Horace Gray

“ 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 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. ”

“ 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. ”