now here ordered and adjudged by
this Court that the judgment of the said supreme court in this
cause be and the same is hereby affirmed with costs.
