tioned, as they do not meet with the constitutional objection we have discussed.

For the reasons stated, the judg

ment of the trial court should be affirmed, and it is so ordered. Parker, Ch. J., and Botts, J., con

cur.

A public officer is entitled to the salary provided by law, because the law attaches the salary to the office as an incident thereof, and not by the force of a contract, and as the legisla ture is not bound by any contract, the compensation of an officer may be regulated, altered, increased, or diminished by it at any time, in the absence of a constitutional restriction. 22 R. C. L. p. 532, § 227.

The present annotation is limited to cases which expressly discuss, or at least consider, the question whether the constitutional inhibition of increase or decrease in compensation of public officers during their terms of office is applicable to nonconstitutional officers, to the exclusion of numerous cases which apparently assume, without any discussion of the point, that the constitutional inhibition is not limited to constitutional offices.

Cases dealing with the question whether a constitutional provision against an increase of compensation during the term of office is applicable where new duties are imposed on the officer after taking office are treated in the annotation in 21 A.L.R. 256.

Courts specifically considering the question whether a constitutional inhibition of change in the compensation of an officer during his term of office is applicable to a nonconstitutional officer in general hold that the provision is applicable to all who hold public office, regardless of whether such office is created by the legislature or by the Constitution. STATE EX REL. GILBERT v. SIERRA COUNTY (reported herewith) ante, 1310; Richie v. Philadelphia (1909) 225 Pa. 511, 26 L.R.A. (N.S.) 289, 74 Atl. 430; Evans v. Luzerne County (1912) 16 Luzerne Leg. Reg. (Pa.) 92, affirmed in (1913)

54 Pa. Super. Ct. 44; Com. ex rel. Wolfe v. Moffitt (1913) 238 Pa. 255, 86 Atl. 75, Ann. Cas. 1914C, 214; Davis V. Luzerne County (1920) 74 Pa. Super. Ct. 300. And see also Fox v. Lantrip (1915) 162 Ky. 178, 172 S. W. 133.

Thus, it has been held that a constitutional prohibition against the raising of an officer's salary after his election or appointment to office is not limited to persons who hold constitutional offices, but applies to a tax collector whose office is created and abolished at the legislative will, notwithstanding that a clear distinction in respect of some incidents is recognized between a constitutional office which enjoys exemption from the legislative interference and control, and one wholly legislative-created and abolished at the legislative will. Richie v. Philadelphia (1909) 225 Pa. 511, 26 L.R.A. (N.S.) 289, 74 Atl. 430, affirming the judgment of the superior court in (1908) 37 Pa. Super. Ct. 190, denying that a tax collector was entitled to an increase in the salary of his office, provided for by statute passed after his appointment. The superior court, in passing on the contention that the constitutional prohibition was applicable only to offices existing by the requirement of the Constitution, stated: "It cannot be disputed that there is a distinction between the situation of one who occupies a constitutional office and that of an officer whose position is created by statute. The former has an exemption from the control of the legis lature which does not exist in favor of the latter, and if we were warranted in concluding that a 'public officer,' in contemplation of the Constitution, was only one whose existence that instru

ment provided for, the appellant's position would be clearly correct. But this view is too narrow when we take into consideration the object of this limitation of legislative power and the comprehensive language in which it is expressed. Many important offices exist which are not provided for by the Constitution and the number is increasing from year to year. The

duties of these officials are various, and of some of them highly important. The compensation of many of them is large, their existence is in harmony with the Constitution, and we must assume that the framers of that instrument did not overlook the fact that the necessities or convenience of the commonwealth would call for an increase of public officers with various new duties. It is hardly to be supposed that the general expression of the Constitution would have been used in view of the number of offices then in existence and likely to be created by the will of the legislature, if the prohibition was only to apply to the comparatively small number whose existence was required by that instrument. It is more in consonance with the spirit of the section under consideration, as well as with its terms, to hold that all those exercising important public functions by authority of law are embraced within the description of 'public officer.'"

And Evans V. Luzerne County (1912) 16 Luzerne Leg. Reg. (Pa.) 92, affirmed in (1913) 54 Pa. Super. Ct. 44, holds that the office of assistant clerk of the orphans' court is within such constitutional prohibition, notwithstanding that office, though provided for in the Constitution, did not come into existence until after legislative action, and might consequently be regarded as a legislative and not as a constitutional office. The court stated that under the decision of Richie v. Philadelphia (Pa.) supra, the question of whether a particular office, within the meaning of this constitutional provision, did not depend upon the question whether the office had been created with or without direct constitutional warrant, but was to be enforced against all officials, whether

superior or subordinate, whose present services were necessary permanently for the conducting of public affairs.

In Com. ex rel. Wolfe v. Moffitt (1913) 238 Pa. 255, 86 Atl. 75, Ann. Cas. 1914C, 214, in holding that a director of the poor was a public officer within the constitutional inhibition against an increase or diminution of salary during the term of office, the court stated that it was settled by many decisions that the prohibition against the extension of the term of a public officer, or the increase or diminution of his salary after his election or appointment, was not limited to constitutional officers, but that the question whether one was a public officer within the meaning of that provision depended upon the manner of his election, the duties imposed, and the powers conferred upon him.

And in Dewey v. Luzerne County (1920) 74 Pa. Super. Ct. 300, where an act of the legislature had increased the salary of the chief deputy sheriff after the plaintiff's appointment to that office, an action was brought by the plaintiff to recover an amount equal to the increase for the remainder of his term, the court affirmed the judgment of the lower court holding that a deputy sheriff, whose office was not expressly created by the Constitution, as was the office of sheriff, but who had to exercise the same functions as the sheriff, was not exempt from the constitutional provision prohibiting a change in salary after election or appointment to office. The lower court stated that this constitutional provision was applicable to every legislative office to which pertained important public duties, whether the term was fixed or not.

And see Tucker's Appeal (1921) 271 Pa. 462, 114 Atl. 626, where overseers of the poor, who claimed to be neither constitutional nor public officers, were held to be within such constitutional inhibition.

The reported case (STATE EX REL. GILBERT V. SIERRA COUNTY, ante, 1310) holds that the constitutional inhibition against the enactment of any law increasing or decreasing the compen

sation of any public officer, servant, agent, or contractor during his term of office, unless otherwise provided in the Constitution, is applicable to all officers who hold public office, regardless of whether such offices are created by the Constitution or by the legislature. The court points out that the provision of the Constitution is expressed in broad terms, applicable to "any officer," and contains nothing to indicates an intention to limit it to constitutional officers, or that any distinction between constitutional and legislative offices was contemplated.

In Fox v. Lantrip (1915) 162 Ky. 178, 172 S. W. 133, in a taxpayer's action to recover the amount paid to the county superintendent of schools as an increase in salary, alleged to have been made after his term of office had begun, it was contended on the part of the defendant that the constitutional provision that the compensation of any county, town, or municipal officer should not be changed during his term of office, and the further provision that the salaries of public officers should not be changed during the term for which they were elected, were not applicable to him, inasmuch as these provisions applied only to only to offices created by the Constitution. The court held that these provisions were broad in their terms, and, as the superintendent of schools was a county officer, this section of the Constitution was applicable to him. It was stated that there could be no question that the provision applied to and controlled the compensation of all county officers, and that an officer is anyone who is invested with some portion of the functions of the government to be exercised for the public benefit. The actual decision in the case was, however, in favor of the defendant, inasmuch as the court decided there had been no increase in salary, but merely a fixing of the salary after the defendant was elected to office.

And in Willett v. Weaver (1921) 205 Ala. 268, 87 So. 601, it was held that the salary of a judge of an inferior court, created by the legislature pursuant to authority given by the Constitution, in lieu of justices of peace,

was controlled by the constitutional provision that "the salary, fees, or compensation of any officer holding any civil office of profit under this state, or any county or municipality thereof shall not be increased or diminished during the term for which he shall have been elected."

To support his claim that it was competent for the legislature to increase the salary of an inferior judge during his term of office, the plaintiff cited Douglas County v. Limme (1891) 32 Neb. 272, 49 N. W. 266, and State ex rel. Martin v. Kalb (1880) 50 Wis. 178, 6 N. W. 559, infra; in answer, the court stated that, while these cases held that a constitutional prohibition against a change in the compensation of any public officer during his term of office applied only to offices created by the Constitution, the constitutional provision in question in the case at bar was much broader in its definition of the class of officers affected, and obviously included officers whose places were left to the discretion of the legislature.

And in Greenlee County v. Laine (1919) 20 Ariz. 296, 180 Pac. 151, the court, in discussing a section of the Constitution which provides, "nor shall the compensation of any public officer be increased or diminished during his term of office," stated that this provision is explicit, unambiguous, and all-inclusive.

And it has been said that in view of the purpose with which the provision prohibiting a change during his term in the salary of "any officer holding any civil office of profit under this state, county, or municipality thereof," was inserted in the Alabama Constitution, the word "officer" must be taken to include any state, county, or municipal officer not otherwise excepted by the Constitution. State v. Sanders (1914) 187 Ala. 79, L.R.A.1915A, 295, 65 So. 378.

And although the office of the clerk of court of appeals is not expressly mentioned in the constitutional provision against changing the compensation of public officers, as such office is recognized by other sections of the Constitution, it falls within the pro

vision against the increase of compensation. Com. v. Addams (1894) 95 Ky. 588, 26 S. W. 581. And the court stated that as the Constitution not only prohibits the change of public officers during their term, but further provides that the compensation of any city, town, county, or municipal officer shall not be changed, the provision was evidently intended to prevent any interference with the salary or compensation of a public officer during his term of office.

And it has been held that the constitutional prohibition against the legislature changing the salary of any officer during his term applied to both appointed and elective officers, since the Constitution recognized those two classes of officers and the specific question dealing with compensation made no distinction between them. State ex rel. McNamara v. Campbell (1916) 94 Ohio St. 403, 115 N. E. 29.

There is, however, some authority to support the view that a constitutional inhibition of change in the salary of a public officer is applicable only to constitutional officers. Douglas County v. Timme (1891) 32 Neb. 272, 49 S. W. 266; State ex rel. Gordon v. Moores (1900) 61 Neb. 9, 84 N. W. 399. And see Wisconsin cases infra..

Thus, it has been held that a constitutional provision that the compensation of a public officer shall not be increased or diminished during his term of office applies alone to those officers whose offices were created by the Constitution, so that, under such provision, the legislature could legally increase the compensation of the county commissioner during his term of office, his office not being one created by the Constitution. Douglas County v. Timme (1891) 32 Neb. 272, 49 N. W. 266. This case cited State ex rel. Martin v. Kalb (1880) 50 Wis. 178, 6 N. W. 557, infra, as holding that a similar provision of the Wisconsin statute was applicable to offices created by the Constitution.

The decision in Douglas County v. Timme (Neb.) supra, was approved in State ex rel. Gordon v. Moores (Neb.) supra, where the court stated that the constitutional prohibition against the

increase of compensation of any public officer during his term of office had been construed to apply only to offices created by the Constitution.

It should be noted, however, that the court in the Kalb Case (Wis.) supra, does not appear to have had in mind any conscious distinction as to the applicability of the constitutional provision to offices created by the Constitution and those created by the legislature, for the court adopts as controlling the decisions of the earlier Wisconsin cases (see infra) construing the word "compensation," as used in the Constitution, as signifying a return for the services in office by a fixed salary payable out of the public treasury of the state and as not applicable to the class of officers, including county judges, who receive specific fees for services which they are from time to time required to render. And the earlier Wisconsin cases (Milwaukee County v. Hackett (1867) 21 Wis. 613, and Rooney v. Milwaukee County (1876) 40 Wis. 23) cited in the Kalb Case also seem to turn upon the mode of compensation, rather than upon any distinction, as such, between constitutional and nonconstitutional offices; and it may be noted in this connection that in State ex rel. Sommer v. Erickson (1904) 120 Wis. 435, 98 N. W. 253, a statute changing the method of compensation of sheriffs from fees to salary was upheld upon the ground that the constitutional inhibition "only applies to officers who receive a fixed salary from the public treasurer of the state"-citing the earlier Wisconsin cases already referred to.

In State ex rel. Smith v. Outagamie County (1921) 175 Wis. 253, 185 N. W. 184, sustaining the action of the county board of supervisors in abolishing a municipal court after the relator's appointment as judge thereof and during his term of office, and resolving that no county order be drawn or paid for any salary or any expense in connection with that court, the supreme court, in reply to the contention that the act was in violation of the constitutional inhibition of the increase or decrease of the compensation of public officers during the term