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 scope 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 contracts designed to be 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 necessity of the case, and according to universal understanding, to be varied or discontinued as the public shall require. The selection of officers, who are nothing more than agents for the effectuating of 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 reappoint 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 continuance of the particular agency, may undoubtedly be claimed, both upon principle 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 promised, would appear to be neither reconcilable with natural justice nor common sense. The establishment of such a principle would arrest necessarily everything like progress or improvement in government; or if changes would be ventured upon, the government would have to become one great pension establishment on which to quarter a host of sinecures. It would especially be difficult, if not impracticable, in this view, ever to remodel the organic law of a state, as constitutional ordinances must be of higher order 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. Such 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 the constitution of the state, as is the case in some instances in the state constitutions, and 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 Governor, and 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 salaries 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. 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 somewhat a subject of surprise; We consider these decisions 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 decisions of the Supreme Court of Pennsylvania now under review, which decision we hereby adjudge and order to be affirmed. OLMSTEAD V. MAYOR, ETC., OF NEW YORK. Superior Court of City of New York. June, 1877. This case came up on plaintiff's motion that this court direct a judgment to be entered upon a verdict rendered in favor of the plaintiff, subject to the opinion of the general term. The plaintiff sued to recover the salary alleged to be due him as landscape architect of the Department of Public Parks from May 31, 1876, to July 31, then next, inclusive. The plaintiff was by profession a landscape architect, and had been employed many years in that capacity by the department which had fixed his salary at the rate of $6,000 per annum, and he had been paid at that rate down to and including May 31, 1876. In the year 1876 (Laws of 1876, p. 196, ch. 193), the legislature created a board known as the "Commissioners of the State Survey," to hold office for one year, and named the plaintiff one of the commissioners. He accepted the office of commissioner and took the oath of office May 31, 1876. He afterwards, on July 18, 1876, resigned. During the time he held the office of commissioner he, without interruption, performed the duties and rendered the services devolved upon and required of him as landscape architect. On August 4, 1876, the Department of Parks passed the resolution referred to in the opinion, whereby it was resolved, "that an allowance or payment be made to him" (the plaintiff) "for the services to the Department from May 31, 1876, at the rate of $6,000." SPEIR, J. A preamble adopted by the department of parks on the 4th of August, 1876, is set forth in the complaint, reciting that the plaintiff had, without advice as to the effect it might have on his position as landscape architect, accepted the office of commissioner of the State survey; that some doubt had been expressed on the point, and that he had resigned the office, and had without interruption performed the services on which he was employed, and it was resolved that an allowance and payment be made to him for the services to the department, from the 31st day of May, 1876, at the rate of $6,000. No salary or compensation was attached to the office of commissioner of the State survey. The plaintiff took the oath of office on the 31st of May, 1876, and the board was organized. The defense is based on the following provision of section 114 of chapter 325 of the laws of 1873: "Any person holding office, whether by election or appointment, who shall, during his term of office, accept, hold or retain any other civil office of honor, trust, or emolument, under the government of the United States. (except commissioners for the taking of bail, or register of any court) or of the State (except the office of notary public or commissioner of deeds, or officer of the national guard), or who shall hold or accept any other office connected with the government of the city of New York, or who shall accept a seat in the legislature, shall be deemed thereby to have vacated every office held by him under the city government. No person shall hold two city or county offices, except as expressly provided in this act; nor shall any officer under the city government hold or retain an office under the county government, except when he holds such office ex-officio by virtue of an act of the legislature; and in such case he shall draw no salary for such ex-officio office." Was the plaintiff, a landscape architect in the Department of Public Parks, an officer within the prohibition of the preceding section? An office has been defined to be a right to exercise a public function or employment, and to take the fees and emoluments belonging to it. An officer is one who is lawfully invested with an office, Bacon's Abridgment, vol. 7, Title Office and Officer, p. 279, ed. of 1860; Bouv. Law. Dic. The idea of an officer clearly embraces the idea of tenure, duration, fees or emoluments, and powers, as well as that of duty. The nature of the power and the control over the officer appointed does not at all depend upon the source from which it emanates. The execution of the power, and the control over the officer, depends upon the authority of law, and not upon the agent who is to administer it. The tenure of ancient common law offices, and the rules and principles by which they are governed, have no application in this country. In England the tenure of office depends in a great measure upon ancient usage. Here there is no ancient usage which can apply to, and govern the tenure of offices created by the constitution and laws. In such a case the tenure of the office is determined by the meaning of the statute. Every office under the constitution implies an authority to exercise some portion of the sovereign power of the State, either in making, executing or administering the laws. In the section of the statute there is no ambiguity, and there is no room for construction or interpretation. The words are clear and explicit "No person shall hold two city or county offices, except as provided in this act; nor shall any officer under the city government hold, or retain an office under the county government, except when he holds such office ex-officio, by virtue of an act of the legislature; and in such case he shall draw no salary for such ex-officio office." The distinction is plainly taken between a person acting as a servant or employe, who does not discharge independent duties, but acts by direction of others, and an officer empowered to act in the discharge of a duty, or trust, under obligations imposed by the sanctions and restraints of legal authority in official life. I can find nothing in all the sections of the charter which does not strictly limit the prohibition to persons included in the foregoing definition given by the elementary writers. The plaintiff received no certificate of appointment-took no oath for the faithful performance of duties, and exercised no powers depending directly upon the authority of law. He was simply the servant of the commissioners of the park, and responsible only to them. His responsibility was limited to them, and is in no way distinguishable from that of the carpenter and the mason who are employed to build the bridges or erect the buildings designed by the architect. The nature and dignity of the duties confided to the employes by the commissioners do not determine the character of the position. It is in no proper sense official according to any sense in which the term is used in the statute above recited. The justices of the supreme court of Maine, 1822, gave an opinion as to whether certain duties which had been delegated by agents to be appointed by the governor, constituted the appointees officers. The case is reported in the appendix to the first edition of 3 Greenleaf App. No. 2. They say: "There is a manifest difference between an office and an employment under the government. We apprehend that the term 'office' implies a delegation of a portion of the sovereign power to, and possession of it by, the person filling the office, and the exercise of such power within legal limits constitutes the correct discharge of the duties of such office." The question was directly put before the learned judges for decision, |