# Butler v. Pennsylvania

* related portals: Supreme Court of the United States.
* sister projects: Wikidata item.
United States Supreme Court
51 U.S. 402
Butler v. Pennsylvania
THIS case was brought up from the Supreme Court of Pennsylvania, by a writ of error issued under the twenty-fifth section of the Judiciary Act.
The object was to test the constitutionality of an act passed by the legislature of Pennsylvania, on the 18th of 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 the 1st of 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 the 28th day of 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.' This appointment was made in pursuance of the act of Assembly passed 6th April, 1830 (Pamph. Laws, p. 218; Internal Improvement Laws, p. 65), and of the act of 28th 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 the 18th day of 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 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 the 9th of 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 9th day of 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 18th April, 1843.
On the 22d of 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 1st February, 1843, to 18th April, 1843, inclusive, and $3 per day from 18th April, 1843, to 8th 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 the 25th of 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 the 18th of April, 1843, the legislature, by an act entitled 'An Act to reduce the expenses, and provide for the election of Canal Commissioners' (Pamphlet 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 the 30th of June, 1848, affirmed the judgment of the Court of Common Pleas.
A writ of error brought the case up to this court.
It was argued by Mr. J. M. Porter, for the plaintiffs in error, and Mr. Alricks, for the defendant in error.
Mr. Porter, for the plaintiffs in error, made the following points:--
That the Supreme Court of Pennsylvania erred in affirming the judgment of the Court of Common Pleas of Dauphin County, in that state, at the suit of Common Pleas of Dauphin against the plaintiffs in error, as the act of Assembly of the Commonwealth of Pennsylvania, passed upon the 18th day of April, 1843, entitled 'An Act to reduce the expenses and provide for the election of the Board of Canal Commissioners,' was unconstitutional and void; because,--
1. The plaintiffs in error were severally commissioned, according to the constitution and laws of Pennsylvania, to hold the office of Canal Commissioner for one year from 1st February, 1843, when their compensation was fixed at $4 per day, and they could not be legislated out of office, if at all, before 31st January, 1844, when their commissions and the tenures of their offices would expire, and therefore they continued legally in office until the last-mentioned day, and were entitled to be paid, at the rate of $4 per day, up to that time.
2. That if they could be legislated out of office before 31st January, 1844, their compensation, as fixed by law when they entered upon the duties of the office, could not be changed without their consent during their continuance in office.
3. That the said Act of 3. That the said Act of Assembly, referred to in the charge of the president of the Court of Common Pleas, and which the Supreme Court of Pennsylvania held to be constitutional and binding on the plaintiffs, was a violation of the Constitution of the United States, and transcended the powers of legislation possessed by the legislature of Pennsylvania, in so far, at least, as regarded the pay and tenure of office of the plaintiffs in error, who were in office for a fixed term, and at a fixed compensation, at the time of its passage.
Mr. Porter contended that the acceptance, under the law of 1836, by the Commissioners, constituted a contract with the state, and quoted largely from Paine's Dissertation on Government, Vol. I., p. 365, to show what species of laws created contracts. He then cited and commented on the following cases: 7 Watts & S. (Pa.), 127; 4 Barr, 49; 6 Serg. & R. (Pa.), 322; 2 Rawle (Pa.), 369; 5 Serg. & R. (Pa.), 460; 3 Id., 145.
In Marbury v. Madison, 1 Cranch, 137, the Supreme Court of the United States held, that, 'where the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled. It has conferred legal rights, which cannot be resumed.' 'The discretion of the executive is to be exercised until the appointment has been made; but having once made the appointment, his power over the office is terminated in all cases, where by law the officer is not removable by him. The right to the office is then in the person appointed,' &c.
'Mr. Marbury, then, since his commission was signed by the President and sealed by the Secretary of State, was appointed, and as the law creating the office gave the officer a right to hold for five years, independent of the executive, the appointment was not revocable, but vested in the officer legal rights, which are protected by the laws of the country.'
Therefore, both on principle and precedent, we contend,--
1. That the tenure of the defendants in the office could not be determined before the expiration of the time limited in their commissions, to wit, 1st February, 1844, and that they were entitled to their pay up to that time.
2. That if their tenure could not be thus terminated, their compensation could not be changed until it was so terminated, without their consent; and hence,
3. The act of 1843, so far as it attempted to accomplish that object, was unconstitutional.
And in reference to these points, and to show that this construction of the Constitution and laws is reasonable, it may be remarked:--
These Commissioners are not local officers. They are taken from various parts of the state. In the present instance, one is taken from Pittsburg, Alleghany County, at nearly the extreme west; one from Lewistown on the Juniata, about the center, and one from Monroe County, on the Delaware, at the extreme northeast of the Commonwealth. They are called from their homes and of course have made the arrangements for their private business for a year, from their contracts in relation to which no law to be passed by the legislature could absolve them. Yet it is urged that the legislature can alter the contract, as to both tenure and compensation, into which the Commonwealth has entered with them, when an individual cannot do it. Fareira v. Sayres, 5 Watts & S. (Pa.), 210.
Is this carrying out the idea, that a republic is a government of justice, in contradistinction to a despotism, which is said to be, and is, a government of will?
There is also a class of cases which bear upon this question, of the faith which a government is bound to observe in its contracts. It is the case of private corporations, in regard to which it has been held, that the acts of assembly creating such corporations create, when accepted by the corporators, a contract, from the obligation of which the government cannot be absolved, and the terms of which the government cannot alter, but by consent. Dartmouth College v. Woodward, 4 Wheat., 627; Lincoln and Kennebeck Bank v. Richardson, 1 Me., 79; Monongahela Nav. Co. v. Coon, 6 Pa. Stat., 379; Terrett v. Taylor, 9 Cranch, 52; Green v. Biddle, 8 Wheat., 1; Wales v. Stetson, 2 Mass., 146; 2 Kent Com., 306; State v. Tombeckbee Bank, 2 Stew. (Ala.), 30; Nichols v. Bertram, 3 Pick. (Mass.), 342; Derby Turnpike Co. v. Parks, 10 Conn., 522; Turnpike Co. v. Phillips, 2 Pa., 184; Pingry v. Washburn, 1 Aik. (Vt.), 264; and Ehrenzeller v. Union Canal Co., 1 Rawle (Pa.), 189.
And this rule applies as well to powers implied as those expressed. People v. Manhattan Co., 9 Wend. (N. Y.), 351.
In Fletcher v. Peck, 6 Cranch, 87-148, the celebrated Yazoo case, C. J. Marshall, at page 132, says: 'The legislature of Georgia was a party to the transaction, and for a party to pronounce its own deed invalid, whatever cause may be assigned for its invalidity, must be considered as a mere act of power which must find its vindication in a train of reasoning not often heard in a court of justice.' S. P. The People v. Platt, 17 Johns. (N. Y.), 195; Bowdoinham v. Richmond, 6 Me., 112.
Is not the case of a person appointed to office, entering upon its duties, quitting his other pursuits, just as strong and powerful an illustration of the necessity of the state preserving its faith in its contracts and stipulations with him, as it would be in the case of a grant of land, or of corporate rights? The case is one where the office is conferred for a fixed and definite period, one year; the compensation fixed by law. The attempt is to abridge the term and reduce the compensation. Every sense of justice and propriety seems shocked at this attempt to execute a 'mere act of power.'

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse