51. Not a contractual right. That the right to compensation for official services by a public officer does not rest upon contract may readily be concluded from the fact that when the office is abolished the right to compensation ceases. If the right rested upon contract, it would not cease until the expiration of the term provided in the contract, as the abolition of the office would not be permitted to work an impairment of the obligation of the contract. If the right to compensation were contractual, the contract could not be made more onerous without entitling the officer to extra compensation.

52. When protected by constitution.-Although the exact amount of the salary of public officers is rarely fixed by the constitutions, that being in practically all cases left to the legislatures, it is not so unusual for the constitution to provide that the salary shall not be diminished during the term of office. Such a provision is contained in the Federal Constitution in regard to the justices of the supreme court and of the inferior courts. It is as follows: "The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall at stated times receive for their services a compensation which shall not be diminished during their term of office.' The intent of this is to prevent the legislative branch from coercing the judiciary by a threat to reduce their pay or by actually reducing it. Though there is no remedy in case Congress were to refuse to appropriate anything for the salaries of judges, it is not probable that

90 Art. II, § 1.

a Congress will be found in which a majority would be willing openly to violate a plain and unequivocal provision of the Constitution. In all systems of government, something must be left to the reasonableness of men.

The provision in regard to the salary of the President differs from the above in that it forbids an increase as well as a diminution during his term of office. It reads: "The President shall, at stated times, receive for his services, a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive, within the period, any other emolument from the United States, or any of them." This is clearly intended not only to prevent coercion either by threats to lower or an actual lowering of his salary, but to prevent a corrupt influencing of his action by promises of an increase of salary. The idea in both provisions is to make the executive and judiciary independent of the legislative branch of the government. Where a President is elected for a second term he may receive a higher salary during that than he did during his first term. This happened in the case of President Grant.

Some of the state constitutions have gone much further than the Federal Constitution in the matter of fixing salaries, just as they have in a great many matters which should be left to ordinary legislation. It is indicative of a distrust of their legislatures and is particularly noticeable in the newer states. A constitutional provision fixing salaries at specified amounts is undoubtedly a mistake, since it makes it

too difficult to adjust salaries to the changes in the cost of living. An example of this is to be found in the constitution of Nebraska, adopted in 1875, and still in force. It fixes the salaries of governor, auditor, and treasurer at $2,500 each per annum, and those of the attorney-general, superintendent of public instruction, and secretary of state at $2,000 per annum. Though nearly everyone recognizes that these salaries are now grossly inadequate because of the increased cost of living, the inertia has been too great to permit a change of the constitution so as to readjust them to the present standard of living. The theory of the American government in fixing the salaries of its officers is based upon the principle that salaries of public officers should be sufficient in amount to permit a poor man to accept office.

53. Assignment of salaries.-Though there is no objection to the assignment of a salary already earned, the courts do not countenance the assignment of officers' salaries yet to be earned. The reason for this rule is that officers will render more efficient service by reason of having a greater interest in their work when there is money still due them in the way of salary than if there is nothing still due. Though this rule would not hold if all officials acted in accordance with the highest standard of ethics, common observation teaches us that it does hold, and that public policy demands that so obvious a fact be recognized. In discussing the rule, Justice Johnson of the Court of Appeals of New York says, in the case of Bliss v. Lawrence:91

91 58 N. Y. 442.

"Salaries are, by law, payable after work is performed, and not before, and while this remains the law, it must be presumed to be a wise regulation, and necessary, in the view of law-makers, to the efficiency of the public service. The contrary rule would permit the public service to be undermined by the assignment to strangers of all the funds appropriated to salaries. It is true that, in respect to officers removable at will, this evil could in some measure be limited by their removal when they were found assigning their salaries; but this is only a partial remedy, for there would still be no means of preventing the continued recurrence of the same difficulty. If such assignments are allowed, then the assignees, by notice to the government, would on ordinary principles be entitled to receive pay directly and to take the place of their assignors in respect to the emoluments, leaving the duties as a barren charge to be borne by the assignors. It does not need much reflection or observation to understand that such a condition of things could not fail to produce results disastrous to the efficiency of the public service."

54. Salaries not attachable.-Neither are the salaries of public officers, while still in the hands of the government, attachable by the creditors of such officers. If such a practice became common, it would consume a considerable portion of the time of the official upon whom the writs were served and would to that extent divert his attention from the performance of the duties of his office. Presumably, his time is worth more to the public when performing the duties of his office than when acting partly as a private collecting agency. The Supreme Court of the United States, speaking through Justice McLean, in the case

of Buchanan v. Alexander,92 states the rule and the reason for it as follows: "The important question is whether the money in the hands of the purser, though due to the seamen for wages, was attachable. A purser, it would seem, cannot in this respect be distinguished from any other disbursing agent of the government. If the creditors of these seamen may, by process of attachment, divert the public money from its legitimate and appropriate object, the same thing may be done as regards the pay of our officers and men of the army and of the navy; and also in every other case where the public funds may be placed in the hands of an agent for disbursement. To state such a principle is to refute it. No government can sanction it. At all times it would be found embarrassing, and under some circumstances it might be fatal to the public service."

55. Pensions.-As an incentive to more faithful service and accepting of office at lower salaries, the state may provide a system of pensioning its public officers. In the military and naval service this is a familiar practice, but as yet it has not become at all common in our civil service. If it can be considered as a part of the compensation for services, the legislature has the power to provide for it and may pay it out directly through its own agents or through a private association.93 But, where it may be considered a mere gratuity, as where it applies to officers whose term of service ended before the law was passed, the power of the legislature has been ques

92 4 How. 20 (U. S.).

93 Commonwealth v. Walton, 182 Pa. 373.