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the Government of the United States ' * * * or of the State, * * * or who shall hold or accept any other office connected with the government of the city of New York, or who shall accept a seat in the legislature, shall be deemed to have vacated every office held by him under the city government." *
In that case a deputy clerk of the court of special sessions of the city of New York was, at the time the act went into effect, a member of the legislature of the State of New York. The act, while providing that “any person holding an office * * * who shall, during his term of office, accept, hold, or retain any other civil office,” of a certain kind under the Gov. ernment of the United States 6 or of the State, * * * or who shall hold or accept any other office connected with the government of the city of New York, * * * shall be deemed to have vacated every office held by him under the city government,” only provided that “any person holding an office * * * who shall accept a seat in the legislature shall be deemed to have vacated every office held by him under the city government.” The fact that the legislature carefully provided that the holding merely of other offices sbould create a vacation of the city office, while they provided that the section should only operate upon one “who shall accept a seat in the legislature,” clearly indicated an intention not to make that section operative in the case of one who then held a city office and was at the time a member of the legislature, but only to make an acceptance of a seat in the legislature in the future vacate such office.
Upon the second point it has been suggested that the case of De Turk v. Commonwealth (129 Pa. St., 151) is authority for the proposition that after Mr. Harsha ceased to be the clerk of the circuit court of appeals by the acceptance of his resignation on October 2, 1894, be continued thereafter to be the de jure clerk of the circuit court, and therefore entitled to the emoluments of that office from that time. In my opinion that case does not sustain that proposition, and it has been rightly distinguished by the Auditor in his opinion. The language of the opinion in the De Turk case is not entirely consistent, and therefore the reasons upon which it was held that De Turk continued to be entitled to his State office, notwithstanding the fact that he had during a portion of the time while he acted in that office held a Federal office in violation
of the provisions of the constitution of Pennsylvania, are not clearly stated. On page 160 it is said:
“If the titles to these two offices were derived from a common source it might well be held that the acceptance of the second office was an implied resignation and vacation of the first. This is the common-law rule, and the current of authority in this country sustains it; but the State can not declare the Federal office vacant nor remove the incumbent from it.”
And it might have been stated that the current of authority is to the effect that where the offices are held under two distinct jurisdictions, the acceptance of the second is not a vacation of the first, if no incompatibility exists in the holding of the first office by the constitution or laws of the jurisdiction under which that office is held, and this is implied from the language just quoted. On page 161 it is said, however:
“Judgment of ouster therefore rests on an alleged forfeiture resulting from the prior holding of the two offices at the same time; but as the acceptance of the second office was an implied resignation of the first,-an election to hold the former and to surrender the latter,-it did not forfeit respondent's title to the office which he was elected to hold and exercise.”
Taken in connection with the current weight of authority, these two quotations seem hopelessly in conflict, and the case, in my opinion, can only be sustained on the ground stated by the Auditor that until De Turk had ceased to hold the office under the Federal Government he never in fact legally held the office under the State government, and therefore could not have vacated it, and no person having been elected or appointed to it, his disqualification having ceased, he then for the first time legally held the office, and of course there was nothing upon which the quo warranto proceeding could then operate.
However, unless the case can be distinguished in this man. ner it is in conflict with all the authorities, and the contrary has been specifically held in Bunting v. Willis (27 Grattan, 144), under facts and statutes substantially similar to those considered in the case of De Turk v. Commonwealth. That Mr. Harsha in fact continued to hold and perform the duties of the office of clerk of the circuit court of appeals is not disputed. He demanded and received the salary attached to that office from August 1, 1894, to October 2, 1894, on bis own assertion that he was the actual incumbent performing the duties of the office. Whether if he had refused to perform any of the drties of that office after July 31, 1894, and abandoned it in all respects save the mere custody of its papers, until relieved by the court, he would have still been the officer need not be determined, for he certainly elected to hold both offices until October 2, 1894, and claimed the compensation of both.
If Mr. Harsha in law vacated the office of clerk of the cir. cuit court by continuing to hold the office of clerk of the circuit court of appeals, it seems entirely clear that he could not regain the office so as to become the de jure clerk of the circuit court except in the manner provided by law for the filling of that position, to wit, by appointment by the circuit judge under section 619, Revised Statutes, and the taking of the oaths prescribed in sections 794 and 1757 and the giving of the bond provideu for in section 795.
In addition to the authorities cited by the Auditor upon this point the following cases may be cited: Mimmack v. United States, 97 U. S., 426–437; Blake v. United States, 103 U. S., 227–237; United States v. Corson, 114 U. S., 619; 19 Opin. A. G., 609.
That a de facto officer is not entitled to claim compensation seems to be well-established law and has been consistently maintained by the accounting officers of the Treasury. (Evans's Case, 3 Lawrence Comp. Dec., 111; Bowler's First Comp. Dec., 110; ibid., 193; ibid., 284; ibid., 306.) In addition to the authorities cited by the Auditor see Matthews v. Supervisors, 53 Miss., 715; Davenport v. The Mayor, 67 N. Y., 456; McGue v. Wapello Co., 56 Iowa, 698; Bennett v. United States, 19 C. Cls. R., 379–388; Dainese v. United States, 15 C. Cls. R., 64-79; 10 Opin. A. G., 251.
The two cases cited by the Auditor as apparently in conflict with this view, Smith v. Mayor (37 N. Y., 518) and Auditors v. Benoil (20 Mich., 176), are not so in fact, for in neither of those cases was a claim being asserted by a de facto officer. The New York view is shown by the later case of Davenport v. Mayor (67 N. Y., 456).
Mr. Harsha relies upon the following language used by Judge Severens in the case of United States v. Harsha (56 Fed. Rep., 953, on page 955):
“Besides all this, it can not be admitted that the question of the right to this office can thus be determined by the Comptroller of the Treasury. The clerk is the actual incumbent, and it would be strange, indeed, if his right could be deter
mined, as upon a quo warranto, on the auditing of his account in the Treasury Department. The consequences to the court and its suitors, if the clerk's status could be thus decided, would be very serious."
The determination of that case was not based upon this language, it having been already held that the two offices held by Mr. Harsha were not, under then existing laws, incompati. ble. Furthermore, it is not claimed that the Comptroller can determine the right of any person to an office “ as upon a quo warranto.” The Comptroller has before him for decision the right of a person claiming an office to receive the compensation thereof. He can only settle that question; but if to its proper determination it becomes necessary to ascertain whether the person claiming the office legally holds the same, the Comptrol. ler must determine that question, only, however, to the extent of deciding the claim for compensation. In this respect the Comptroller occupies exactly the same position that a court would, for the court might determine for the purposes of a suit brought to recover compensation of an office that the claimant was not entitled to a judgment because not a de jure officer without in fact ousting him from his office was upon a quo warranto.”
This position is abundantly maintained by the cases holding that an officer making claim for compensation puts in issue his legal title to hold the office, for compensation follows the title and not the mere holding of an office.
R. B. BOWLER,
Comptroller. USE OF CONTINGENT FUND. Section 3683, Revised Statutes, requiring the written order of the head of
a Department for expenditures from a contingent fund, applies only to cases where an appropriation is made in a lump sum for “contingent, incidental, or miscellaneous expenses," or under similar words, and where Congress has specifically designated appropriations for enumerated items as being for “contingent, incidental, or miscellaneous expenses."
July 20, 1895. SIR: I am in receipt of yours of the 17th instant, asking whether certain appropriations for the Naval Observatory contained in the legislative, executive, and judicial appropriation act of March 2, 189.7 (28 Stat., 792), come within the provisions of section 3683 of the Revised Statutes, which provide that no
part of the contingent fund of any Department, burean, or office shall be used except by written order of the head of the Department, in view of the recent decision of this office in the case of W. J. Puckett (1 Comp. Dec., 566).
The appropriations to which you refer read as follows:
“For miscellaneous computations, one thousand two hundred dollars.
“ For apparatus and instruments, and for repairs of the same, two thousand five hundred dollars.
“For professional and scientific books, periodicals, engrayings, photographs, and fixtures for the library, one thousand dollars.
“For repairs to buildings, fixtures, and fences, furniture, gas, chemicals, and stationery; freight (including transmission of public documents through the Smithsonian exchange), foreign postage, and expressage, plants, fertilizers, and all contingent expenses, two thousand five hundred dollars.
“For fuel, oil, grease, tools, pipe, wire, and other materials needed for the maintenance and repair of boilers, engines, heating apparatus, electric lighting and power plant, and water supply system; purchase and maintenance of teams; material for boxing nautical instruments for transportation; paints, telegraph, and telephone service, and incidental labor, seven thousand five hundred dollars."
They have for convenience sake been digested in the digest of appropriations prepared by the Secretary of the Treasury under the general head of “Contingent and miscellaneous expenses, Naval Observatory, 1896," although the several items are retained as subheads thereunder in accordance with the appropriations made in the act as above quoted. It is often a matter of considerable difficulty to ascertain exactly what items when specified should be considered as contingent or miscellaneous items of expense for a Department or bureau. Congress not infrequently indicates its intention by designat. ing a whole series of specified items as contingent expenses, while in other cases they simply make a lump appropriation for contingent expenses or incidental expenses or miscellaneous expenses, or uses words of similar character.
In the case of Dunwoody v. United States (22 C. Cls. R., 269), in discussing the words contingent, incidental, or miscellaneous," as contained in section 3682 of the Revised Statutes, Judge Davis, delivering the opinion of the court, used the following language:
“The adjectives contingent, incidental, and miscellaneous, as used in the appropriation bills to qualify the word expenses, have a technical and well-understood meaning; it is usual