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222 Pac. 654.) Atl. 626. In Com. ex rel. Wolfe v. to the four corners of the state, Moffitt, supra, it is said: “It is touching and affecting all officers settled by many decisions of this alike, whether their respective ofcourt that the prohibition against fices were created by the Constithe extension of the term of a pub- tution or the legislature. This we lic officer or the increase or diminu- think is the plain, clear, and sensition of his salary after his election ble construction which the provision or appointment, contained in § 13, demands. The evil effects which article 3, is not limited to constitu- might be suffered from the lack of tional offices. Whether an officer is such an inhibition, or the beneficial a 'public officer' within the intend- results to be derived from its exment of the constitutional prohibi- istence, apply with equal force to tion depends upon the manner of his statutory officers as to constituselection, the duties imposed, and tional ones. We can appreciate no the powers conferred upon him. If good purpose which was intended he is chosen by the electorate for a to be served by making such a rule definite and certain tenure in the applicable to the one class and not manner provided by law, to an of- the other. Combined pernicious fice whose duties affect and are to activity on the part of statube exercised for the benefit of the tory officers should be prohibited public for a stipulated compensation for the same reasons that they paid out of the public treasury, it is should be on the part of constituquite safe to say that the incumbent tional officers. On the other hand, is a public officer within the mean- statutory officers should be protected ing of the constitutional provision from interference by way of retaliain question."

tion or revenge from members of With the reasoning and conclu- the legislature as well as constitusion reached by the Pennsylvania tional officers should be, as the pubcourt we fully agree, as we think a lic would suffer from such sinister person who is elected to a public of- influences when exercised upon the fice for a fixed and definite term, one class as much as the other. whose functions and duties affect And upon precedent and reason the public, is an officer within the it appears that no distinction should intendment and meaning of the con- be made between a law which, by its stitutional provision in question,

express terms, proposes to increase without regard to whether the of or diminish such compensation durfice is one created by the Constitu- ing the term of an officer, and one

tion or by the legis- which furnishes a standard by -method of

lature. creation-effect.

Certainly which such result may be obtained.

the duties and func- They equally violate the constitutions of the respective offices held by tional provision in question. Conthe relators possess functions and verse County v. Burns, 3 Wyo. 691, duties which affect the public. We

We 29 Pac. 894, 30 Pac. 415; Guthrie think our conclusion is strengthened v. Converse County, 7 Wyo. 95, 50 by the broad language used in the Pac. 229; Nickerson v. Winslow, 22 Constitution. It expressly provides Wyo. 259, 138 Pac. 184, 140 Pac. in clear and unmistakable language 834. that the compensation of “any of- For these reasons, we are led to ficer" shall be neither increased nor the conclusion that the lower court decreased during his term of of- correctly held § 2 of chapter 49, fice, and there is nothing in such Laws of 1923, supra, to be unconstilanguage which indicates that any to increase or di

statute provillnarrow or limited use of the term tutional and void in ing for classifiwas intended, or that any distinc- so far as it operates tion between the two classes of of- minish the compensation of the relaficers was contemplated. It pro- tors in this case. The remaining mulgates a uniform rule applicable portions of the act are not questioned, as they do not meet with the ment of the trial court should be af. constitutional objection we have firmed, and it is so ordered. discussed.

cation.

Parker, Ch. J., and Botts, J., conFor the reasons stated, the judg- cur.

ANNOTATION.

Constitutional inhibition of increase or decrease in compensation during term

as applicable to nonconstitutional officer.

A public officer is entitled to the 54 Pa. Super. Ct. 44; Com. ex rel. salary provided by law, because the Wolfe v. Moffitt (1913) 238 Pa. 255, 86 law attaches the salary to the office as Atl. 75, Ann. Cas. 1914C, 214; Davis an incident thereof, and not by the v. Luzerne County (1920) 74 Pa. force of a contract, and as the legisla. Super. Ct. 300. And see also Fox v. ture is not bound by any contract, the Lantrip (1915) 162 Ky. 178, 172 S. W. compensation of an officer may be 133. regulated, altered, increased, or dimin- Thus, it has been held that a conished by it at any time, in the absence stitutional prohibition against the of a constitutional restriction. 22 R. raising of an officer's salary after his C. L. p. 532, § 227.

election or appointment to office is The present annotation is limited to not limited to persons who hold concases which expressly discuss, or at stitutional offices, but applies to a tax least consider, the question whether collector whose office is created and the constitutional inhibition of in- abolished at the legislative will, notcrease or decrease in compensation of withstanding that a clear distinction public officers during their terms of in respect of some incidents is recogoffice is applicable to nonconstitutional nized between a constitutional office officers, to the exclusion of numerous which enjoys exemption from the cases which apparently assume, with- legislative interference and control, out any discussion of the point, that and one wholly legislative-created the constitutional inhibition is not and abolished at the legislative will. limited to constitutional offices.

Richie v. Philadelphia (1909) 225 Pa. Cases dealing with the question 511, 26 L.R.A.(N.S.) 289, 74 Atl. 430, whether constitutional provision affirming the judgment of the superior against an increase of compensation court in (1908) 37 Pa. Super. Ct. during the term of office is applicable 190, denying that a tax collector was where new duties are imposed on the entitled to an increase in the salary officer after taking office are treated of his office, provided for by statin the annotation in 21 A.L.R. 256. ute passed after his appointment.

Courts specifically considering the The superior court, in passing on the question whether a constitutional in- contention that the constitutional prohibition of change in the compensa- hibition was applicable only to offices tion of an officer during his term of existing by the requirement of the office is applicable to a nonconstitu- Constitution, stated: “It cannot be tional officer in general hold that the disputed that there is a distinction provision is applicable to all who hold between the situation of one who ocpublic office, regardless of whether

cupies a constitutional office and that such office is created by the legisla- of an officer whose position is created ture or by the Constitution. STATE EX by statute. The former has an exREL. GILBERT V. SIERRA COUNTY (re- emption from the control of the legisported herewith) ante, 1310; Richie lature which does not exist in favor of v. Philadelphia (1909) 225 Pa. 511, 26 the latter, and if we were warranted L.R.A.(N.S.) 289, 74 Atl. 430; Evans in concluding that a 'public officer,' in v. Luzerne County (1912) 16 Luzerne contemplation of the Constitution, was Leg. Reg. (Pa.) 92, affirmed in (1913) only one whose existence that instru.

a

were

ment provided for, the appellant's superior or subordinate, whose presposition would be clearly correct. But ent services

necessary perthis view is too narrow when we take manently for the conducting of pubinto consideration the object of this lic affairs. limitation of legislative power and the In Com. ex rel. Wolfe v. Moffitt comprehensive language in which it (1913) 238 Pa. 255, 86 Atl. 75, Ann. is expressed. Many important offices Cas. 1914C, 214, in holding that a diexist which are not provided for by rector of the poor was a public officer the Constitution and the number is within the constitutional inhibition increasing from year to year. The against an increase or diminution of duties of these officials are various, salary during the term of office, the and of some of them highly important. court stated that it was settled by The compensation of many of them is many decisions that the prohibition large, their existence is in harmony against the extension of the term of a with the Constitution, and we must public officer, or the increase or dimassume that the framers of that in- inution of his salary after his elecstrument did not overlook the fact tion or appointment, was not limited that the necessities or convenience of to constitutional officers, but that the the commonwealth would call for an question whether one was a public increase of public officers with various officer within the meaning of that pronew duties. It is hardly to be sup- vision depended upon the manner of posed that the general expression of his election, the duties imposed, and the Constitution would have been used the powers conferred upon him. in view of the number of offices then And in Dewey v. Luzerne County in existence and likely to be created by (1920) 74 Pa. Super. Ct. 300, where an the will of the legislature, if the pro- act of the legislature had increased hibition was only to apply to the com- the salary of the chief deputy sheriff paratively small number whose exist- after the plaintiff's appointment to ence was required by that instrument. that office, an action was brought by It is more in consonance with the the plaintiff to recover an amount spirit of the section under considera- equal to the increase for the remaintion, as well as with its terms, to hold der of his term, the court affirmed the that all those exercising important judgment of the lower court holding public functions by authority of law that a deputy sheriff, whose office was are embraced within the description not expressly created by the Constituof 'public officer.'

tion, as was the office of sheriff, but And Evans V. Luzerne County who had to exercise the same functions (1912) 16 Luzerne Leg. Reg. (Pa.) 92, as the sheriff, was not exempt from the affirmed in (1913) 54 Pa. Super. Ct. 44, constitutional provision prohibiting a holds that the office of assistant clerk change in salary after election or apof the orphans' court is within such pointment to office. The lower court constitutional prohibition, notwith- stated that this constitutional prostanding that office, though provided

vision was applicable to every legisfor in the Constitution, did not come lative office to which pertained iminto existence until after legislative portant public duties, whether the action, and might consequently be re- term-was fixed or not. garded as a legislative and not as a And see Tucker's Appeal (1921) 271 constitutional office. The court stated Pa. 462, 114 Atl. 626, where overseers that under the decision of Richie v. of the poor, who claimed to be neither Philadelphia (Pa.) supra, the ques- constitutional nor public officers, were tion of whether a particular office, held to be within such constitutional within the meaning of this constitu- inhibition. tional provision, did not depend upon The reported case (STATE EX REL. the question whether the office had GILBERT V. SIERRA COUNTY, ante, 1310) been created with or without direct holds that the constitutional inhibition constitutional warrant, but was to be against the enactment of any law inenforced against all officials, whether creasing or decreasing the compensation of any public officer, servant, was controlled by the constitutional agent, or contractor during his term provision that "the salary, fees, or of office, unless otherwise provided in compensation of any officer holding the Constitution, is applicable to all any civil office of profit under this officers who hold public office, regard- state, or any county or municipality less of whether such offices are created thereof shall not be increased or by the Constitution or by the legisla- diminished during the term for which ture. The court points out that the he shall have been elected." provision of the Constitution is ex- To support his claim that it was pressed in broad terms, applicable to competent for the legislature to in“any officer," and contains nothing to crease the salary of an inferior judge indicates an intention to limit it to con- during his term of office, the plaintiff stitutional officers, or that any dis- cited Douglas County v. Limme (1891) tinction between constitutional and 32 Neb. 272, 49 N. W. 266, and State legislative offices was contemplated. ex rel. Martin v. Kalb (1880) 50 Wis.

In Fox v. Lantrip (1915) 162 Ky. 178, 6 N. W. 559, infra; in answer, the 178, 172 S. W. 133, in a taxpayer's ac- court stated that, while these cases tion to recover the amount paid to the held that a constitutional prohibition county superintendent of schools as against a change in the compensation an increase in salary, alleged to have of any public officer during his term been made after his term of office had of office applied only to offices created begun, it was contended on the part by the Constitution, the constitutional of the defendant that the constitution- provision in question in the case at al provision that the compensation of bar was much broader in its definition any county, town, or municipal officer of the class of officers affected, and obshould not be changed during his term viously included officers whose places of office, and the further provision were left to the discretion of the that the salaries of public officers legislature. should not be changed during the term And in Greenlee County v. Laine for which they were elected, were not (1919) 20 Ariz, 296, 180 Pac. 151, the applicable to him, inasmuch as these court, in discussing a section of the provisions applied only applied only to offices Constitution which provides,

, "nor created by the Constitution. The shall the compensation of any public court held that these provisions were officer be increased or diminished durbroad in their terms, and, as the super- ing his term of office,” stated that this intendent of schools was a county provision is explicit, unambiguous, officer, this section of the Constitution and all-inclusive. was applicable to him. It was stated And it has been said that in view that there could be no question that of the purpose with which the prothe provision applied to and controlled vision prohibiting a change during his the compensation of all county officers, term in the salary of “any officer holdand that an officer is anyone who is ing any civil office of profit under this invested with some portion of the state, county, or municipality thereof," functions of the government to be ex- was inserted in the Alabama Constiercised for the public benefit. The tution, the word "officer" must be actual decision in the case was, how- taken to include any state, county, or ever, in favor of the defendant, inas- municipal officer not otherwise exceptmuch as the court decided there had ed by the Constitution. State v. Sanbeen no increase in salary, but merely ders (1914) 187 Ala. 79, L.R.A.1915A, a fixing of the salary after the defend- 295, 65 So. 378. ant was elected to office.

And although the office of the clerk And in Willett v. Weaver (1921) 205 of court of appeals is not expressly Ala. 268, 87 So. 601, it was held that mentioned in the constitutional prothe salary of a judge of an inferior vision against changing the compencourt, created by the legislature pur- sation of public officers, as such office suant to authority given by the Con- is recognized by other sections of the stitution, in lieu of justices of peace, Constitution, it falls within the provision against the increase of compen- increase of compensation of any pubsation. Com. v. Addams (1894) 95 lic officer during his term of office had Ky. 588, 26 S. W. 581. And the court been construed to apply only to offices stated that as the Constitution not created by the Constitution. only prohibits the change of public It should be noted, however, that the officers during their term, but further court in the Kalb Case (Wis.) supra, provides that the compensation of any does not appear to have had in mind city, town, county, or municipal officer any conscious distinction as to the apshall not be changed, the provision plicability of the constitutional prowas evidently intended to prevent any vision to offices created by the Coninterference with the salary or com- stitution and those created by the pensation of a public officer during his legislature, for the court adopts as term of office.

controlling the decisions of the earlier And it has been held that the con- Wisconsin cases (see infra) construstitutional prohibition against the ing the word "compensation,” as used legislature changing the salary of any in the Constitution, as signifying a officer during his term applied to both return for the services in office by a appointed and elective officers, since fixed salary payable out of the public the Constitution recognized those two treasury of the state and as not appliclasses of officers and the specific cable to the class of officers, including question dealing with compensation county judges, who receive specific made no distinction between them. fees for services which they are from State ex rel. McNamara v. Campbell time to time required to render. And (1916) 94 Ohio St. 403, 115 N. E. 29. the earlier Wisconsin cases (Mil

There is, however, some authority waukee County v. Hackett (1867) 21 to support the view that a consti- Wis. 613, and Rooney V. Milwaukee tutional inhibition of change in the County (1876) 40 Wis. 23) cited in salary of a public officer is applicable the Kalb Case also seem to turn upon only to constitutional officers. Doug- the mode of compensation, rather than las County v. Timme (1891) 32 Neb. upon any distinction, as such, between 272, 49 S. W. 266; State ex rel. Gordon constitutional and nonconstitutional v. Moores (1900) 61 Neb. 9, 84 N. W. offices; and it may be noted in this 399. And see Wisconsin cases infra.. connection that in State ex rel. Sommer

Thus, it has been held that a con- v. Erickson (1904) 120 Wis. 435, 98 N. stitutional provision that the compen- W. 253, a statute changing the method sation of a public officer shall not be of compensation of sheriffs from fees increased or diminished during his to salary was upheld upon the ground term of office applies alone to those that the constitutional inhibition “only officers whose offices were created by applies to officers who receive a fixed the Constitution, so that, under such salary from the public treasurer of provision, the legislature could legally the state"-citing the earlier Wisconincrease the compensation of the sin cases already referred to. county commissioner during his term In State ex rel. Smith v. Outagamie of office, his office not being one County (1921) 175 Wis. 253, 185 N. W. created by the Constitution. Douglas 184, sustaining the action of the counCounty v. Timme (1891) 32 Neb. 272, ty board of supervisors in abolish49 N. W. 266. This case cited State ing a municipal court after the reex rel. Martin v. Kalb (1880) 50 Wis. lator's appointment as judge thereof 178, 6 N. W. 557, infra, as holding and during his term of office, and rethat a similar provision of the Wis- solving that no county order be drawn consin statute was applicable to offices or paid for any salary or any expense created by the Constitution.

in connection with that court, the suThe decision in Douglas County v. preme court, in reply to the contenTimme (Neb.) supra, was approved in tion that the act was in violation of State ex rel. Gordon v. Moores (Neb.) the constitutional inhibition of the insupra, where the court stated that the crease or decrease of the compensaconstitutional prohibition against the tion of public officers during the term

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