and upon a reward for acts neither desired nor performed, would appear to be reconcilable with neither common justice nor common sense. The establishment of such a principle would arrest, necessarily, everything like progress or improvement in government; or, if changes should be ventured upon, the government would have to become one great pension establishment, on which to quarter a host of sinecures. * * * It follows, then, upon principle, that in every perfect or competent government there must exist a general power to enact and to repeal laws, and to create and change or discontinue the agents designated for the execution of those laws. Such a power is indispensable for the preservation of the body politic, and for the safety of the individuals of the community. It is true that this power, or the extent of its exercise, may be controlled by the higher organic law or constitution of the state, as is the case in some instances in the state constitutions, and as is exemplified in the provision of the federal constitution relied on in this case by the plaintiffs in error, and in some other clauses of the same instrument; but, where no such restriction is imposed, the power must rest in the discretion of the government alone. * * * We have already shown that the appointment to and the tenure of an office created for the public use, and the regulation of the salary affixed to such an office, do not fall within the meaning of the section of the constitution relied on by the plaintiffs in error,-do not come within the import of the term 'contracts,' or, in other words, the vested, private, personal rights thereby intended to be protected. They are functions appropriate to that class of powers and obligations by which governments are enabled, and are called upon, to foster and promote the general good,-functions, therefore, which governments cannot be presumed to have surrendered, if indeed they can, under any circumstances, be justified in surrendering them.

The case of Newton v. Commissioners, 100 U. S. 548, 25 L. Ed. 710, is in point. That was a controversy over the projected removal of a county-seat; and the statute relied on by the objectors provided that, before the seat of justice should be considered as permanently established at the town of Canfield, the citizens thereof should do certain things, all of which were admitted to have been duly done. The objectors therefore claimed a contract right that the county-seat should remain at Canfield. This court said: "The legislative power of a state, except so far as restrained by its own constitution, is at all times absolute with respect to all offices within its reach. It may at pleasure create or abolish them, or modify their duties. It may also shorten or lengthen the term of service. And it may increase or diminish the salary, or change the mode of compensation. The police power of the states, and that with respect to municipal corporations, and to many other things that might be named, are of the same absolute character;" citing Cooley, Const. Lim. 232, 342; The Regents v. Williams, 9 Gill & J. (Md.) 371, 31 Am. Dec. 72. "In all these cases there can be no contract, and no irrepealable law, because they are 'governmental subjects,' and hence within the category before stated. They involve public interest, and legislative acts concerning them are necessarily public laws. Every succeed

ing legislature possesses the same jurisdiction and power with respect to them as its predecessors. The latter have the same power of repeal and modification which the former had of enactment,neither more nor less. All occupy, in this respect, a footing of perfect equality. This must necessarily be so, in the nature of things. It is vital to the public welfare that each one should be able at all times to do whatever the varying circumstances and present exigencies touching the subject involved may require. A different result would be fraught with evil."

In Stone v. Mississippi, 101 U. S. 814, 820, 25 L. Ed. 1079, considering the power of a legislature to grant an irrepealable charter, for a consideration, to a lottery company, the court said: "The power of governing is a trust committed by the people to the government, no part of which can be granted away. The people, in their sovereign capacity, have established their agencies for the preservation of the public health and the public morals, and the protection of public and private rights. These several agencies can govern according to their discretion, if within the scope of their general authority, while in power; but they cannot give away nor sell the discretion of those that are to come after them, in respect to matters the government of which from the very nature of things, must 'vary with varying circumstances.'" See, also, Hall V. Wisconsin, 103 U. S. 5, 26 L. Ed. 302; U. S. v. Fisher, 109 U. S. 143, 3 Sup. Ct. 154, 27 L. Ed. 885. Nor is the holding of this court. singular. Numerous decisions to the same effect are to be found in the state courts. People v. Morris, 13 Wend. (N. Y.) 325; Com. v. Bacon, 6 Serg. & R. (Pa.) 322; Com. v. Mann, 5 Watts & S. (Pa.) 418; Hyde v. State, 52 Miss. 665; State v. Smedes, 26 Miss. 47; Turpen v. Board,, etc., 7 Ind. 172; Haynes v. State, 3 Humph. (Tenn.) 480, 39 Am. Dec. 187; Benford v. Gibson, 15 Ala. 521.

In Blake v. U. S., 103 U. S. 227, 26 L. Ed. 462, the fact is adverted to, and the opinion of the attorney general in Lansing's Case, 6 Ops. Atty. Gen. 4, quoted approvingly, to the effect that in this respect of official tenure there is no difference in law between officers in the army and other officers of the government.

Applying the above principles, it remains to say that we know of no instance in which their assertion is more imperatively demanded by the public welfare than in this case, and such others as this. If the position taken by the appellant is correct, then a logical and unavoidable result is, that our country, if ever we are so unfortunate as to be again involved in war, will be compelled, after the treaty of peace, to maintain the entire official force of the army and navy, and a host of sinecurists, in full pay so long as they shall live, either that, or to disband the army and navy before the peace shall be made; even this wholly inadmissible alternative being legally possible from one of appellant's positions. It is impossible to believe that such a condition of affairs was ever contemplated by the framers of our organic or statute law. The effect of the authorities cited above is in no respect modified by section 1229 or by article 36 of section 1624 of the Revised Statutes. In the first place, if it were granted that those sections mean what appellant claims for them,-if they

mean beyond question that one appointed as a cadet shall never be dismissed by authority of either the executive or the legislature, or by both in conjunction,-yet that fact would make no difference. The great question of protection to contract rights and vested interests, which forms such an interesting and important feature of our constitutional law, is not dominated by the turn of a phrase. Our courts, both state and national, look on these questions through the form to the substance of things; and, in substance, a statute under which one takes office, and which fixes the term of office at one year, or during good behavior, is the same as one which adds to those provisions the declaration that the incumbent shall not be dismissed therefrom. Whatever the form of the statute, the officer under it does not hold by contract. He enjoys a privilege revocable by the sovereignty at will, and one legislature cannot deprive its successor of the power of revocation. Butler v. Pennsylvania, supra; Stone v. Mississippi, supra; Cooley, Const. Lim. 283; U. S. v. McDonald, 128 U. S. 471, 473, 9 Sup. Ct. 117, 32 L. Ed. 506.

In the second place, section 1229 and article 36 of section 1624 of the Revised Statutes are a reproduction in the revision of the act of July 13, 1866, section 5, supra; and in Blake v. U. S., supra, the court decided that that act only operated to withdraw from the president the power previously existing in him of removing officers at will, and without the concurrence of the senate, and that there was no intention to withdraw from him the power to remove with the advice and concurrence of the senate. If that construction of the statute be correct (and we see no cause for altering our view), it necessarily follows that it was not intended to place an officer where he never before had been,-beyond the power of congress to make any provision for his removal, even by the executive who appointed him. It is claimed, however, that the construction so given to the act of 1866 was induced by the consideration of certain other statutes in pari materia, and that the reintroduction of it in the revision, unaccompanied by those other statutes, would render that construction inapplicable now. We do not think so. We have already considered the act of 1866 in its historical relations, and from the circumstances of its enactment deduced its meaning. When it was re-enacted with all other statutes of general interest, the political exigency which furnished the primary motive for its re-enactment, had drifted away with the lapse of time; but we do not think it can avail to give to a statute which, after all, is but a re-enactment in the exact language of the original act, a meaning almost directly the reverse of that given to the original act. To give such effect to the action of congress in codifying the statutes would go far to subvert all decisions, and introduce chaos into our jurisprudence.

Thus far we have preferred to decide the case upon the broad grounds above stated, and therefore considered it as if the term of office enjoyed by the appellant was what he claims it to have been,— a term for life. In fact, however, even if that were true as to other officers, it was not true as to him. The statute applicable to his case is section 1520 of the Revised Statutes, which fixes the academic course at six years; and when he entered the service, under the reg

ulations in such cases provided, he executed a bond to serve for eight years, unless discharged by competent authority,-thus recognizing his liability to be discharged.

As to the fourth proposition of appellant, that, in enacting the statute of 1882, congress assumed the power of appointment which belongs to the executive, we do not so regard the act. Congress did not thereby undertake to name the incumbent of any office. It simply changed the name, and modified the scope of the duties. This, we think, it had the power to do. We think, too, that the appellant came within the terms of the act of 1882. There is a very plain distinction between this case and that of a cadet engineer, fully explained in U. S. v. Redgrave, 116 U. S. 474, 6 Sup. Ct. 444, 29 L. Ed. 697. The statute in express terms provides that "the academic course of cadet midshipmen shall be six years." If the navy department had assumed to make any regulations by which the final graduation shall take place in less time, such regulations would have been void. But it did not so assume. It arranged for a two-years course afloat as a part of the academic course, and exacted a preliminary examination to test the cadet's qualifications therefor. But the cadet afloat was a member of the academy. He still was subject to a final examination at that institution, and, without such examination successfully sustained, never became a graduate. He was not so denominated until then, either in the Naval Register or elsewhere; and it was not until that final test had been sustained that, either by the practice of the academy or by the provision of the statute, he did or could receive his certificate of graduation. The judgment of the court of claims is affirmed.

(Court of Errors and Appeals of New Jersey, 1890. 46 N. J. Eq. 560, 20 Atl. 259, 9 L. R. A. 221, 19 Am. St. Rep. 438.)

Appeal from court of chancery.

REED, J. The right of the appellee, who was the complainant below, to the relief for which she prays, rests upon an assignment made to her husband by the defendant. The subject-matter which the assignment was supposed to operate upon was the unearned pay of the defendant, to become due to him as a retired officer of the United States army.

In consideration of the cause we meet at the outset a difficulty which lies at the root of the complainant's case. It exists in the shape of an objection interposed by the defendant that this assignment purports to transfer a chose in action belonging to a class which are not assignable, or what in effect produces the same result, the assignment of which the courts will not enforce or recognize. The rule is established in the English courts that the unearned salary or emolument of an officer which may become payable during his life is incapable of assignment. This restriction upon the general power to dispose of rights having a potential existence is put upon the ground that the recognition of MIL.L.-24

such assignments would operate prejudicially upon the public service. The considerations which led to this judicial result were in substance the following: It was apparent that the salary or remuneration incident to a public office, as a rule, was essential to a decent and comfortable support of the incumbent. If the officer should be deprived of this support, there would arise a hazard of his being driven to an inappropriate meanness of living, of his being harassed by the worry of straitened circumstances, and tempted to engage in unofficial labor, and of the likelihood of his falling off in that official interest and vigilance which the expectation of pay keeps alive. It was because of these probable consequences that the courts refused to countenance any act or proceeding which might result in stripping the officer of his anticipated reward. The cases in which this question has been mooted, and the foregoing rule established, in the English courts, are the following: Flarty v. Odlum, 3 Term R. 681; Barwick v. Reed, 1 H. Bl. 627; Arbuckle v. Cowtan, 3 Bos. & P. 328; Davis v. Marlborough, 1 Swanst. 79; Lidderdale v. Montrose, 4 Term R. 248; Stone v. Lidderdale, 2 Anstr. 533; Wells v. Foster, 8 Mees. & W. 149; Palmer v. Bate, 2 Brod; & B. 673.

In the case of Flarty v. Odlum, 3 Term R. 681, it was held by the court of king's bench that this rule was applicable to the assignment of half-pay by an officer of the British army. It was ruled that future accruing payments did not pass to an assignee appointed under proceedings against an insolvent officer taken for the benefit of his creditors. Afterwards, in the case of Lidderdale v. Duke of Montrose, 4 Term R. 249, the validity of a voluntary assignment of the half-pay of an officer came before the same court, and it was held that there was no distinction to be made between a voluntary assignment and an assignment, as in the last-mentioned case, under the insolvent debtor's act, and so the voluntary assignment was also held to be void. The same dispute, under the name of Stone v. Lidderdale, was shifted into the court of exchequer, and by that court it was remarked that halfpay was granted for the purpose of keeping experienced officers in such a situation as not to be compelled to turn themselves to other pursuits, or to be by other circumstances reduced to extreme poverty. The assignment was therefore held to be void. 2 Anstr. 533. Since the decision of these causes the nullity of an assignment of unearned half-pay by an officer has been repeatedly recognized. The remarks of Lord Alvanley in Arbuckle v. Cowtan, supra, and of Baron Parke in Wells v. Foster, supra, display an understanding in the English courts that by the case of Flarty v. Odlum this question had been definitely set at rest.

In this country there are two cases in which the assignment of a portion of a salary to become due had been held valid. One case is Brackett v. Blake, 7 Metc. (Mass.) 335, 41 Am. Dec. 442, in which case it was held that the unearned salary of a city marshal was capable of assignment. It is quite remarkable that the only question discussed in the opinion of Chief Justice Shaw in that case was whether the anticipated salary was such a possibility, coupled with an interest as to be capable of assignment. Upon the court's concluding that it was such