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Supreme Court of the United States, October, 1880.

103 U. S. 5.

Mr. Justice SWAYNE delivered the opinion of the court.
This is a writ of error to the Supreme Court of Wisconsin.

The case we are called on to consider is thus disclosed in the record : By an act of the legislature,

approved March 3, 1857, James Hall, of the State of New York, the plaintiff in error, and Ezra Carr, and Edward Daniels, of Wisconsin, were appointed "commissioners” to make the survey. Their duties were specifically defined, and were all of a scientific character.

They were required to distribute the functions of their work by agreement among themselves, and to employ such assistants as a majority of them might deem necessary.

The governor was required “to make a written contract with each commissioner" for the performance of his allotted work, and the "compensation therefor, including the charge of each commissioner;" and it was declared that “such contract shall expressly provide that the compensation to such commissioners shall be at a certain rate per annum, to be agreed upon, and not exceeding the rate of two thousand dollars per annum, and that payment will be made only for such part of the year as such commissioner may be actually engaged in the discharge of his duty as such commissioner.”

In case of a vacancy occurring in the commission, the governor was empowered to fill it, and he was authorized to "remove any member for incompetency or neglect of duty."

To carry out the provisions of the act, the sum of $6,000 per annum for six years was appropriated, “to be paid to the persons entitled to receive the same.'

By an act of the legislature of April 2, 1860, Hall was made the principal of the commission, and was vested with the general supervision and control of the survey. He was required to contract with J. D. Whitney and with Charles Whittlesey for the completion within the year of their respective surveys. To carry into effect these provisions, the governor was authorized to draw such portion of the original appropriation, not drawn previous to the 29th of May, 1858, as might be necessary for the purpose; the residue to be otherwise used as directed.

By a subsequent act of March 21st, 1862, both the acts before mentioned were repealed without qualification.

On the 29th of May, 1858, Hall entered into a contract with the governor, whereby it was stipulated on his part that he should perform the duties therein mentioned touching the survey, “this contract to continue till the 3d day of March, 1863, unless the said Hall should be removed for incompetency or neglect of duty

or unless a vacancy shall occur in his office by his own act or default.'

On the part of the State it was stipulated “that the said Hall shall receive for his compensation and expenses, including the expense of his department of the said survey, at the rate of $2,000 per annum.

Provided, that for such time as said Hall or his assistants shall not be engaged in the prosecution of his duties, according to the terms of said act and of this contract, deduction shall be made, pro rata, from the sum of his annual compensation and expenses."

Hall brought this action upon the contract. The declaration avers that immediately after the execution of the contract he entered upon the performance of the duties thereby enjoined upon him, and continued in their faithful performance until the time specified in the contract for its expiration, to wit, the 3d of March, 1863; that he was not removed by the governor for incompetency or neglect, nor was any complaint ever made by the governor against him; that he never at any time directly or indirectly, assented to the repeal of the acts of 1857 and 1860; and that thereafter he continued in the performance of his labors the same as before, and that for the year ending March 3d, 1863, he devoted his whole time and skill, without cessation, to the work.

He avers further, that for his services performed prior to March 3d, 1862, he was fully paid, but that for the year ending March 3d, 1863, he had received nothing; and that payment was demanded and refused on the 3d of December, 1863, and that the defendant is, therefore, justly indebted to him in the sum of $2,000, with interest from the date last mentioned.

He avers, finally, that on the 30th of January, 1875, he presented his claim to the legislature by a proper memorial, and that its allowance was refused.

The State demurred upon two grounds:

1. That the complaint did not show facts sufficient to constitute a cause of action;

In support of the first objection, it was insisted that the employment of the plaintiff was an office, and that the legislature had therefore the right to abolish it at pleasure. For the plaintiff, it was maintained that there was a contract, and that the repealing act impaired its obligation in violation of the contract clause of the Constitution of the United States.

The court sustained the demurrer upon the first ground, and the plaintiff declining to amend, dismissed his petition. The opinion of the court is limited to the first point, and ours will be confined to that subject. The whole case resolves itself into the issue

. thus raised by the parties.

No question is made as to the suability of the state. The proceeding is authorized by a local statute.

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The statute under which the governor acted was explicit, that he should "make a written contract with each of the commissioners aforesaid, expressly stipulating and setting forth the nature and extent of the services to be rendered by each, and the compensation therefor" and that “such contract” should expressly provide that the compensation of each commissioner should be at a certain rate per annum, to be agreed upon, and not to exceed $2,000 per annum for the time such commissioner may be actually engaged. The action of the governor conformed to this view. The instrument executed pursuant to the statute recites that it is an agreement” between the governor as one party, and Hall, Carr, and Randall, the commissioners, as the other. They severally agreed to do what the statute contemplated, and he agreed to pay all that it permitted.

The names and seals of the parties were affixed to the agreement, and its execution was attested by two subscribing witnesses, as in other cases of contract.

In a sound view of the subject it seems to us that the legal position of the plaintiff in error was not materially different from that of parties who, pursuant to law, enter into stipulations limited in point of time, with a State, for the erection, alteration or repair of public buildings, or to supply the officers or employes who occupy them with fuel, light, stationery, and other things necessary for the public service. The same reason is applicable to the countless employes in the same way, under the national government.

It would be a novel and startling doctrine to all these classes of persons that the government might discard them at pleasure, because their respective employments were public offices, and hence without the protection of contract rights.

It is not to be supposed that the plaintiff in error would have turned his back upon like employment, actual or potential, elsewhere, and have stipulated as he did to serve the state of Wisconsin for the period named, if the idea had been present to his mind that the state had the reserved power to break the relation between them whenever it might choose to do so. Nor is there anything tending to show that those who acted in behalf of the state had any such view at that time. All the facts disclosed point to the opposite conclusion as to both parties.

When a state descends from the plane of its sovereignty, and contracts with private persons, it is regarded pro hac vice as a private person itself, and is bound accordingly. Davis v. Gray, 16 Wall. 203.

That the laws under which the governor acted, if valid, gave him the power to do all he did, is not denied. We will not, therefore, dwell upon that point. The validity of those laws is too clear to admit of doubt. It would be a waste of time to discuss the subject.

We are of the opinion that the Supreme Court of the State erred in the judgment given. It will, therefore, be reversed, and the case remanded for further proceedings in conformity with this opinion.

So ordered.


Supreme Court of the United States. December, 1850.

10 How. 402.

Mr. Justice DANIEL delivered the opinion of the court.

By the 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 to be made annually on the first 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 on the first of February, 1843, accepted and took upon themselves the office and duties of canal commissioners. By a subsequent statute, of the 18th of April, 1843, the 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 appointment were changed. In consequence of this difference, and of the refusal of the plaintiffs in error to pay over the balance 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 Common Pleas of Dauphin County, and a judgment obtained for that balance. This judgment having been carried by writ of error before the Supreme Court, 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

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