peace to be elected in precincts should establish an orphans' court in any be provided by law, and that all pre- county, and provided that in such case cinct officers at the time the state was the register of wills should be clerk admitted into the Union should hold thereof, and that in such case the jutheir offices until their successors had risdiction of the court of common qualified, an act was held unconstitu- pleas in orphans' court proceedings tional which directed the redistricting should cease. It was held that in such of the counties and provided a day in a case the clerk of the common pleas which justices' precincts were abol- could not claim that he was entitled to ished and the terms of the justices in continue to be clerk in orphans' court office terminated, where there was no proceedings during his term by the provision for election before that day. constitutional declaration that "all High v. State (1913) 14 Ariz. 429, 130 persons in office in this commonwealth Pac. 611.

at the time of the adoption of this Where the legislature is given pow- Constitution, and at the first election er by the Constitution to abolish the under it, shall hold their respective office of justice of the peace in certain offices until the time for which they precincts by substituting a new court, have been elected or appointed shall an act abolishing such office and sub- expire, and until their successors stituting a new court will be void if shall be duly qualified, unless otherit erects a new court differing in ju- wise provided in this Constitution." risdiction from that intended by the Constitution. State v. Roden (1916)

2. General principles. - Ala. —, 73 So. 657.

In the absence of constitutional reWhere the Constitution provides

strictions, express or implied, the legthat each court shall appoint its own

islature may abolish offices. clerk who shall hold his office during

The legislature, to simplify elections good behavior, the legislature having

and to prevent duplication of public created a probate court and the judge duties, may abolish the former office having appointed a clerk, the legisla- of trustees of a town and declare that ture could not abolish the office of certain town officers shall be ex officio clerk and devolve its duties upon the

the board of trustees. Sammis v. judge. Runnels v. State (1823) Walk.

Huntington (1919) 186 App. Div. 463, (Miss.) 146.

174 N. Y. Supp. 610. It is within the constitutional au

Where the board of trustees of a thority of the legislature by general state university had created an office law to abolish the office of register of

thereunder and elected a person to fill probate and insolvency, and transfer

it for a certain term, the legislature the powers and duties thereof to a

might abolish the office, and such a law new officer called the clerk of the

does not violate the obligation of any court of probate and insolvency, where

contract. Vincenheller Reagan the Constitution requires the legisla- (1901) 69 Ark. 460, 64 S. W. 278. ture to prescribe, by general law, for

The legislature may abolish a city the election by the people of registers

office. Cutshaw v. Denver (1904) 19 of probate, as well as clerks of the Colo. App. 341, 75 Pac. 22 (office abolcourts of common law, in each county, ished before appointment of plainbut expressly leaves it to the legisla- tiff); Atty. Gen. ex rel. Maybury v. ture to prescribe the term of office, and Bolger (1901) 128 Mich. 355, 87 N. W. restricts the power of the legislature 366; Kendall v. Canton (1876) 53 over such officers in no other respect. Miss. 526; Demarest v. New York Opinion of Justices (1875) 117 Mass. (1878) 74 N. Y. 161; Demarest v. 603.

Wickham (1875) 67 Barb. (N. Y.) 314, It was the phrase, “unless otherwise affirmed on another ground in (1875) provided," on which the court par- 63 N. Y. 320; People ex rel. Devery v. ticularly relied in French v. Com. Coler (1903) 173 N. Y. 103, 65 N. E. (1875) 78 Pa. 339, where the Consti- 956; McHugh v. Cincinnati (1871) 13 tution gave power to the legislature to Ohio Dec. Reprint, 466; State ex rel.

9

The legislature may authorize in- ing the year by said board. Chicago ferior bodies to abolish nonconstitu- v. Edwards (1871) 58 Ill. 252. tional offices. Thus, the legislature A state law giving police commismay authorize a municipality to abol- sioners of a city power to reduce the ish offices. Wilkinson v. Birmingham police force is not superseded by the (1915) 193 Ala. 139, 68 So. 999; State provisions of a charter adopted by the ex rel. Terry v. Lanier (1916) 197 Ala. city under a constitutional provision 1, 72 So. 320; Jacksonville v. Bowden that the city may adopt a charter for (1914) 67 Fla. 181, L.R.A.1916D, 913, its own government which must be, 64 So. 769, Ann. Cas. 1915D, 99; People however, “consistent with and subject ex rel. Fowler v. Brown (1876) 83 Ill. to the Constitution and laws of the 95; Madison v. Kelso (1869) 32 Ind. state." State ex rel. Goodnow v. Police 79; Goodwin v. State (1895) 142 Ind. Comrs. (1902) 184 Mo. 109, 71 S. W. 117, 41 N. E. 359.

215, 88 S. W. 27. The legislature may give a city pow- The legislature, having provided er to accept a new charter which in that firemen in cities may not be diseffect will vacate old offices not con- charged without cause, may later give tinued. People ex rel. Fowler v. fire commissioners authority to abolBrown (1876) 83 Ill. 95.

ish offices. Fire Comrs. v. Lyon A city office created by a city coun- (1891) 53 N. J. L. 632, 23 Atl. 274. cil may be abolished by the governing In Lincoln v. Yeomans (1892) 34 commission of the city, so authorized Neb. 329, 51 N. W. 844, the appointing by the act creating a commission form excise board of a city was held authorof government. Wilkinson v. Birming- ized under the charter to reduce the ham (1915) 193 Ala. 139, 68 So. 999. police force for sake of economy.

The legislature, having provided for Where the statute provides that the a commission form of government for school committee of a city may discities, may enact that the cities choos- miss any teacher whenever they think ing such form may vote to return to proper, they may abolish a school and the old form and that on such vote the accordingly dismiss the teacher, and office of the commission may be abol- she may not recover any salary for ished. State ex rel. Terry v. Lanier the time after her dismissal although (1916) 197 Ala. 1, 72 So. 320.

she was employed for a year and was A new charter adopted by the peo- paid quarterly and dismissed in the ple of a city will abolish an office un- middle of a quarter. Knowles v. Bosder the old charter when that is the ton (1859) 12 Gray (Mass.) 339. intent. Sanders v. Kansas City (1913) The legislature, having authorized 175 Mo. App. 367, 162 S. W. 663. counties in their discretion to provide

It may be noted that a statute pro- for election to an office, may thereafter viding that a city council for cause authorize counties to abolish the of. might remove any officers appointed fice, and a county accordingly may by them under the statute enables the abolish the office and thus oust the incouncil where a police force was es- cumbent during his term. Stanfield tablished by ordinance to disband it v. State (1892) 83 Tex. 319, 18 S. W. for lack of means. Hoboken v. Gear 577; State ex rel. Maxwell v. Crum(1859) 27 N. J. L. 265.

baugh (1901) 26 Tex. Civ. App. 521, 63 The legislature may authorize a city S. W. 925. board to reduce the number of their For an illustration of a statute ausubordinates (for economy). People thorizing towns having three commisex rel. McCarthy v. French (1881) 25 sioners of highways to change to one Hun (N. Y.) 111.

after the existing terms expire, see Where by the charter persons ap- People v. Tabor (1861) 21 How. Pr. pointed "additional police patrolmen" (N. Y.) 42. may be removed at any time by the It was held in Re Summit Hill board of police without assigning (1912) 50 Pa. Super. Ct. 117, that the cause, a person so appointed for a legislature may authorize the court of year may be removed from office dur- quarter sessions to divide boroughs in

ex

to wards and to combine one or more Capdevielle (1901) 104 La. 561, 29 So. wards into one, thus abolishing some 215. offices.

Maryland. - Whittington V. Polk It may be noted that it has been (1802) 1 Harr. & J. 236 (probably, held that, upon the abolition of a state case insufficiently reported); Riggin v. board without a saving clause as to its Lankford (1918) Md. 105 Atl. appointments, the authority of those 172 (stating the rule). persons who merely held office during Michigan.-Atty. Gen. v. Cogshall its pleasure ceases. State ex rel. Car- (1895) 107 Mich. 181, 65 N. W. 2. ter v. Public Lands & Buildings Mississippi. - Kendall v. Canton (1878) 7 Neb. 42.

(1876) 53 Miss. 526. A statute creating county school Missouri. — State rel. Circuit boards directed that they should elect Atty. v. Hermann (1881) 11 Mo. App. a nonmember secretary; a board elect- 43 (sustaining the principle but coned a secretary and fixed his term at sidering that the offices were vacated, two years. A new statute legislated not abolished). the boards out of office and a new Montana.-State ex rel. McGinniss board elected a new secretary. The V. Dickinson (1902) 26 Mont. 391, 68 old secretary could not claim that his Pac. 468. term of two years had not expired. Nebraska.—State ex rel. Topping v. Duer v. Dashiell (1900) 91 Md. 660, Houston (1913) 94 Neb. 445, 50 L.R.A. 47 Atl. 1040.

(N.S.) 227, 143 N. W. 796 (obiter). The legislature may abolish offices New York.-Allison v. Welde (1902) created by it.

172 N. Y. 421, 65 N. E. 263; People ex Alabama.--Hawkins v. Roberts & rel. Holmes V. Lane (1900) 53 App. Son (1898) 122 Ala. 130, 27 So. 327; Div. 531, 65 N. Y. Supp. 1004. Touart v. State (1911) 173 Ala. 453, 56 North Carolina.-Brown v. Turner So. 211 (obiter); State ex rel. Terry (1874) 70 N. C. 93. v. Lanier (1916) 197 Ala. 1, 72 So. Pennsylvania.—Com. ex rel. Braugh320.

ler v. Weir (1895) 165 Pa. 284, 30 Atl. Arkansas. Robinson V. White 835; Donohugh v. Roberts (1881) 11 (1870) 26 Ark. 139.

W. N. C. 186. California. People ex rel. McMinn Tennessee.-Jones v. Hobbs (1874) v. Haskell (1855) 5 Cal. 357 (obiter); 4 Baxt. 113; State ex rel. Halsey V. Re Bulger (1873) 45 Cal. 553 (abolish Gaines (1879) 2 Lea, 316; State ex or abridge terms); People ex rel. rel. Coleman v. Campbell (1875) 3 Daniels v. Henshaw (1888) 76 Cal.

Shannon, Cas. 355. 436, 18 Pac. 413 (in effect); People

Utah.-State ex rel. Hall v. Howell ex rel. Miller v. Davie (1896) 114 Cal.

(1903) 26 Utah, 55, 72 Pac. 187.

Washington. 363, 46 Pac. 150 (abolish or shorten

Bogue V. Seattle term); Mansfield v. Chambers (1915)

(1898) 19 Wash. 396, 53 Pac. 548.

Wisconsin. State Douglas 26 Cal. App. 499, 147 Pac. 595. Delaware.-State ex rel. McVey v.

(1870) 26 Wis. 428, 7 Am. Rep. 87.

See also, as stating the rule: Greer Burris (1901) 4 Penn. 3, 49 Atl. 930.

v. Merchants & M. Bank (1914) 114 Georgia.-Dallis v. Griffin (1903)

Ark. 212, 169 S. W. 802; Jeffries v. 117 Ga. 408, 43 S. E. 758.

Rowe (1878) 63 Ind. 592; Standeford Illinois.—People ex rel. Murphy v.

v. Wingate (1866) 2 Duv. (Ky.) 440; Lippincott (1873) 67 Ill. 333.

Davis v. State (1854) 7 Md. 151, 61 Indiana.—Mullen v. State (1870) 34 Am. Dec. 331; State ex rel. Baughn Ind. 540; Blakemore v. Dolan (1875) v. Ure (1912) 91 Neb. 31, 135 N. W. 50 Ind. 194 (or shorten term); State 224; State ex rel. Woodsides v. Mcex rel. Yancey v. Hyde (1891) 129 Daniel (1883) 19 S. C. 114. Ind. 296, 13 L.R.A. 79, 28 N. E. 186. See also Bryon v. Jumel (1880) 32

Iowa.--Younker v. Susong (1916) La. Ann. 442 (where the claimant of 173 Iowa, 663, 156 N. W. 24.

salary had been elected but had not Louisiana.—State ex rel. Fortier v. qualified at the time the law abolish

ing the court was promulgated), Wil- 27 So. 327. So, the power of the legiscox v. Rodman (1870) 46 Mo. 322, lature to abolish an office created by it (where the statute establishing the and create another with similar duoffice stated that "this chapter may be ties in order to provide a place for a amended, modified, and repealed by certain person is not limited by a conthe legislature at pleasure)” and Head stitutional provision that officers may v. University of State (1870) 47 Mo. be impeached or removed in such man220, affirmed in (1874) 19 Wall. (U. ner as may be prescribed by law. S.) 526, 22 L. ed. 160 (where the legis- State ex rel. Yancey v. Hyde (1891) lature passed an act vacating an of- 129 Ind. 296, 13 L.R.A. 79, 28 N. E. 186. fice where the term was for six years In People ex rel. Swift v. Luce "subject to law)."

(1912) 204 N. Y. 478, 97 N. E. 850, A territorial legislature may abolish Ann. Cas. 1913C, 1151, it was held that an office of its creation (Territory ex the New York court of claims was not rel. Fisk v. Rodgers (1870) 1 Mont. a court, but a mere board of audit, and 252 [obiter]), or declare it vacant that there was no objection to its ab(People ex rel. Robertson v. Van Gas- olition by the legislature. kin (1885) 5 Mont. 352, 6 Pac. 30). An office attached by the legisla

It was held in Younker v. Susong ture to the lieutenant governor ex of(1916) 173 Iowa, 663, 156 N. W. 24, ficio may be taken away by the legislathat the office of justice of the peace, ture. Denver v. Hobart (1874) 10 being created by the legislature, may Nev. 28. be abolished by it, where the judicial The legislature in creating a cerpower was vested in part “in such tain county court, having provided other courts, inferior to the supreme that the clerk of the superior court of court, as the general assembly may the county should be clerk of the from time to time establish," although county court, might later provide that the jurisdiction of justices of the the judge of the county court should peace was defined by the Constitution. appoint the clerk. State ex rel. Wesso

In the absence of constitutional pro- lowski v. Gilbert (1874) 51 Ga. 227. hibition the legislature may abolish Where the legislature established a the office of judge of a court which it county and later repealed the act, it created. Crozier v. Lyons (1887) 72 was held the sheriff of the abolished Iowa, 401, 34 N. W. 186.

county could not make an arrest unIn White v. Ayer (1900) 126 N. C. der a writ addressed to him as sheriff 570, 36 S. E. 132, it was held that “the of such county. Mills v. Williams legislature may reduce the salary of (1850) 33 N. C. (11 Ired. L.) 558. an existing legislative office, if this is But where a statute appointed a done for the benefit of the public, and commissioner and directed that the not for the purpose of injuring the in- governor make a contract with him, he cumbent and to starve him out;" and is not a public officer, and the state where only a part of the salary is tak- cannot withdraw from the contract by en from the officer, it must appear repealing the statute. Hall v. Wisconfrom the legislation itself that the sin (1880) 103 U. S. 5, 26 L. ed. 302, object was unlawful, or the court will reversing (1875) 39 Wis. 79. not interfere.

VII. Abolition by city. The legislature's power to abolish offices created by it is not affected by

Ordinarily, in the absence of rea provision in the Constitution for the

strictions, when a city has power to impeachment and removal of officers.

create an office it may abolish it. Thus a constitutional provision pro

Connecticut.-State ex rel. Rylands viding for the impeachment and re

v. Pinkerman (1893) 63 Conn. 136, 22 moval of county officers other than L.R.A. 653, 28 Atl. 110. those created by the Constitution does Georgia. - Augusta v. Sweeney not prevent the legislature from abol- (1871) 44 Ga. 463, 9 Am. Rep. 172. ishing offices of its creation. Hawkins Indiana.—Downey v. State (1902) v. Roberts & Son (1898) 122 Ala. 130, 160 Ind. 578, 67 N. E. 450.