On May 24, 1897, the circuit court of appeals for the Sixth circuit, upon a writ of error from that court to review a judgment rendered by the district court of the United States for the Eastern district of Michigan in favor of Walter S. Harsha in an action brought by him against the United States, under the act of March 3, 1887, c. 359, to recover fees as clerk of the circuit court of the United States for that district, for services rendered during the first quarter of the [172 U.S. 567, 568] year 1895, certified to this court the following statement of facts and questions of law:
Asst. Atty. Gen. Pradt, for the United States.
Edwin F. Conely, for Harsha.
Mr. Justice GRAY, after stating the facts in the foregoing language, delivered the opinion of the court.
This suit being an action at law under the act of March 3, 1887, c. 359, the judgment of the district court therein was, as has been directly adjudged by this court, reviewable by the circuit court of appeals upon writ of error. 24 Stat. 505; Chase v. U. S., 155 U.S. 489 , 15 Sup. Ct. 174; U. S. v. King, 164 U.S. 703 , 17 Sup. Ct. 1001. The first question certified must therefore be answered in the affirmative.
Mr. Harsha was appointed and qualified as clerk of the circuit court on June 6, 1882, and has ever since performed all his duties as such.
On June 16, 1891, he was appointed and qualified as clerk of the circuit court of appeals. On February 24, 1894, he presented to the judges of that court his resignation of the [172 U.S. 567, 571] office of clerk thereof; and his resignation was accepted by them on October 2, 1894. From his appointment until the acceptance of his resignation he performed all the duties, and received the salary, of the clerk of that court.
In 1893 it was adjudged by the circuit court of appeals, affirming a judgment of the circuit court, in an action brought by Mr. Harsha against the United States for services as clerk of the circuit court during the last half of 1891 and the first half of 1892, that his acceptance of the office and receipt of the salary as clerk of the circuit court of appeals during that period did not vacate the office of clerk of the circuit court, or deprive him of the right to the compensation then sued for. U. S. v. Harsha, 16 U. S. App. 13, 6 C. C. A. 178, and 56 Fed. 953.
The subject of the present suit is the right of Mr. Harsha to recover compensation for his services as clerk of the circuit court during the first quarter of the year 1895.
On July 31, 1894, congress, by a provision inserted in the middle of a general appropriation act, and as an addition to a section relating to the pay of assistant messengers, firemen, watchmen, laborers, and charwomen, enacted as follows: 'No person who holds an office, the salary or annual compensation attached to which amounts to the sum of two thousand 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 and 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.' Act July 31, 1894, c. 174 , 2 (28 Stat. 162, 205).
The second question certified by the circuit court of appeals to this court is whether this act, ex proprio vigore, created a vacancy in the office of clerk of the circuit court, 'by reason of the fact that at the time of its taking effect the then lawful incumbent of that office was also holding the office of clerk of the circuit court of appeals.'
The provision of the act in question, so far as concerns the question now before this court, is simply this: 'No per- [172 U.S. 567, 572] son who holds an office, the salary or annual compensation attached to which amounts to the sum or two thousand five hundred dollars, shall be appointed to or hold any other office to which compensation shall be attached.' If the appointment to the other office were made after the passage of the act, it might well be held to be void, leaving the person in possession of the first office. But when at the time of the passage of the act a person is holding two offices, to each of which compensation is attached, and the compensation of either or both of which is by an annual salary, the act does not say which of the two offices he shall be deemed to have resigned, or which of the two he shall continue to hold. If the compensation of each office were a fixed salary of $2,500 or more, an election by the incumbent would be the only possible method of determining which office he should continue to hold. He must have the same right of election between the two offices when one is paid by a fixed salary and the other by fees. The act, while it makes the two offices incompatible for the future, does not undertake to compel the defendant to give up the office which is paid by fees, when he prefers to hold that office, and to give up the one which is paid by a salary.
At the time of the taking effect of the act, Mr. Harsha was actually holding under lawful appointments, and was performing the duties of, two offices,-that of clerk of the circuit court, paid by fees, and that of clerk of the circuit court of appeals, paid by a salary of $3,000. He never showed any intention of resigning or abandoning the former office; and he had done all that he could to get rid of the latter office, by presenting his formal resignation thereof to the judges five months before the passage of the act, and never attempting to recall that resignation. Even if his resignation of this office could not take full effect until accepted, yet such resignation, coupled with his unequivocal intention to retain the other office, prevented the act of congress from creating, of its own force, and independently of any action of his, a vacancy in that office. The fact that so long as his resignation of the one office had not been accepted, and while he [172 U.S. 567, 573] continued to perform the duties of both offices, he claimed the compensation attached to both,-whether this was owing to his overlooking the provision in question, or to his own understanding of its effect,-has no tendency to show that he elected to retain the office which he had resigned, and to give up the other.
The second question certified must therefore be answered in the negative, and the third question becomes immaterial.