1882, only $5,000 was appropriated for that office, and, in accordance with the provision of the act that the secretary of state should estimate for the entire amount required for the support of the diplomatic and consular service, specifying the compensation deemed advisable in each case, the secretary had in the following year estimated $5,000 as the salary for the minister to Hayti, and for the following years the appropriation was for that amount. But the Supreme Court said that while, if the appropriation had been expressly "in full compensation" for the service of those years, the case would have been distinguishable, and while the case was not free from difficulty, yet it was of the opinion "that according to the settled rules of interpretation, a statute fixing the annual salary of a public officer at a named sum, without limitation as to time, should not be deemed abrogated or suspended by subsequent enactments which merely appropriated a less amount for the services of that officer for particular fiscal years, and which contained no words that expressly or by clear implication modified or repealed the previous law."

§ 117. Accrued pay. Although neither the official re lation nor the right to compensation pertaining thereto is contractual, there is an implied contract to pay salary that has already accrued which is protected by the United States Constitution. Thus in Fisk v. Jefferson Police Jury (12) the plaintiff had been a district attorney in Louisiana and obtained judgments rendered for services as such, but subsequent to the time the services were per

formed the state constitution had decreased the taxing power of the municipality, and the supreme court of the state held that the plaintiff had only a right to the decreased taxing power and not to that which existed at the time the services were performed, on the ground that the plaintiff's right to the accrued salary was not a contract, so that the rule that the obligation of a contract includes the obligation of not decreasing the taxing power with regard to that contract would not apply. The Supreme Court of the United States, however, held that there was a clear distinction between the right to continued salary and that to accrued salary, and that the obligation of the latter is "perfect, and rests on the remedies which the law then gives for its enforcement." Similarly it has been held that accrued salary may be assigned.

§ 118. Payment to de facto officers. An exception arises, to the principle that the de jure officer is entitled to the salary fixed by law, in the case where payment has been made to a de facto officer. Thus in Dolan v. Mayor (13) the plaintiff had been assistant clerk of the district court when one Keating entered upon the office and continued to exclude the plaintiff until he himself was ousted by the courts. During part of the period while he occupied the office, Keating was paid the salary belonging thereto and it was claimed that this was a good defense to the action of the plaintiff for the same salary. This claim the court upheld. It said that Keating had been a de facto though not a de jure officer, that it was well settled in New York that a de facto officer could not re

cover the salary of the office in a judicial proceeding as it was proper to put the title to the office in issue, but the it would be placing too great a burden on the disbursing officer if he should have to go behind the certificate of election or the commission of the actual holder of the office and would impair the efficiency of the public service. So the court denied the right of the plaintiff to recover from the city salary already paid to the de facto officer, but intimated that he might recover it from the latter; and in the case of Nichols v. MacLean (14) the de jure officer in fact recovered judgment from the de facto officer for the salary paid the latter.

§ 119. Reimbursement. In the case of United States v. Flanders (15) suit was brought by the United States on the bond of a collector of internal revenue on the ground that he had not turned over certain public moneys. The answer set up that among other credits the collector had been entitled to $777 on account of money paid by him for necessary and legal advertising, and the court upheld this contention. It said that the statute required the advertisements, that there was nothing in it which implied that they were to be paid for out of the compensation allowed the collector, or that they were not to be reimbursed because they were not specified with stationery and blank books, the reimbursement for which was specifically provided for, and that the defendants were in equity and justice entitled to the set-off. So it would seem that an officer is entitled to indemnity when he acts

(14) 101 N. Y. 526.

in good faith, and at any rate the public has power to indemnify him (16).

§ 120. Military and naval pensions. The grant of military and naval pensions has long been the custom of the United States government and their constitutionality is not subject to question. But "no pensioner has a vested legal right to his pension. Pensions are the bounty of the government which Congress has the right to give, withhold, distribute, or recall, at its discretion" (17).

§ 121. Civil pensions. In this country civil pensions are a comparatively new thing, and the courts are as yet feeling their way as to the constitutionality of some of the schemes proposed. Thus it was held in Matter of Matson (18) that the payment of pensions to those already out of the service was contrary to the provisions of the state constitution forbidding the appropriation of public money as a mere gratuity; and in State v. Rogers (19) it was held that it was beyond the powers of the board of education of Minneapolis to exact one per cent. of their salaries from teachers under the form of contract for the establishment of a pension fund. It was also the dictum of a majority of the court in Hibbard v. State (20) that an act of the legislature requiring a deduction from teachers' salaries for the establishment of a pension fund, either violated the provision of the state constitution requiring uniformity of taxation, or was a taking of private

property from one citizen for the benefit of another, without his consent and against his will. But the Supreme Court of the United States in Pennie v. Reis (21) took a different view of the nature of these deductions from officers' salaries and held that the amount deducted never became private property, although the rule in the particular case seemed a hard one. In that case, two dollars a month had been deducted from the salary of Ward, a deceased policeman, from April 1, 1878 to and including the month of March, 1889, making a total amount of $264, for the benefit of a pension fund from which, the law provided, a thousand dollars should be paid each member of the force dying after June 1, 1878. Ward died March 13, 1889, but nine days earlier an act had been passed entirely changing the pension regulations. His administrator claimed the thousand dollars, but the United States Supreme Court said that although in the form of a deduction from the officer's salary, the two dollars retained each month by the authorities never ceased to be public property and subject to the "disposal of the government until by the happening of one of the events stated-the resignation, dismissal, or death of the officer-the right to the specific sum promised became vested in the officer or his representative."

SECTION 2. LIABILITY OF GOVERNMENT FOR ACTS OF

OFFICERS.

§ 122. In general. It was a principle of the common law that the king could do no wrong so that he was not subject to action in the courts. See the article on Consti