
    LARKIN’S 2d CASE. R. and F. O. Larkin, Representatives of Thomas O. Larkin, v. The United States.
    
      On the Proofs.
    
    
      In March, 1847, the claimants’ intestate is appointed temporary naval agent for the northwest coast of North America, the compensation dependent npon the amount of public money disbursed by him. On the 14 th of September follovAng Commodore Shubriclc, commander of the Pacific squadron, appoints him naval storekeeper, he still acting as navy agent, and informs him that his duties as storekeeper would be in addition to his duties as navy agent, and that his compensation would commence from the date of his acceptance. Sis compensation as navy agent for the time he named has been paid to him.
    
    Tlie appointment of a civilian naviil storekeeper t>y tlie commander of a squadron is not authorized by law, and is therefore void and furnishes no ground upon which the salary for that office can he claimed.
    
      Mr. Caleb Cushing anil Mr. TF. W. Boyce for tbe claimants:
    Tlie testator, Larkin, lield two offices at the same time, navy agent and naval storekeeper.
    His accounts as navy agent have been settled; the question in this case is, whether he can receive pay as naval storekeeper now in addition.
    We submit he can.
    He held the office of naval storekeeper from September 34, 1847, to May 25,1848, eight months and eleven days, amounting to $1,042.
    We distinguish this case from Stanbury and Wilson’s cases. (1 O. Cls. E.^ 123, 206.)
    1. At common law, one individual might hold two offices. If lawful to hold the two offices, lawful to receive both salaries.
    Onus, therefore, on the United States to show that one holding two offices is prohibited by statute from receiving their salaries.
    2. The only acts bearing upon tlie question are the acts of March 3, 1839, May 18,1842, August 23,1842, August 26,1842, all cited in their very words in Attorney General Black’s opinion. (9 Opinions Attorneys General, p. 124.)
    These acts do not touch the case of holding two offices; they provide only against extra compensation.
    
      3. Act of September 30, 1850, by implication, admits that one person might bold two offices. Proviso, That hereafter the accounting officer shall not allow to one person salaries of two officers. (Rush’s Oase.J
    
    4. Proviso to the act of August 31,1852, recognizes the legality of same person receiving the salary of more than one office. No person, hereafter, whose salary is $2,500, shall receive compensation for discharging duties of any other office.
    5. If Congress had intended to prohibit persons from holding more than one office, why did it not say so expressly ?
    6. Implied contract from receiving services at request. So n appointing to office.
    7. The practice of Government.
    8. Authorities.
    
      a. Attorneys General Crittenden and Cushing. 2 Opinions Attorneys General, 582; 6 Opinions Attorneys General, 583, 80; 8 Opinions Attorneys General, 325.
    Mr. Bates’s opinion in Whiting’s case. (Opinions Attorneys General, p. 439.) He thinks the decision of Supreme Court in Converse v. United States, is authority conclusive.
    6 Decisions of courts. Converse v. The Cnited States, 21 Howard, 463; United States v. Bassett, 2 Story, 389; United States v. Morse, 3 Story, 87; United States v. White, MSS., cited in 6 Opinions Attorneys General, p. 84.
    p. Incompatible offices, and acceptance of the latte acated former.
    2 Hill (New York) B., 93.
    Upon the facts of the case, and the authorities cited, it is respectfully submitted that the claimants are entitled to be paid the salary due their testator, as naval storekeeper, amounting to the sum of $1,042.
    
      The Assistant Attorney General for the defendants:
    On the 14th of September, 1847, Commodore Shubrick, commanding the Pacific.squadron, assumed to appoint Larkin naval storekeeper for the port of Monterey, California. At the time Larkin received this pretended appointment, he held the office of navy agent. lie continued to bold tlie latter office during all of tbe time be claims to have held tbe former, and received tbe salary allowed by law to a navy agent. This suit is for the salary of a naval storekeeper, from tbe 14th of September, 1S47, to tbe 25th of May, 1848.
    
      I.Larkin never held the office of naval storekeeper.
    
    1. Commodore Sbubrick bad no power to make tbe appointment. Tbe first section of tbe act of June 17, 1844, (5 Stat. L., 700,) provides that tbe Secretary of tbe Navy shall order a competent commissioned or warrant officer of tbe Navy to take charge of the naval stores for foreign squadrons, in tbe place of naval storekeepers. Tbe act of March 3,1847, section 3, (9 Stat. L., 172,) modified the former act only so far as to authorize tbe selection of citizens, when suitable naval officers cannot be ordered on such service, or when, in tbe opinion of tbe Secretary of tbe Navy, tbe public interest will be promoted thereby. From these acts alone is authority derived for appointing naval storekeepers.
    2. Tbe Secretary of the Navy did not approve tbe appointment of Larkin. On tbe contrary, be disapproved it at once, on tbe ground that tbe usage of tbe Government did not warrant tbe appointment of one man to two offices.
    3. During tbe time it is claimed that Larkin held tbe office of naval storekeeper, (except for two days,) tbe said office was occupied by another person, thereto duly apxiointed.
    II. The lato does not authorise the payment to Larkin of the salaries of ttoo offices.
    
    In cases where a contrary doctrine has been held, it has been assumed that the law authorized such payment because tbe statutes did not, in express terms, forbid it. A safer doctrine is laid down by Attorney General Black. (See page 123, 9 Opinions, and authorities there cited.)
   Milltg-AN, J.,

delivered tbe opinion of tbe court:

This action rvas brought in tbe lifetime of Thomas O. Lar-kin, and in his own name. He is now dead, and it stands revived, and is prosecuted in the name of bis personal representatives. In tbe original petition it is claimed that Thomas O. Larkin held and discharged tbe duties of two offices, navy agent and naval storekeeper, at the same time. His accounts as navy agent have been settled, and this action, is now prosecuted to recover, in addition thereto, the salary due the office of naval storekeeper for the time he discharged its duties, and we ñnd the facts to be:

1. On the 10th of March, 18-17, the said Thomas O. Larkin was nominated by the President, and, by and with the advice and consent of the Senate, confirmed as “temporary naval agent for the northwest coast of North America;” and under this authority he held the office and discharged its duties until the 30th of September, 1817, when his office was discontinued.

2. The compensation allowed by law for the service of navy agent is contingent and dependent on tire amount of public money the agent disburses. ITe receives one per centum commission on his disbursements, provided such commission does not exceed two thousand dollars. The account for this service, although complained of in the petition, appears to have been settled, and, therefore, it is out' of the ease.

3. On the 11th of September, 1847, Commodore Shubrick, commander of the Pacific squadron, appointed Larkin “naval storekeeper” for the post of Monterey, where he was acting as navy agent, and informed him that his duties as storekeeper would be in addition to his duties as navy agent, and that he was authorized to employ a clerk, ivhose compensation, as well as his own, would commence from the date of his acceptance of-the appointment.

4. On the 17th of September, 1847, the said Larkin wrote to the Secretary of the Navy, informing him of his appointment by Commodore Shubrick, and that he had executed his bond and commenced receiving stores; and that he received the office under the condition of remuneration as storekeeper, separate and apart from his pay as navy agent. He added, “ Should you Wish the two appointments to beheld by separate persons, I should prefer being navy agent, and would consider it as a favor to be continued by the Navy Department in Washington.”

In reply to this letter, the Secretary informed him, under date March 27, 1818, that he had received his bond, but that the usage of the Government did not warrant the same individual holding two offices; and without any knowledge that he had been appointed naval storekeeper, one Charles T. Botts was appointed on the 16th September, 1847, and that he had executed bis bond, and sailed on the steamship Matilda, in the month of October last.

In this letter Secretary Mason directed Larkin to deliver to Botts the stores and public property in his charge, and to send on a special account to the Department for taking care of the public stores, including expenses of storage, clerk-hire, &e.

5. Subsequently, on the 18th of April, 1848, the Secretary of the Navy wrote to Larkin that “by the laws of the United States no officer can receive .compensation or salary for discharging the duties of more than one office at the same time. Your claim, therefore, for conpensation as navy agent and naval storekeeper, under appointment of Commodore Skubrick, cannot be allowed. You may receive the compensation allowed by law for either, but not for both.”

6. No other grounds upon which the claim was rejected appear in the Navy Department than those contained in Secretary Mason’s letter, above recited. And Secretary Toucey, after him, in November, 18C0, states that if the said Larkin had received compensation as naval storekeeper, it would have been at the rate of $1,500 a year from the date of his appointment by Commodore Skubrick, (September 14,1847,) until Mr. Botts assumed the duties of the office, (May 18,1848.)

Under these facts found in the record, two questions are presented for decision: First, whether or not Larkin was ever lawfully appointed naval storekeeper; and second, if so appointed, was he entitled under the laws of the United States, as they then existed, to compensation for both offices at the same time? The first question answered negatively substantially settles the second, and ends this controversy.

Larkin was appointed by the President, by and with the advice and consent of the Senate, special navy agent, under the act of March 3, 1809, (section 3, 2 Stat., 530,) and his compensation fixed at one per centum as commissions, in lieu of all expenses, provided such commissions did not exceed two thousand dollars; and as such the Government has settled and paid his salary.

The authority to appoint naval storekeepers is derived under the acts of June 17, 1844, and March 3, 1847, (1 Brightley’s Dig., 697, section 199.) The former act authorizes the Secretary of the Navy to order a competent commissioned or warrant officer of the Navy to take charge of the naval stores for foreign squadrons in place of naval storekeepers at each of the foreign ports where said stores may be deposited, and where a storekeeper is necessary. But this act is so modified by the latter as to authorize the selection and appointment of citizens other than naval officers to be storekeepers on foreign stations, when suitable naval officers cannot be ordered on such service, or when, in the opinion of the Secretary of the Navy, the public interest will be promoted thereby. Persons so selected and appointed are to receive the same compensation as now allowed, and to enter into bond with security, as is required by law of officers of the Navy performing said service.

It is clear, under the act of 1847, á citizen could only be appointed to the office of naval storekeeper by the Secretary of the Navy when a suitable naval officer could not be ordered on such service, or, in the Secretary’s opinion, the public service would be promoted by the appointment of a citizen. Larkin was not appointed by the Secretary, and Commodore Skubrick certainly had no authority of law to make such an appointment. Possibly he might, under a necessity, have ordered a commissioned or warrant officer of the Navy to discharge the duties of the office temporarily, but it cannot be contended that he had any authority of law to order a citizen or to clothe him with the functions of the office.

But it is insisted an appointment made without law, if after - ward ratified by lawful authority, is valid, and entitles the party holding under such ratification to the pay and emoluments of the office. Without, at present, undertaking to decide this question, it will be sufficient to inquire whether the appointment made by Commodore Skubrick was subsequently ratified by the Secretary of the Navy. It is a familiar principle in cases of assumed agency, that a subsequent ratification, made with a full knowledge of all the material facts, is equivalent to a previous authority. But this doctrine must be taken with the qualification that the act of ratification must take place at a time and under circumstances when the ratifying party might have himself lawfully done the act which he ratifies. (1 Parsons on Contracts, 44, 45, and notes, with authorities cited.)

Larkin was appointed by Commodore Sbubrick on the 14th of September, 1847, and on the 17th of the same month he wrote the Secretary that he had been appointed by the commodore, and bad executed bis bond, and commenced receiving stores. On tbe 16tb of September, 1847, only two days after Larkin was appointed by Sbubrick, and before tbe Secretary bad any knowledge of bis appointment, be appointed Charles T. Botts, wbo executed bis bond as required by law, and before tbe date of tbe receipt of Larkin’s letter Botts had sailed for the post of bis duty. Tbe office was lawfully filled by tbe Secretary before be was advised of Larkin’s appointment, and be bad therefore no power, without first removing bis own appointee, to ratify tbe commodore’s appointment. This be did not do; on tbe contrary, be informed Larkin of all tbe facts, and directed him. to deliver Botts tbe stores and public property in bis charge, and to send in a special account to tbe Department for taking care of them, including expense of storage, clerk hire, &c.

It is true that afterward, when Larkin sent in bis account, claiming tbe salary of both offices, tbe Secretary, after informing him that be could not receive pay for more than one office at tbe same time, told him that be might “ receive the compensation allowed by law for either, but not for both.” This was no ratification — was not so intended, nor can it be so held, because tbe same legal difficulty is interposed here that existed when tbe Secretary was first advised of Larkin’s appointment: tbe office was filled, and be could neither ratify an unauthorized previous appointment, nor make a new one without displacing Botts, which be did not propose to do. It follows, therefore, that Larkin never having been lawfully appointed or subsequently affirmed by tbe Secretary as naval storekeeper, bis personal representatives can take nothing by this action. Petition dismissed.  