change of duties or burdens is sufficient to make the latter a different office, cannot be reviewed by courts, provided the act is otherwise valid (State ex rel. Yancey v. Hyde (1891) 129 Ind. 296, 13 L.R.A. 79, 28 N. E. 186), although it has been held in one case that while the legislature may abolish an office created by it, it does not do so by abolishing a board and instantly creating a new board to perform the same duties (State ex rel. Birdsey v. Baldwin (1877) 45 Conn. 134).

See also, in this connection, Christenson v. Portland (1918) 89 Or. 609, 175 Pac. 135, infra, III.

In People ex rel. Swift v. Luce (1912) 204 N. Y. 478, 97 N. E. 850, Ann. Cas. 1913C, 1151, it was held that the legislature had power to abolish a so-called court of claims which was really a mere board of audit, and oust its judges, and create a new board of claims with nearly the same powers. Under the former rule in North Carolina, that an office was a contract, it was held that a declared but pretended abolishment of an office by the legislature, transferring its duties. away from the incumbent during his term, was not allowable though the office was created by the legislature. State Prison v. Day (1899) 124 N. C. 362, 42 L.R.A. 295, 32 S. E. 748. So it was held that a declared abolishment by the legislature of a court which was really continued under another name did not oust its clerk (Walker ex rel. Wilson v. Jordan (1899) 124 N. C. 683, 33 S. E. 139), nor its solicitor (State ex rel. McCall V. Webb (1899) 125 N. C. 243, 34 S. E. 430). So it was held that county boards of education were not abolished by an act so declaring, where a later act of the same session substituted county boards of school directors. State ex rel. Dalby v. Hancock (1899) 125 N. C. 325, 34 S. E. 516; State ex rel. Gattis v. Griffin (1899) 125 N. C. 332, 34 S. E. 429; State ex rel. Greene v. Owen (1899) 125 N. C. 212, 34 S. E. 424.

In Farley v. Gilbert (1903) 24 Ky. L. Rep. 2109, 72 S. W. 1098, it was held that the statute did not give a county superintendent of schools such ar

bitrary power as to enable him to abolish two adjacent school districts in his county, and immediately re-establish them by different numbers, comprising substantially the same territory, and thereby remove from office the trustees holding in the former district. It will be seen (infra, III.) that tenure of office and civil service laws, and laws to protect veterans, cannot be evaded by a sham or pretended abolishment.

There are at least two cases in which the courts have declined to interfere with what appear to be sham or pretended abolitions of office by a city.

In Hudson v. Denver (1888) 12 Colo. 157, 20 Pac. 329, it was held that a city authorized by charter to discharge police officers whenever in its judgment a reduction of the force is deemed advisable may discharge police officers, although at the same meeting it adopts a resolution increasing the police force.

In Downey v. State (1903) 160 Ind. 578, 67 N. E. 450, where the common council of a city had elected a city attorney for the term of four years, it was held that a statute providing that city attorneys shall not be removed from office for the term for which they were elected did not prevent the city council from abolishing the office, nor from re-creating it during the term and appointing another person to it. The court considered that the council's action in discontinuing the office was the exercise of legislative power, and that the courts would not inquire into the motives of it.

78; McCann v. New Brunswick (1905) 73 N. J. L. 161, 62 Atl. 191; McBride v. Bayonne (1907) 74 N. J. L. 398, 65 Atl. 895; Ziegler v. Burk (1912) 83 N. J. L. 207, 83 Atl. 976 (obiter); Paddock v. Hudson County Bd. of Taxn. (1912) 82 N. J. L. 360, 83 Atl. 185; Van Horn v. Mercer County (1912) 83 N. J. L. 239, 83 Atl. 894; Colgarry v. Street & Water Comrs. (1913) 85 N. J. L. 583, 89 Atl. 789; Van Horn v. D'Arcy (1915) 88 N. J. L. 675, 93 Atl. 597; Buckley v. Guttenberg (1915) 87 N. J. L. 434, 95 Atl. 120.

New York.-Phillips v. New York (1882) 88 N. Y. 245; Langdon v. New York (1883) 92 N. Y. 427; Lethbridge v. New York (1892) 133 N. Y. 232, 30 N. E. 975; People ex rel. Dunn v. Ham (1901) 166 N. Y. 477, 60 N. E. 191 (not necessary to decision); People ex rel. Evans v. Department of Public Works (1880) 60 How. Pr. 130; People ex rel. McCanna v. Kings County (1896) 1 App. Div. 3, 36 N. Y. Supp. 1002; People ex rel. Traphagen v. King (1897) 13 App. Div. 400, 42 N. Y. Supp. 961; People ex rel. Nuttal v. Simis (1897) 18 App. Div. 199, 45 N. Y. Supp. 940; People ex rel. Linnekin v. Ennis (1897) 18 App. Div. 412, 46 N. Y. Supp. 444; Re Kelly (1899) 42 App. Div. 283, 59 N. Y. Supp. 30; People ex rel. Sweeney v. York (1899) 43 App. Div. 444, 60 N. Y. Supp. 208; Re Kenny (1900) 52 App. Div. 385, 65 N. Y. Supp. 204; O'Toole v. Stewart (1902) 75 App. Div. 497, 78 N. Y. Supp. 473; Re Lazenby (1902) 76 App. Div. 171, 78 N. Y. Supp. 302; People ex rel. Frank v. Monroe (1904) 99 App. Div. 290, 90 N. Y. Supp. 907; People ex rel. Connolly v. Board of Education (1906) 114 App. Div. 1, 99 N. Y. Supp. 737, affirmed in (1907) 187 N. Y. 535, 80 N. E. 1116; Kenny v. Kane (1899) 27 Misc. 680, 59 N. Y. Supp. 555, affirmed in (1900) 52 App. Div. 385, 65 N. Y. Supp. 204 (in effect); People ex rel. Stone v. Dalton (1900) 32 Misc. 109, 66 N. Y. Supp. 229, affirmed in (1901) 57 App. Div. 626, 68 N. Y. Supp. 1146 (in effect); Re Seide (1902) 38 Misc. 663, 78 N. Y. Supp. 253.

Oregon.-Venable v. Police Comrs. (1902) 40 Or. 458, 67 Pac. 203.

Utah.-Heath v. Salt Lake City

(1898) 16 Utah, 374, 52 Pac. 602; Meissner v. Boyle (1899) 20 Utah, 316, 58 Pac. 1110.

Washington.-STATE EX REL. VORIS V. SEATTLE (reported herewith) ante, 198; State ex rel. Burris v. Seattle (1914) 82 Wash. 464, 144 Pac. 695.

In Re Kelly (1899) 42 App. Div. 283, 59 N. Y. Supp. 30, supra, the court said: "It is not the policy of the law,

as a general proposition, to make it obligatory upon public officials to keep in position men for whom there is no public necessity; and in the few exceptions which the legislature has seen fit to make to this general rule, it is the duty of the court to see that the letter of the law is not transcended."

It is a good defense to one claiming a contract with a city under civil service rules that he was indefinitely suspended on the ground of economy. Gardner v. Lowell (1915) 221 Mass. 150, 108 N. E. 937.

Where a civil service position is abolished in good faith or for purposes of economy it is not necessary that the reasons therefor shall be stated in writing and filed with the head of the department or other appointing officer, where the statute provides that "if a person holding a position subject to competitive examination in the civil service of the state or of a city shall be removed or reduced, the reasons therefor shall be stated in writing and filed with the head of the department or other appointing officer, and the person so removed or reduced shall have an opportunity to make an explanation." People ex rel. McCarthy v. Shea (1900) 51 App. Div. 227, 64 N. Y. Supp. 973, affirmed in (1900) 164 N. Y. 573, 58 N. E. 1088.

So, statutes to protect the tenure of office of veteran soldiers and sailors do not prevent the abilition of their offices. State, Evans, Prosecutor, v. Hudson County (1891) 53 N. J. L. 585, 22 Atl. 56 (not necessary to decision); Fire Comrs. v. Lyon (1891) 53 N. J. L. 632, 23 Atl. 274; State, Beirne, Prosecutor, v. Street & Water Comrs. (1897) 60 N. J. L. 109, 36 Atl. 778; Sutherland v. Street & Water Comrs. (1898) 61 N. J. L. 436, 39 Atl. 710; State, Caulfield, Prosecutor, v. Jersey City (1899)

So, in the case of a veteran, the courts will grant relief if the abolition of his office was in bad faith. Womsley v. Jersey City (1898) 61 N. J. L. 499, 39 Atl. 710; State ex rel. Ingram

V.

Street & W. Comrs. (1899) 63 N. J. L. 542, 43 Atl. 445; Re McDonald (1898) 34 App. Div. 512, 54 N. Y. Supp. 525; Re Jones (1903) 80 App. Div. 167, 80 N. Y. Supp. 420. And will require his reinstatement in a department in a position colorably substituted for his old one. People ex rel. Weeks v. Ward (1916) 162 N. Y. Supp. 744.

IV. Abolition by Constitution. Offices may be abolished by a new Constitution. People ex rel. Stickney v. Palmer (1872) 64 Ill. 41; Sigur v. Crenshaw (1853) 8 La. Ann. 401 (new office of old title); State ex rel. Cheevers v. Duffel (1880) 32 La. Ann. 649.

For example of a territorial office abolished in effect by the state Constitution, see Driscoll v. Jones (1890) 1 S. D. 8, 44 N. W. 726.

The state of Texas by its Constitution might abolish the office and pay of President of the Republic of Texas. Jones v. Shaw (1855) 15 Tex. 577.

The Constitution of a new state was construed to oust the territorial probate judges on the second Monday of January, 1896, where such Constitution provided: "When the state is admitted into the Union, and the district courts in the respective districts are organized, the books, records, papers, and proceedings of the probate court in each county, and all causes and matters of administration pending therein, upon the expiration of the term of office of the probate judge, on the second Monday in January, 1896, shall pass into the jurisdiction and possession of the district court, which shall proceed to final judgment or decree, order or other determination in the several matters and causes, as the territorial probate court might have done, if this Constitution had not been adopted. And until the expiration of the term of office of the probate judges, such probate judges shall perform the duties now imposed upon them by the laws of the territory."

State ex rel. Bishop v. McNally (1896) 13 Utah, 25, 43 Pac. 920.

Offices may be abolished by constitutional amendment. Bailey v. State (1879) 56 Miss. 637.

Sometimes the Constitution contains direct authority to abolish an office. See cases throughout this note.

V. Abolition by Congress.

Congress may change the name of the office of "cadet midshipman" to that of "naval cadet," and limit the number to be made officers of the Navy. Crenshaw v. United States (1889) 134 U. S. 99, 33 L. ed. 825, 10 Sup. Ct. Rep. 431.

Congress may ratify the act of the United States military government in abolishing a perpetual and salable office in Porto Rico, to wit, the office of procurador (solicitor) of a court. The abolition of such office is not contrary to the Treaty of 1898, providing that the relinquishment or cession by Spain cannot "impair the property or rights which by law belong to the peaceful possession of property of all kinds of private individuals;" and if it were contrary to such treaty, the act of Congress must nevertheless be respected and enforced. Alvarez y Sanchez v. United States (1909) 216 U. S. 167, 54 L. ed. 432, 30 Sup. Ct. Rep. 361.

A notary in Porto Rico who had paid for his office a sum to his predecessor and another sum to the then government, being that of Spain, cannot object that the United States conferred the office of notary on all lawyers. Rodriguez v. People (1910) 16 P. R. R. 537.

VI. Abolition by legislature.

a. Office created by Congress. A state legislature may not abolish an office created by Congress under the authority of the Constitution of the United States. Thus the office of Adjutant General of Militia in the various states created by act of Congress, the right of appointment being reserved to the states, cannot be abolished by a state legislature. Cotten v. Ellis (1860) 52 N. C. (7 Jones, L.) 545.

b. Constitutional offices.

1. In general.

The legislature may not abolish a constitutional office.

Arkansas.-Powell v. Durden (1895) 61 Ark. 21, 31 S. W. 740 (dictum). Kentucky. Adams v. Roberts (1904) 119 Ky. 364, 83 S. W. 1035 (obiter). Georgia.-Massenburg v. Bibb County (1895) 96 Ga. 614, 23 S. E. 998; Morris v. Glover (1904) 121 Ga. 751, 49 S. E. 786 (disapproving as dictum Hall v. Burks, 96 Ga. 622, 24 S. E. 349); Hall v. Tarver (1907) 128 Ga. 410, 57 S. E. 720.

Michigan. Averill

V.

Perrott (1889) 74 Mich. 296, 41 N. W. 929. Mississippi. - Runnels V. State (1823) Walk. 146; Magee v. Brister (1915) 109 Miss. 183, 68 So. 77 (dictum).

Nevada. State v. Douglass (1910) 33 Nev. 82, 110 Pac. 177.

New York. People ex rel. Burly v. Howland (1898) 155 N. Y. 270, 41 L.R.A. 838, 49 N. E. 775; People ex rel. Ryan v. Washington County (1898) 155 N. Y. 295, 49 N. E. 779; People ex rel. Holmes v. Lane (1900) 53 App. Div. 531, 65 N. Y. Supp. 1004.

Tennessee.-Pope v. Phifer (1871) 3 Heisk. 682.

Wisconsin.-State ex rel. Burke v. Hinkel (1911) 144 Wis. 444, 129 N. W. 393.

An act repealing in toto a statutory provision for the salary of an assistant clerk of a separate orphans' court, appointed by the clerk of such court, pursuant to authority conferred upon him by the state Constitution, without making any other provision for such salary, is unconstitutional and void, its effect being to abolish the office of assistant clerk. Reid v. Smoulter (1809) 128 Pa. 324, 5 L.R.A. 517, 18 Atl. 445. A mere change of name by the legislature will not oust a constitutional officer who holds during good behavior. Gibbes's Case (1800) 1 S. C. Eq. 1 Desauss. 587.

A statute repealing a section of an ordinance of a constitutional convention fixed a salary for Code commissioners provided for by the ordinance is void. Bailey v. Caldwell (1873) 68

N. C. 472, citing Cotten v. Ellis (1860) 52 N. C. (7 Jones, L.) 545, and King v. Hunter (1871) 65 N. C. 603, 6 Am. Rep. 754.

Where a city has been reincorporated, but its name, identity, and territorial limits remain the same, a justice of the peace cannot be legislated out of office by the new charter's provision reducing the number of justices, when the Constitution provides that a justice shall hold his office for four years and until his successor is elected and qualified. Gratopp v. Van Eps (1897) 113 Mich. 590, 71 N. W. 1080.

But it was held in Younker v. Susong (1916) 173 Iowa, 663, 156 N. W. 24, that the office of justice of the peace, being created by the legislature, may be abolished by it where the judicial power was vested in part "in such other courts, inferior to the supreme court, as the general assembly may from time to time establish," although the jurisdiction of justices of the peace was defined by the Constitution.

While it is not intended to go generally into the question as to what extent the legislature may reduce the jurisdiction of the constitutional office of justice of the peace, it may be said that it is the rule that it may not practically abolish the office. People ex rel. Burby v. Howland (1898) 155 N. Y. 270, 41 L.R.A. 838, 49 N. E. 775; People ex rel. Ryan v. Washington County (1898) 155 N. Y. 295, 49 N. E. 779; People ex rel. Holmes v. Lane (1900) 53 App. Div. 531, 65 N. Y. Supp. 1004; Averill v. Perrott (1889) 74 Mich. 296, 41 N. W. 929; State ex rel. Burke v. Hinkel (1911) 144 Wis. 444, 129 N. W. 393. Contra: Re Greer (1897) 58 Kan. 268, 48 Pac. 950, which is cited with approval in Levin v. Hewes (1912) 118 Md. 624, 86 Atl. 233, where it was held that an act providing for classes among justices of the peace of a city, some of which would receive a considerable salary and others a trifling one, is not unconstitutional as tending to drive out of office constitutional officers.

It has been held that the legislature may not abolish a constitutional office by consolidating it with another