OCTOBER TERM, 1927.

Counsel for Parties. 276 U. S.

MISSISSIPPI EX REL. ROBERTSON v. MILLER.

ERROR TO THE SUPREME COURT OF MISSISSIPPI.

No. 206. Argued January 20, 1928.-Decided February 20, 1928.

1. After services have been rendered by a public officer under a law

specifying his compensation, there arises an implied contract under
which he is entitled to have the amount so fixed. P. 179.
2. The protection of the Contract Clause of the Federal Constitution
extends, to such contracts. Id.
3. Relator, while a revenue agent in Mississippi, brought suits for
recovery of past due taxes, and by the law then in force was there-
upon entitled to a specified percentage of the taxes, payable upon
their collection, and was authorized, upon his retirement, to prose-
cute the suits in the name of his successor. An Act passed after
his retirement which authorized any suits brought by an outgoing
agent to be conducted in the name of his successor upon petition
of the latter showing to the court that he had investigated its
merits and believed that it was just and should be maintained, and
which provided that the commissions derived from such suits, when
the successor had thus joined therein, should be shared equally be-
tween him and his predecessor, was construed retroactively by the
state court as requiring that commisions due the relator from the
suits brought by him should be so shared, albeit the successor had
performed no services in the matters beyond receiving payment of
the taxes from the taxpayers. Held violative of the relator's rights
under the Contract Clause of the Constitution. P. 178.
144 Miss. 614, reversed.

ERROR to a judgment of the Supreme Court of Missis-

sippi which affirmed a judgment giving the relator but
one-half of the amount of certain commissions claimed
as compensation for services rendered by him as a revenue
agent in investigating and suing for past due taxes.
This suit was against his successor in office, to whom the
taxes had been paid.
Mr. Stokes V. Robertson, with whom Mr. Thos. H.
Johnston was on the brief, for plaintiff in error.
Messrs. Marion W. Reily and J. H. Sumrall were
on the brief for defendant in error.
 ROBERTSON v" MILLER.
174 Opinion of the Court.

MR. JUSTICE BUTLER delivered the opinion of the Court.

The record presents for decision the question whether
as applied in this case, c. 170, Laws 1924, amending
§ 7068 of Hemmingway's Annotated Code of Mississippi
contravenes the clause of § 10 of Art. 1 of the Constitu-
tion which declares that no State shall pass any law
impairing the obligation of contracts.
The suit was brought by the State in the Circuit Court
of Hinds County for the use of Robertson, hereinafter
called plaintiff, who in 1923 and prior years had been the
state Revenue Agent. It is against his immediate suc-
cessor in office, Miller, whom we shall call defendant, and
the surety on his official bond. The purpose is to recover
commissions on certain amounts collected by defendant
on account of past due taxes for which plaintiff while in
office had brought suits. Plaintiff claims under statutory
provisions that were in force while he was in office, and
defendant claims under the Act here in question, which
was passed after the expiration of plaintiff's term. Sec-
tion 7056 of the Code authorized the state Revenue Agent
to appoint deputies and to sue for past due taxes. Section
7066 declared: "Neither the state, nor any county, munici-
pality, or levee board shall be chargeable with any fees
or expenses on account of any investigation or suit made
or instituted by the state revenue agent; and he shall
not receive any salary; but he shall be entitled to retain,
as full compensation for his services and expenses, twenty
per centum of all amounts collected and paid over by
him . . . ". Section 7068 directed the successor to
allow suits theretofore commenced to be conducted in his
name and provided that "the person who commenced the
suit shall pay all attorney's fees and expenses thereof,
and receive the commissions if any."
Acting under these sections, plaintiff appointed deputies
to assist in making collections and agreed to pay them
one-half the commissions allowed by law. He employed
176 OCTOBER TERM, 1927.
Opinion of the Court. 276 U. S.

an attorney to bring suits and agreed to pay him one-

fourth of such commissions. There remained a fourth for
plaintiff, five per cent of the amounts collected. Certain
suits which were brought by plaintiff to collect past due
income taxes and privileges taxes, were pending when his
term expired. He notified defendant of the agreements
he had made with his deputies and attorney. Some
amounts sued for remained unpaid until after the pas-
sage of c. 170 on February 29, 1924. That Act amends
§ 7068. Section 1 authorizes every suit brought by the
outgoing agent and then pending to be conducted in the
name of the successor upon the motion and petition of
the latter directed to the court showing that he has
investigated its merits and believes it is just and should
be maintained; and the section declares that contracts of
the former agent with his attorneys and employees shall
be binding on the successor. Section 2 provides that" the
expenses of all suits where the successor of the revenue
agent has joined therein as above provided shall be paid
by them equally and all fees and commissions legally
derived therefrom shall be shared equally.between them."
After the passage of that Act, there was paid by various
taxpayers to the defendant $9,784.07, on account of past
due taxes claimed in suits brought by plaintiff. It does
not appear that defendant took any step to have any of
these suits carried on; but, claimifig to be entitled to a
part of them under c. 170, he refused to pay over the
commissions for the use of plaintiff, his deputies and
attorney. Then plaintiff brought this suit to recover five
per cent. of the amount so collected by defendant, that
being the portion of the commissions remaining for him
after deducting the amounts which his deputies and attor-
ney were entitled to have under their agreements with
him. The Circuit Court gave plaintiff judgment for one-
half the amount sued for. He appealed to the Supreme'
Court, and there contended that if applied in this case
 ROBERTSON v. MILLER.
174 Opinion of the Court.

c. 170 would impair the contract obligation of the State

that he be paid for services rendered before its enactment,
and would therefore violate the contract clause of the Fed-
eral Constitution. The court overruled his contention,
applied the enactment retroactively, and affirmed the
judgment. 144 Miss. 614.
If c. 170 had not been passed, plaintiff, his deputies and
attorney would have been entitled to twenty per cent of
the amounts collected by defendant. Under the statutes
in force in 1923, the commissions were earned by the
investigation to discover past due taxes and the institution
of suits to coerce delinquent taxpayers, and such com-
missions became payable upon the collection of taxes sued
for. In its opinion in this case, the Supreme Court said
(p. 623): "It is the law, as contended by appellant, that,
where the revenue agent brings a suit for taxes due the
state or any of its political subdivisions, and afterwards
the taxes are paid by the defendant taxpayer, -the revenue
agent is entitled to the commissions allowed him by the
statute." Citing Garrett v. Robertson, 120 Miss. 731.
Robertson v. Shelton, 127 Miss. 360. Miller v. Henry,
139 Miss. 651. Miller v. Johnson, 144 Miss. 201. And c.
170 did not operate to take from plaintiff's deputies and
attorney any part of their shares of the commissions.
Miller v. Johnson grew out of the suits and collections
that form the basis of this case. Johnson [Johnston]
was the attorney who brought plaintiff's suits against
taxpayers. He sued Miller, defendant here, and was given
judgment for his five per cent of the amounts collected.
The Supreme Court decided that under c. 170 Miller was
authorized to prosecute the suits brought by plaintiff;
that the taxes sued for having been paid, it must be held
that there was merit in the suits and that those employed
by plaintiff were entitled to compensation under their
contracts. Cf. Miller v. Hay, 143 Miss. 471.
318o-28----12
 OCTOBER TERM, 1927.
Opinion of the Court. 276 U. S.

The state court had to determine whether defendant

was entitled to one-half the commissions remaining after
deducting the shares of plaintiff's deputies and attorney.
Plaintiff was authorized under § 7068, before amendment,
to carry o in the name of his successor the suits he had
commenced, and was required to pay all expenses. In the
absence of c. 170, defendant would have had no authority
in respect of the suits. That enactment authorized the
Revenue Agent to look into the merits of pending suits
brought by his predecessor and "submit to the courts in
which the same were pending the question whether such
suits should be prosecuted or not." [144 Miss. 626.] In
the interval between the bringing of the suits by plaintiff
and payments by taxpayers to defendant, the legislature
conferred on his successor an authority not theretofore
given; and, apparently deeming the contemplated services
to be necessary and valuable, declared that expenses
should be borne and commissions divided equally between
the Revenue Agent who brought the suit and his succes-
sor. The Act did not empower defendant to do anything
upon which plaintiff's right to the commissions depended.
It authorized something not contemplated by the statute
in effect when plaintiff brought the suits and became en-
titled to the commissions. As it does not appear that
defendant took any step authorized by c. 170, presumably
the collections resulted from the bringing of the suits
without more. See Johnson,v. Miller, supra. Garrett v.
Robertson, supra, 743. As applied by the state courts,
the new law operated. to take part of the commissions
earned by plaintiff and to hand it over to his successor
on account of an unexerted authority to apply to the court
to have the suits carried on-a step never before deemed
necessary or contemplated in connection with collections
of such taxes.
It is well understood that the contract clause does
not limit the power of a State during the terms of its
officers to pass and give effect to laws prescribing for the
 SMITH & SON v. TAYLOR.
174 Syllabus.

future the duties to be performed by, or the salaries or

other compensation to be paid to, them. Butler v. Penn-
sylvania, 10 How. 402. But after services have been ren-
dered by a public officer under a law specifying his com-
pensation, there arises an implied contract under which
he is entitled to have the amount so fixed. And the con-
stitutional protection extends to such contracts just as
it does to those specifically expressed. The selection of
plaintiff to be the Revenue Agent amounted to a request
or direction by the State that he exert the authority and
discharge all the duties of that office. In the performance
of services so required of him plaintiff made the investiga-
tions and brought the suits to discover and collect the
delinquent taxes. Under the statutes then in force as
construed by the highest court of the State, he thereupon
became entitled to the specified percentages of the
amounts subsequently collected on account of the taxes
sued for. The retroactive application of c. 170 would
take from him a part of the amount that he had thereto-
fore earned. That would impair the obligation of the
implied contract under which he became entitled to the
commissions. This case is ruled by Fisk v. Jefferson
Police Jury, 116 U. S. 131.
Judgment reversed.

T. SMITH & SON, INC. v. TAYLOR.

ERROR TO THE COURT OF APPEAL FOR THE PARISH OF ORLEANS,
LOUISIANA.

No. 186. Argued January 18, 1928.-Decided February 20, 1928.

While a longshoreman, employed in the unloading of a vessel at dock,
was standing upon a stage that rested solely upon the wharf and
projected a few feet over the water to or near the vessel, he was
struck by a sling loaded with cargo, which was being lowered over
her side, and was knocked into the water, where some time later he
was found dead.