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"A public office is an agency for the state, and the person whose duty it is to perform this agency is a public officer. The oath, the salary, or fees are mere incidents and constitute no part of the office. Where no salary or fees are annexed to the office, it is a naked office-honorary-and is supposed to be accepted merely for the public good. This definition also excludes the idea that a public office must have continuance. It can make no difference whether there be but one act or a series of acts to be done; whether the office expires as soon as the one act is done, or is to be held for years, or during good behavior."

In determining in a given case whether we have an office or an employment, the courts will consider how the functions have been regarded, as there are some duties so universally considered official that the one performing them is always regarded as an officer; how the one who performs the work was chosen, if by election, appointment, or by contract. With reference to the class of work commonly done by experts, it is optional with the state whether it shall be done by officers or by employees. What the state has intended in this respect and what it has done is of course a question for the courts.

3. Why the distinction is important.-The practical importance of this distinction arises from the fact that the term for which an employee is secured may not be arbitrarily shortened by the state without his consent, and if it is so shortened he has an action for damages. In other words, his agreement with the state is a contract within the meaning of the term in the Federal Constitution forbidding any state to

impair the obligation of contracts. His right is a certain, definite, fixed, private property right which he can enforce in the courts. For the legislative or executive branch of the government to deny or override this would be to confiscate his property, and it is to prevent this that the framers of the Constitution inserted in that instrument the above provision. But this is not true of the right of an officer to continue in office for any specific length of time. The legislature may, unless his office is one created by the Constitution, abolish his office and bring his term to an end at any time without giving him any right to damages for the loss of his position. It may be very disappointing to him and result in considerable loss, but it is what is known in the Roman Law as damnum absque injuria (loss without injury).

In contrasting private contracts of employment with the tenure of a public officer the Supreme Court of the United States says, in substance, in the case of Butler v. Pennsylvania, that private contracts for employment are clearly distinguishable from the engagements adopted or undertaken by the body politic or state government for the benefit of all, and from the necessity of the case, and according to universal understanding, to be varied or discontinued as the public welfare shall require. The selection of officers, who are nothing more than agents for the effectuating of public purposes, is a matter of public convenience or necessity, and so, too, are the periods for the appointment of such agents; but neither

• Const. of U. S., Art. I, § 10.

710 How. 402 (U. S.), LEADING ILLUSTRATIVE CASES.

the one nor the other can constitute any obligation to continue such agents, or to reappoint them, after the measures which brought them into being have been abrogated as detrimental to the well-being of the public. The promised compensation for services already earned during the term of service of the officer may undoubtedly be claimed, both upon principle of compact and of equity; but to insist beyond this on the perpetuation of a public policy either useless or detrimental, and upon a reward for acts not desired, would appear to be reconcilable with neither natural justice or common sense.

The establishment of such a principle would necessarily clog everything like progress or improvement in government; or if changes should be ventured upon the government would have to become one great pension establishment on which to quarter a host of sinecures. It follows, then, upon principle, that, in every perfect or competent government, there must exist a general power to enact and repeal laws; and to create and change or discontinue the agents designated for the execution of those laws. Such a power is indispensable to the preservation of the body politic, and for the safety of the individuals of the community. It is true that this power, or the extent of its exercise, may be controlled by the higher organic law or the constitution of the state, as is the case in some instances in the state constitutions and in the Federal Constitution. The latter instrument has seen fit to protect the salaries of supreme court judges and the President against revision downward by the legislature. A sufficient explanation of this

exception to the rule is that it was thought best that one coördinate branch of the government should not be left to the mercy of the other. While then an employee may not have the power and prestige of an officer he has some advantage in the greater security of his tenure.

4. Right to office not a property right.-As it may be regarded as established law in the United States that the right to office is not contractual, so may it be regarded as settled that the right to office is not a property right, and hence does not come within the provision of the Fourteenth Amendment to the Constitution against depriving of property without due process of law. In the case of Taylor v. Beckham, the Supreme Court of the United States affirmed a decision of the Court of Appeals of Kentucky, that the right of the governor or lieutenant governor to hold office was not a property right and hence did not come within the provision of the Fourteenth Amendment, but, being created by the state constitution, was conferred and held solely in accordance with the terms of that instrument and laws passed pursuant thereto, so that in respect of an elective office, a determination of the result of an election, in the manner provided, adverse to a claimant, could not be regarded as a deprivation forbidden by the amendment. The court, speaking through Chief Justice Fuller, there says: "The view that public office is not property has been generally entertained in this country." The decisions are numerous that public offices are mere agencies, or trusts, and not property

8 178 U. S. 548.

as such. Nor does the fact that the Constitution may forbid the legislature from abolishing a public office or diminishing the salary thereof during the term of the incumbent, change its character or make it property. In short, the nature of the relation of a public officer to the public is inconsistent with either a property or a contract right. But when one has been duly elected to office, has qualified and entered upon the duties of his position, though the legislature or other controlling power may abolish the office, the officer may not be ousted, except upon proper legal proceedings wherein good cause is shown.