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3, Mr. Harsha was clerk of the United States circuit court of appeals of the sixth circuit and received salary as such at the rate of $3,000 per annum.
“Section 2, act of July 31, 1894 (28 Stat., 205), provides as follows:
46 "No person who holds an office the salary or annual compensation attached to which amounts to the sum of two thou. sand five hundred dollars shall be appointed to or hold any other office to which compensation is attached unless specially heretofore or hereafter specially authorized thereto by law; but this shall not apply to retired officers of the Army or Navy whenever they may be elected to public office or whenever the President shall appoint them to office by and with the advice and consent of the Senate.'
“On February 24, 1894, Mr. Harsha tendered his resignation as clerk, circuit court of appeals, in a communication as follows:
""CINCINNATI, February 24, 1894. 6To the honorable judges of the United States circuit court of
appeals for the sixth circuit:
"6"I have the honor herewith to tender my resignation as clerk of the United States circuit court of appeals for the sixth circuit to take effect on the 2d day of October next, or as soon thereafter as you may deem it expedient. I do not wish to embarrass the court in its business for the present term, so I have fixed upon the first day of next term that you may have ample time to select my successor. The court is now running smoothly and I trust by the time above set affairs will be in such a condition that you will no longer need my services. I have been impelled to take this step by the continued ill health of both my mother and my wife, which seem to require my almost constant presence at home. I desire to thank the members of the court for their uniform kindness and cooperation and shall always look back upon my connection with the estab. lishment and organization of the court of appeals as one of the pleasantest in iny long court experience. "• Very respectfully,
666 WALTER S. HARSHA.
“I am informed by Mr. Harsha that his resignation was accepted in accordance with the tender on October 2, 1894, and his successor qualified on the following day. It becomes my duty to decide whether, in view of the facts stated above and law, Mr. Harsha is entitled to the compensation for which his account is rendered.
"It will hardly now be contended that one who holds an office without a fixed term has such a vested right in it that can not be divested at any time by act of the law-making power. As early as 1819 Mr. Justice Story said in the celebrated Dartmouth College Case (4 Wheat., 518, 693):
66• It is admitted, that the State legislatures have power to enlarge, repeal, and limit authorities of public officers in their
official capacities, in all cases, where the constitutions of the States respectively do not prohibit them; and this, among others, for the very reason, that there is no express or implied contract that they shall always, during their continuance in office, exercise such authorities. They are to exercise them only during the good pleasure of the legislature.'
"And in Butler et al. v. Pennsylvania (10 How., 402, 417) Mr. Justice Daniel said:
“We have already shown that the appointment to and the tenure of an office created for the public use, and the regulation of the salary affixed to such an office, do not fall within the meaning of the section of the Constitution relied on by the plaintiffs in error; do not come within the import of the term contracts; or, in other words, the vested, private personal rights thereby intended to be protected.
“The law as thus expounded has been continually recognized in all the States when the question has arisen, and I take it that, in the absence of statutory law to the contrary, it applies to offices of the United States. In some cases the courts have insisted that the intention of the legislature must be clearly expressed, and in none is that opinion more strongly expressed than in People, ex rel. Ryan, v. Green (58 N. Y., 304), in which Judge Folger said:
66 A law may not operate upon existing rights and liabilities without it in terms expressed such intention. Though there is no vested right to an office which may not be disturbed by legislation, yet the incumbent has, in a sense, a right to his office. If that right is to be taken away by statute, the terms must be clear in which the purpose is stated.'
“The provision referred to in the act of July 31, 1894, it seems to me, does in terms express clearly the intention of acting on existing rights, and the terms are clear in which the purpose is stated; no person who holds * * * shall be appointed to or hold any other office.' Language could hardly be plainer. I think it was the intention of Congress to have the law apply in just such cases as the one now under consideration, and has clearly expressed that intention. Such being the case, it seems that the passage of the law of July 31, ipso facto, created a vacancy in any United States office held by Mr. Harsha other than that of clerk, circuit court of appeals. I take it the case is similar to that of the acceptance of an office which is by law made incompatible with an office held.
“I have carefully examined very many decisions of the courts in various States in cases involving the effect of such acceptance, and, with very few exceptions, the courts have held that the acceptance of the second office vacates the first held.
“Rawle, in commenting on the Constitution, says at page 173 of his work:
“. It is a rule of general law, that an officer who accepts another appointment, inconsistent with the first, is held to have thereby resigned the first?
“The following references bear on this question and sustain the above-stated principle, to wit: 8 Blackf., 329; 14 Ind., 182; 17 Ill., 191; 45 Mo., 355; 16 Ind., 368; 35 Ind., 111; 105 Ind., 221; 56 N. H., 220; 77 N. Y., 503; 53 Tex., 387; 73 Cal., 230; 29 La., 824; 46 N. Y., 380; 58 N. Y., 295; 2 Hill., 93; 67 N. Y., 456; 11 R. Í., 638; 3 Nev., 566; 14 Penn., 853; 71 Me., 207.
“Before the passage of the law making the offices incompatible, Mr. Harsha had tendered his resignation of the office of clerk, circuit court of appeals, but the resignation was to take effect at a future time, two months or more after the passage of the law. The tender was made long before the passage of the law and was in no way connected with it or suggested by it, and I can not think that the tender of resignation affects Mr. Harsha's status as to the law, one way or the other.
"After the resignation was accepted and Mr. Harsha ceased to hold an office the compensation of which amounted to $2,500, was he restored to the office of clerk, circuit court, by the completion of the resignation? In other words, after he had been legislated out of office, could he be restored without a formal appointment prescribed by statute? I can not believe that he could. The many cases which I have examined agree, with one exception, in the conclusion that the resignation does not restore the man to the office. The one exception is somewhat involved and will be referred to later on.
“In the case of Shull v. Cousins et al. (77 Va., 328) the court says:
“The record shows that the office of sampler of tobacco-the incompatible office—was actually held, and afterwards, upon the institution of proceeding against him, actually resigned in the most formal way by a letter to the governor. * * * If the office was vacant and be absolutely out of it, he could in no manner affect the first office by what he did with the second, since resigning one office could not put a party in an office, nor could it restore him to one he had actually vacated.'
"66 The decision seems to be founded upon common sense and expressed with good logic and follows other cases in Virginia, notably the early one of the Commonwealth v. Sherrad (4 Leigh, 643), when the court ruled that,
66If a justice of the peace is appointed to and accepts an office under the Government of the United States, or any other incompatible office, he thereby vacates his office of justice of the peace nor can he ever lawfully exercise the office without a new commission.'
"The case of De Turk v. Commonuealth (129 Penn., 151) is the only one I have found which is in any way in conflict with it. In that case the plaintiff accepted and entered upon the duties of county commissioner, which office is made by the constitution of Pennsylvania incompatible with that of United States postmaster, which was held by the plaintiff. The court held that the ordinary rule which vacates the office held by the acceptance of an incompatible office could not vacate a United
States office, and they also held that the resignation of the post-office, before the answer to the suit, was sufficient to place him in accord with the constitution and perfect his title to the oftice of commissioner.
"Whether that is good law or not, the case is not like this one of Mr. Harsha, and the decision can not affect it. In the De Turk case the party had never been legally in the office of commissioner, and could not be until the obstacle was removed, which seems to have been done when the resignation was accepted. In Mr. Harsha's case he was in full and lawful possession of the office, but the law of July 31 vacated it absolutely-as completely, so far as the title de jure goes, as if he had never held it; and he being out, there seems to be but one way to hold it again, to wit, by regular appointment of the court, as provided by section 619, Revised Statutes. I there. fore can not conclude that the resignation of Mr. Harsha as clerk, circuit court of appeals, when accepted, restored him to his office of clerk of the circuit court. Mr. Harsha continued to perform the duties of clerk of the circuit court with the approval of the court. He could only have done so as a de facto officer, and as a de facto officer he is not entitled to compensation.
"The principle announced in 2 Kent, 295, Salary and fees are incident to the title,' has been almost universally accepted as the law to probibit the payment of compensation to de facto officers.
** The following are some of the cases in which it was enforced: Riddle v. County of Bedford, 7 Serg. and R., 386; Bouman v. State Treasurer, 25 Penn., 23; City of Philadelphia v. Gibson, 60 Penn., 136; Dorsey v. Smith, 28 Cal., 21; People v. Potter, 63 Cal., 127; Kimball v. Alcorne, 45 Miss., 151; 8 Abbott's Practice Reports, 359.
“In conflict with this doctrine I find two cases: First, Smith v. Mayor of City of New York (37 N. Y., 518), which claims as authority for the decision the case of Conner v. Mayor, etc., New York (1 Seld., 285), and this application seems to require a misinterpretation of the decision in that case.
"The only other case to the contrary, or which seems to the contrary, is that of Auditors of Wayne County v. Benoit (20 Mich., 176), but the court in that case only decided that the de jure officer was not entitled to the salary of the office when a de facto officer had been paid, but did not go to the extent of deciding the de facto officer entitled to the salary; yet Judge Cooley, one of three judges in the case, dissented in a very strong opinion, which must be given its proper influence in the consideration of the case.
"I decide, for the reasons given above, that Mr. Harsha is not entitled to salary as clerk circuit court since the 1st day of August, 1894. This decision, involving as it does the construction of a new statute, the accounts will be suspended and my decision reported to the Comptroller of the Treasury under section 8, act of July 31, 1894, for his action."
The decision of the Auditor that Mr. Harsha is not entitled to compensation as clerk of the circuit court since the 1st day of August, 1894, is hereby approved, substantially for the reasons stated by him in the foregoing opinion.
The opinion decides three points:
1. That section 2 of the act of July 31, 1894 (28 Stat., 205), prohibiting the holding of another office of profit by one who holds an office the annual compensation of which amounts to the sum of $2,500, operated immediately on its approval upon the persons in office affected by its provisions.
2. Tbat by the operation of said section the office which that section prohibited a person from holding was vacated by the act of the person in continuing to hold, after the act went into effect, the office the annual compensation of which amounted to $2,500.
3. That Mr. Harsha, continuing in fact to exercise the functions and to perform the duties of the office of clerk of the circuit court after the 31st of July, 1894, while he continued to exercise the functions and to hold the office of clerk of the circuit court of appeals, was at most a de facto clerk of the circuit court, and that a de facto officer is not entitled to claimi compensation.
These three propositions are abundantly sustained by the cases which he cites in support of them and many others which I have examined.
Some suggestions have been made against the conclusions reached by the Auditor. Under the first point it is suggested that the case of People er rel. Ryan v. Green (58 N. Y., 304) is authority for the proposition that such an act as section 2 of the act of July 31, 1894, does not operate upon existing offices, but is prospective merely. The language of the section now under consideration seems too plain to sustain the view that it does not apply to offices existing at the time of its passage. The case of People v. Green, although apparently giving some color to the idea that such an act would not apply to existing offices, when carefully considered has no application to the present statute. The statute in that case was section 114 of chapter 335 of the laws of New York, ninety-sixth session, 1873, page 519. That section was as follows:
“Any person bolding an office, either by election or appointment, who shall, during his term of office, accept, hold, or retain any other civil office of honor, trust, or emolument under