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ferred to, ex proprio vigore create a vacancy in the office of clerk of the Circuit Court for the Eastern District of Michigan, 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 of the Sixth Circuit?

"Third question. Does the general rule, that officers de facto may not recover by suit compensation for services rendered as such, apply to a case in which the incumbent holds his office by the continued assent and approval of the sole appointing power, under a bona fide claim of title to the office, when no other person has at any time made any claim of title thereto, and when the only defects in his title are a failure on the part of the appointing power to make a formal reappointment and a failure on the part of the incumbent formally to requalify after a technical vacation of the office originally held by him under a valid appointment and qualification?"

Mr. Assistant Attorney General Pradt and Mr. E. C. Brandenburg for the United States.

Mr. Edwin F. Conely for Harsha.

MR. JUSTICE GRAY 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. United States, 155 U. S. 489; United States v. King, 164 U. S. 703. 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

Opinion of the Court.

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. United States v. Harsha, 16 U. S. App. 13.

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 of 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

Opinion of the Court.

son 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 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 two thousand five hundred dollars 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 three thousand dollars. 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

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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. Ordered accordingly.

FIRST NATIONAL BANK OF GRAND FORKS v. ANDERSON.

ERROR TO THE SUPREME COURT OF THE STATE OF NORTH DAKOTA.

No. 223. Submitted January 3, 1899. - Decided January 23, 1899.

The motion in this case to dismiss or affirm was founded upon the allegation that the judgment of the Supreme Court of the State rested on two grounds, one of which, broad enough in itself to sustain the judgment, involved no Federal question. This court, while declining to sustain the motion to dismiss, holds that there was color for it, and takes jurisdiction of the motion to affirm.

A national bank which, being authorized by the owner of notes in its possession to sell them to a third party, purchases them itself and converts them to its own use, is liable to their owner for their value, as for a conversion, even though it was not within its power to sell them as the owner's agent.

THIS was a motion to dismiss or affirm. The case is stated in the opinion.

Mr. Henry W. Phelps for the motion.

Mr. Burke Corbet and Mr. W. E. Dodge opposing.

MR. CHIEF JUSTICE FULLER delivered the opinion of the

court.

This was an action at law brought by Anderson against the First National Bank of Grand Forks, North Dakota, in

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the District Court for the First Judicial District of North Dakota, to recover the balance of the value of certain notes belonging to Anderson, which he alleged the bank had converted.

The notes amounted to seven thousand dollars, secured by mortgage, and had been endorsed, and the mortgage assigned, to the bank as collateral security for a loan of two thousand dollars, and Anderson had authorized the bank to sell the notes to a third party, take up the loan, and remit the balance. But, instead of doing this, the bank, according to Anderson, had undertaken to purchase the notes itself, and had not accounted for their value.

The cause was tried four times, and four times carried to the Supreme Court of North Dakota. 4 Nor. Dakota, 182; 5 Nor. Dakota, 80, 451; 6 Nor. Dakota, 497. On the fourth appeal a judgment in favor of Anderson was affirmed by the Supreme Court, and this writ of error to revise it was allowed, which defendant in error now moves to dismiss, or, if that motion is not sustained, that the judgment be affirmed.

By exceptions to the admission of certain testimony, taken on trial, and by the assignment of errors in the Supreme Court, plaintiff in error raised the point that, under the statutes of the United States in respect of national banks, it was not within its power to become the agent of defendant in error to sell the notes in question to a third person; and not within the power of its cashier, who conducted the transaction, to bind the bank by such contract of agency.

On the third appeal, 5 Nor. Dakota, 451, the Supreme Court ruled that "when a national bank holds notes of its debtor as collateral to his indebtedness to the bank, it may lawfully act as agent for him in the sale of such notes to a third person, such agency being merely incidental to the exercise of its conceded power to collect the claim out of such collateral notes." But further, that even though the act of agency were ultra vires, yet if the bank, instead of selling the notes to a third person, had, without the owner's knowledge, sold them to itself, it would be guilty of conversion, and could be held responsible therefor. As to the cashier, the court held that on the