This is a writ of error to the Supreme Court of Wisconsin. The case we are called on to consider is thus disclosed in the record:--
By an act of the legislature, entitled 'An Act to provide for a gelogical, mineralogical, and agricultural survey of the State,' approved March 3, 1857, James Hall, of the State of New York, the plaintiff in error, and Ezra Carr and Edward Daniels, of Wisconsin, were appointed 'commissioners' to make the survey. Their duties were specifically defined, and were all of a scientific character.
They were required to distribute the functions of their work by agreement among themselves, and to employ such assistants as a majority of them might deem necessary.
The governor was required 'to make a written contract with each commissioner' for the performance of his allotted work, and 'the compensation therefor, including the charge of each commissioner;' and it was declared that 'such contract shall expressly provide that the compensation to such commissioners shall be at a certain rate per annum, to be agreed upon, and not exceeding the rate of two thousand dollars per annum, and that payment will be made only for such part of the year as such commissioner may actually be engaged in the discharge of his duty as such commissioner.'
In case of a vacancy occurring in the commission, the governor was empowered to fill it, and he was authorized to 'remove any member for incompetency or neglect of duty.'
To carry out the provisions of the act, the sum of $6,000 per annum for six years was appropriated, 'to be paid to the persons entitled to receive the same.'
By an act of the legislature of April 2, 1860, Hall was made the principal of the commission, and was vested with the general supervision and control of the survey. He was required to contract with J. D. Whitney and with Charles Whittlesey for the completion within the year of their respective surveys. To carry into effect these provisions, the governor was authorized to draw such portion of the original appropriation, not drawn previous to the 29th of May, 1858, as might be necessary for that purpose; the residue to be otherwise used as directed.
By a subsequent act of March 21, 1862, both the acts before mentioned were repealed without qualification.
On the 29th of May, 1858, Hall entered into a contract with the governor, whereby it was stipulated on his part that he should perform the duties therein mentioned touching the survey, 'this contract to continue till the third day of March, 1863, unless the said Hall should be removed for incompetency or neglect of duty, . . . or unless a vacancy shall occur in his office by his own act or default.'
On the part of the State it was stipulated 'that the said Hall shall receive for his compensation and expenses, including the expense of his department of said survey, at the rate of $2,000 per annum. . . . Provided, that for such time as said Hall or his assistants shall not be engaged in the prosecution of his duties, according to the terms of said act and of this contract, deduction shall be made, pro rata, from the sum of his annual compensation and expenses.'
Hall brought this action upon the contract. The declaration avers that immediately after the execution of the contract he entered upon the performance of the duties thereby enjoined upon him, and continued in their faithful performance until the time specified in the contract for its expiration, to wit, the 3d of March, 1863; that he was not removed by the governor for incompetency or neglect, nor was any complaint ever made by the governor against him; that he never at any time, directly or indirectly, assented to the repeal of the acts of 1857 and 1860; and that thereafter he continued in the performance of his labors the same as before, and that for the year ending March 3, 1863, he devoted his whole time and skill, without cessation, to the work.
He avers further, that for his services performed prior to March 3, 1862, he was fully paid, but that for the year ending March 3, 1863, he had received nothing; that payment was demanded and refused on the 3d of December, 1863, and that the defendant is, therefore, justly indebted to him in the sum of $2,000, with interest from the date last mentioned.
He avers, finally, that on the 30th of January, 1875, he presented his claim to the legislature by a proper memorial, and that its allowance was refused.
The State demurred upon two grounds:--
1. That the complaint did not show facts sufficient to constitute a cause of action;
2. That it appeared upon the face of the complaint that the cause of action did not accrue within six years before the commencement of the action.