Abstract
p ROFESSORS and instructors in state institutions of higher learning are not public officers, but employees of public corporations, with rights and duties derived from the contract which is the basis of their employment. The distinction between a public officer and an employee is significant, because both the right to hold a position and the right to receive pay may depend upon it. An employee holds his position by virtue of his contract, and is entitled to a remedy in a proper action at law if he is wrongfully discharged before the expiration of the stipulated term of service and in a manner not provided for in the contract. This right, as well as his right to receive his compensation, depends upon his showing that he has fulfilled his obligations under the contract, and has been without fault. On the other hand, a public officer has no contract right to his office, but holds it by virtue of appointment, election, or succession in accordance with the law; and he is subj ect to removal by whatever methods the law prescribes. His right to his pay depends not upon contract, but upon the legal existence of the office, his lawful incumbency, and the legal provision for its emolument. The pay is a part of the estate of the lawful incumbent, irrespective of his performance of the duties of the office. If the office has been created by statute, and not by the constitution, however, it is wholly within the control of the legislature, which may abolish it at any time, or change the mode of appointment, the term, or the compensation at will, or even withhold the pay entirely without abolishing the office, unless the constitution forbids. The rights of the incumbent are thus subject to the pleasure of the legislature, and are in a sense less secure than those of an employee under contract. In Wisconsin, West Virginia, and other states the courts of last resort have held that a teacher in a state university is an employee under contract and not an officer. Mr. Justice Lyon, of Wisconsin, said:
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