BUTLER v. Commonwealth of Pennsylvania
51 U.S. 402
SCOTUS
1851
Check Treatment
Mr. Justice DANIEL

delivered the opinion of the court.

This is a writ of error to the Supreme Court of the State ' of Pennsylvania, under the twenty-fifth section of the Judiciary Act of 1789, .for the purpose of, revising a judgment rendered by the court above mentioned at the May term of that court, in the year 1848, against the plaintiffs, in error, in a certáin -action of assumpsit instituted agаinst those plaintiffs on behalf of the Commonwealth of Pennsylvania.

By authority of. a statute of Pennsylvania of the 28th of January, 1836, the plaintiffs in error were by the Governor of the State appointed to the place of Canal Commissioners; and by the same statute, the appointment was directed tо be made annually on the 1st day of February, and the compensation of the Commissioners regulated at four dollars per diem each Under this law, the plaintiffs in error, in virtue of an appointment of the 1st of February, 1843, accepted and took upon themselves the office and duties of Canal Commissioners. By а subsequent statute, .of the 18th qf April, 1843, fclie appointment of Canal Commissioners was transferred from the Governor to the people upon election by the latter, and the per diem allowance, to be made to all the Commissioners was by this law reduced from four to three dollars, this reduction to take effect from the passage of the act of April 18th, 1843, which as to the rest of its provisions went into operation on the second Tuesday of January following its passage, that is, on the second ‍​‌‌‌​​​‌‌​​‌‌‌​​‌‌‌‌‌​​‌​‌​‌​​​​‌‌​‌‌‌​‌‌​​‌‌​​​‍Tuesday of January in the year 1844. Upon a settlement of their account as Canal Commissioners, made before- the Auditor-General of the State, the plaintiffs in error, out of money of the State then in their hands, claimed the right to retain compensation for their services at the rate of four dollars per diem, for the full term of twelve months from the date of. their appointment, by the Governor ; whilst for the State, on the other hand, it was refused to allow that rate of compensation beyond the 18th of April, 1843, the period of time at which, by the new law, the emoluments of the appointment were changed. In consequence of this difference,- and of the refusal of the plaintiffs in. error to pay over the balаnce appearing against them on the account as stated by the Auditor-General, an action was instituted against them in the name of the State, in the Court of Com mon Pleas of Dauphin County, and a judgment obtained for that, balance. This judgment, having been carried by writ of error before the Supreme Cоurt, was there affirmed, and from that tribunal, as the highest in the State, this cause is brought hither for revision.

The grounds on which this court is asked to interpose between the judgment on behalf of the State and the plaintiffs in error are these. That the appointment of these plaintiffs by the Governor of Pennsylvania, under the law of January 28th, 1836, was a positive obligation or contract on the part of the State to employ the plaintiffs for the entire period of one year, at the stipulated rate of four dollars per diem; and that the change in the tenure of office and in the rate of compensation made by the law of April 18th, 1843, (within the space of one year from the 1st of February, .1843,) was a violation of this contract, and therefore an infraction of the tenth section of the first article of the Constitution of the United States. In order to determine with accuracy whether this case is within the just scopе of the constitutional provision which has thus been invoked, it is proper carefully to consider the character and relative positions of the parties to this controversy, and . the nature and objects of the transaction which it is sought to draw within the influence of that provision.

The high conservаtive power of the federal government here appealed to is one necessarily involving inquiries of the most delicate character. The States of this Union, consistently with their original sovereign capacity, could recognize no power to control either their rights or obligatiоns, beyond their own sense of duty or the dictates of natural or national law. When, therefore, they, have delegated to a common arbiter amongst them the power to question or to countervail their own acts or their own discretion in conceded instances, such instances should fall within the fair and uneqúivocal limits of the concession made. Accordingly it has been repeatedly said by this court', that to pronounce a law of one ‍​‌‌‌​​​‌‌​​‌‌‌​​‌‌‌‌‌​​‌​‌​‌​​​​‌‌​‌‌‌​‌‌​​‌‌​​​‍of the sovereign States of this Union to be a violation of the Constitution is a solemn function, demanding the gravest and most deliberate consideration ; and that a law of one of the States should never be so. denominated, if it can upon any'other principle be correctly explained. Indeed, it would seem that, if there could be any course of proceeding more than all others calculated to excite dissatisfaction, to аwaken a natural jealousy on the part of the States, and to estrange them from the federal government, it would be the practice, for slight and insufficient causes, of calling on those States to justify, before tribunals in some sense foreign to- themselves, their aots of general legislation. And the extrеme of such an .abuse would appear to exist in the. arraignment of their control over officers and subordinates in the regulation of their internal and exclusive polity; and over the modes and extent in 'which that polity should be varied to meet the exigencies of their peculiar condition. ' Suсh an abuse would prevent all action in the State governments, or refer the modes and details of their action to the tribunals and authorities of the federal government. These surely could never have been the legitimate purposes of the federal Constitution. The contracts designed to bе protected by the tenth section of the first article of that instrument are contracts by which perfect rights, certain definite, fixed private rights of property, are vested. These are clearly distinguishable from measures or engagements adopted or undertaken by the body politic or State government for the benefit of all, and from the nеcessity of the case, and according to universal understanding, to be varied or discontinued as the public good shall require. The selection of officers, who are nothing more than agents for the effectuating of such public purposes, is matter of public convenience or necessity, and. so too are the periods for the appointment of such agents; but neither the one nor the other of these arrangements can. constitute any obligation to continue such agents, or to re-appoint them, after the measures which brought them into being shall have been found.useless, shall have been fulfilled, or shall have been abrogated as even detrimental to the well-being of the public. The promised compensation for services actually performed and accepted, during the continu-. anee of the particular agency, may undoubtedly be claimed, both uрon principles 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 neither desired nor performed, would appear to be reconcilable with neither common justice nor common sense. The establishment of such a principle would arrest necessarily every thing 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 would еspecially be difficult, if not impracticable, in this view, ever to remodel the organic law of a state, as constitutional ordinances must be of higher authority and more immutable than common legislative enactments, and there could not exist conflicting constitutional ordinances under one and the same system. It follows, then, upon principle, that, in every perfect or competent government, there must exist a general power to enact and to repeal laws, and to create, and change or discontinue, the agents designated for the execution of those laws. Suсh a power is indispensable for 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 constitution of the State, as is the case in some instances in the State constitutions, and as is exemplified in the provision of the federal Constitution relied on in this case by the plaintiffs in error, and in some other clauses of the same instrument; but where no such restriction, is imposed, the power must rest in the discretion of the government alone. The constitution of Pennsylvania contains no limit upon the discretion of the legislature, either in the augmentation or diminution of salaries, with the exceptions of those of the Governor, the judges of the Supreme Court, and the presidents of the several Courts of Common Pleas. The salaries, of these officers cannot, under that constitution, be diminished during their continuance in office. Those of all other officers in the State are dependent upon legislative discretion. We have already shown, that the appointment to and the tenure of an office created for the public use, and the regulation of the salary affixed to such an office, do not fall within the meaning of the section of the. Constitution relied on by the plaintiffs in error; do not come within, the import of the term contracts, or, in other words, the vested, private personal rights thereby intended to be protected. They are functions appropriatе to that class of powers and obligations-by which governments are enabled, and are called upon, to fester and promote the general good; functions, therefore, which governments cannot be presumed to have surrendered, if indeed they can.under any circumstances be justified in surrеndering them. This doctrine is in strictest accordance with the rulings of this court in many instances, from amongst which may be cited its reasoning in the important and leading case of The Charles River Bridge v. The Warren Bridge, in 11 Peters’s Reports, ‍​‌‌‌​​​‌‌​​‌‌‌​​‌‌‌‌‌​​‌​‌​‌​​​​‌‌​‌‌‌​‌‌​​‌‌​​​‍and in the case of The State of Maryland v. The Baltimore and Ohio Railroad Company, in 3 Howard’s Reports, — to which might be added other decisions upon claims to monopoly, as ferry privileges, in restraint of legislative ' action for public improvement and accomodation. In illustration of the doctrine here laid down, may also be cited the very elaborate opiniоn of the Supreme Court of New York in the case of The People v. Morris, reported in 13 Wendell, 325 The precise question before us appears to have been one of familiar practice in the State of, Pennsylvania, so familiar, indeed, and so long acquiesced in, as to render its agitation at this day somewhаt a subject of surprise; and the reasoning of the Supreme Court upon it in the case of the Commonwealth v. Bacon, 6 Sergeant and Rawle, p. 322, is at once so clear and compendious as to render it well worthy of quotation here. “ These services,” says Duncan, Justice, in delivering the opiniоn, “ rendered by public officers, do not in this particular partake of the nature of contracts, nor have, ‍​‌‌‌​​​‌‌​​‌‌‌​​‌‌‌‌‌​​‌​‌​‌​​​​‌‌​‌‌‌​‌‌​​‌‌​​​‍they the remotest affinity thereto.. As to a stipulated allowance, that allowance, whether annual, per diem, or particular fees for particular services, depends on the will of the law-makers; and this, whether it be the legislature of the State, or a municipal body empowered to make laws for the government of a corporation. This has been the universal construction, and the constitution puts this question at rest in the provision for the salary of the Governor.and judges of the Suрreme Court, and of the presidents of the Courts of Common Pleas. The Governor is to receive at stated times, for his services, a compensation which shall neither be increased nor diminished during the period for which he shall have been elected. The judges and presidents shall at stated times reсeive for their services an. adequate compensation, to be fixed by law, which shall not be diminished during then- continuance in office. These provisions are borrowed from the Constitution of the United States. It is apparent that the compensation of the Governor and judges is a matter of constitutional provision, — that of all other officers is left open to the .legislature. The allowances, the compensation, the salary, the fees of all other officers and members of the legislature, depend on the legislature, who can and who do change them, from time to time, as they conceive just and right.”

So in the case of the Commonwealth' v. Mann, 5 Watts and Sergeant, p. 418, the court say, “ that, if the salaries of judges and their title to office could be put on cne ground of contract, then a most grievous wrong has been done them by the people, by the reduction of a tenure during good behavior to a tenure for a tеrm of years. The point that it is a contract, or partakes of the nature of a contract, will not bear the test of examination.” And again, in the case of Barker v. The City of Pittsburg, the court declare it as the law, “ That there is no contract express or implied for the permanence оf a salary, is shown by the' constitutional provision for the permanence of the salaries of the Governor and judges as exceptions.” 4 Barr, Pa. State Reports, 51. We consider these docisions of the State court as having correctly expounded the law of the question involved in the case before us, as being concurrent with the doctrines heretofore ruled and still approved by this court,— concurrent, too, with the decision of the Supreme Court of Pennsylvania now under review, which decision we hereby adjudge and order to be affirmed.

Mr. Justice McLEAN.

In this case, I think we have no jurisdiction. There was no contract which could be impaired, within the provision of the Constitution of the United States. This is clearly shown in the opinion ‍​‌‌‌​​​‌‌​​‌‌‌​​‌‌‌‌‌​​‌​‌​‌​​​​‌‌​‌‌‌​‌‌​​‌‌​​​‍of the court. In such a case, I suppose the proper entry would be, to dismiss the writ of error. By the affirmance of the judgment of the Supreme Court of .Pennsylvania, we take jurisdiction.

Order.

This cause came on to be heard on the transcript of the record from the Supreme Court of Pennsylvania, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Supreme Court in this cause be, and the same is hereby, affirmed, with costs.