King v. . Hunter

Eeaee, J. The office of Sheriff, with well defined duties .-and emoluments, existed at the time of the adoption of the .present Constitution. Ono of those duties with its emolu.ments, was the collection of taxes The Constitution established the office of Sheriff, and prescribed the mode of his • election by the people, and his term of office, with such salary .and fees and emoluments, as should be prescribed by law. The plaintiff was elected Sheriff- under the Constitution, and ;his term has not yet expired. At the time he was elected and inducted into office, the collection of the taxes was a part of this prescribed duties; for the performance of which he gave bond and took an oath. These duties he continued to peliforra until April last, when, under an act of the Legislature, .ratified February 2d, 1871, the County Commissioners of Lincoln County appointed a tax collector, and inducted him into •office and ousted the plaintiff of that duty. The question is, had the Legislature the power to pass the act? Nothing is better settled than that an office is property. The incumbent lias the same right to it that he has to any other property. There is a contract between him and the • State that he will discharge the duties of the office — and lie is pledged by his bond and his oath ; and that he shall have the *610 emoluments — and the State is pledged by its honor. When the contract is struck, it is as complete and binding as a contract between individuals: and it cannot be abrogated or impaired except by the consent of both parties. We do not wish to be understood as holding that there is any iron rule of construction of the details of the contract; on the contrary, there must be some flexibility to suit the public convenience and the convenience of the officer, such as would be implied from the nature of the contract, and such as circumstances make necessary, ex. gr. that if it happened that the emoluments are so inadeqate that for them the officer cannot afford to serve the public, they may be-increased, or if they be so extravagant as to be burdensome to the public, they may be diminished. But this must be done in good faith and in fair dealing, and with no view to evade, or directly or indirectly to impair the substance of the contract. Nothing needs to be better guarded than contracts with public officers; for although it is not to be supposed that the Legislature will be influenced by any but pure motives, yet as officers, and officers are of necessity connected with political parties, and are, insensibly, the objects of favor or prejudice, it is wise to protect the public against the former and the officer against the latter. It is well known that the commissions for collecting taxes is an important, and, in many counties, the principal part of the emoluments of the office of Sheriff. Lincoln is a small county, and probably one-half of the Sheriff’s emoluments are from taxes. There is no allegation that the emoluments are large to the oppression of the public. It they were so, the evil might have been remedied without a violation of the contract, by a general law reducing the fees of Sheriffs. But even in that ■way it is at least questionable whether the Legislature could have deprived him of all commissions for the collection of taxes — certainly not unless the emoluments were extravagant and burdensome, and then the reduction, or deprivation, must have been for that reason. But here, there is no such excuse. *611 The Legislature without explanation and without apparent necessity, and, therefore, in contemplation of law, wantonly, takes the duties and emoluments from the Sheriff and creates a new officer, and gives them to him! The error is so palpable, that, but for the respect due to the Legislature, whose act we are reviewing, and must sustain unless plainly unconstitutional, we should think it unnecessary to encumber the case with authorities. “ The King may grant the office of Sheriff durante lene placeto, and although he may determine the office at his pleasure, yet he cannot determine it for part, &c. Nor can he abridge the Sheriff of anything incident or appurtenant to his office.” Bacon's Abr. 7 Office p. 202. So in the State of New York, there was the office of “Clerk of the City and County of New York,” who was also “ Clerk of the Court of Common Pleas.” The officer was elective by the people. The Legislature undertook to divide the office, and create a separate office of “ Clerk of the Court.” The Court appointed the Clerk and inducted him into office, just as the Commissioners of Lincoln did in this case. The Supreme Court of New York decided that the Legislature had no power to do it, saying, “In effect this statute divides the office of ‘ Clerk of the City and County of New York’ into two parts; and as to the largest share in point of duty and emoluments, takes the choice of the officer from the electors of the county, and gives the appointment to the Court. If this can be rightfully'done, I do not see any security for the residue of the office. The Legislature may take that also and give the appointment of the officer to some Court, or to the Governor and Senate ; and thus the constitutional provision for a choice by the electors would bo completely nullified.” Warner v. The People, 2 Denio, 272. The same case was carried to the Court lor the Correction of Errors, and was elaborately argued by eminent counsel, and well considered by the Court, and the decision of the Supreme *612 Court was affirmed; the Chancellor saying, “ But where the Legislature, as in this case, assumes the power to take from a constitutional officer the substance oí the office itself, and to transfer it to another, who is to be appointed in a different manner, and to hold the office by a different tenure than that which was provided for by the Constitution, it is not a legitimate exercise of the right to regulate the duties or emoluments of the office but an infringement upon the constitutional mode of appointment.” It would seem, therefore, that the division of the duties and emoluments of the Sheriff of Lincoln is liable not only to the objection that impairs the obligation of the contract with the Sheriff', and deprives him of his property and gives it to another, but to the more serious objection that it breaks faith •with the people, by taking from them the right to choose the •officer who may go into every man’s house, and distrain his property, or otherwise collect the taxes. Probably there is no right of which the people are more jealous, and for the infringement of which they will hold the Legislature and the Courts to a more rigid accountability. If the people may be deprived of the election of this officer; and if his duties and emoluments may bo transferred to an appointee of an irresponsible body, of what other similar right may they not be deprived % "With as much propriety every other office in the State may be cut up, and those who have been put into the office by the people may be starved out, and irresponsible persons put in. 'The people have secured to themselves the election of Gov■ernor, because they would have the important interests of the •State committed to an agent of their own choice. With as much propriety the duties with which he has been entrusted might be transferred to others, irresponsible to the people; and so with every other officer in the State. We need hardly refer to the familiar cases of Hoke v. Henderson and Cotton v. Ellis in our own Reports. It has been considered liow far an office or officer may be *613 taxed. And it is considered as settled that the State has no power to tax an officer of the United States, or viceversa; because “ the power to tax includes the power to destroyas was said by Chief Justice Marshall in McCulloch v. State of Maryland, 4 Wheaton, p. 207. And if a State were allowed to tax a United States officer one dollar, it might tax him to the full amount of his salary, and thus “ arrest all the measures of the Government.” And so the United States cannot tax a State officer for the same reason. It is not doubted, however, that the State may tax any other property, the object being revenue and not the destruction of the office. But the people have been so jealous of even this power, that it is provided in the Constitution, that the salaries of the most important officers shall not be altered during their term of office, and this is understood to exempt their salaries from taxation, because to tax is to diminish or, it may be, to destroy. The act of the Legislature under consideration, providing for a tax collector, is not general but is confined to the County of Lincoln. No necessity for the change is recited in the act, and none appears in the case. The 3d section provides “ that he shall have all the powers vested in the Sheriff for that purpose,” &c. And the 4th section provides “ that he shall have the same emoluments,” &c. So that it is not left to inference but appears affirmatively that the act is purely arbitrary, and takes the property of one man and gives it to another. Private and particular legislation having only local application is never received witli the favor of general legislation. The Legislature of course has the same honest purpose in both, but private or local legislation is generally conceived and contrived by some interested party, and not always from the purest motives. There is no error. This will be certified to the end that .other and further proceedings inay be had according to law. Pee Cubiam. Judgment affirmed.