B-13192, NOVEMBER 28, 1940, 20 COMP. GEN. 288

B-13192: Nov 28, 1940

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OFFICERS AND EMPLOYEES - HOLDING TWO POSITIONS - EFFECT OF STATUTORY INELIGIBILITY PROVISION THE RULE THAT WHERE THE HOLDING OF TWO OFFICES IS FORBIDDEN BY A CONSTITUTIONAL OR STATUTORY PROVISION THE ACCEPTANCE OF A SECOND OFFICE IS REGARDED AS A RESIGNATION OR RELINQUISHMENT OF THE FIRST OFFICE IS NOT FOR APPLICATION WHERE A CONSTITUTIONAL OR STATUTORY PROVISION DECLARES THAT PERSONS HOLDING ONE OFFICE SHALL BE INELIGIBLE FOR ANOTHER. THAT AN ATTEMPTED APPOINTMENT TO THE SECOND IS WITHOUT LEGAL EFFECT. SINCE A UNITED STATES COMMISSIONER WAS NOT ELIGIBLE FOR APPOINTMENT AS CONCILIATION COMMISSIONER BY REASON OF THE TERMS OF SECTIONS 35 AND 75 OF THE BANKRUPTCY ACT OF JULY 1. SHE IS ENTITLED TO THE FEES EARNED IN THE LATTER OFFICE BUT HAS NO LEGAL CLAIM AGAINST THE GOVERNMENT FOR COMPENSATION AS A CONCILIATION COMMISSIONER.

B-13192, NOVEMBER 28, 1940, 20 COMP. GEN. 288

OFFICERS AND EMPLOYEES - HOLDING TWO POSITIONS - EFFECT OF STATUTORY INELIGIBILITY PROVISION THE RULE THAT WHERE THE HOLDING OF TWO OFFICES IS FORBIDDEN BY A CONSTITUTIONAL OR STATUTORY PROVISION THE ACCEPTANCE OF A SECOND OFFICE IS REGARDED AS A RESIGNATION OR RELINQUISHMENT OF THE FIRST OFFICE IS NOT FOR APPLICATION WHERE A CONSTITUTIONAL OR STATUTORY PROVISION DECLARES THAT PERSONS HOLDING ONE OFFICE SHALL BE INELIGIBLE FOR ANOTHER, THE RULE IN THIS SITUATION BEING THAT THE PROHIBITION INCAPACITATES OR DISQUALIFIES THE INCUMBENT OF THE FIRST OFFICE FROM HOLDING THE SECOND, AND THAT AN ATTEMPTED APPOINTMENT TO THE SECOND IS WITHOUT LEGAL EFFECT. SINCE A UNITED STATES COMMISSIONER WAS NOT ELIGIBLE FOR APPOINTMENT AS CONCILIATION COMMISSIONER BY REASON OF THE TERMS OF SECTIONS 35 AND 75 OF THE BANKRUPTCY ACT OF JULY 1, 1898, AS AMENDED (11 U.S.C. 63 AND 203), AN ATTEMPT TO APPOINT HER A CONCILIATION COMMISSIONER DID NOT CONFER A DE JURE TITLE TO THAT OFFICE OR AFFECT HER DE JURE TITLE TO THE OFFICE OF UNITED STATES COMMISSIONER, AND, HENCE, SHE IS ENTITLED TO THE FEES EARNED IN THE LATTER OFFICE BUT HAS NO LEGAL CLAIM AGAINST THE GOVERNMENT FOR COMPENSATION AS A CONCILIATION COMMISSIONER.

DECISION BY COMPTROLLER GENERAL WARREN, NOVEMBER 28, 1940:

IN CONNECTION WITH THE SETTLEMENT OF THE CLAIM OF ANNA M. PAUL FOR FEES IN THE AGGREGATE AMOUNT OF $275 FOR SERVICES RENDERED AS CONCILIATION COMMISSIONER DURING THE PERIOD JULY 15, 1939, TO JUNE 3, 1940, THERE IS FOR DECISION THE QUESTION AS TO THE RIGHT OF MRS. PAUL TO BE COMPENSATED FOR SUCH SERVICES IN VIEW OF THE STATUTORY PROVISIONS RELATING TO THE APPOINTMENT OF REFEREES IN BANKRUPTCY AND CONCILIATION COMMISSIONERS AND THE FACT THAT SHE WAS APPOINTED TO THE OFFICE OF CONCILIATION COMMISSIONER WHILE HOLDING THE OFFICE OF UNITED STATES COMMISSIONER IT APPEARING THAT SHE CONTINUED TO DISCHARGE THE DUTIES OF UNITED STATES COMMISSIONER DURING THE PERIOD HERE INVOLVED.

WHILE IT IS A GENERALLY ACCEPTED RULE OF LAW THAT WHERE THE HOLDING OF TWO OFFICES IS FORBIDDEN BY A CONSTITUTIONAL OR STATUTORY PROVISION THE ACCEPTANCE OF A SECOND OFFICE IS REGARDED AS A RESIGNATION OR RELINQUISHMENT OF THE FIRST OFFICE, NEVERTHELESS--- ALTHOUGH APPARENTLY NOT TAKEN INTO CONSIDERATION IN A DECISION OF THIS OFFICE DATED OCTOBER 22, 1921, APPEAL NO. 37602--- IT APPEARS TO BE EQUALLY WELL SETTLED THAT SAID RULE IS NOT FOR APPLICATION WHERE THE CONSTITUTIONAL OR STATUTORY PROVISIONS INVOLVED DECLARE THAT PERSONS HOLDING ONE OFFICE SHALL BE INELIGIBLE FOR APPOINTMENT TO ANOTHER, THE RULE FOR APPLICATION IN THIS LATTER SITUATION BEING THAT SUCH A PROHIBITION INCAPACITATES OR DISQUALIFIES THE INCUMBENT OF THE FIRST OFFICE FROM HOLDING THE SECOND, AND THAT ANY ATTEMPTED APPOINTMENT TO OR ACCEPTANCE OF THE SECOND OFFICE IS WITHOUT LEGAL EFFECT. SEE 46 CORPUS JURIS 947 AND CASES CITED THEREIN. ALSO, SEE MECHEM'S PUBLIC OFFICERS, SECTIONS 428 AND 429; AND THROOP'S PUBLIC OFFICERS, SECTION 32.

AN APT STATEMENT WITH RESPECT TO THE DISTINCTION WHICH IS MADE BETWEEN THE EFFECT OF THE TWO TYPES OF CONSTITUTIONAL OR STATUTORY PROVISIONS APPEARS IN THE CASE OF MCWILLIAMS V. NEAL ET AL. (1908), 130 GA. 733, 61 S.E. 721. IN THAT CASE THE SUPREME COURT OF GEORGIA SAID:

* * * PARAGRAPH 7 OF SECTION 4, ARTICLE 3, OF THE CONSTITUTION OF THIS STATE ( CIVIL CODE, SECTION 5754) IS AS FOLLOWS: "NO PERSON HOLDING A MILITARY COMMISSION, OR OTHER APPOINTMENT, OR OFFICE HAVING ANY EMOLUMENT OR COMPENSATION ANNEXED THERETO, UNDER THIS STATE, OR THE UNITED STATES, OR EITHER OF THEM, EXCEPT JUSTICES OF THE PEACE AND OFFICERS OF THE MILITIA, NOR ANY DEFAULTER FOR PUBLIC MONEY OR FOR ANY LEGAL TAXES REQUIRED OF HIM, SHALL HAVE A SEAT IN EITHER HOUSE.' THE PARAGRAPH OF THE CONSTITUTION FROM WHICH THE ABOVE IS TAKEN RELATES TO THE ELIGIBILITY OF MEMBERS OF THE GENERAL ASSEMBLY. IT DOES NOT MERELY RENDER MEMBERSHIP IN THAT BODY INCOMPATIBLE AND INCONSISTENT WITH THE HOLDING OF ANY OF THE OTHER OFFICES MENTIONED, AND NOT FALLING WITHIN THE EXCEPTION CONTAINED IN THE PARAGRAPH QUOTED, NOR IS IT A MERE PROVISION AGAINST THE HOLDING OF TWO OFFICES AT THE SAME TIME; BUT IT IS, IN EFFECT, A PROVISION THAT A PERSON HOLDING ONE OF THE OTHER OFFICES REFERRED TO IN THAT PARAGRAPH SHALL BE INELIGIBLE TO MEMBERSHIP IN EITHER HOUSE OF THE GENERAL ASSEMBLY, AND THAT BEING THE CASE; THE EFFECT UPON THE PERSON HOLDING AT THE TIME OF HIS ELECTION TO THE GENERAL ASSEMBLY ANOTHER STATE OFFICE IS QUITE DIFFERENT FROM WHAT IT WOULD HAVE BEEN HAD THE PROVISION MERELY BEEN AGAINST THE HOLDING OF BOTH OFFICES; FOR IN THE LATTER CASE THE EFFECT WOULD HAVE BEEN TO OUST THE PERSON ELECTED TO THE GENERAL ASSEMBLY, AND TAKING HIS SEAT BY VIRTUE OF SUCH ELECTION FROM THE OFFICE PREVIOUSLY HELD. BUT WHERE INELIGIBILITY TO THE SECOND OFFICE RESULTS FROM THE HOLDING OF A PRIOR OFFICE, THEN THE RESULT IS THAT THE ELECTION TO THE SECOND OFFICE IS VOID AND HIS RIGHT TO HOLD THE OTHER REMAINS UNAFFECTED.

THE STATUTORY PROVISIONS HERE FOR CONSIDERATION ARE SECTION 35 OF THE BANKRUPTCY ACT OF JULY 1, 1898, AS AMENDED JUNE 22, 1938, 52 STAT. 857 (11 U.S.C. 63) AND SECTION 75 OF SAID ACT, AS ADDED BY THE ACT OF MARCH 3, 1933, 47 STAT. 1470 (11 U.S.C. 203).

SECTION 35 PROVIDES:

* * * INDIVIDUALS SHALL NOT BE ELIGIBLE TO APPOINTMENT AS REFEREES UNLESS THEY ARE (1) COMPETENT TO PERFORM THE DUTIES OF A REFEREE IN BANKRUPTCY; (2) NOT HOLDING ANY OFFICE OF PROFIT OR EMOLUMENT UNDER THE LAWS OF THE UNITED STATES OR OF ANY STATE OTHER THAN COMMISSIONERS OF DEEDS, JUSTICES OF THE PEACE, MASTERS IN CHANCERY OR NOTARIES PUBLIC * * *.

SECTION 75 PROVIDES:

* * * NO INDIVIDUAL SHALL BE ELIGIBLE TO APPOINTMENT AS A CONCILIATION COMMISSIONER UNLESS HE IS ELIGIBLE FOR APPOINTMENT AS A REFEREE * * *.

WHEN APPLIED TO THE FACTS IN THE INSTANT CASE, IT IS APPARENT THAT SAID STATUTORY PROVISIONS PROHIBIT THE APPOINTMENT OF ANY PERSON AS CONCILIATION COMMISSIONER; AND SINCE THE RECORD SHOWS THAT THE PRESENT CLAIMANT WAS FUNCTIONING AS A REGULARLY APPOINTED UNITED STATES COMMISSIONER AT THE TIME THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF NORTH CAROLINA ATTEMPTED TO APPOINT HER AS A CONCILIATION COMMISSIONER THERE APPEARS NO ROOM FOR DOUBT THAT SHE WAS INELIGIBLE FOR APPOINTMENT TO THE LATTER OFFICE AND THAT SUCH APPOINTMENT COULD NOT CONFER UPON HER A DE JURE TITLE TO THAT OFFICE. CF. 23 COMP. DEC. 336. ALSO, THE FACT THAT THE CLAIMANT RESIGNED FROM THE OFFICE OF UNITED STATES COMMISSIONER EFFECTIVE JUNE 24, 1940, IS OF NO CONSEQUENCE IN THE DETERMINATION OF THE QUESTION HERE PRESENTED, FOR, ASIDE FROM ANY OTHER CONSIDERATION, THE RECORD SHOWS THAT THE SERVICES FOR WHICH SHE NOW CLAIMS COMPENSATION AS CONCILIATION COMMISSIONER WERE PERFORMED PRIOR TO THAT DATE AND THAT SHE WAS ACTUALLY DISCHARGING HER DUTIES AS A UNITED STATES COMMISSIONER AS LATE AS JUNE 15, 1940.

UPON A CONSIDERATION OF THE ABOVE MENTIONED MATTERS IT MUST BE CONCLUDED THAT, THE ATTEMPTED APPOINTMENT OF THE CLAIMANT TO THE OFFICE OF CONCILIATION COMMISSIONER BEING INVALID, HER STATUS AS A CONCILIATION COMMISSIONER WAS MERELY THAT OF A DE FACTO OFFICER. CF. IN RE FOX WEST COAST THEATRES ( C.C.A. 9) (1938), 88 F./2D) 212, 230. IT IS A WELL SETTLED RULE THAT ONE CLAIMING COMPENSATION AS AN OFFICER OF THE UNITED STATES MUST PROVE HIS OR HER LEGAL TITLE TO THE OFFICE AND THAT A DE FACTO OFFICER CAN HAVE NO LEGAL CLAIM AGAINST THE GOVERNMENT FOR COMPENSATION FOR SERVICES RENDERED AS SUCH. 3 COMP. GEN. 1012; 10 COMP. DEC. 554; 9 ID. 167; ROMERO V. UNITED STATES, 24 CT.1CLS. 331, AND CASES CITED THEREIN. CONSEQUENTLY, THERE IS NO AUTHORITY OF LAW FOR COMPENSATING MRS. PAUL FOR SERVICES RENDERED AS CONCILIATION COMMISSIONER.

HOWEVER, A NECESSARY COROLLARY TO THE CONCLUSION THAT THE ATTEMPTED APPOINTMENT OF MRS. PAUL AS CONCILIATION COMMISSION WAS INVALID IS THAT SUCH APPOINTMENT HAD NO EFFECT UPON HER STATUS AS A UNITED STATES COMMISSIONER AND THAT SHE RETAINED A DE JURE TITLE TO THAT OFFICE UNTIL JUNE 24, 1940. CF. 23 COMP. DEC. 336. SUCH BEING THE CASE, MRS. PAUL IS ENTITLED TO RECEIVE SUCH LAWFUL FEES AS SHE MAY HAVE EARNED AS UNITED STATES COMMISSIONER.