tioned, and in the case of Mahon v. Board of Education94 it was held that under these conditions the legislature did not have the power. Pensions, like salaries, are not claims in which there is a vested right, and unless protected by the Constitution they may be discontinued by the legislature at any time.95 To quote from the opinion of the Supreme Court in United States v. Teller: "No pensioner has a vested legal right to his pension. Pensions are the bounties of the government, which Congress has the right to give, withhold, distribute, or recall at its discretion." In support of this conclusion it cites Walton v. Cotton.96

94 171 N. Y. 263.

95 United States v. Teller, 107 U. S. 64. 96 19 How. 355 (U. S.).

CHAPTER VII.

POWERS OF PUBLIC OFFICERS.

56. Classification of powers.-The powers of public officers are either express or implied, that is, they are either set forth explicitly in the Constitution or statutes or implied from these express powers or from the common law powers of similar officers. Of course if the office is a new one, not known to the common law, as for instance that of railway commissioner, we must then look to the Constitution and statutes exclusively in order to determine the powers which such an officer may legally exercise. In case of a common law office, the Constitution or statutes may of course expand the powers of the officer, but if they create the office by name and are silent as to the powers, it will be presumed that they are the same as at common law. There are comparatively few officers whose powers are fixed in the Constitution. In order to make changes reasonably easy and to keep the Constitution from becoming too voluminous a document, the work of prescribing the powers of officers is in the great majority of cases left to the legislature. The Federal Constitution defines the more important powers of the President; in a general way, of the members of Congress, by defining the powers of Congress; and of the Supreme Court judges, by defining the jurisdiction of the Supreme

Court. That is, it defines in part the powers of a few score of federal officers, leaving the powers of the several thousand others to be defined by statute.

97

57. Territorial limitations.-The right of a public officer to exercise any powers at all are limited to the district within which he has jurisdiction; outside of that area his powers are the same as those of any other private citizen, unless otherwise provided by Constitution or statutes. In discussing this subject the Supreme Court of Rhode Island, in the case of Page v. Staples, thus sets forth the law: "We do not think that the defendant can justify the taking of the plaintiff through a part of Kent County for the purpose of committing him to the jail in Providence County. In the absence of statutory provisions, the power of a sheriff is limited to his own county. He is to be adjudged as sheriff in his own county and not elsewhere. He cannot, therefore, execute a writ out of his own county, and if he attempts to do so, becomes a trespasser. The only exceptions to this principle are, that having a prisoner in his custody upon a writ of habeas corpus, he has power, by virtue of the writ, to travel through other counties, if necessary, in order to take his prisoner to the place where the writ is returnable; and he may, also, upon fresh pursuit, retake a prisoner who has escaped from his custody into another county."

58. Limitations due to personal interest.—It is a well recognized principle of common law that a judge shall not sit in a case in which he has a personal interest, whether this be due to relationship, finances,

97 13 R. I. 306.

professional services, or other cause which would be likely to interfere with his deciding impartially. This is merely the legal recognition of a truism that men do not make good judges in their own case. In Moses v. Julian,98 the court says: "The judge who is satisfied that he is legally disqualified to act in a case ought not to wait until the parties object to him, but should refuse to hear the cause, by an entry on the docket that he does not sit in the case. This is the immemorial practice of the courts and of constant occurrence." In this case a will was set aside because the judge before whom it was probated had acted as counsel in drawing it up. The same rule applies to administrative officers, and in Goodyear v. Brown,99 the court held void a title to property resting upon a warrant issued to himself by a deputy secretary of internal affairs, and awarded the land to the adverse claimant. "We presume it was innocent. Nevertheless, to litigants whose property is at stake, and to speculators, measuring the acts of men by the common business standards, it suggests possible dangers and temptations on which we will not enlarge. Such dealings by an officer are to be regretted because of their necessary consequences; and a proper consideration for the public security, and for the confidence of citizens in the officers of the state, forbid them. Whether we consider the interests of the citizens for whose security and protection the state exists, or the preservation of public confidence in the purity of the administration of

98 45 N. H. 52.

99 155 Pa. 514.

public affairs, or the honor and character of the officer as a public servant, the conclusion reached is the same. Public policy cannot tolerate such dealings by an officer within his own department or office. It will not uphold them."

59. Limitations due to separation of powers.— Though the principle of separation of powers into legislative, executive, and judicial is not strictly adhered to in the United States, there is nevertheless a sort of presumption against the exercise by the officials of one department of powers which properly belong in another department of government. Whether or not the power exercised is in violation of this principle, and if so, whether or not the violation is one forbidden by law or public policy, is in the last analysis a question for the courts. In some states the separation of powers is specifically provided for in the constitutions.

60. When powers exercised by boards.-If an official power instead of being exercised by one person is entrusted to a board of three or more, it must be exercised by them acting as a board. While it is not necessary that all concur in the action, it is necessary, in order that it be considered an action by the board, that all should have had notice of the meeting, that a quorum should have been present, and that a majority of the quorum should concur. Cooley v. O'Connor,1 the supreme court reversed a decision of the circuit court excluding a tax certificate on the ground that it was signed by but two of the three tax commissioners, and thus set forth the 112 Wall. 391 (U. S.).

In