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    Conner v. The Mayor, Aldermen and Commonalty of the City of New York.
    The act of December 10, 1847, in relation to the fees of certain officers in the city of New York, is neither a private nor a local act, within the meaning of the 16th section of the third article of the constitution, which provides that no private or local bill shall embrace more titan one subject, and th at shall be expressed in the title.
    An officer may be local, in the sense and for the purposes of that provision, and yet a statute respecting the duties and fees of his office may be public and general.
    When an office is created by the constitution, and the terms and salary thereof are defined, the people, in their sovereign capacity, may, by a new constitution, terminate both, without regarfl to the rights, the interests, or the expectations of the incumbent.
    An office created by law may be repealed by law, without regard to the term or future salary of the officer entrusted with its exercise.
    Offices created by the constitution, the tenure and compensation being fixed by a statute, are equally within the legislative control, as to such tenure and compensation, except that the office cannot be virtually abolished by a colorable reduction of the compensation, or by taking it away altogether.

      There is no contract, express or implied, between a public officer and the government, whose agent he is. Nor have public officers any proprietary interest in their offices, or any property in the prospective compensation attached thereto, whether it be in the shape of salary or of fees.
    A public officer is an agent, elected or appointed to perform certain political duties in the administration of the government. The legislative power which pre. scribes his duties and provides a compensation, may alter the duties at pleasure. It may increase them without enhancing the compensation; and, in like manner, it may diminish the compensation without lessening the duties.
    If the officer receive fees, the legislature may abolish same, reduce others, or take away all, and compensate him by a salary. His right to the emoluments of the office is held subject to all these modifications.
    And the legislature, in substituting a salary for fees, may continue the fees, and direct them to be paid by the officer into the public treasury.
    An act requiring the fees of an office to be paid into the public treasury, is not unconstitutional on the ground that it imposes a tax, without specifying the object to which the tax shall be applied.
    The duty of pronouncing a statute unconstitutional, is always one of great delicacy ; and courts should not exercise that grave function, except where the point is entirely clear. Per Sandvobd, J.
    Jan. 25, 26;
    March 10, 1849.
    This was an action of assumpsit upon the money counts and an account stated: the plea was the general issue.
    At the trial, the evidence for the plaintiff was as follows:— At a general election in the state of New York, at which certain officers were to be elected for the city and county of New ,-York, held on the 3rd of November, 1846, the plaintiff was elected clerk of the city and county of New York, for the period of three years, from the 1st day of January, 1847. The plaintiff duly qualified himself for the office by giving the necessary security for the performance of its duties, and by taking" the oath of office prescribed by law; and on the first of January, 1847, he entered upon the duties of the office, and continued from thence to perform, and has ever since performed the same. On or about the 18th day of March, 1848, the defendants demanded of the plaintiff the payment to them of the fees, emoluments and earnings of the office so held by the plaintiff, which had been earned and received by him before January 1st, 1848, and afterwards. And on or about the same day, the Board of Supervisors of the city and county of New York, passed a resolation, in substance, that the District Attorney be directed to take immediate measures to have the matter submitted to the grand jury for their action.
    On or about the 25th day of March, 1848, a complaint was actually made to the grand jury then sitting for the city and county of New York, against the plaintiff, in accordance with that resolution. Afterwards, on the 27th day of March, and on the 20th day of April, 1848, the plaintiff paid to the defendants the sum of $10,000 for the fees, emoluments and earnings of his office from the first day of January up to the first day of April, 1848, protesting, at the same time, in writing against the legality of such demand of payment, as follows: “ Paid under protest, and through a threat of criminal prosecution by the Board of Supervisors,” and also taking a receipt for the fees, &c., on the payment of the same, from the Chamberlain of the city and county of New York, to which receipt was affixed a protest to the same effect as above set forth. It was agreed, and understood at the time of making this payment, that it should not prejudice the rights of the plaintiff.
    The evidence on the part of the defendants, consisted of an act of the legislature of the státe of New York, passed December 10, 1847, entitled “ An act in relation to the fees of certain officers in the city of New York,” read from the laws of the state for 1847, p. 560. This act provided that all the fees, perquisites, and emoluments of the surrogate, county clerk, register, and certain other officers, for all official services rendered by them respectively, should belong.to, and be for the benefit of, the city and county of New York, and should be collected by them, and paid over to the city treasury, and that the officers named should receive salaries in lieu of the fees, which salaries were fixed by the act, with a privilege to the Board of Supervisors of increasing them $500. Under this statute the salary of the plaintiff was fixed at $2,500 per annum. It was also made the duty of the several officers named in this statute, to keep an exact account of all the fees received by them, a transcript of which was to be transmitted to the comptroller once a month. In case any officer referred to in the act, should receive to his own use, or neglect to account for in such mode as the Supervisors might direct, any fees, perquisites or emoluments, or should neglect to render to the comptroller the account provided for, or to pay over the same, he should be adjudged guilty of a misdemeanor and punishable with a fine, or imprisonment, and in addition thereto, should forfeit his arrears of salary, and be liable in a civil action for the moneys received, and not accounted for and paid over. The defendants also read an ordinance adopted by the Board of Supervisors, pursuant to the foregoing act, fixing the salaries to be allowed to the officers named in the act, their deputes and clerks, and among others, that of the plaintiff, as clerk of the county, which was fixed at $>3000 per annum. It was admitted, that notice of this ordinance was given to the plaintiff, and that he had been allowed and paid a salary out of the fees, &c., of his office, since the first of January, 1848, at and after that rate; the plaintiff, however, protesting, on the receipt of the same, against such allowance, and against the fact of his receiving the same being taken as an assent to the constitutionality of the law of Dec., 1847, so far as it relates to him. The plaintiff insisted that the statute was unconstitutional and void, and wholly inoperative, and he objected to the reading of the same, to show that the fees of office of the plaintiff were the property of the defendants, or that they thereby became entitled to demand and receive the same.
    A verdict was taken for the plaintiff, by consent, for $10,000, subject to the opinion of the court, upon a case to be made, with liberty to either party to turn the same into a bill of exceptions.

      J. Van Buren and F. B. Cutting, for the plaintiff.
    The act. entitled, 11 An act in relation to the fees and compensation of certain officers in the city and county of New York,” passed December 10th, 1847, c. 432, is unconstitutional, because:
    (1.) It violates art. 3, § 16 of the constitution, which provides that no private or local bill which may be passed by the legislature, shall embrace more than one subject, and that shall be expressed in the title.

      (2.) It deprives the plaintiff of his property without authority and without compensation. .
    I. The office of clerk of the city and county of New York is created by charter, and secured by the constitution.
    II. It is not necessary to argue that the legislature have no power, for great governmental purposes, to raise, diminish, or abolish the fees of this officer ; to substitute a fixed salary for fees, or to abolish the office altogether, because the act in question does neither of these.
    III. The fees, perquisites and emoluments, of the clerkship of the city and county of New York, are the absolute property of the plaintiff.
    IY. The act in question takes the property from the plaintiff, and gives it to the defendants, which the legislature have no power to do. (Taylor v. Porter, &c., 4 Hill, 140.)
    Y. If the legislature would otherwise have such authority, the constitution of the United States prohibits its exercise.

      J. M'Keon and Willis Hall, for the defendants.
    I. The office of clerk of the county of New York is a public office, made by public authority for public purposes. (2 Black. Com. 36.)
    The history of the office as given, shows it to have been considered a public office like the mayor and aldermen, and subject to legislative control. (People v. Warner, 2 Denio, 272, 279. Kent’s Charter, p. 22, secs. 12, 15, p. 71 to 72, secs. 27, 29, p 166.)
    Under the old constitution and the revised statutes, it was considered a public office. Under the head of public officers, the clerk of New York, the register and surrogate, were enumerated. (1 R. S. 99.)
    Under the new constitution, the clerk is made eligible by the people. He is placed in the same category with district attorneys and sheriffs, and other public officers.
    The fees of clerk, of register, and surrogate, are regulated with other public officers, as judges and others. (2 R. S. 229, 731.)
    II. Public officers in this country, are mere public agents, and have no private property in their offices. (State v. Dewy, R. M. Charlton’s Georgia Rep. 397.)
    The powers, duties, privileges and emoluments of public officers, are subject at all times to the action of the legislature, except when expressly prohibited by the constitution.
    III. The act of December 10th, 1847, is a legitimate exercise of the right of the legislature to regulate the duties and emoluments of a public officer.
    IV. The power of a legislature to control even private charters, is unquestioned. (11 Peter’s Rep. 11 Leigh’s Rep. 3 Kent’s Comm.; 3 Sandf. Ch. R. 625.)
    In this state, the legislative power to control certain constitutional offices, is admitted. (Ex parte M’Collum, 1 Cow. 550.)
    V. In the case of the clerk of the county, the charter has frequently been affected by legislative enactments. (Kent’s Charter, 166.)
    VI. The power to alter fees has been recognized by the supreme court and court of errors. (People v. Warner, 7 Hill, 81; 2 Denio, 272.)
    VII. The act of December 10th, 1847, is correct in its title, and conforms to the constitution.
    The case of Philip Walker, (3 Barb. S. C. R. 162,) which arose out of the act in relation to police justices. (Laws of . 1848, p. 249.)
    The law of 1847, creates a charge on the city, and makes an appropriation of public money. It is, therefore, within the provision of the constitution requiring a vote of two thirds.
    VIII. To declare an act unconstitutional, there should be no rational doubt. The presumption is in favor of the constitutionality of the law. (3 Dallas’ Rep. 394; 4 Wheat. 625; 1 Cow. 550.)
    IX. There is, in this country, no property in an office. (6 S. & R. 322; 9 Rep. 37.) Nor is there any contract between the government and the officer, in respect to it.
   By the Court. Sandford, J.

The plaintiff claims to recover the fees payable by law, for the services rendered in his office, and received by the treasurer of the city since the first day of January, 1848, on the ground that the act of December 10th, 1847, conferring those fees on the city and county, and providing the clerk with an annual salary, is unconstitutional. Two objections are made to the validity of this statute.

First. It is said, that it violates the provision of the constitution, which provides that “ no private or local bill which may be passed by the legislature, shall embrace more than one subject, and that shall be expressed in the title. (Art 3, § 16.) The duty of pronouncing a statute uncónstitutional, is always one of great delicacy; and courts should not exercise .that grave function, except where the point is entirely clear. The decision of such cases becomes more than usually difficult, when the objection rests upon the forms of legislative action.. If we should be satisfied that this act is not in compliance with the constitution, in the matter alleged, we then encounter another embarrassing question, what is the consequence upon the validity of the statute ? Is it all void, or is so much of it valid as is not private or local, or is fully expressed in the title ?

We have no doubt, in the first place, that this act is not a private act. Then is it local ? It relates to the city and county of New York, embracing nearly one-sixth of the population of the state. Perhaps the extent of the city is not, of itself, a decisive criterion. But testing it by taking any county in the state. Is a statute which relates to a whole county, local ?- Certainly such an act is not within the mischiefs which this provision of the constitution was intended to remedy. It was aimed at “log-rolling,” a well known process by which bills to promote individual interests, and mere neighborhood projects, often at the expense of the people of a county at large, were combined together in order to aggregate a sufficient number of votes to carry them all through the legislature.

We may not be at liberty to repose our judgment on the fact, so obvious in this particular instance, that the act is one which was calculated to enlist against its passage a formidable combination of individual and personal interests. But having regard to the objects of the act, which are as public in their nature as any conceivable legislation falling short of the whole state, and considering the very serious difficulties and embarrassments which would grow out of a decision that statutes affecting this city are local acts ; we do not feel warranted in holding, that the act in question is local, within the meaning of the constitution. We observe several statutes of great public importance, enacted the same year, which are obnoxious to the same objections ; but their validity has never been doubted.

As to the analogy derived from the language of the constitution in speaking of “local officers,” an officer may be local, in the sense and for the purposes of that provision, and yet a statute respecting the duties and fees of the same office may be public and general.

We have looked into the statute before us sufficiently to say, that if it be a local act, it is not so clearly repugnant to the provision in the constitution, as to call upon us to declare it invalid for that cause. The subject is the fees and compensation of county officers. In effecting the requisite changes, the act necessarily treats of some matters incidental to the discharge of the duties for which fees are to be exacted from one class of persons, and Compensation made to another. This can scarcely be said to constitute a distinct subject*

So in regard to the expression of all the subjects in the title* It cannot be requisite to mention in the title of the act, the various details which are necessary and yet incidental to carrying out the principal subject intended. Such a practice would make the title so voluminous, that it would cease to be a title, in its proper sense.

Upon the whole, we repeat that we do not find sufficient force in the reasons urged against the validity of this act, to pronounce it unconstitutional, on the first ground maintained in behalf of the plaintiff.

The next point of the plaintiff is, that the act in question is unconstitutional; because it deprives him of his property, without authority, and without compensation. The fees, perquisites, and emoluments of the clerkship of the city and county of New York, (it is argued,) are the absolute property of the plaintiff.

The plaintiff’s right to the clerkship is reposed on the charter of the city and the constitution of the state.

The history of this clerkship is very well stated in the opinion of the chancellor, in Warner v. The People, ex rel. Conner, (2 Denio. 272,) and we will therefore advert to it very briefly.

In Gov. Dongan’s charter, granted to the city in 1685, the corporation was authorized to have, among other officers, a town clerk, which office was conferred by the charter upon John West. His duties were not defined, except that he was to execute all things which belongs unto that office. In a subsequent part of the charter, West was declared to be .constituted and appointed to be the present town clerk, clerk of the peace, and clerk of the court of pleas, .to be holden before the mayor, recorder, and aldermen. (Kent’s City Charter, 9, 12, 17.)

In Governor Montgomery’s charter, January 15th, 1730, there was granted to the city to have, among other officers, one common clerk. A court of general sessions, and a court of record of pleas, (which was afterwards called the mayor’s court,) were conferred upon the corporation.; and the mayor, recorder, and-aldermen were made justices of the peace. Section 29 again granted a common clerk, with the powers and duties of common clerks of boroughs in England, who was to be -clerk of the court of record, and clerk of the peace and the general sessions. The charter appointed William Sharpas to the office for life, * and reserved the power of appointment to the governor of the province. (Kent’s Charter, 42, 73, 74.) Before this period, by the act of October 3, 1710, (1 Van Schaack, 83,) deeds and conveyances were permitted to be recorded in the office of the secretary of state, or in the county records. Under this act, the town clerk, and after 1730, the common clerk of the city, which was then co-equal with the county in territory, recorded deeds and conveyances.

Thus, it will be seen, that for nearly half a century before the constitution of 1777, the duties of the common clerk of the city of New York were those now performed by the clerk of the common council, the clerk of the oyer and terminer and general sessions, the register of deeds, and the clerk of the city and county. The officer whose duties are now most nearly coincident with those usually performed by the ancient common «lerk, is unquestionably the .clerk of the .common council. The constitution of 1777, while it sustained all existing charters to bodies politic, gave the power of appointment which in those charters was reserved to the governor, to the council of appointment, and made the tenure of this office to be during pleasure. (Art. 23, 28, 36.) After the resolution, a great many new duties were imposed upon the clerk of the city and county, in common with other county clerks, by various legislative acts ; and we may here remark, that the constitution of 1846, and the legislation under it, have essentially changed the functions of the office. Its most important duties at this time, are those which, till July, 1847, were performed by the registers and clerks of the court of chancery and the supreme court. This last and most essential change, has occurred since the plaintiff was elected, in pursuance of the constitution adopted at the same time that he was chosen.

To return to the history of the common clerk, it is true that in the statutes divesting him of his functions, from time to time, he is described as the clerk denominated in the charter the common clerk, now usually called the clerk of the city and county of New York; but it will be seen that the resemblance was at last nearly annihilated. On the 27th of March 1807, ' the clerkship of the common council was taken from the clerk of the city and county by the legislature, and the appointment vested in the common council. (5 Laws of New York, Webster’s Ed. 91.) On the 11th of March, 1808, the legislature created a new clerkship of the oyer and terminer and general sessions of the peace in the city and county of New York, taking the former from the clerk of the supreme court, and the latter from the clerk of the city and county. (5 Ibid. 265.)

The first general compulsory recording act in this city, (Laws of 1811, 6 Webster’s, 184,) directed the conveyances to be recorded in the office of the clerk of the city and county, where deeds for the purpose of evidence had been recorded for a century before, and where bargains and sales were required to be recorded by the act of 1810 ; but in the revision of the laws in 1813, the office of register of deeds was carved out of the county clerkship, and the duty of recording deeds, conveyances, and registeringmortgages, was imposed upon the register exclusively. (2 R. L. 402, § 159.)

By the city charter, the common clerk was the clerk of the peace. By an act passed April 9th, 1811, regulating the police of the city, the special justices, with the mayor’s approval, were authorized to appoint an assistant clerk; (6 Webster’s Laws, 290;) and in the revision of 1813, the police office was expanded, and this officer became the clerk of the police. (2 R. L. 350, § 24.)

Finally, the constitution of 1821, provided that the clerks of counties, including the clerk of the city and county of New York, should be elected by the people in their respective counties, and hold their offices for three years. (Art. 4, § 8.)

In process of time, the court of pleas of the city underwent an entire change, so that long before the plaintiff’s election, the charter officers of the city ceased to act as judges of that court, and instead of the majmr’s court, it became the court of common pleas, and in its civil jurisdiction, is no longer founded upon the charter.

The result of this historical inquiry, is to show that the clerk of the city and county of New York, became an officer appointed by the state government at the revolution ; by the constitution of 1821, he became elective by the electors of the city; that by the gradual progress of legislation, in part at the instance of the municipal authorities, and where otherwise, acquiesced in and unquestioned, the duties of the common clerk of the charter (whose name the clerk of the city and county enjoyed for a time, as a synonim,) were distributed among several new and distinct officers ; and in 1846, the clerk of the city and county, had become an officer deriving no authority from the city charter, performing no duty exclusively under its provisions, and indeed, performing under the statutes, fewer of the duties, which, by the charter, belonged to the common clerk, than were in 1846 performed by either the clerk of the sessions, or the clerk of the common council. He has not inherited the name of the clerk of the charter, much less his tenure or his functions. In 1846, he was a county clerk, not a mimicipal officer, under the charter. Except that he was not clerk of the circuit, the oyer and terminer, or the sessions, and could not record deeds and mortgages, he was in every respect like the county clerks of the other counties in this state. We must, therefore, lay out of view the city charter, and all the vested rights supposed to be derived from that instrument.

The remaining branch of the plaintiff’s general proposition is correct; this clerkship was and is secured to the incumbent by the constitution of the state. We regard the plaintiff as holding an office under that instrument, secured to him for three years, beyond the control of the legislature—an office, of which the duties and emoluments are defined and regulated by law. It was determined in our highest court, in Warner v. The People, (2 Denio, 272,) that the act of 1843, taking from the plaintiff his duties and emoluments as clerk of the common pleas, was unconstitutional and void, because those duties appertained to the office of clerk of the city and county, and were part of the latter; not so much because the act infringed on the plaintiff’s vested rights, as because the new officer was to be appointed by the court, instead of being elected by the people, (See the opinions, page 281, 284, 286, and in the supreme court, 7 Hill, 81.) If the act of 1843, had directed the new clerk to be elected by the people, we have no assurance that the law would have been adjudged invalid. The case of Warner therefore, does not aid us in setting limits to the power of the legislature, to control the duties and the emoluments of officers, who hold under a constitutional creation and tenure.

The plaintiff’s propositions are as follows:

“ II. It is not necessary to argue that the legislature have no power, for great govermental purposes, to raise, diminish or abolish the fees of this officer, to substitute a fixed salary for fees, or to abolish the office altogether; because the act in question does neither of these.
“ III. The fees, perquisites and emoluments, of the clerkship of the city and county of New York, are the absolute property of the plaintiff.
“ IY. The act in question takes this property from the plaintiff, and gives it to the defendants; which the legislature have no power to do.
“ V. If the legislature would otherwise have such authority, the constitution of the United States prohibits its exercise.”

In considering these propositions, our first inquiry will be, what is the nature and the extent of the right in a public office, Which is vested in the incumbent?

We were referred to several leading cases, deciding statutes to be unconstitutional which invaded private vested rights of property, or the chartered rights of corporations, which though, operating extensively on public interests and public convenience, were nevertheless private corporations aggregate. The former proceeded, sometimes on the ground that the legislature, not having the omnipotence of the parliament in England, could not take the property of one man and give it to another, although there were no constitutional inhibition against such an act of tyranny; at other times, they have been placed on the provision in the constitution, that no man shall be deprived of his property without due process of law.

' The decisions in the cases of corporations, quasi public, have had the further ground, that the contested statutes impaired the obligation of contracts, and thus infringed the constitution of the United States. In the most celebrated of them all, the Dartmouth College case in 4 Wheaton, the distinguished counsel who attacked the statute, drew, in pointed terms, the distinction between rights vested by such a charter in a private corporation, and those which were held by a public officer or a public corporation ; and it is emphatically maintained by Chief Justice Marshall and Mr. Justice Story. And although the rights of private corporations, vest upon contract, and are thus protected, they must yield, when the great exigencies of the public and of the government require it; as is shown in the Charles River Bridge case, 11 Peters’, 420 ; the Tuckahoe Canal Co., 11 Leigh, 42; and the Harlem Rail Road case, 3 Sand. Ch. R. 625. These decisions do not advance us in our inquiry as to the nature of the right in'question. They may be analogous, if we find it to rest upon contract, or to constitute private property.

An office is a right to exercise a public or private employment, and to take the fees and emoluments thereunto belonging. (2 Black. Com. 36.) And a public officer, is every one who is appointed to discharge a public duty and receives a compensation for the same. (Per Best, Ch. J., in Henly v. The Mayor of Lyne, 5 Bing. 91.) Many of the ancient executive and ministerial offices, known to the English law, were inheritable and assignable, and were treated as incorporeal hereditaments. But judicial offices, and offices of trust pertaining to the administration of justice, could not be so held, (2 Black. 636; 9 Coke, 47, 48.) And the doctrine is limited in England to ancient common law offices, which depend chiefly upon usage. Those of modem origin, are governed by the statutes creating them, and confer no life estate or irrevocable tenure, unless expressly given. (Smyth v. Latham, 9 Bing. 692. And see Hardres’ R. 356, 357, per Ch. Baron Hale.)

In this country, there are no inheritable offices, nor any depending upon ancient usages or customs. All public offices emanate from the people, and are governed by the constitutions and the laws. Their tenure is defined by the one or the other; and when no tenure is expressed, the officer holds during the pleasure of the appointing power. (See Ex parte Henner, 13 Peters’, 230, 260.)

Public offices, in theory at least, are held and exercised for the benefit of the community, and not for the benefit of the incumbent, save as the compensation is incidental to the public service. Hence, it is only where the constitution defines the tenure, the mode of appointment, or the compensation, that the legislature is precluded from altering either, or from abolishing the office itself.

The case of Warner v. The People, (2 Denio, 272,) illustrates the force of the constitutional restriction in respect of the mode of appointment. The People v. Garey, (6 Cow. 642, affirmed in error, 9 ibid. 640,) decided, that where the constitution fixes the term of office, it cannot be shortened by a statute, directly or indirectly; and the same point was determined in Pennsylvania as to compensation when fixed by the constitution, in the Commonwealth v. Mann, (5 Watts & Serg. 403;) and in Arkansas, in Ex parte Tully, (4 Arkansas R. by Pike, 220.)

On the other hand, where an office is created by a statute, it is wholly within the control of the legislature. The term, the mode of appointment, and the compensation, may be altered at pleasure, and the latter may be even taken away, without abolishing the office. Such extreme legislation is not to be deemed probable in any case, but we are now discussing the legislative power, not its expediency or propriety. Having the power, the legislature will exercise it for the public good, and it is the sole judge of the exigency which demands its interference. (See 2 Peters’ R. 412; 1 Baldw. C. C. R. 74.) As illustrating these principles, we will hereafter refer to several authorities in different states of the Union.

If the office itself be secured l^r the constitution, and the compensation be left to the legislature, it may be increased or diminished, so as to affect the/ incumbent, whether the compensation be by fees or by salary, as the public good may require. This was asserted in terms or in effect by all the judges who delivered opinions in the case of Warner v. The People, and is not contested by the plaintiff’s counsel.

We have, therefore, these positions for our future argument. When an office is created by the constitution, and defined as to term and salary, the people in their sovereign capacity may, by a new constitution, terminate both, without regard to the rights, the interests, ,or the expectations of the" incumbent. This was done in our constitution of 1821, and again in 1846, in respect of the judiciary; a branch of the government, which it has been the wise and uniform policy of our states and nation to render more independent than any other. In each instance, the judges were holding for unexpired terms, fixed by the former constitutions. An office created by law, may be repealed by law, without regard to the term or future salary of the officer intrusted with its exercise. Offices created by the constitution, the tenure and compensation being fixed by a statute, are equally within the legislative control as to such tenure and compensation ; except that the office could not be virtually abolished by a colorable reduction of the compensation, or by taking it away altogether.

(This exception is a sufficient answer to the argument in "behalf of the plaintiff, that the act in question is in effect a removal from his. office. It was not alleged, that the fees were not amply sufficient to pay all the salaries and expenses charged upon them by the act. The latter cannot therefore be subjected to the imputation of effecting an indirect removal, by destroying the compensation.)

Such being the nature of a public office, what is the right which the incumbent has in the office, or in the emoluments attached to • it ? The plaintiff treats this right as constituting property, in the sense in which we speak of private. property; and contends, that he accepted the office, and entered upon its duties, under an implied contract, or a compact well understood, that he might hold and enjoy such emoluments during his official term.

It was said by the court, in one of the authorities cited by the plaintiff’s counsel, that the right to exercise an office, is as much a species of property as any other thing capable of possession j and in an elective office, the election confers the right. (Wamack v. Holloway, 2 Alabama R., N. S., 31.)

. In that case, this remark was rather a figure of speech than a judgment, determining an office to be property. It was a strong mode of expressing the right which one elected to an office has to hold and enjoy it, as against all intruders and unfounded claims ; which is as perfect a right, beyond doubt, as the title of any individual to his property, real or personal. But the nature of that right, and its liability to control by legislative action, is quite a different thing. The supreme court of North Carolina has, however, decided that ah. office is the property of the incumbent, in a case which we will presently mention more at large. (Hoke v. Henderson, 4 Devereux’s Law R. 1 and 17.)

To resume the argument; we think it must be assumed that there is no contract, express or implied, between a public officer and the government, whose agent he is. The latter enters into no agreement, that he shall receive any particular compensation for the time .he shall hold office ; nor in the case of a statutory office, that the office itself shall continue any definite period. Where the constitution limits the compensation, it is beyond legislative control ;• but that makes no contract. The people have the control, in their sovereign capacity, as the legislature has in statutory offices. It is not the question whether fees or salary earned may be divested* The right to receive such fees may be conceded as perfect, Without affecting the present inquiry.

On the part of the officer, there is still less in the nature of a contract. Whether he hold under the constitution, or a statute, he is under no obligation to continue to discharge his duties a single day. He may resign at any time, and no power of the government can prevent him. (United States v. Edwards, 1 McLean’s R. 467.) The legislature may attach penalties to the refusal to serve in a public station ; but that does net afifect the question.

Chief Justice Marshall, in the Dartmouth College Case, (4 Wheat. 627, &c.,) said in substance, that public officers are not within the inhibition of the constitution of the United States against laws impairing the obligation of contracts ; that the inhibition does not extend to offices within a state for state purposes ; that the legislature must necessarily control such offices, •and may change and modify the laws concerning them, as circumstances may require; that grants of political power, to fee employed in the administration of the government, are to be regulated by the legislature of each state, according to its own judgment, unrestrained by any limitation of its power imposed by the constitution of the United States.

In the same case, Mr. Justice Story said, The state legislatures have power to enlarge, repeal or limit, the authority of public officers in their official capacity, in all cases when the constitution of the states respectively do not prohibit them; and this among others, for the very good reason, that there is no express or implied contract, that they shall always, during their continuance in office, exercise such authorities. They are to exercise them only during the good pleasure of the legislature.”

Judge Story proceeded to compare the duty of a public officer to a naked power, which is revocable at pleasure.

In the Commonwealth v. Bacon, (6 Serg. and R. 322,) the mayor of Philadelphia denied the validity of a corporate law, enacted during his term, by whish his salary was reduced, on the ground that his acceptance of the office created a contract between him and the city, that he should be paid the compensation then established, while his term continued. The court decided it was not a contract, and that the law was valid. In their opinion, the court say that services by a public officer do not partake of the nature of contracts, or bear any affinity to them; and that the allowance to the officer, whether it be annual, daily, or by fees, depends upon the will of the law makers. They refer to the constitutional inhibition in Pennsylvania against reducing the salary of the governor and the judges, (which is similar as to that as to judges in our constitution,) as showing that in all other cases, the legislature may change the compensation of officers whenever it is deemed just and expedient to do so.

In Chenzeller v. The Union Canal Company, (1 Rawle, 181,) the plaintiff had served as secretary of the company from 1816 to 1821. There was no specific term of office. In March, 1819, the legislature, by law, provided that no compensation should be thereafter allowed by the company to any of its officers, until its public works should be re-commenced. This had not been done, when the plaintiff sued for his salary to May 1821. It was decided that the plaintiff could not recover, as he was free to continue as secretary, or to withdraw, after the passage of the act. .

In Banker v. The City of Pittsburgh, (4 Penn. State Rep. by Barr, 49,) the plaintiff had been appointed collector of tolls by the corporation of that city, with an annual salary, and was required to give an official bond. During his term, the city, by ordinance, stopped his salary, because the tolls yielded too little to make it their interest to proceed in the concern. The court decided, that there was no contract, express .or implied, for the permanence of the salary, and that the plaintiff could not recover any compensation for the period subsequent to its discontinuence

In The People ex rel. Enloe v. The Auditor of Public Accounts, (1 Scammon’s R. 537,) where the legislature of Illinois, in July 1837, abolished the office of warden of the penitentiary to which the relator had been appointed for two years in February preceding, and the salary for the two years had been appropriated by law, he contended that he had a vested right to his salary for his whole term, and that the repealing act violated a contract, both of which objections to the act were overruled by the court. In respect to an office reposing on a constitutional tenure, the legislature may, by statute, require security to be given, on pain of the office being declared vacant. (Treasurers of the State v. Taylor, 2 Bailey’s R. 524.)

In the case of The State v. Dens, (R. M. Charlton’s Rep. 397 to 443,) Judge Nicoll in the superior court of Georgia, decided that an act of the legislature, taking away from a sheriff the custody of the jail and the appointment of a jailor in his county, and conferring it on a municipal corporation, was a valid act, and that it did not divest the sheriff of any proprietary right, nor impair the obligation of any contract. The judge examined the subject of the rights of public officers, with great ability, and more at large than it has been done in any case which has come under our observation. His argument leads inevitably to the results which he maintained—first, that public officers under our government, have no proprietary interest in their offices; and second, that there is no contract between them and the government, that their duties and the rights flowing from their discharge, may not be changed during their continuance in office.

The North Carolina case before mentioned, stands out in strong contrast to the Georgia authority, and indeed to every published decision and opinion on the subject which we have seen. It was there decided, that an act providing that clerks of the courts in the respective counties should be chosen at the ensuing election by the electors of such counties, was unconstitutional, because it displaced the clerks then in office, and who were holding: during good behavior, under a prior act of the legislature. The clerks were recognized as officers in the constitution, but that instrument contained no provision as to their tenure, or their mode of appointment. The simple statement of this decision, will strike with surprise the mind of every person who has been accustomed to observe the legislation in this state on the subject of public officers.

The supreme court of North Carolina, held, on the strength of the common law doctrine of offices, that the office of clerk was private property in the incumbent, to the extent of the emolument which he was entitled to receive from it; and was protected by the clause in the bill of rights providing that no freeman shall be deprived of his property except by the law of the land. That a statute which deprived one person of a right, and vested it in another, is not a law of the land. The court conceded in its argument, that it was competent for the legislature to abolish the office itself, to increase its duties and responsibilities, and to diminish its emoluments, as the general welfare might dictate; and that the office was to be deemed as having been conferred and accepted, subject to such regulation. But the court denied that the legislature could take the office from one and give it to another, which it held was the effect of the statute under advisement. It also denied that it was in the power of the legislature, after prescribing an official term, to alter or abridge it, so as to affect a person holding the office at the time of such alteration. This, it will be perceived, is not in accordance with the authorities heretofore cited.

It appears to us, with much respect for the learned tribunal which pronounced this judgment, that it was unduly influenced by the common law rule derived from prescriptive offices, and operating in a government whose genius and spirit are perhaps in no respect more unlike ours than in this very subject, the source and nature of the rights and interests acquired by public officers. In enumerating the qualities of an office, eonsiderd as property, the court admitted that it was inalienable, and in many instances incapable of being managed by a substitute j and in the only point giving it the semblance of value, subject entirely to legislative control. If to these be added, the consideration that it is a political agency, and not like a private contract of hiring for a definite period, We think that there will remain no incident of property in its correct signification.

Upon the whole, these authorities, with the nature of the' duties and employments of a public officer, seem to us conclusive to show that such an officer has no property in the prospective compensation attached to his office, whether it be in the shape of salary or of fees.

The same cases and the same considerations, are equally conclusive against the argument, that the officer’s right to such future compensation is upheld by any contract, express or implied.

We have seen, that a constitutional officer, holds by a tenure independent of legislative control, so far as the constitution prescribes ; but this is by force of the paramount public law ; and the power Avhich made the constitution, may control such office, at pleasure, regardless of supposed vested rights and implied compacts existing in favor of the incumbent. We have cited some strong illustrations of the like complete authority of the legislature over public offices which are created by statute ; and we fully assent to the principle maintained by those decisions.

In our opinion, a public officer is an agent, elected or appointed to perform certain political duties in the administration of the government. The legislative power prescribes those duties, and gives to the officer such compensation for their discharge as is deemed just. The same sovereign power Avhich prescribes the duties, may alter them at pleasure. It may increase them without enhancing the compensation.' (Andrews v. The United States, 2 Story, 202.) In like manner, the same power may diminish the compensation, without lessening the duties. If the officer receive fees, it may abolish some, reduce others, or take away all, and compensate him by a salary. His right to the emoluments of the office, is held subject to all these modifications. All these consequences floAV from the political character of the agency, and the supremacy of the government in regulating it for the public good.

The plaintiff’s counsel conceding the power of the legislature .to regulate fees, for great governmental purposes, deny that it can substitute a salary for fees, and at the same time continue the fees for the benefit of the city treasury.

We cannot find any good reason for this distinction. If the legislature may abolish some fees, and reduce the residue, and may substitute a salary for the fees, the power seems to embrace the whole interest of the officer in the subject matter; and it can be of no consequence to him whether the fees continue to be paid, or to whom they are paid. He receives the proper reward for his services, graduated by the legislative discretion. It is difficult to perceive what further interest he has in the affair beyond that of every citizen.

It is true that the term fees properly signifies certain allowances to officers as a recompense for their labor and services. But we have had many instances of fees which did not come to the benefit of the officer for whose services they were paid. One of long standing, is that of the fees payable to the Secretary of State, which go to the treasury. The justices of this court, during the year preceding the code of procedure, were required to perform duties, for which fees to a large amount were received by the clerk, and paid to the treasury of the city. The constitutionitself recognizes this class of fees, (Art. 6, § 20,) and shows, that although they are a compensation for official services, it does not follow that the state may not receive them, and recompense its agent in another mode and at a different rate

It will scarcely be questioned that the legislature now sitting, may create a special judge in this city, to have jurisdiction of writs of habeas corpus and certiorari, summary proceedings against fraudulent debtors, and the like; for which he shall be entitled to demand the same fees that were formerly paid to justices of this court, such fees to be paid to the city treasury, and the judge to receive an annual salary/rom the city. And if this may be done in respect of a new office, why not in respect of one existing, in which the whole subject of fees and compensation is wholly within the legislative control?

It is clear to us, that while the state may compensate by salaries, its officers concerned in the administration of justice, it may at the same time, require its citizens, who have occasion for the services of such officers, to pay certain fees for the same. This is simply paying an agent a gross sum, while those for whom he transacts the business of the state are required to pay to the state a fixed price for each service rendered.

In the case of the register of deeds, pending before us on nearly the same point, it is urged that the act in question imposes a tax upon citizens who may require these services$ and it is unconstitutional because it does not specify the object to which the tax shall be applied. We do not perceive any resemblance to a tax, in these fees paid by citizens for the promotion of their private ends.

It is not necessary for us to notice all the extreme cases put by the learned counsel for the plaintiff. This statute does not transfer the fees to a stranger, or to a mere corporation. They are conferred upon the city and county of New York, a political community of nearly half a million of people, for the public benefit.

We have no evidence, nor indeed was it pressed, that the annual salary allowed to the clerk is illiberal; much less that it is so small as to cause him to vacate his office. Its apparent hardship consists in discontinuing during the residue of his term, the large remuneration attached to the office when he entered upon its duties. It is not our province to vindicate the propriety of legislation, which thus deprives an officer of great trust of the principal profits, which, relying upon the stability of the laws, he had good reason to expect would continue during his term, and upon the faith of which he may have relinquished valuable pursuits in order to take upon himself the discharge of its duties.

We might think it far more just, that such laws should be made to operate prospectively ; but our duty is to declare the law, not to make or unmake it ; and we feel bound to say, that we believe this act was a valid exercise of legislative power. There are numerous instances of similar statutes, of which we will mention some of the most striking.

In May, 1842, congress, by an act applicable to persons then in office, limited the compensation of district attorneys, marshals, and circuit and district clerks; and required them to pay the surplus of their fees, into the treasury of the United States. The district attorneys and marshals hold office for a term of years; and it is a well known historical fact, that the fees in this district of all the officers named, had for several years, amounted to many times the sums fixed for the respective salalies by the act. (Acts of Congress of 1842, ch. 29, § 1, No. 167.)

The district attorneys of the respective counties in this state were, until 1847, appointed for terms of three years. Yet a series of acts were passed by the legislature, commencing in 1838, by which in all but the smallest counties, those officers, were deprived of their fees, and put upon annual salaries, amounting to far less than their former compensation; and such acts were applied to those then enjoying the appointments.

This course of legislation, and the acquiescence of the numerous intelligent and influential persons affected by it, tend to strengthen the argument in favor of entire legislative control, derived from the nature of public officers and their relation to the government.

Judgment for the defendants.


source: Caselaw Access Project

license: Public Domain

text:
    Samuel Osgood v. Same Defendants.

      E. Sandford, and N B. Blunt, for the plaintiff.

      J. McKeon, and Willis Hall, for the defendants.
   In this case, there remains little to be said. The plaintiff can found no claim upon the city charter; for his office was first' called into existence by the act of 1813. He was actually in office when the constitution of 1846 took effect, and it declares that he shall “hold” his office till the expiration of the term for which he was elected. (Art. 14, § 10.) By this we understand simply, that he was to have the office, as if there had been no change in our organic law. In other respects, his case is like Mr. Conner’s and we must render the same judgment in favor of the defendants.


author: By the Court. Sandford, J.

text:
    Cashmere v. De Wolf and Croweld.
    The courts of common law in the several states have jurisdiction to determine questions of salvage, in cases which, in other respects, are within the scope of their established jurisdiction.
    The jurisdiction of the United States courts in admiralty over questions of salvage, is to that extent concurrent, and not exclusive.
    A state court having law and equity powers, may entertain a suit to redeem property claimed to be held for a salvage lien, to enforce which salvage no suit is pending in admiralty ; and may restrain the removal of the property by injunction, appoint a receiver for its preservation and for its sale, where perishable, and [ ascertain the salvage liens and decree payment to the parties entitled.
    January 27;
    March 10, 1849.
    The complaint in this cause was exhibited by Abdoolah Cashmere, of Bombay in Hindoostan, against Thomas Crowell and Thomas L. De Wolf. It stated, that in May, 1847, the plaintiff shipped on board a British ship, the Lady Kennaway, one case, containing six long and eleven square cashmere shawls, belonging to him, of the value of $3500 to $4000, to be delivered at the port of London to Forbes, Forbes & Co., as his factors. That during the course of the voyage, and on the 16th of November, 1847, within a short distance of the English coast, the ship was entered upon by the officers and crew of the British barque Reliance, whereof the defendant, Crowell, was master; who with his officers and crew, under pretence of salvage, took from the Lady Kennaway, the plaintiff’s case of shawls, opened it, wantonly damaged the shawls, and proceeded therewith, and with other goods taken from the ship, to the port of New York, contrary to the laws of England applicable to British vessels in such cases, which required the goods thus taken to be carried into England. That on the arrival of the shawls in New York, Crowell, in behalf of himself and his officers and crew, libelled the same upon a claim for salvage, in the district court of the southern district of New York, which libel was dismissed by that court on the 18th of July, 1848. The decree of dismissal recited that the goods were taken from the Lady Kennaway, on soundings, near the British coast, abandoned at sea, and the master and erew of the Reliance then took from her, and transported in their vessel to New York the goods claimed ; that when the Reliance fell in with her, another British vessel was lying near her, and had already boarded her, and such vessel was left there by the Reliance j and that the Lady Kennaway was afterwards taken into the port of Portsmouth in England ; that the ship and barque were owned by British subjects, and the' libellants were also British subjects; and the matter having been argued by counsel, the decree declared that it rested in the sound discretion of the court, whether it would take cognizance of the matters in contestation, or would leave the parties to contest the same in their home tribunals. It thereupon decreed that the suit be dismissed, and the goods discharged from the arrest; that on payment of the costs directed, the libellants might take the property out of the custody of the court; and if they did not within twenty days resume its possession, the claimants might take it and carry it to its port of destination.
    The complaint further stated, that Crowell and his officers and crew, have left this country, and the defendant De Wolf, claims the right to hold the shawls in their behalf, and is attempting to obtain possession thereof. The plaintiff believes those parties were not entitled to salvage; or if they were, that their right has been defeated by their misconduct in respect of the goods. That the goods are in the possession of the United States marshal, but De Wolf has notified the marshal not to part with the same, because he intends to acquire the possession under the decree of the district court; and the marshal refuses to give them up to the plaintiff or his agents. That De Wolf is now taking measures to obtain possession from the marshal. That De Wolf, Crowell, and the other pretended salvors, are persons of insufficient pecuniary means and responsibility, to answer for the value of the property. That the goods are of very delicate texture, and would be greatly damaged by being handled by persons not familiar with them; are of value as articles of fashion and show only, and will be damaged by being retained by those interested in the sale thereof. That the plaintiff desires to have the claim to salvage thereon determined? and to pay the same if any be due, and in the mean time to obtain possession, on giving security for the salvage. He prayed for an injunction, and a receiver, that it might be ascertained by the court whether any salvage be due, and if there were, that he might be allowed to pay the same, and redeem his goods from the lien thereof; and for general relief.
    The complaint was verified by Charles Rhind, Jr., the agent of the plaintiff; and thereon an order was made by one of the justices of the court, restraining the defendants from all proceedings to obtain the possession of the shawls from the marshal or from any other person.
    The plaintiff now applies for a receiver, with the usual authority. The defendant, De Wolf, resisted the motion on affidavits. Crowel had not been served with process.
    De Wolf stated, that the shawls claimed by the plaintiff were a part of 194 shawls, which were taken by Crowell, his officers and crew, from the Lady Kennaway, which they found derelict and totally abandoned at sea, in the Bay of Biscay, about 200 miles from land, with five feet water in her hold, and her rudder gone. Crowell’s barque was on a voyage from Liverpool to New York. They saved the shawls from the ship, for the owners, and brought them to New York, Some of the shawls were wet with sea-water, when taken from the ship, but that no intentional damage was done to any of them by those in the barque.
    On their arrival here, the goods were deposited in the public stores, under the custody of the collector of the port; and Crowell, in behalf of the owner and crew of the barque, immediately libelled the whole of the shawls for salvage, and the same were transferred from his custody to that of the marshal of the United States in this district. Crowell and his vessel and crew proceeded from here to Mobile, and thence returned to Liverpool. And all concerned in the salvage, and all the witnesses, are mariners, British subjects, absent from this country, and ever likely to remain abroad.
    Upon the libel being dismissed by the district court, De Wolf, whom Crowell had constituted his agent and attorney, complied with the terms of the decree, so as to entitle him to the re-possession of the goods, and thereupon obtained an order of-the court directing the marshal to deliver the same to the libellants or their agent. The marshal then made an order on the collector of the port to deliver the same to De Wolf. This was the day before the injunction was granted. De Wolf claimed that the goods when they arrived here, were lawfully in Crowell’s possession, and subject to be retained by him by way of lien for the salvage; and on their discharge, were again, and still are in the possession of Crowell by De Wolf as his agent. That this court has no jurisdiction of the matter, it being a case of salvage belonging to the admiralty court; and also because Crowell is a- non-resident, not served with process. That he, De Wolf, has advanced large sums in respect of the goods, for which he claims a lien. That his brother, John S. De Wolf, for whom he is also the agent, is the owner of the barque Reliance, and is worth over $100,000, and he is himself abundantly able to answer for the value of the property in question. He denied all the bad faith and improper conduct charged, and said he intended to ship the property to his brother at Liverpool, there to be libelled for the salvage claimed.

      D. Lord, for the plaintiff.
    The defendant relies on the opinion of the supreme court in this district, in Frith against these defendants, reversing the decision of Edmonds, J., at the special term. I am compelled to satisfy this court that the decision in Frith’s case was wrong; and will undertake to show that this court may deliver the property to the plaintiff, taking from him security to pay any salvage there may be ; and may then compel a settlement of the question involved.
    The plaintiff’s ownership of the shawls is not denied. The goods were taken at sea, on soundings, near the British coast, and another ship which had first boarded the abandoned vessel, was lying near. The defendants took them at sea, under the pretence of salvage. This is not denied. The alleged damages and injury are denied. The United States court refused to take jurisdiction of the case.
    Crowell has only a constructive possession, and we have a right to prevent his obtaining actual possession. The goods are fashionable articles, and necessary to be in the dominion of the owner. They are of delicate texture, and easily injured. The goods are saved for the benefit of the owner; and he is trying to have the benefit of them, paying all the salvors are entitled to.
    I. The plaintiff is entitled on some terms, to the possession and disposal of these shawls, whenever he may deem it advantageous. He is entitled to some specific relief in the suit. The difficulty about the amount and extent of the lien, the peculiar character of the goods, and their situation, are elements of jurisdiction. The lien alone gives jurisdiction, if it be not exclusively maritime.
    Then there is the insecurity of the defendants ; the transitory character of the defendants. De Wolf is the mere attorney, and the plaintiff will have no remedy against him after he transmits the property to his principal. On this point of jurisdiction, I refer to Crane v. Ford, (1 Hopk. 114;) Ridgway v. Roberts, (4 Hare, 106;) which was the case of a ship; and Glascott v. Long, (3 M. & Cr. 451.)
    We could obtain possession, and mean time have an injunction, if there were no salvage claim; that is very clear. The property is here; we own it. Can the defendant send it to sea, without our consent; we wanting its possession here ?
    II. The fact that the lien is for salvage, does not oust the jurisdiction of equity, or of a common law court. The salvor may retain the property for his lien, and put the owner to a tender, and then try it in the ordinary courts. He is not bound to go into Admiralty. (Hartfort v. Jones, 1 Ld Raym. 393.)
    In Baring v. Day, (8 East, 57,) the amount of salvage was the sole question. Newman v. Walters, (3 Bos. & Pul. 613;) was an action by a salvor for his salvage. And see Abbott on Shipping, by Story & P., 556, 662. The difficulty arises in making a tender; because if it be one dollar too little, in the estimate of a jury, the plaintiff must fail in a suit at law for the goods. Blake v. Patten, (15 Maine, 173,) was an action by a sailor for his share of salvage against the master pf the vessel, who had received it

      Thus the common law courts have jurisdiction of questions of salvage, and they are not of exclusive admiralty jurisdiction. If prize be the question, there is no jurisdiction at common law. (Dougl. 594; and Norion v. Hallett, 16 Johns. 328, following that case.) Political questions are involved in a question of capture.
    The case of a marine trespass, is one of admiralty jurisdiction ; clearly so. Yet the state courts have jurisdiction also. (Percival v. Hickey, 18 John. 291.) Courts of equity have jurisdiction of suits for contribution to a general average. They always had it formerly. So admiralty has it concurrently, on the ground of lien. So of seamen’s wages. So as to the catchings, &c., of a whaling voyage ; the parties may proceed in equity for the distribution.
    Claims on charter party, and for freight, in this country, are enforced in admiralty. It was not so in England. In Merchants Bank v. N. J. Steam Nav. Co., (6 Howard, 389,) this point was examined and considered.
    The jurisdiction is concurrent in innumerable cases. This is not the case of a vessel touching while on her voyage j or of a seaman on board a foreign ship, and returning to his own country.
    it is said, the constitution and the laws of the United States prohibit the common law courts from the jurisdiction claimed. But the Judiciary Act of 1789, expressly saves the common law remedy to suitors, the same as it existed in England at the revolution. The master of the vessel represents all the salvage claims.
    If it were an exclusive jurisdiction, the United States court could not decline it. If it does decline it, most certainly, it is not exclusive in that court.
    This court may retain the property, and direct the question of salvage to be settled in the admiralty court, or elsewhere. We are willing to give any security, so that we be not deprived of our goods. We are not bound to tender this salvage blindfold. The lien is not one arising from contract. It is vague and indeterminate. If this court have no jurisdiction, our goods are effectually taken from us, without any remedy.

      J W. Gerard, for the defendant, De Wolf.
    I. The question at issue in this cause, being purely one of the right and amount of salvage, for salvage services performed on the high seas, this court has no jurisdiction of the case; but the jurisdiction of the district court of the United States is exclusive of that of the state courts.
    We concede that in England, the courts of common law have jurisdiction of such questions in certain cases. It is made exclusive here in the admiralty courts, fey the difference in the governments.
    The constitution of the United States conferred this jurisdiction on the federal courts exclusively. There is no case or dictum to be found, either in the state or national decisions, to the effect that the state courts have any such jurisdiction. The contrary is fully established. (1 Peters’ Admiralty Decisions, 81, 93 ; 1 Peters’ R. 545; 1 Sumner, 400 ; 16 Johns. 327 ; Abbott oii Shipp, by Story & Perkins, 663, note.)
    The courts of common law are not competent to give the relief. They have not the adequate machinery. They cannot make all the necessary parties, or effect the distribution. Here were 194 shawls, and as many different owners might sue us for them, if the plaintiff is right in admiralty the salvors may be witnesses for each other. Not so a.t common law. (Abbott on Shipp. 682, note.)
    The prayer of this complaint, is to take away the salvor’s lien, and substitute a bond—a mere personal remedy.
    The counsel also cited 1. Wheaton, 304, 335 : 1 Kent’s Com. 318,319; 18 John. 392. .
    II. The plaintiff is estopped by his acts and allegations in the salvage suit in the United States district court, from now asserting the jurisdiction of the state court. (14 John 134; l Cowen, 543.)
    ITT. The decision of the United States district court is res adjudicate upon the questions, whether it is proper for the courts of this country to entertain jurisdiction of the matters in controversy, and upon the rights of the defendant to the possession and custody of the goods to be carried to England for adjudication, as is also the recent decision of the supreme court as to the question of jurisdiction, in Firth v. Crowell, on other goods taken from the same ship.
    IY. If the propriety of the entertaining jurisdiction in these cases were an open question, and the court were to exercise their discretion upon it, they would not entertain their jurisdiction under the circumstances of this case, for the following among other reasons:
    1. The plaintiff’s representative defeated the adjustment of the whole controversy in the district court, by objecting to the jurisdiction of the courts in this country.
    2. He is now taking exactly the opposite ground, and asserting what he there denied.
    3. This court has not the machinery adapted to the determination of a salvage suit. It is not a matter of account; but the proportions in which the salvage is to be distributed between owners, masters and crew, and even between different members of the same crew, rest in the discretion of the judge, and cannot be properly adjusted in this court. (Novion v. Hallett, 16 Johns. 327; Percival v. Hicksy, 17 Johns. 257; Johnson v. Dalton, 1 Cowen, 543; Gardner v. Thomas, 14 Johns. 134.)
    . Y. The defendants were proceeding with due diligence to have the claim for salvage adjudicated. The question whether this court would not interfere or not, if they did not so proceed, therefore does not arise. But it is further insisted, that when the salvors should lie by, and thus detain the property from the owners, the remedy of the latter would be by action in the court of admiralty to recover possession of the property, or by tendering at their peril enough to cover the claim for salvage, and bringing an action of replevin.
    YI. This being in effect an action to recover the possession of the shawls in specie, and in the nature of an action of replevin; the plaintiff was bound to proceed in the form pointed out by the code of procedure, where the delivery of personal property is claimed; and not having done so, the action must be dismissed.
    YII. The action cannot be sustained, without making all the members of the crew of the Reliance, who are living, parties; and they not being parties, no order affecting their rights can be made by the court, (1 Sumner’s R. 400; Abbott on Ship- ' ping, 678.)
    YIII. The court has not jurisdiction of the persons of the defendants, one being a non-resident, and never having been served with process ; and this not being an action for an injury to personal property, within the meaning of the code of procedure.
    Lord, in reply.
    There is nothing to oblige the defendants to take the goods to England. The plaintiff was not represented in the Unitéd States court. The counsel does not represent owners. He intervenes to preserve the property for the owners.
    This court cannot decline jurisdiction, if it be concurrents a'nd its machinery is quite adequate to dispose of all the questions' and rights involved. The constitution of the United States does not give exclusive jurisdiction in admiralty to the federal courts. It gave no specific maritime jurisdiction, and congress expressly reserved all that belonged to the state courts.
   By the Court. Sandford, J.

The defendant contends that this court has no jurisdiction, because the lien claimed by Crow-ell and his associates, is for salvage of a cargo, derelict at sea; and th.e jurisdiction is exclusively in the court of admiralty. It is not denied that in England, the courts of common law have concurrent jurisdiction with the admiralty, courts, in determining questions, of salvage; but it is claimed to be otherwise here, by force of the constitution of the United States and the Judiciary Act of 1789.

In determining this point, the relative convenience of the respective tribunals is not important. Jurisdiction depends on other and higher considerations.

Section nine of the Judiciary Act of Congress, which declares the authority of the district courts of the United States, clothes them with “ exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including-all seizures under laws of imposts,” &c., 11 saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it.”

It is difficult to perceive why, under this important exception; when we had in this state in full operation, the same common law that governed in England, and like courts of law and equity,- administering the same remedies, and in the same forms, of proceeding, which were administered and used by the courts of law and equity there ; the courts of this state did not retain precisely the same jurisdiction which the courts of common law in England exercised, concurrently with the admiralty court, prior to the American Revolution.

We are however referred to the recent decision of the supreme court in this district, in Frith v. Crowell, reversing an order of one of the justices of that court, appointing a receiver of goods taken by the same parties, at the same time, and under the same circumstances, with those in question here. That court refused to entertain jurisdiction, for the reasons, that it is not a proper tribunal to try a question of salvage, its forms.of proceeding are inadequately adapted to it, it has never exercised such a jurisdiction, and the court of admiralty is the proper tribunal for that purpose.

This decision is not placed distinctly on the ground urged at the bar, that the admiralty court has exclusive cognizance of the matter; but rather on the novelty of the appeal to the supreme court,- and its inadequate machinery to deal advantageously with such a case.

After carefully considering the question, we are constrained to differ from that learned tribunal, which we never can do without regret. And this unfortunate disagreement impels us to give our views more at large than we are wont on interlocutory applications. “

The constitution of the United States, does not determine the point. It authorizes congress to create inferior courts and confer on them admiralty jurisdiction. Until congress exercised the authority, there was no interference with the state courts; and when the U. S. district courts were created, and their cognizance defined, their jurisdiction became exclusive, only so far as it was made exclusive by the act of congress. In all other cases where the courts of common law provided an adequate remedy before; it seems to be plain that the judiciary act, at most, gave only a concurrent jurisdiction to the admiralty.

The great argument against the jurisdiction of this court, to decide a question of salvage, was founded upon the decisions respecting prize causes. As to this argument, the common law courts in England, never had any jurisdiction of questions of prize of war. This was most elaborately adjudged in the great case of Le Caux v. Eden, Dougl. 694; and it was there shown to have been the settled law for more than a century. Of course there could be no pretence that our state courts had a maritime jurisdiction, which the English common law courts had not; and it has never been claimed. In the case of Hallett v. Novion, 14 Johns. 273, (reversed in 16 ibid, 327,) the supreme court maintained the suit, as establishing merely a marine tort, against the opinions of Spencer and Yates, justices, that it was a case of prize; and the court of last resort, reversed the judgment, on the sole ground, that the captors claimed to have seized the vessel as prize of war, which involved a question not determinable in a count of common law.

The jurisdiction in cases of prize, rests upon the law of nations, and is peculiar, in England, as well as in the United States. In England the admiralty court, acting upon those questions, is called a prize court; when acting upon all others it is an instance court. It not only has different names, but the two courts differed essentially; because the appeal was to a different tribunal in the instance court, from that provided in the prize court. In the latter, the questions arising were political; in the former, they were the ordinary questions of municipal and commercial law.

Moreover, the prize court only exists in England by force of a commission issued on the breaking out of hostilities ; and a new commission is requisite to provide for each new war. The judge of the instance court of admiralty, it is true, is uniformly clothed with the prize jurisdiction under such commissions; but there is no legal obstacle to its being conferred on another and distinct judge. (See Lindo v. Rodney, Dougl. 623.) This being the constitution of the prize court of admiralty in England, it was stoutly denied, in the origin of our constitutional government, that the act of congress creating the district courts conferred any jurisdiction upon them in cases of prize. It was not till after conflicting decisions on the point, in two district and two circuit courts, that it was finally decided by the supreme court of the United States, that the district courts possessed the powers of a prize .court of admiralty. (Glass v. The Schooner Betsey, 3. Dallas, 6 ; and see 3 ibid. 54.)

Thus it will be seen .that, on the only subject, which in England was beyond and exclusive of the jurisdiction of the ordinary courts of law and equity; it was not until after serious doubts and contestation, that our courts of admiralty were held to possess jurisdiction, by a decision of the national court of last resort.

There was subsequently a struggle relative to the instance powers of the district courts of admiralty, touching seizures for forfeitures provided by acts of congress, in laws other than those regulating trade, imposts and navigation; but the jurisdiction was fully maintained.

Next came the effort to bring all marine contracts within the admiralty powers .of the district courts. To the extent which the English admiralty took cognizance of such contracts, there' was no difficulty; but the attempt to exercise in our courts of admiralty, the large powers which were claimed for that tribunal several centuries ago, and which were so zealously and súccessfully resisted by the common law judges in England, was inflexibly opposed in the supreme court of the United States. The same is true of the subsequent claim of jurisdiction in the district courts, in cases of marine torts occurring on our inland waters, and within the limits of counties.

Mr. Justice Story contended for the enlarged jurisdiction for enforcing marine contracts, in De Lorio v. Boit, (2 Gall. 398,) and Peele v. The Merchants Insurance Co., (3 Mason, 27;) while the opposite view Was maintained with equal zeal, by Mr. Justice Johnson, in Ramsay v. Allegre, (12 Wheat. 614.) In Bains v. The Schooner James and Catherine, (1 Baldw. C. C. 544,) Judge Baldwin delivered an able judgment against the existence of jurisdiction in the district courts, to enfórce contracts regulated by the common law, though made concerning maritime subjects. The discussion was renewed in the Merchants Bank v. The N. J. Steam Nav. Co., (6 Howard’s Rep. 344,) no longer ago than last year; when Mr. Justice Daniel contended against the jurisdiction, in a powerful and elaborate opinion; and it may be considered an open question at this moment, whether our courts of admiralty have, as a concurrent jurisdiction, cognizance of. any class of marine contracts, which were not, at the revolution, within the jurisdiction of the English admiralty.

In Waring v. Clarke, (5 Howard, 441,) a majority of the supreme court of the United States, decided that the district court in admiralty could entertain a libel as for a marine tort, for damages sustained by the collision of two steamboats on the Mississippi river. Judge Wyne delivered the prevailing opinion, which was met by a full and very, able dissenting opinion from Judge Woodbury, in which two of his associates concurred. The great point of the argument in the majority opinion, was to show that the district court had concurrent jurisdiction of the tort, with the courts of common law.

In The American Insurance Co. v. Carter, (1 Peters’, 511, 546,) to which we were cited by the defendant’s counsel, Chief Justice Marshall says, the exercise of admiralty jurisdiction in the states, can only be in those courts which are established in pursuance of the third article of the constitution of the United States. This observation of the learned judge, has no application to the point before us, because he was not speaking of common law courts at all; and he was arguing to show, that the legislature of a territory might establish a salvage court, for the reason that such legislature combined the governmental powers of both the state and the general governments ; it being contended that the power conferred on congress by the constitution, to establish admiralty courts in the states, did not extend to the territories of the United States.

We were also referred to Brevoor v. The Ship Fair American, (1 Peters’ Admiralty Rep. 81,) and to a note, founded on that case, in Story’s Abbott on Shipping, 557. The case itself was a libel for salvage, and among other objections to the jurisdiction of the court, it was shown that the ship had been delivered to the owners, the salvors could no longer proceed in rent,, and the lien was gone. Judge Peters upheld his jurisdiction, and decided that admiralty could proceed in personam for salvage ; also, that the lien was not gone. He said further, that no case is produced in a common law court of a suit for salvage on the high seas, and the reason for there being no such jurisdiction is, that the common law courts cannot proceed in rem. This, it will be observed, is not a decision; and the reason assigned, while it is inapplicable to courts of equity, does not apply to cases in the courts of law, where salvage comes in question incidentally.

We have thus briefly reviewed the history of maritime jurisdiction, under our national constitution, to show that it is essentially without change from the English system. The admiralty court is held to have the same powers as an instance and a prize court, that the same tribunal possesses there ; exclusive, as a prize court, and concurrent in its other jurisdiction, in all cases where the common law courts gave a competent remedy, and the admiralty was not made exclusive by law. The great struggle in the United States courts has been, to extend admiralty jurisdiction to cases which in England were exclusively confined to the courts of law and equity ; not to exclude from the concurrent jurisdiction here, any cases that were concurrent there.

We can find no reason for excluding questions of salvage ' from this concurrent authority, if parties choose to call for its exercise, and the cases are, in other respects, within the scope of our established jurisdiction. The authority in the English courts of common law was conceded, and many cases are reported where it was applied, both at law and in equity.

In this country we find one case, that of Blake v. Patten, (15 Maine R. 173,) where an action was maintained by a sailor against the master of a vessel, for his share of a salvage received by the latter. (And see Abbott on Shipping, by Story & Perkins, [556] 662.) The principle of Percival v. Hickey, (18 Johns. 291,) is decisive, although that was a marine tort, and not a salvage. A military salvage, arising upon a re-capture, is a case of prize, (The Schooner Adeline, 9 Cranch, 244,) and does not affect the question.

Our conclusion on the case, as made by the complaint, was declared on a former occasion. (Cashmere v. Crowell, 1 Sandf. R. 715.) It exhibits a tort committed at sea on the plaintiff’s goods, commencing with an alleged salvage. The defence is a claim for salvage of the goods; not denying that they are the property of the plaintiff, or of some stranger, but claiming a lien for salvage services. The supreme court, in Frith v. Crowell, admit the general jurisdiction of a court of equity, to interfere to ascertain the extent of a lien, in aid of a party who must pay it before he can obtain possession of his property; and we suppose it is unquestionable.

This is a court of equity, and the plaintiff seeks to redeem his goods. But it is said the lien is a salvage claim, and this court has not the machinery properly to dispose of such a claim. Why not ? The court of chancery, to which all our forms of procedure are now assimilated, has ever used the same civil law forms, which distinguish admiralty proceedings j and in a vast number of cases, growing out of corporations, joint stock companies, whaling adventures, the administration of estates, and the like; have entertained suits far more complicated and involved, and requiring more parties, than any salvage case to be found in the books. The libel in admiralty is the bill in chancery. Both courts proceed in rem, and both make decrees affecting numerous parties who do not appear, and who have no actual notice of the proceedings.

Assuredly, we feel no disposition to invite into this court cases involving questions of salvage; but we cannot say with truth, that the court is inadequate to investigate them. In this suit, if the plaintiff’s motion be entertained, the course will be to place the property in the hands of a receiver; and, being perishable, he will be directed to sell it at once. The proceeds will remain in court until the claims can be determined. If there are not sufficient parties, the defect will be supplied ; and on a reference, either with further parties, or by a notice to all persons interested, such as is given in partition cases and administration suits, the referee will proceed to investigate the claims of all persons entitled to share in the salvage.

The propriety of our entertaining jurisdiction is also questioned, and the declension of the district court to take cognizance is cited, as adjudging its impropriety. The decree of that court gives the reason of its course, which was, that the property was taken- by the salvage claimants on the British coast, within soundings, all the parties concerned were British subjects, and both ships were British vessels. The British Consul, interposing for unknown owners, made the objection to the court’s taking cognizance of the matter; and the court, holding that it could exercise a discretion, declined to proceed.

The facts which influenced the United States district court, do not confer any discretion upon us. The case before this court shows sufficiently to require its action, that the property which is now here, if actually salved, was wrongfully brought here ; and that parties who are foreigners and irresponsible, are seeking to carry it away, without any security to the owner that it will be taken to Great Britain, or to any country where he_ will ever hear of it again. He is willing to pay such salvage as the claimants ought to. have, and he desires to have his property protected till their claim can be ascertained.

If there were a suit pending in the admiralty court, we might and should decline jurisdiction ; but we have no right to refuse it, when required to act in a case within our proper cognizance, which is not in litigation elsewhere. If we err in our view of the jurisdiction of the common law courts, to decide upon salvage questions, we ought nevertheless to interfere for the protection of the plaintiffs property, until the question can be properly settled ; but we entertain no doubt on the principal point.

As to the objection that the plaintiff brought upon himself the necessity for the salvor’s removal of the goods, by opposing the proceeding in the district court; we find no sufficient evidence that he was an actor at all in that court. ' The British Consul interposed to protect the property belonging to subjects of his government, as he had a right to do ; but he could not, as Consul, receive restitution, or even obtain a decree to that effect. (The Bello Corrunes, 6 Wheat. 152 ; The Antelope, 10 ibid. 66.)

This is not an action in the nature of the former action of replevin. It is more in the nature of a hill for redemption of chattels retained for a lien.

There must be a receiver appointed with the usual authority.


author: By the Court. Vanderpoel, J.

text:
    Rockefeller and Others v. Thompson and Others.
    Where a vessel departs from a port at which a debt has been contracted on her account, for repairs, etc., in pursuit of some trade or business, it is a departure within the meaning of the statute relative" to proceedings for the collection of demands against ships and vessels.
    Where a steamboat was regularly employed in transporting passengers on the Hudson river between New York and Albany: held, that in contemplation of law, she was engaged in making coasting voyages ; that every trip of the boat was a departure within the meaning of the statute, and that a claim or debt for work, labor and materials furnished such boat in the port of New York, ceased to be a lien upon the boat at the expiration of twelve days from the time of her departure from that port.
    And where repairs were made by the plaintiffs upon a vessel at various times during a period of several months, in pursuance of general orders to them to do whatever work they should from time to time be directed by the officers of the vessel to do: held, that the contract, was not an entire and indivisible one, but that each job of work done constituted a separate debt, which might be enforced by the plaintiffs.
    March 9;
    March 17, 1849.
    Motion by the plaintiffs to set aside report of referee. This was an action brought by the plaintiff upon a bond executed by the defendants as the owners of the steamboat Alida, on the 13th October 1847, the conditions of which was, that the defendants would pay the amount of all such claims and demands as had been exhibited, which should be established to have been subsisting liens upon the Alida, at the time the bond was executed. The bond was given to obtain a discharge of the vessel from an attachment issued against her at the instance of the plaintiffs, upon an account amounting to about $270, for work, labor and materials furnished and done by the plaintiffs to the vessel during the summer and fall of 1847.
    Upon the trial, it appeared that the plaintiffs were partners in trade, as painters; that in May or June, 1847, they were employed by the agent of the Alida to do work upon the boat, and were authorized by him to do from time to time whatever they should be directed to do by the pilot, éngineer, or any one on board the boat. They did work upon the vessel at various times during the summer, until about the 20th of September. The work was mainly done on Sundays, that being the only day when the vessel was in port. The plaintiffs were in the habit of sending some one every Saturday to see what work was wanted, and they did what they could between that day and Monday. It was shown by the testimony of the witnesses, that the workmen were in the habit of doing as much as they could on each occasion, and then completing their work the next time the vessel ran into port, and that the work was not finished at any one time. There was some conflict as to whether the job was a continuous one or not.
    It was shown on the part of the defence that the painting of the boat was done at different times; that whenever the painting became worn, they would have it re-painted.
    A bill of particulars of the plaintiffs’ charges were given in evidence.
    It also appeared that the steamboat was owned from May 1847 to the 20th of September of that year, by W. R. M'Cullough, and was a passenger boat running in the day time, on alternate days, between New York and Albany. On the 21st of September, M'Cullough conveyed the boat to E. Stevenson, who, on the 27th of the same month, conveyed to the defendants. It was shown that the vessel left New York on the 17th September, 1847, for Albany, and that on the 29th day of December, 1847, a legal tender was made by the defendants to the plaintiffs’ attorneys, of the sum of $70, in full for any lien which the plaintiffs’ had on the 2d of October, 1847, (the time of taking out the attachment,) for work, labor, and materials done or used in the Alida, and also the costs of the proceedings on the attachment, and of this suit up to the time of the tender. The amount of work, labor, and materials, as set forth in the bill of particulars, subsequent to the 1 7th of September, on which day the vessel left New York, was less than $70.
    It was contended on the part of the plaintiffs, that the job being a continuous one, there was no debt until the work was finished, and therefore there was no such departure of the steamboat within the meaning of the statute, as avoided th e lien at the expiration of 12 days after the debt was contracted.
    The defendants contended that the lien for each separate charge embraced in the bill of particulars, ceased within 12 days after the departure of the vessel, and they tendered all that accrued within the twelve days preceding the attachment.
    The referee reported that the sailing between New York and Albany was each time a departure such as is contemplated by the statute, and that the lien for whatever was then due, would cease in 12 days; that although the work performed by the plaintiffs might have been a continuous or running account, yet that payment could have been required at any time for the work which had been done; and that, therefore, the work performed constituted a debt by itself; that the lien for the charges in the account of the plaintiffs, was lost within twelve days after the vessel sailed from New York, subsequent to the accruing of such charges respectively. The referee reported that there was due to the plaintiffs the sum of $70, being the amount as tendered.

      Dill and Davidson, for the plaintiffs.

      Smith and Woodward, for the defendants.
   By the Court. Vanderpoel, J.

The statute provides, (2 R. S., p. 493, § 1,) that whenever a debt amounting to $50 or upwards shall be contracted by the master, owner, agent or consignee of any ship or vessel within this state, on account of any work done, or materials or articles furnished, in this state, for or towards the building, repairing, fitting, furnishing, or equipping such ship or vessel, such debt shall be a lien upon such ship or vessel.

The second section provides, that when the ship or vessel shall depart from the ■ port at which she was when such debt was contracted, to some other port within the state, any such debt shall cease to be a lien at the expiration of twelve days after the day of such departure; and in such cases, such lien shall cease immediately after the vessel shall have left this state.

The attachment referred to in the bond in suit, was delivered to the sheriff on Saturday, the second of October, 1847, and was executed by the seizure of the steamboat Alida, on the fourth of October, at one o’clock in the morning.

For the plaintiffs, it is insisted that their claim was upon an implied contract running through the whole season ; that there was no particular job done, but the work was going on through the whole season, and that tho proceeding having been taken within twelve days after the last item, was good for the whole. The referee decided otherwise, and. we approve of the conclusion to which he came. The vessel ran to Albany three times a week, and it seems to be conceded that she went to Albany on the 17th of September. If this was “ a departure from the port.f within the meaning of the statute, then the lien for all charges previous to that date was gone before tire attachment was taken out. The vessel was engaged, in contemplation of law, in making coasting voyages. In The Steamboat Company v. Livingston, (3 Cow. 747,) the court of errors held, that a voyage in a vessel of suitable tonnage between New York and Albany, is as much a coasting voyage as from Boston to Plymouth or New Bedford. Every trip of the boat to Albany was a departure within the meaning of the statute ; and if the plaintiff had a claim or debt, such as is specified in the statute, it ceased to be a lien at the expiration of twelve days after the day of the departure of the vessel. • In Hancox and Others v. Dunning, (6 Hill, 494,) the vessel made a short excursion beyond the bounds of the state, for the mere purpose of testing her machinery, and immediately returned, and it was held that this was not a leaving of the state within the meaning of the statute. But the court then held, that if a vessel departs from the port in which the repairs are made, in the pursuit of some trade or business, that it is a leaving of the port within the meaning of the statute. That was the case of this vessel. She left New York three times a week in pursuit of her regular business ; and we hesitate not to say, that every time she left New York or Albany, she departed” from each port within the meaning of the statute.

The referee repudiates the idea that the claim of the plaintiffs was upon an implied contract running through the whole season, and that it was not due until the transfer of the boat took place ; and in this, too, we think he was right. We see nothing in this case that could have prevented the plaintiffs from enforcing payment of their claim for work and materials, every time the vessel departed for Albany, or, at least, every week. Miller, the clerk of the boat, testified that the boat wanted painting every week or two, and whatever was wanted to be done, they ordered the plaintiffs to do; that the painting of certain parts of the boat was done at different times ; they would wear the part painted two or three months, and then paint it again. This gives a fair idea of the character of the work. It was palpably not the result of one entire and indivisible contract. The plaintiffs could have presented their bills and enforced their claims from time to time.

The motion to set aside the report of the referee is denied.