the expiration of his term of office, and confer them upon another:" Connor v. The Mayor of New York, 5 N. Y., 294; Attorney General v. Squires, 14 Cal., 13. "The offices of lieutenant governor and warden of the state prison were as distinct as though filled by different persons. The duties and obligations of the one are entirely independent of the duties and obligations of the other. So far as the office of ex-officio warden existed in relator, it was an office created by legislative act. The legislature might, at any time, direct how it should be filled, what compensation should be allowed, and provide the manner in which its duties should be discharged. In such cases, the length of the term of office is regulated by considerations, which affect the public interest, without any regard to the interests of the office holder."

In Attorney General v. Squires, 14 Cal., 13, supra, Baldwin, J., says: "The same power that made can destroy; unless, indeed, there be some vested right created by the act, or some right of property. So far as this office exists in the incumbent, it is an office created by legislative act. The constitution affixes no period of tenure to this office of tax collector, nor does it provide any mode of appointment. The vesting of this office in the sheriff being by legislative act, though the office cannot be destroyed by the legislature, yet the legislature, not restricted in this respect by the constitution, may direct in what manner the duties shall be discharged, and how the office may be temporarily filled. Smith v. Stillman, decided in 1852 (not reported), has been cited to show that after the legislature has created an office contemplated, as provided for by the constitution, it cannot destroy the office of the incumbent during his term. But this doctrine cannot be maintained, and is overruled in effect by the case of the People v. Haskell, 5 Cal., 357. We regard this act of the legislature, giving this office to the sheriff, as a mere legislative transfer to this officer of the duties of tax collector, and that the same power which placed them in the hands of the sheriff could divest them and place them in other hands." In Bryan v. Cuttell, 15 Iowa, 538, Wright, C. J., said: "That it is competent for the legislature to abolish an office, increase or decrease the duties devolving upon the incumbent, add to or take from his salary, when not inhibited by the constitution, we entertain no doubt. We are equally clear, that it is within the legislative power to add to or change the method in which vacancies may occur, and make such change applicable to existing offices and those holding them." See also, People v. Haskell, 5 Cal., 557; People v. Whitlock, 92 N. Y., 191; Long v. Mayor, 81 N. Y., 425; Barker v. City of Pittsburg, 4 Barr, Pa. St., 51.

In Donahue v. County of Will, 109 Ill., 94, Walker, J., delivering the opinion of the court, says: "The question is then presented, whether the board of supervisors had legal authority and constitutional power to hear, determine and remove appellant from office. He claims it had not, because that could be done only by impeachment; or if not in that mode, then only by the circuit court on a

proceeding in the nature a quo warranto. It is urged that under the constitution, the general assembly is powerless to pass a law conferring such power on the board of supervisors, and for that reason the order of the board is absolutely void. This depends upon whether any constitutional provision prohibits that body from the exercise of such power. X * * We are, therefore, of opinion that the settling of the treasurer's accounts, and finding he had not settled and accounted for moneys of the county as required by law, and that he had been and then was in arrears with the county, and removing him from office was not judicial. And we have no doubt the general assembly had ample power to authorize the board to act, and it is legal, valid."

It was held at the present term of this court in the case of Carland v. The Commissioners of Custer county, 5 Mont., that the board of county commissioners of Custer county, had authority by virtue of power vested in it by acts of the legislature of this territory to remove the treasurer of that county from office, and to declare the office vacant. It is true that in both of the above cases, the power to remove had been delegated, but the principle announced is, that in the absence of a constitutional prohibition, the legislature possesses authority to delegate such power of removal. And if the legislature had the authority to delegate to the board the power of removal of the officer, it would be difficult to give any substantial reason why it could not exercise the same power directly.

In People v. Hurlbut, 24 Mich., 44, Christiancy, J., says: "As the legislature represents the public interest, and has full control of all municipal organizations as instrumentalities of government, I see no reason to doubt their power of creating such offices as they may think the public interest requires, or of filling them with such persons as they choose to designate in the act, except as that power is restrained by some provision of the constitution. This course of legislation may not be wise or politic, but as a question of power, I think the legislature possesses it, with the limitations above mentioned."

There is no limitation of the power of the governor and legislative assembly, conferred by the foregoing act of congress. In the same case the same judge says: "The next objection to the validity of the act is, that the power of the legislature is confined to directing whether officers other than judicial in cities and villages shall be elected or appointed; and at what time and in what manner the election or appointment shall be made; that in thus directing, their power is exhausted, and they cannot make the appointment themselves. This argument is not based upon the ground that the provisions of this section were intended to confine the power of making the appointment to the common council of the city, or to any other local authority, for which only, it was intended, the legislature should provide; but it goes upon the assumption that, even admitting the power of the legislature to provide for an appointment otherwise than by the local authorities of the city, still the legisla

ture could not, itself, make the appointment in the manner they have undertaken by this act to make it; their power being limited to directing the time and manner in which it should be made. Though this argument may seem plausible, I do not think the conclusion is. so clear or free from doubt as to authorize us to declare the act void on this ground. If the legislature had power to provide the time and manner of the appointment and were not confined to providing for the appointment by the local authorities, then they had the power to provide that it should be made by the governor, with or without the consent of the senate; by the legislature in joint convention; or finally by the legislature in the very form and manner which was adopted. And if they had the power to direct that it should be made in this way, it would be very difficult to give any substantial reason why they could not proceed to make the appointment as they did, without first passing an act that it should be so made. Such an act would be but a legislative determination that the appointment should be so made; and the actual making of it in this way, shows the like legislative determination. A similar exercise of power by the legislature has been upheld by the supreme court of New York: People v. Bennett, 54 Barb., 480."

It is true that the above doctrine has not been acceded to in many instances, to its fullest extent. Some eminent jurists assume to find in the very structure of our government, and in the principles which underlie our free institutions, and in the assumption in our constitutions generally of the existence of public or quasi corporations, such as counties and townships, and consequently in a recognition by them of the existence of local self government, an implied prohibition upon the legislature to take away the right of choice by the inhabitants of such municipalities, of their own officers, by appointments to such offices in legislative acts. But even in these instances it is generally conceded that there may be occasions and exigencies when the legislature may exercise this power. As, for example, when an appointment may be made by the legislature, "to meet the needs of a transition state, or to bridge a chasm between a new and old establishment, or to organize and put in motion a new corporate or municipal organization:" Graves, J., in People v. Hurlbut, supra.

"I have no doubt it was entirely competent for the legislature to abolish the old boards and provide for a new one to take place of all. That would be but the ordinary exercise of legislative supervision and control in matters of municipal regulation of them. I think also, that the legislature might make provisional appointments to put the new system in operation. The right to do this appears to me to be incident to the right to confer and recall corporate power, and rests upon the same ground as the right to provide agencies for the organization of the municipal corporation in the first place, for the apportionment of its property and debts, if its territory shall be divided and organized into two, or for the winding up of its concerns, if its charter should be taken away. There is no doubt of the right of the

state to do any of these things: not by virtue of any general authority to take to itself the management of the local concerns, but because the wrong motion and modification of local government can only be provided for without confusion and injustice by the aid of the guiding and assisting hand of the authority that creates and modifies." Cooley, J., in People v. Hurlbut, supra.

The act in question provides only for the appointment of the respondents to hold such offices for about the period of six weeks, when local self government should interfere, and commissioners should be chosen to succeed the legislative appointees. They were, therefore, merely provisional officers, and not permanent appointments to office. The power of the legislature to declare a vacancy, appears to be clear. This power was exercised by the act; and the appointment was evidently made as necessary for the conduct of its affars, until its people made their own selection of commissioners. The appointment was made to meet the necessities of a transition state from an "old to a new establishment;" from the declaration of the vacancy until the interposition of a local self government. It is claimed, however, that the acceptance of these offices by appellants, constitutes a contract between them and the public, which cannot be annulled without violating that provision of the constitution of the United States, which prohibits any state from "passing any law impairing the obligation of contracts:" Section 10, article I, constitution of the United States; nor without violating that other provision of the amendments to the constitution, article V, that no one shall be "deprived of * * * property without due process of law." That the office is property; that the occupant has the same right to it as to any other property. This right cannot be abrogated or impaired unless by consent."

We cannot give our assent to this doctrine. Counties are usually classed under the head of public or quasi corporations, and exist for the convenience of government. The municipal authority of counties is a part of the machinery of state or territorial government, and exists for its assistance and benefit. The regulation of the affairs of a county are entrusted to persons, called in this territory county commissioners, who perform the duties of their office by virtue of the authority of the legislature, which prescribes what those duties are. The authority exercised by these commissioners is, therefore, entirely for the benefit of the public, and not for any private benefit whatever. Under our form of government, these offices exist by reason of a public necessity, and as a part of the machinery of territorial government. They should, therefore, be entirely under its control. The very nature of government would forbid that the incumbents of its offices could obtain a private right therein, which would enable them to exercise such offices against the will of the state. This would be repugnant to the principle of the sovereignty of the state, which should have the power to determine always who shall be its agents to exercise its authority, restricted only by the fundamental law. We are of opinion, therefore, that the incumbent

of the office of county commissioner, by the acceptance of the office, does not obtain such a right therein as is comprehended in the meaning of the above provisions of the constitution of the United States. We are not, however, left to conjecture as to this principle, for it has been already decided for us by the supreme court of the United States in Butler v. Penna., supra. Daniel, J., in addition to what is quoted above, says: "It follows, then, upon principle, that in every perfect or competent government there must exist a general power to enact or repeal laws, and to create or 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. * * * 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 learned judge here refers to the cases of the Charles River Bridge v the Warren Bridge, 11 Pet., 420; the State of Maryland v. the Baltimore Ohio R. R. Co., 3 How., 534; the People v. Morris, 13 Wend., 325. The learned judge then quotes with approbation the following from the opinion in the case of Commonwealth v. Bacon, 6 Serg. & Rawle, 322: "These services, says Duncan, J., in delivering the opinion, rendered by public officers, do not in this particular, partake of the nature of contracts, nor have they the remotest of privity thereto. As to a stipulated allowance, that allowance, whether annual, per diem, or particular fees for particular services, depends on the will of the law makers." Also, the following, from the opinion of the court in the case of Commonwealth v. Mann, 5 Watts & Serg., 418: "That if the salaries of judges, and their title to office, could be put upon the ground of contract, then a most grievous wrong has been done them by the people, by the reduction of a tenure during good behavior to a tenure for a term of years. The point that it is a contract or partakes of the nature of a contract, will not bear the test of examination."

In Donahue v. County of Will, 100 Ill., 94, Walker, delivering the opinion of the court, says: "It is impossible to conceive how, under our form of government, a person can own or have a title to a governmental office. Offices are created for the administration of public affairs. When a person is inducted into an office, he thereby becomes empowered to exercise its powers and perform its duties, not for his, but the public benefit. It would be a misnomer and a