The opinion
FOSTER, Justice
(specially concurring).
It is well settled that a public office is not a property right but a public trust. Beebe v. Robinson, 52 Ala. 66 .
Subject to constitutional limitations, the Legislature has supreme power over the subject of creating and abolishing offices, fixing their term and salary. In the absence of the incidents of a contract or constitutional limitation, the existence of the term and salary, after once fixed, are subject to change in the legislative discretion. The creation of an office, fixation of the term and salary, with no more, do not amount to a contract. State v. Sanders, 187 Ala. 79 , 65 So. 378 , L. R. A. 1915A, 295; 12 Corpus Juris, 1017.
But the state has the power to contract with a public officer pertaining to the continued existence of his office during the term and for the amount of his salai’y thus fixe'd.
If the creation of a public office, provid
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ing for a definite term and salary, does not amount to a contract, without more, when one is elected to that office pursuant to law, then I do not understand why the same procedure should amount to a contract when an administrative office is created, but not properly termed a civil office of profit within section 281, Constitution. The same language in one instance should not be held to be a contract and in another not a contract. Such language should have the same meaning in respect to both situations.
I agree with the argument in the opinion prepared by Justice KNIGHT. It would lead to the result he has reached if the Legislature of Alabama had conferred on the state board of health the power to make such a contract with Dr. Baker, as is alleged in the pleadings here. But that board cannot make a contract in excess of the authority conferred on it by express provision or proper implication. The authority is embraced in section 1053, Code, as amended by Act 1927,' pp. 39, 40. It is that the state boa.rd shall elect an executive officer, and fix his term of office and salary not exceeding $7,500 per annum. In addition to merely doing that, it ■ made a definite contract with him for the duration of the term and at the amount of the salary which it had fixed. The Legislature did not authorize the execution of a contract unless it is implied in the authority to fix the term and salary and elect the officer. Such is not the usual meaning of that authority. The Legislature could have fixed the term and salary and elected the officer. If it had done so, and no more, there- would have been no contract. Therefore, if it authorized the state board to do that, and gáve it no further authority in that connection, that -did not justify the contract which the board is alleged to have made with Dr. Baker.
I concur in the opinion of Justice BOULDIN to the extent that it so holds. I do not think it necessary to enlarge upon the subject as he has done.