#### Hall vs. The State.

Constitutional Law. *Geological commissioners under act of 1857, public officers', their contract ivith the state terminated by unconditional repeal of ike act.*

1. Where a legislative act creates a public office, appoints the officer, and ap-Xiropriates money to pay his salary, a subsequent repeal of the act terminates both the office and the light of the appointee'to any salary not already earned at the time of such repeal.

2. The repeal of such an act does not impair the obligation of contracts -within the meaning of subcl. 1, sec. 10, art. -I of the federal constitution.

3. The commissioners appointed by ch. 40 of 1857, to make a geological survey of the state, were public officers; and their offices were abolished by the subsequent unconditional repeal of the act, notwithstanding the contracts entered into with them by the governor in behalf of the state; and plaintiff cannot recover any salary for services alleged to have been rendered under the contract with him since such repeal.

The action was commenced in this court, to recover for alleged services of the plaintiff, as a commissioner of the geo-dogical survey of the state, from March, 1862, to March, 1863. The plaintiff was appointed such commissioner hy ch. 40, Laws of 1857; and in March, 1858, the governor entered into a contract with him as prescribed in spid act, to continue in force five years. The plaintiff received the salary fixed in the contract until March, 1862, at which time the act of 1857 was unconditionally repealed. The legislature refused to pay the claim. The foregoing facts are stated in the complaint.

The attorney general demurred to the complaint, on the grounds: 1. That it fails to state a cause of action; and, 2. That the statute of limitations has run against the plaintiff’s demand.*

*80*The Attorney General,*for the state:

1. Oh. 40, Laws of 1857, gives the governor-no authority to contract *wider seal;*nor does it fix the *time*for which the commissioners shall serve. The expression “ extent of . the service ” refers to the territorial limits to he assigned to each, or perhaps to the amount of labor to be performed by each; certainly not to the period of time during which the services were to be performed. The act of an agent or an attorney under an express power must be within the letter or scope of the power, to bind the principal. Story on Agency, § 165, and cases there cited; *Hanford v. McNaim,*2 Wend., 286; *North Rimer Banh v. Aymar,*3 Hill, 262; *Orton v. The State,*12 Wis., 509; *Rcmdall v. The State,*16 id., 340; *Gee v. Bolton,*17 id., 604; *Mayor, etc., v. State Bamh,*3 Ark., 227; *Nixen v. Hyserott,*5 Johns., 58. An authority granted by the legis*81lature to an agent to enter into a contract must be construed to mean a simple contract, and not a sealed one. *State v. ALUs,*18 Ark., 269. Oil. 334 of 1860 does not ratify the contract. 2. If the governor had authority to make this contract under seal, it is not well executed under his private seal, so as to hind the state. .Constitution of Wis., árt. XIII, sec. 4; 'Tay. Stats., 264, sec. 20, subd. 2. An action on the contract, however, might lie in *assu/nypsit. Randall v. Van Vechten,*19 Johns., 60; *Damon v. Granby,*2 Pick., 345; *Mitchell v. ■St. Andrew Bay,*4 Ela., 200; *F. <£t M. Twrnpike Go. v. McCullough,*25 Pa. St., 303; *State v. ALUs, srwpra¡ Regents, etc., v. Detroit V. M. Society,*12 Mich., 138, 155; *Bank v. GuttschUck,*14 Pet., 19; and especially *Baxter v. The State,*15 "Wis., 489. 3. The contract was terminated by a repeal of *82the act. The plaintiff was a public officer, appointed by the act. His employment and his tenure of office were created and fixed by the act itself. The contract merely fixed his compensation, that being the only power delegated to the governor. He was not anthorized to contract for any specific time — certainly not for a time beyond the existence of the law. A person holding an office created by the legislature, has no vested right in it; but the legislature may at any time destroy it. *State v. Boioglas,*26 Wis., 428; *State v. Von Ba/u/mbach,*12 Wis., 310; *Conner v. Mayor,*5 N. Y., 285; *People v.*Comptroller, 20 Wend., 595.

*L. S. Dixon*and *D. S.*Wegg, for the plaintiff:

1. Where an office is created by statute, the legislature may change at pleasure the term, the mode of appointment and the compensation; and the officer may resign whenever he sees fit; because there is no contract between him and the government. The plaintiff is not a public officer within these principles, but an employee of the defendant. The act of 1857 makes it the governor’s duty to enter into a written contract with the commisssioners, binding them to perform certain duties, and the state to pay them a certain sum, therein specified; and sec. 6 prescribes the time for which the contract should continue. If this contract had been made between private parties, each would clearly have an action for any breach thereof on the part of the other. The same rules apply to contracts between the state and an individual as to those between individuals only. *Sholes v. The State,*2 Ohand., 195, 197-8; *Metsel v. The*State, 16 Wis., 350; *MeComl) v. Boa/rd, of Liquidation,*Chicago Legal News, April 24, 1875, and cases there cited. The repealing act of 1862 impairs the obligation of the contract, and is void. 2. The general rule is, that when a deed is executed or a contract made *on behalf of the state*by a public officer duly authorized, and this fact appears upon the face of the instrument, it is the deed or contract of the state, although the officer may be described therein *83as one of tbe parties, and may bare affixed only bis individual name and seal. This rule is founded upon public policy. It would be impracticable to place tbé great seal of tbe United States upon all contracts entered into in its bebalf in tbe various departments of public service. *Hodgson v. Dexter,*1 Crancb, 109; *Umova v.Wolseley,*1 Term, 674;’ */State v. Mc-GcmlVy,*15 Cal., 429, 456; *Stvnchfield v.*IAttle, 1 Green!., 234; *Dawes v. Jackson,*9 Mass., 490. Again, it is not essential tliat tbe common seal be used even in cases of private corporations; any other may be, if it appears 'that sucb use bas been adopted or 'ratified, and very slight evidence bas been held sufficient for this purpose. *Bank v. D. B. Co.,*30 Yt., 159, 160, 172; *Tenney v. Dumber Oo.,*43 N. EL, 343, 354-5; *Mill Dam v. Morey,*21 Piet., 417; *Porter v. P. P. Oo.,*37 Me., 349; *Phillyps v. Ooffee,*17 Ill., 154. 3. Tbe legislature directly recognizes tbe contract in question by sec. 3, cb. 334, Laws of 1860, and must be considered to have ratified it, and to have adopted tbe seal affixed to it. It would be unjust to construe this act otherwise, considering tbe unconscionable nature of tbe defense. Plaintiff is entitled to judgment under this view of tbe case, even if tbe court adheres to its decision in *Baxter v. The State,*15 "Wis., 489.. .

*

Ch. 40, Laws of 1857, appoints “James *Hall,*of Albany, N. Y., and Ezra S. Carr and Edward Daniels, of Wisconsin, commissioners to malee a geological, mineralógica! and agricultural survey of the state” (see. 1); provides that “ said commissioners shall arrange and distribute the functions of such *80survey by mutual agreement” (sec. 2); directs the governor of this state to *“*make a written contract with each of the commissioners, expressly stipulating and setting forth the nature and extent of the service to be rendered by each, and the compensation therefor, including the expenses of the department of the survey under charge of each commissioner,” and that “ such contract shall expressly provide that the compensation to such commissioner shall be at a certain rate per annum, to be agreed upon, and not exceeding the rate of $2,000 per annum, and that payment will be made only for such part of the year as such commissioner may be actually engaged in the discharge of his duty as such.” It further provides that in case of a vacancy occurring in the commission, the governor shall appoint some suitable person to fill it, and that he may remove any member for in,compet@ncy or neglect of duty, after due notice, etc. (sec. 5); and “ to carry out the provisions ” of the act, it appropriates “ $6,000 per annum for the term of six years.”

The contract entered into with the plaintiff, as set forth in the complaint, purports to be made by “Alexander W. Randall, governor of the state of Wisconsin, on behalf of said state, of the *one*part,” etc., and, besides the signature and seal of the plaintiff, has the following signature: “ Alexander W. Randakl, Gov. of Wis.,- for State of Wis.,” with his private seal attached. It recites that in pursuance of said act said commissioners have arranged and distributed the functions of said survey by mutual agreement; that said *Hall,*under such arrangement and distribution, thereby agrees and binds himself, as such commissioner, to do certain specified portions of the *81work required "by the act, and to devote Iris time and attention to the duties of his department; and that this contract is “ to continue until the third day of March, 1863, unless the said *Hall*shall he removed for incompetency or neglect of duty, * * * or unless a vacancy shall occur hi his office by his own act or default.” It also contains an agreement on the part of the state to pay .said *Hall*for his compensation and expenses at the rate of $2,000 per annum, with deduction *pro rata*for such tíme as he or his assistants shall not he engaged in the prosecution of his duties. Ch. 334, Laws of 1860, constituted .and appointed the plaintiff “principal of the geological commission,” established by ch. 40 of 1857, and vested in him “ such general control and supervision of the geological survey of the state as is not already expressly reserved to the several commissioners designated in said chapter ” (sec. 1); required him to enter into certain written contracts with J. L. Whitney and Charles Whittlesey, for the completion of certain surveys and maps (sec. 2); and for the ptnpose of carrying into effect the provisions of the second section, authorized the governor, upon presentation of the proper vouchers, to chaw from the treasury such portion of the sum appropriated by said ch. 40 of 1857, as was not drawn previous to the signing of the contracts with the commissioners on the 29th of May, 1858, and provided that all that part of the said appropriation which should not he required to carry into effect the provisions of the contracts with Whitney and Whittlesey should he appropriated for the engraving of maps and drawings to illustrate then- surveys (sec. 3).

By the terms of ch. 116, Laws of 1862, ch. 40 of 1857, and eh. 334 of 1860, were unconditionally repealed.

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 *84of 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.

*85The 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 *86legislative 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 *87it 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.