Vincenheller v. Reagan

Bunn, C. J.,

(dissenting). I do not think that there is any question of federal control, arising from its financial aid given to the support of the experimental stations under the management and control of the university. The state university, acting by and through the board of trustees, is the trustee of the federal fund, bound and obligated to see that it is properly devoted to the object named in the arrangement between the two governments. There could be no litigation over the matter in the state courts, because’ these parties are not the subjects of their jurisdiction in any case. Therefore there is no constitutional question of that kind before us.

In the opinion of the court, the rule requiring the pomologist to attend and hold institutes in different parts of the state was beyond the scope of the agreement of the state and federal government on this subject, and for that reason the federal fund could not lawfully be expended for that purpose, and, in so far, the resolution of the board of trustees creating the office and defining the duties was unauthorized. The experimental station was established for the purpose of aiding, or in order to aid, in “acquiring and diffusing among the people' of the state useful and practical information on subjects connected with agriculture.” I take it for granted that fruit-growing is "generally considered a department of agriculture. At the time the original act of congress of 1862 and the amend-atory and supplemental acts were passed, “institutes” were not in vogue in any department of learning, as they afterwards became and are now. No department of learning would be now considered well conducted without the periodical institute, which answers somewhat the place of the normal school, when employed in this particular department. There is no department of agriculture in which the information of the average man of this state is so restricted and meager as that of fruit-growing. There is,• moreover, no method of gaining information of this science and diffusing the same among the masses of the poeple, except by holding institutes, where instruction from the teacher is the beginning merely, but where the greatest benefit is found in the effort of the farmer pupil to put his acquired knowledge into practice, and to report the results in the institutes, and have his errors corrected there. This is acquiring and diffusing practical-knowledge of the science in a way far superior to any other known method. This is, I think, the unanimous opinion of all educators worthy of the name: The board of trustees, under the act creating the university, is clothed with full power to determine the method of teaching and imparting instruction, and also of appointing teachers to carry out the ends in view. 'Shall it be said by 'any One that its efforts 'to exercise this broad' discretionary power are beyond its powers? ■ It seems to me that such exercise of power is not only lawful, but eminently wise, and ought not'to be interfered'with in any case except for directly assigned cause, established on'proof." I km not to be understood as attempting to trench upon what is merely proper to be done in another' department of the state government, but only to say what I think reasonable in refutation of the idea that'the board of trustees went beyond its sphere in creating the office,' for the purpose of pursuing'this particular method óf acquiring and imparting' instruction and diffusing the knowledge thus gained.

' The' second contention of the plaintiff is that the act of the 'legislature of 1901, which abolished the office of vice director and pomólogist of the éxp'erimental station, and directed that' the future accruing salary'should not be páid, was in the nature of an amendment presented as a clause óf the original'bill, making the regular biennial appropriations for the university, and was therefore passed in violation of the twenty-first section "of article 5 of the constitution, which is as follows, to-wit: “No law shall be passed except by bill, and no bill shall be so'altered or'amended on its passage through either house as 'to' change its original purpose.” The 'original purpose o'f the bill was to make an appropriation to sustain the experimental station work. The object óf the amendment was to abolish a department "station woirlc, ánd, the amendment being adopted, the refusal to appropriate money for the work as asked for was thereby accomplished, not only for the , ensuing two years, bnt for all time. A refusal to make the appropriation direct would, of course, have been germane to the subject of the bill, and an amendment increasing or decreasing the appropriation asked for in the original bill would have been germane to the subject, and therefore not in violation of the constitutional provision; but to accomplish ■ the desired purpose by abolishing the office itself is not germane to the subject .of the-original-bill, • and therefore is, in my opinion, violative of - the constitutional provision.

There has really been but- one case in this court that I- can find which can be-made even remotely applicable to the state of facts in this case, and that is .the case of Loftin v. Watson, 32 Ark. 414, where county scrip ivas sought to be made receivable for all debts of the county. The amendment was simply an exception of certain kind of debts, like interest and principal of'the-old indebtedness existing at the adoption of -the. constitution, etc. Now, the amendment was altogether german'e to. the subject'of the original bill — a simple naming of the scope of it, and nothing more. -

The case-of State v. Sloan,. 66 Ark. 575, has-no-application in this discussion, for no amending or altering act.-was involved in that case, nor was such a question-raised. The discussion there was the application of sections 30 and 31, article .5, of the constitution.

1 do not recall an instance where it is said that the direct control of a state educational institution by the legislature is-allowable. The general rule is that such institutions are under the management and control of a board of trustees, and "the legislature has a supervisory control, merely. This is so for obvious reasons. But this direct control, it is said, is allowable, because the legislature, being the appropriating power, has necessarily, the . power to economize the appropriations. I;have no disposition to-, controvert the position that the legislature has the power to-make, or cut down, or refuse. .to make,, appropriations, whether in the-enterest of economy or no.t, but I am only contending that an amendment, presented on the passage of an act, however proper- and rightful and. authorized it may be in itself; cannot have any legal sanction when so' adopted, if • the constitution forbids its adoption in that way,-and,, from past abuses, the■ constitutional' convention had the strongest reason for imposing-the-restriction-it. did upon the legislative department. It has been a sort of habit among us to liberalize this class of constitutional restrictions by any sort of reasoning almost, but we have had reason to regret every instance of departure from the strict construction.

The last contention of the appellant is that his employment was a matter of contract, purely and simply, between himself and the board of trustees, who alone had power to act in the premises, and who accordingly made the contract with him; and that the act of 1901, by refusing to pay his salary for the ensuing two years and until the term of the contract expired, impaired the obligation of a contract, and was therefore in disregard of both the state and federal constitutions upon the subject. This is answered by the defendant by the contention that the employment of the plaintiff was to perform the duties of a public office, the incumbent of which was a public officer, and for that reason, the legislature could lawfully abolish the office, and refuse to provide for the salary, at any time it might choose to do so. The majority of the court sustain this view of the question, and in support of the opinion thereon cite the opinion of Chief Justice Marshall, presiding in the circuit court of the United States for the districts of Virginia and Uorth Carolina, at its May term, 182-3. United States v. Maurice; 2 Brock. 96. A definition of a public officer given in that case by Chief Justice Marshall is relied upon to sujoport the decision in this case, and that definition is this: “An office is ■defined to be ‘a public charge or employment/ and he who performs the duties of the office is an officer. Although an office is an employment, it does not follow that every emplojunent is an office. A man may certainly be employed under a contract, express or implied, to do an act or to perform a service, without becoming an officer. But if the duty be a continuing one, which is defined by the rules prescribed bjr the government, and not bjr contract, which an individual is appointed by government to perform, who ■enters upon the- duties appertaining to his station without any ■contract defining them, if those duties continue though the person be changed, it seems very difficult to distinguish such a charge or employment from an office or the person who performs the duties from an officer.”

It is manifest that this definition is but an elaboration of a pre-existing definition that “an office is a public charge or employment,” and also that the elaboration by the learned judge was only intended to cover the case under consideration. How, what was that case? The secretary of war, without express authorization of act of congress, had appointed 'Maurice as “agent for fortifications/’ and, as the duties of that office included the receiving, disbursing and accounting for public moneys, he was required to give bond for the faithful performance of his duties, which he did in the usual form of official penal bonds. The suit was for a breach of this bond, in not accounting for certain funds thus committed to his charge, and it was, of course, instituted by the government. The question was whether it was a lawful bond, and whether suit could be maintained at all on it was the main question. In the discussion it was argued by the government that, under the circumstances, the defendant was a public officer, and the contrary was argued by the defendant. The court held, in effect, that the employment of Maurice, being without express authority, and not being by necessary implication, did not constitute a public office, but that, as he had failed to account for public moneys placed in his hands bjr an officer of the government having control of the subject-matter, with whom he had contracted to account for it by stipulation in the bond, justice and right demanded that he and his co-obligors and co-defendants be held liable on the bond, and it was so adjudged. Whether or not Maurice was a public officer and held a public office being a point under consideration, the court gave the definition above quoted, and decided that the defendant was not a public officer; and this decision was undoubtedly upon the ground that the employment, whether continuing or not, was founded on a contract It was a public service to be rendered, and public moneys were involved; but it was yet an employment based upon contract, there being no act of the legislative department directly upon the subject. I cannot see any application of that case to the ease at bar, in support of the decision of the court.

Again, the court cites the celebrated case of Dartmouth College v. Woodward, 4 Wheat. 518, 715 — a case too lengthy to admit of extracts here to any considerable extent and one too familiar, in fact, to require copious extracts. Suffice it to say that the only question of first importance in the case was whether or not certain acts of the legislature which sought to bring Dartmouth College under state influence and control impaired the obligation of the contract made by the King of England with the predecessors of the plaintiffs and the founder of the institution. The court held that, under the grant of the King of England, made in 1769, Dartmouth College was a private institution, and that, the charter being a contract, the same could not be impaired by an act of the legislature of the state of New Hampshire, which succeeded to the powers of the King of England, and none other.

That was a contest between the board of.trustees appointed in due course under the old charter against certain persons acting under the provisions of said acts of the -legislature, and having 'thereby possession of certain.books and records, for which the suit ivas brought by said trustees of the college. • Had the case been decided in favor of the defendant — that is, had it been held that the institution was a public institution — -it would'have mattered little in this case, as it was a suit at the instance'of the governing power, the trustees, and not the mere teaching force, or any member of it; and thus there is wanting a proper application of that decision to case at bar. All-the arguments ■ and • more were1 made by the defendant’s- counsel, in that ease which were'made by-defendant’s counsel in this case, and yet, with the stronger state of facts in many respects,-the decision was-against them.' So,-what matters it, even had the case been decided otherwise; so far as concerns the ease at bar?. ' ■

These are the only two cases cited by the court to sustain their view of the case-in this contention. -The quoted- definition of a public office is all that is left upon which to-rest, the decision, as I see it. ■ The interpretation of that definition' given by this court is not the interpretation- of Chief Justice' Marshall, for his elaboration of it-did not touch upon or include-the particular question here involved, for none such was involved in either of those .two cases - except, by a process of reasoning .foreign to the subject in hand. Giving the interpretation of this definition- the court gives to it, every teacher of the -smallest district school- would be-a public officer, and his employment a public office. But we have-not heretofore treated it in that way, but-have always recognized their employment as a subject of contract. School District v. Bennett, 52 Ark. 511 ; School District No. 49 of Faulkner County v. Adams, ante, p. 159. “A professor in the state university” ivas held by the supreme court of -Wisconsin not a “public officer,” “in-such-a sense as -prevents his employment as such creating a-contract relation between himself and the board of regents.”

The truth is, general definitions1 decide "little or-nothing; but it is the attendant facts and -surrounding circumstanoes-'-that must determine the-question in any case.- -The plaintiff was, ■with-'' out doubt,-employed by the board on a-contract,-and- for a--longer' time than the other teachers and members of the faculty held in the other departments, and for the very soundest reasons; for no first-class instructor would ordinarily undertake the work of teaching the farming public how to plant fruit trees and to prune, dress and cultivate them to the bearing stage in a shorter period than three or four years, for that length of time does it require to reach the maturity or bearing stage. The instruction intended was a new departure, and the first instructor necessarily assumed a more than ordinary responsibility, and naturally required more than one year’s tenure to prove his work as a horticulturist. His contract was, then, not an unreasonable one. But it does not appear to have been attacked on the ground of unreasonableness. In fact, we can have nothing to do with a question like that. The question is, was the plaintiff’s employment based on contract, and was that contract such as is protected by the constitutional inhibition against impairing the obligation of contracts. I think I have shown that the employment of the plaintff is not a public office, in the sense of the law giving to the legislature the power to abolish it to the injury of an incumbent serving for a stipulated pay for a stipulated time. But, in order to present the case in full, it may be well to quote the record as to the method and means of engaging the plaintiff’s services. “The board of trustees of the unversity, at a regular meeting, held on the 8th of January, 1894 [which, I take it, was composed of different persons from those serving as such in 1898, — ■ in some respects, at least], adopted the following resolution, namely:

“Whereas, the state experiment stations are maintained by the national government, and placed under the Arkansas Industrial University department of agriculture for direction and suggestion as to line of work, and it is the approved policy of the United States department of agriculture in all its scientific investigations to fix the time of office of its employees during good behavior or efficiency; and, whereas, a longer time than one year (the term of employment of other employees of the University) is required to plan and complete for publication any useful line of agricultural experiments, and for a proper continuation of scientific observations, the best interest of the Arkansas agricultural experiment stations demands that the station staff be made permanent for a longer period than as at present; and, whereas, the present experiment station staff is efficient and competent, and the experimental work performed and the condition of the experimental station is satisfactory to the farmers of the state; therefore, he it resolved, that R. L. Bennett, the present director, and present station’s staff, he and they are hereby appointed to their present positions in the experiment station for the term of four years, or during their efficiency and good behavior, subject to removal for cause at any time, at the discretion of the board of directors.”

And it is alleged and shown that, at a regular meeting held four years after, to-wit, on the 14th day of June, 1899, the board of directors, on the recommendation of R. L. Bennett, the director of the experiment station, adopted the following resolutions:

“Resolved, first, that the office of vice director and pomologist of the agricultural experiment station be, and the same is hereby, created, and that W. G-. Yincenheller be, and he is hereby, elected to fill said position for the term of four years, ending June 30, 1903, at a salary of $2,000 per annum.

“Second, that part of the duties of said officer shall be the testing of large fruits, for their quality, adaptability to different soils, acclimation, productiveness, periods of ripening and method of culture.

“Third, he shall also attend and hold agricultural institutes in different parts of the state.”

The petition states that the plaintiff, on being notified by the secretary of the board of trustees, accepted the said place, and has since performed the duties of same, and received his monthly pay for such up to the 1st of May last past; that on the 1st day of June, 1901, he demanded his warrant for May, and was refused same by the defendant. This suit was brought to compel the defendant to issue the warrant for that month’s pay. The refusal was because of the abolition of said office and direction not to pay said salary by act of the legislature aforesaid.

Did the resolution of the board of trustees, and the acceptance of the appointments therein made, on the terms therein named, constitute such a contract as is protected by the provisions of the constitution under discussion. There seems to be but one answer to that question, and that in the affirmative. The judgment of the lower court should be reversed.