sinecures." Following the above case it has likewise been held that the right to an office is not "property" within the meaning of the Fourteenth Amendment, which declares that no state shall "deprive any person of life, liberty, or property without due process of law" (2). In the Federal Constitution it is provided that the compensation of judges shall not be diminished during their continuance in office, and the salaries of other officers as well are protected in many of the state constitutions (3), but these provisions do not give the holders contractual rights to the offices or vested rights of property in them.

§ 5. Distinguished from an employment. But there are many persons in the service of the state who are called employes rather than officers. They are usually of the humbler ranks and little difficulty is apt to be experienced in identifying them. Where the employment is of a more important nature, however, the line between employment and office is often hard to draw and yet it often must be drawn, as employments, unlike offices, are contractual and thus enjoy the protection of the United States Constitution. Thus, in the case of Hall v. Wisconsin (4), Hall and two others had by act of the legislature been appointed "commissioners" to make a survey of the state. Their duties were specifically defined in the act, and they were required to distribute the work among themselves by agreement and to employ such assistants as a majority of them might deem necessary. In case of a vacancy occurring in the commission, the governor was

(2) Taylor v. Beckham, 178 U. S. 548.

(3) Stimson, Federal and State Constitutions, p. 208. (4) 103 U. S. 5.

empowered to fill it and was authorized to remove any member for incompetency or neglect of duty. Further the act required the governor "to make a written contract with each commissioner" for the performance of his allotted work, "fixing the compensation therefor, which was not to exceed two thousand dollars per annum and was to be paid for only such part of the year as each commissioner should actually work. An appropriation of $6,000 per annum for six years was made to be paid to the persons entitled to receive the same." By an act passed three years later Hall was made head of the commission, was vested with the general supervision and control of the survey, and was required to contract with the other commissioners to finish their surveys within the year. Two years later both acts were repealed without qualification. Hall's contract with the governor was entered into about a year after the passage of the first act and had about a year to run at the time of the repeal. The United States Supreme Court held that Hall's relation to the state was contractual and not official, that the statute under which the governor had acted had referred to a "contract," that the instrument executed in accordance with this law was an "agreement" and not a commission, that the duties of the commissioners and their compensation were fixed by the agreement, in accordance with the statute, and that the agreement was signed and sealed and attested as in other cases of contract. Furthermore no bond was required as is usually the case with officers, and Hall was not a citizen of Wisconsin, which was one of the qualifications for holding office in that state.

§ 6. Created by law. It seems to be a fundamental assumption in our scheme of government that offices shall be "established by law" (5) and not by executive act. In the case of United States v. Maurice (6), the United States attempted to recover certain moneys received by Maurice from the sureties on his bond given for the faithful performance by him of the duties pertaining to the office of agent of fortifications. The sureties claimed that there was no such office and that therefore the bond was void. Chief Justice Marshall admitted the contention that, unless otherwise specifically provided, the Constitution of the United States required that offices should be established by law, but held that under the circumstances of the case that requirement had been met. From 1794 to 1808 Congress had passed several acts empowering the President to erect fortifications and making appropriations therefor, but organizing no system for their execution. In the army regulations of September, 1816, provision was made for the appointment of an agent of fortifications and his duties were defined. These army regulations were the work of the war office, but Chief Justice Marshall found that they had received the sanction of acts of Congress of 1816 and 1821 and so, although with some hesitation, decided that they had been "established by law."

§ 7. Duration. In the above case it was said: "Although an office is an 'employment,' it does not follow that every employment is an office. A man may certainly

(5) U. S. Const., Art. II, sec. 2, § 2.

(6) 2 Brock. 96.

be employed under a contract, express or implied, to do an act or perform a service, without becoming an officer. But, if a duty be a continuing one which is defined by rules prescribed by the government and not by contract, which an individual is appointed by the government to perform, who enters on the duties appertaining to his station without any contract defining them; if those duties continue, though the person be changed, it seems very difficult to distinguish such a charge or employment from an office, or the person who performs the duties from an officer." It has been held that commissioners for a particular act or purpose are not officers (7) but there is not entire agreement on this point.

§ 8. Duties. Office is often defined as a duty or trust, and in a Pennsylvania case it was held that to take away the powers and jurisdiction of a judge was virtually to abolish the office. "It seems like a solecism to regard that to be an office, to which there are no duties assigned" (8).

§ 9. Name and emoluments. In the early definitions of offices, the right to take the fees and emoluments occupies an important place. This is natural in view of the character of private property which many offices hold in other countries, but, as that character is lacking in this country, more recent American definitions say little of emoluments but much of duties.

a name, although it usually has.

Nor need an office have

"The official or unoffi

cial character of the defendants is to be determined, not

(7) Matter of Hatheway, 71 N. Y. 238.

(8) Commonwealth v. Gamble, 62 Pa. St. 349.

by their name, nor by the presence or absence of an official designation, but by the nature of the functions devolved upon them" (9).

SECTION 2. ELIGIBILITY TO OFFICE.

§ 10. When qualifications must exist. The question frequently arises whether qualifications for office must exist at the time of election or appointment, as well as at the time of taking office. In the case of State v. Sullivan (10) Sullivan had received a majority of votes for county attorney, but had never declared his intention to become a citizen of the United States until after election, notwithstanding that citizenship or a declaration of intention to become a citizen was a qualification for holding office. His contention was that, although a necessary qualification for holding office, it was not necessary to an election. The court, however, referred to Webster's dictionary in which "eligible" is defined as "proper to be chosen; qualified to be elected," and showed its common derivation with "electable," the meaning of which, the court said, was more obvious but not different. This case is in accord with the majority rule, although in a number of states it has been held that the qualifications need exist only at the commencement of the term of office.

§ 11. Citizenship and residence. It is a common provision that an officer must be a citizen or have declared his intention to become such, or else these qualifications may follow from a requirement that he be a voter. Residence within the state for a certain period is also commonly re

(9) State v. Kennon, 7 Ohio St. 557.

(10) 45 Minn. 309.