UNITED STATES v. HARSHA, (three cases.), 56 F. 953

SEVERENS, District Judge, (after stating the facts.) The objections urged against the petitioner’s right of recovery are two: First, it is said that, by the acceptance of the office of clerk of the circuit court of appeals, lie vacated the office of clerk of the circuit court. Reference is made to

section 2 of the act of June 20, 1874, which provides that the clerk of the circuit court shall permanently reside in the district -where his duties are to be performed, and shall gire his personal attention thereto, and that, if he shall fail in complying with ikese requirements, his office shall be deemed vacant; and it is insisted that by Ms assumption of the duties cl the clerkship of the court of appeals, which must require Ms attention, out: of the district, the petitioner ceased to be clerk of the circuit court.

But there is no such incompatibility in the duties of the two offices as makes it legally impossible that one person could execute them, and that without any violation of the requirements cf the statute referred to. The circuit court of appeals conceived there was no practical inconsistency, or conflict of duty, when it appointed its clerk.

There is no such requirement in the act creating the circuit courts of appeals, and it cannot be doubted that live residence of the clerk within the circuit would be quite sufficient to satisfy any possible implication in that regard.' We are referred to no statute which prevents the holding of the two offices by the same person, and, in vhe absence of such statute, we know of no rule of law which forbids it. In fact, it is well known that Ike holding of infere than one office by the sanie person is a common tiling, in almost all branches of the public service.

Besides all this, it cannot 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 he determined, as upon a quo -warranto, on ilie auditing of his account in the treasury department. The consequences to the court and its suitors, if the clerk’s status could be thus deluded, would be very serious. But, secondly, it is further urged that because of the provisions of

section 1763, Rev. Si.., that “no person who holds an office, the salary or annual compensation attached to which amounts to the sum of $2,500, shall receive compensation for discharging the duties of any other office, unless expressly authorized by law,” the petitioner’s assumption of the office of clerk of the circuit court of appeals, and his reception of the salary of $3,000 attached thereto, preven! ed his lawful right to receive compensation as circuit clerk. The true construction of ibis

section of the statutes has been repeatedly declared by the supreme court, and it has been held to apply only to the case of an officer who, having a salaried office, is charged with duties not originally within the scope of that office, but which may, in some lawful mode, be added to, or connected -with, the regular duties of the place he holds, and not to the case of one who lawfully holds two offices. Converse v. U. S., 21 How. 463; U. S. v. Saunders, 120 U. S. 126, 7 Sup. Ct. Rep. 467; U. S. v. McCandless, 147 U. S. 692, 13 Sup. Ct. Rep. 465.

The question as to what this statute means is iherefore no longer an open one, and we are relieved from any discussion of it. We think there is no error in the records, and that the judgments in the three cases should be affirmed.