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provision is found forbidding a decrease only. The independence of the judiciary especially is established and preserved by these provisions. 511

Constitutional provisions may also be found which create certain official positions, commonly called constitutional offices, and fix the compensation to be paid the person filling them.512 Where no constitutional or statutory provisions exist of the character of those suggested above in this section, the rule of law universally obtains that the legislature has complete and absolute power not only over public offices and officials but also over the compensation attached to the office and the manner and character of its duties and their performance.513 Where legislation is assailed as unconstitutional or invalid because in violation of such provisions, the spirit and purpose of the latter is considered and carried out rather than the letter.514 The question frequently arises as to

gett v. Liebes, 14 Wash. 482, 45 Pac. 19; Rucker v. Pocahontas County Sup'rs, 7 W. Va. 661; Converse County Com'rs v. Burns, 3 Wyo. 691, 29 Pac. 894, 30 Pac. 415; Davis v. Sweetwater County Com'rs, 4 Wyo. 477; Guthrie V. Converse County Com'rs, 7 Wyo. 95, 50 Pac. 229; Reals v. Smith, 8 Wyo. 159, 56 Pac. 690. But see Baldwin v. City of Philadelphia, 99 Pa. 164. This provision of the Pa. Const. held not to apply to an ordinance enacted by a city. Crawford County v. Nash, 99 Pa. 253.

511 Chancellor's Case, 1 Bland (Md.) 595.

512 State v. Hickman, 9 Mont. 370, 23 Pac. 740, 8 L. R. A. 403. Where the salary of a constitutional officer is fixed by the constitution, no appropriation is necessary by the legislature.

513 Belknap v. United States, 150 U. S. 588, distinguishing United States v. Langston, 118 U. S. 389; Gilbert v. Grant County Com'rs, 8 Blackf. (Ind.) 81; Farwell v. City of Rockland, 62 Me. 296; City of

Wyandotte v. Drennan, 46 Mich. 478; De Soto County Sup'rs v. Westbrook, 64 Miss. 312, 1 So. 352. General legislation cannot be nullified by fixing the salary of a public officer in a particular county at such a low figure that no competent person will accept the office. Wilson v. City of New York, 31 Misc. 693, 65 N. Y. Supp. 328; Pryor v. City of Rochester, 166 N. Y. 548, 60 N. E. 252; Field v. Auditor, 83 Va. 882, 3 S. E. 707; Castle v. Uinta County Com'rs, 2 Wyo. 126.

514 Bugg v. Sebastian County, 64 Ark. 515, 43 S. W. 506; Dougherty v. Austin, 94 Cal. 601, 28 Pac. 834, 29 Pac. 1092. An order allowing a county clerk a deputy, his salary to be paid by the county is no increase of the compensation of the county clerk within the meaning of the constitutional provision, art. 11, § 5. Buck v. City of Eureka, 109 Cal. 504, 42 Pac. 243, 30 L. R. A. 409. A constitutional provision cannot be evaded by a contract for the payment of services when these are included within the duties, the per

whether a certain official position comes within the meaning of such provisions 515 or whether particular legislation has such an

formance of which the officer is by law charged.

Power v. May, 114 Cal. 207, 46 Pac. 6; People v. Howland, 17 App. Div. 165, 45 N. Y. Supp. 347. A constitutional provision cannot be evaded by legislation relieving a constitutional officer from the performance of the duties of his office. Lancaster County v. Fulton, 128 Pa. 48, 18 Atl. 384, 5 L. R. A. 436. A constitutional provision cannot be evaded by making a contract with a public officer for compensation in the rendition of services which, by law, are attached to his office.

Nelson v. Troy, 11 Wash. 435, 39 Pac. 974. The allowance of a deputy at a stated sum per annum is not a violation of constitution, art. 11, § 8, forbidding a change in the compensation of any county or municipal officer during his term of office. But see Olds v. State Land Office Com'rs, 134 Mich. 442, 86 N. W. 956, 96 N. W. 508.

515 Wright v. City of Hartford, 50 Conn. 546. The provisions of the Conn. Const., relative to the increase of compensation of "any public officer or employee" applies to a fireman employed in the city fire department. Auditor v. Cochran, 72 Ky. (9 Bush) 7. The chancellor of the Louisville Chancery Court is included within the prohibition in Ky. Const. art. 8, § 13, against a reduction of salaries of public officials.

City of Louisville v. Wilson, 18 Ky. L. R. 427, 36 S. W. 944. The assistant bailiff of a police court and members of a board of public safety and public rules with their secretaries are municipal "officers" within the meaning of Ky. Const.

§ 161, and an ordinance reducing their salaries during their term of office is, therefore, unconstitutional.

State v. Johnson, 123 Mo. 43, 27 S. W. 399. A chief engineer of the city fire department is not an officer within the meaning of Mo. Const. art. 14, § 8, prohibiting a change in the salary of any officer during his term of office. State v. Moores, 61 Neb. 9, 84 N. W. 399; In re City of New York, 158 N. Y. 668, 52 N. E. 1125, affirming 33 App. Div. 365, 53 N. Y. Supp. 875; Ricketts v. City of New York, 67 How. Pr. (N. Y.) 320. A court crier is a public officer and protected by the constitutional provision relative to a reduction of salary.

Rowland v. City of New York, 83 N. Y. 372. An attendant of the supreme court held to be "in office" within the provisions of the N. Y. laws, 1870, c. 382, § 3, relative to increase of compensation for public officials while in office. Thompson. Phillips, 12 Ohio St. 617; Gobrecht v. City of Cincinnati, 51 Ohio St. 68, 36 N. E. 782, 23 L. R. A. 609. A member of a board of legislation receiving a per diem is not within the Ohio Const. art. 2, § 20, prohibiting a change in the compensation of any public officer during his term of office.

Bigley v. Borough of Bellevue, 158 Pa. 495, 28 Atl. 23; Somers v. State, 5 S. D. 582, 59 N. W. 962. The constitutional provision does not apply to a deputy superintendent of public instruction appointed during the pleasure of his principal. City of Ballard v. Keane, 13 Wash. 201, 43 Pac. 27. Wash. Const. art 11, § 8, includes a city treasurer.

effect as will make it in violation of them.516 The rule holding in respect to a change of compensation, it follows that where the official or employe takes for a time the reduced compensation this does not estop him from claiming the residue.517 The principle also obtains that where compensation is fixed by a body having authority, it can only be changed in the same manner and by the body which originally established it."

516 Coyne v. Rennie, 97 Cal. 590, 32 Pac. 578; Welsh v. Bramlet, 98 Cal. 219, 33 Pac. 66; Storke v. Goux, 129 Cal. 526, 62 Pac. 68; Milner v. Reibenstein, 85 Cal. 593, 24 Pac. 935, construing Cal. St. 1889, p. 578 et seq. relative to salary of municipal judge. San Luis Obispo County v. Felts, 104 Cal. 60, 37 Pac. 780; City of Louisville v. Wilson, 18 Ky. L. R. 427, 36 S. W. 944; Purnell v. Mann, 20 Ky. L. R. 1146, 48 S. W. 407; Id., 20 Ky. L. R. 1196, 49 S. W. 346; Id., 21 Ky. L. R. 1129, 50 S. W. 264; Stone v. Mayo, 21 Ky. L. R. 1559, 55 S. W. 700. A constitutional provision which prohibits any change in the compensation of an officer during his term will not prevent the passage of legislation making such change where it takes effect after the expiration of this particular term of office.

Marion County Fiscal Court v. Kelly, 22 Ky. L. R. 174, 56 S. W. 815; People v. Common Council of Detroit, 38 Mich. 636; Wesch v. Common Council of Detroit, 107 Mich. 149, 64 N. W. 1051; Maynard v. City of Detroit, 113 Mich. 494, 71 N. W. 870; People v. Reigel, 120 Mich. 78, 78 N. W. 1017, construing How. Ann. St. §§ 508, 527; State v. Granite County Sup'rs, 23 Mont. 250, 58 Pac. 439, construing Mont. Act, March 3, 1899, relative to the office and duties of county road supervisors or county surveyors considered and held not unconstitu

518

tional as violating Mont. Const., art. 5, § 31, relative to the change of compensation of a public officer after his election or appointment. Hamilton v. St. Louis County Court, 15 Mo. 3; Wheelock v. McDowell, 20 Neb. 160; People v. Fitch, 145 N. Y. 261; Id., 11 Misc. 257, 32 N. Y. Supp. 218; Collins v. State, 3 S. D. 18, 51 N. W. 776; State v. Tingey, 24 Utah, 225, 67 Pac. 33; Heilig v. City Council of Puyallup, 7 Wash. 29, 34 Pac. 164; State v. Carson, 6 Wash. 250, 33 Pac. 428.

517 Purdy v. City of Independence, 75 Iowa, 356, 39 N. W. 641; Bowe v. City of St. Paul, 70 Minn. 341, 73 N. W. 184; Kehn v. State, 93 N. Y. 291; Montague's Adm'r v. Massey, 76 Va. 307; Neal v. Allen, 76 Va. 437.

518 Goldsborough v. United States, Taney, 80, Fed. Cas. No. 5,519; Weeks v. Town of Texarkana, 50 Ark. 81, 6 S. W. 504; Barnes v. Williams, 53 Ark. 205, 13 S. W. 845, construing Mansf. Dig. Ark. § 926; Cox v. City of Burlington, 43 Iowa, 612; Goetzman v. Whitaker, 81 Iowa, 527, 46 N. W. 1058; Bryan v. City of Des Moines, 51 Iowa, 590; People v. Wayne County Auditors, 41 Mich. 4; Pease v. Common Council of Saginaw, 126 Mich. 436, 85 N. W. 1082; Rundlett v. City of St. Paul, 64 Minn. 223, 66 N. W. 967; Hanauer v. City of Utica, 75 Hun, 524, 27 N. Y. Supp. 663; Ter. v. King, 1 Or. 106; State v. City Coun cil of Nashville, 83 Tenn. (15 Lea)

§ 693. Time and manner of payment.

The relation which exists between the public official and the publie corporation is not a contract one and, therefore, in the strict sense of the word, the public official has no right to recover his compensation as provided by law basing the recovery upon those principles resting upon the law of contracts. The best that can be said perhaps of his claim is that he is entitled to the compensation which may, by law, be allowed him from time to time. The payment both in respect to its time and manner is usually designated by statute or usage having the force of law and these control. Neither the corporation nor the official should be permitted to hasten or delay the payment of compensation or make it in any other manner than that thus provided.

§ 694. Compensation; to whom payable.

Strictly considered, an official de jure alone is entitled to the pay attached to his office.519 In many instances where contests to the title of an office arise, it is filled by an officer de facto who may be subsequently ousted or by one whose title to the office is later considered as paramount. In these cases the public corporation is authorized and warranted in paying the regular compensation to the de facto officer 520 and no liability arises against it in favor of

697; McInery v. City of Galveston, 58 Tex. 334; Meissner v. Boyle, 20 Utah, 317, 58 Pac. 1110.

519 Baxter v. Brooks, 29 Ark. 173; Lee v. City of Wilmington, 1 Marv. (Del.) 40 Atl. 663; Home Ins. Co. v. Tierney, 47 Ill. App. 600; State v. Carr, 129 Ind. 44, 28 N. E. 88, 13 L. R. A. 177; Hemphill v. Coulter, 23 Ky. L. R. 2387, 67 S. W. 3; City of Vicksburg v. Groome (Miss.) 24 So. 306; Matthews v. Copiah County Sup'rs, 53 Miss. 715; State v. Milne, 36 Neb. 301, 19 L. R. A. 689; Meehan V. Freeholders of Hudson County, 46 N. J. Law, 276; Darby v. City of Wilmington, 76 N. C. 133; In re Moore, 4 Wyo. 98, 31 Pac. 980.

520 Sleigh v. United States, 9 Ct. Cl. 369; Weeks v. United States, 21

Ct. Cl. 124. An appointment unauthorized by law gives the appointee no claim for compensation. Behan v. Davis Board of Prison Com'rs, 3 Ariz. 399, 31 Pac. 521; Adams v. Directors of Insane Asylum, 4 Ariz. 327, 40 Pac. 185. One neither a de facto nor a de jure officer has no right to compensation.

Carroll v. Siebenthaler, 37 Cal. 193. The fact that an office is filled by an intruder does not impair the right of the true incumbent to recover compensation. The salary is incident to the title of the office, not to the possession and exercise of it. Henderson v. Glynn, 2 Colo. App. 303, 30 Pac. 265; Coughlin v. McElroy, 74 Conn. 397, 50 Atl. 1025; Saline County Com'rs v. Anderson,

the de jure officer who, it may subsequently be decided, is entitled to the office.521 The de facto officer is liable, however, to the one having good title to the office.522 Whatever may be the character

20 Kan. 298; City of Ellsworth v. Rossiter, 46 Kan. 237; Atchison, T. & S. F. R. Co. v. Kearney County Com'rs, 58 Kan. 19, 48 Pac. 583. One must at least be a de facto officer in order to claim compensation for services rendered. State v. Clark, 52 Mo. 508; State v. Milne, 36 Neb. 301, 54 N. W. 521, 19 L. R. A. 689; Erwin v. City of Jersey City, 60 N. J. Law, 141, 37 Atl. 732; McManus v. City of Brooklyn, 5 N. Y. Supp. 424.

McVeany v. City of New York, 80 N. Y. 185, 36 Am. Rep. 600. "The rule protecting a municipal corporation from a second payment of compensation once paid to one actually discharging the duties of an office with color of title applies whether the compensation is by fixed fees payable on the municipal treasury or of specific services rendered or by an annual salary payable at recurring periods, or whether the office is held by appointment or election."

Blackburn v. Ohlahoma City, 1 Okl. 292, 31 Pac. 782, 33 Pac. 708; Selby v. City of Portland, 14 Or. 243, 12 Pac. 377; Luzerne County v. Trimmer, 95 Pa. 97; Devers v. City of New York, 150 Pa. 208, 24 Atl. 668; Warden v. Bayfield County, 87 Wis. 181, 58 N. W. 248. Payment by public officials to an intruder in office will not, however, deprive the person entitled to it and wrongfully dispossessed by such an intruder from claiming and collecting his compensation.. Brauns v. City of Green Bay, 78 Wis. 81. But see People v. Potter, 63 Cal. 127, and State v. Schram, 82 Minn. 420, 85 N. W. 155.

Before a suit for compensation can be maintained by claimant to office he must first establish his right to it in direct proceedings. See the following: Meredith v. Supervisors, 50 Cal. 433; Lee v. Wilmington, 1 Marv. (Del.) 65, 40 Atl. 663; Gorley v. City of Louisville, 20 Ky. L. R. 602, 47 S. W. 263; Hagan v. City of Brooklyn, 126 N. Y. 643, 27 N. E. 265, and Selby v. City of Portland, 14 Or. 243.

521 Shaw v. Pima County, 2 Ariz. 399, 18 Pac. 273; Kreitz v. Behrensmeyer, 149 Ill. 496, 36 N. E. 983, 24 L. R. A. 59; Scott v. Crump, 106 Mich. 288, 64 N. W. 1; Parker v. Dakota County Sup'rs, 4 Minn. 59 (Gil. 30); McDonald v. City of Newark, 58 N. J. Law, 12, 32 Atl. 384; People v. Sutphin, 53 App. Div. 613, 66 N. Y. Supp. 49. In an action for fees, title to office cannot be collaterally attacked. Demarest v. City of New York, 147 N. Y. 203, 41 N. E. 405, affirming 74 Hun, 517, 26 N. Y. Supp. 585; Fuller v. Roberts County, 9 S. D. 216, 68 N. W. 308. But see Kendall v. Raybould, 13 Utah, 226, 44 Pac. 1034.

522 Merritt v. Hinton, 55 Ark. 12, 17 S. W. 270; Stoddard v. Williams, 65 Cal. 472; Mayfield v. Moore, 53 Ill. 428; Fenn v. Beeler, 64 Kan. 67, 67 Pac. 461; Michel v. City of New Orleans, 32 La. Ann. 1094; State v. Holmes, 43 La. Ann. 1185, 10 So. 172; State v. Clark, 52 Mo. 508; Nichols v. MacLean, 101 N. Y. 526; Kessel v. Zeiser, 102 N. Y. 114; Wenner v. Smith, 4 Utah, 238, 9 Pac. 293; Bier v. Gorrell, 30 W. Va. 95, 3 S. E. 30. But see Stuhr . Curran, 44 N. J. Law, 181. See decisions on the right of a public of

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