
    Charles J. Barbour v. The United States.
    
      On the Proofs.
    
    
      The claimant is an assistant appraiser in the custom-house, commissioned hy the President. A special agent recommends that the office he abolished. The Secretary of the Treasury determines to vacate the office, and requests the claimant’s resignation. He, not sending in his resignation, is suspended from the office hy the President. At the next session of the Senate no nomination is made. On the adjowmment of the Senate, the claimant does not seek to recover the office, nor does he offer to perform service nor demand to be reinstated, nor seek the salary of the office, but, on the contrary, he accepts the balance of salary due to him at the time of his suspension, and then apparently turns his haelc on the custom-house.
    
    I.Resignation of office is the act ofgiving it up ; and if no statute law require the act to he in writing, it may he hy parole and may he express or hy implication.
    II.If an officer’s conduct take the shape of non-user so as to amount to an actual vacation, though without express renunciation of the office, the non-user must he total and complete and of such continuance as to indicate clearly absolute relinquishment.
    III. Where an officer, after being informed that the President intends to vacate the office, is suspended tinder the Revised Statutes (§1768) and does not upon the adjournment of the Senate, seek to recover the office, nor tender service nor demand the salary, his conduct evinces an intention to abandon the office and is equivalent to a resignation.
    IV. An officer suspended under the Revised Statutes (§1768) is not entitled to the salary of the office during the period of suspension, though no person he nominated for the place or appointed to discharge its duties.
    
      The Reporters’ statement of the case :
    The following are the facts of this case as found by the court:
    I. Ou the 6th of July, 1868, the claimant was commissioned by the President of the United States as assistant appraiser of merchandise at Portland, Maine.
    IT. On the 1st of June, 1877, a special agent of the Treasury Department, who had made inquiries as to the force required in the appraiser’s ofiice at Portland, reported in writing to the Secretary of the Treasury that, after' conferring with the chief appraiser there, he had learned that, with the then present business of the office, the services of one officer in that department could be dispensed with, provided the best man were retained; and he recommended that the claimant’s office should be abolished, and the claimant be relieved from duty, and that one Sawyer, an examiner, should be promoted to the office of assistant appraiser; which he considered to be'the only way that the reduction could be made without embarrassment to the public service; and that it would effect a saving of $1.400 per annum, without materially diminishing the efficiency of the office.
    III. The said report was, by the supervising special agent of the Treasury Department, referred to the chief of the appointment division, with the suggestion that the office of assistant appraiser at Portland should be vacated instead of promoting the examiner, as recommended by the special agent.
    IV. Thereupon the Secretary of the Treasury sent to the claimant the following letter:
    “Treasury Department,
    “Oeeioe or the Secretary,
    “ Washington, D. G. June 23, 1877.
    “Charles J. Barbour, Esq.,
    “ Assistant Appraiser of Merchandise, Portland, Maine:
    
    ' “ Sir : By direction of the President you are hereby informed that it has been determined to vacate your office on the 31st of July next.
    “If your resignation is tendered, it will be accepted to take effect at that date.
    “I am, very respectfully,
    “John Si-ierman,
    
      "8ecretaryA
    
    V. It does not appear that the claimant tendered to the President his resignation of the office aforesaid; and on the 31st of July, 1877, the President addressed to him the following letter, which was received by the claimant on the 9th of August ensuing:
    “Executive Mansion,
    “ Washington, I). 0., July 31, 1877.
    “Sir: You are hereby suspended from the office of assistant appraiser of merchandise in the district of Portland and Falmouth, in the State of Maine, in accordance with the terms of section 1768 Devised Statutes of the United States, and subject to all the provisions of law applicable thereto.
    “D. B. Hates.
    “To Charles J. Barbour, Esq.,
    “Portland, Marne.”
    
    VI. The next session of the Senate after the suspension of the claimant began on the 15th of October, 1877, and closed on the 3d of December, 1877. During that session no nomination was made by the President of any person as assistant appraiser at Portland; nor was any person appointed to or nominated for that office until the year 1881, when Franklin Sawyer was, by and with the advice and consent of the Senate, appointed and commissioned to that office on the 18th of February, 1881.
    VII. The next business-da.y after the claimant was notified of his suspension, and on a number of days within a week thereafter, he reported himself to the appraiser in the custom-house in Portland as ready to discharge the duties of assistant appraiser, claiming that he was not legally removed and was still assistant appraiser; but he was not allowed to perform any duty as such after August 9, 1877.
    VIII. On the 4th of December, 1877, the claimant was paid for his services as assistant appraiser from August 1 to August 9, 1877, for which an account was stated, and a receipt was signed by him, as follows:
    (Cat. No. 89.)
    
      The United Slates to Charles J. Barbour, Dr.
    
    
      
    
    “Authority of department dated Nov. 19, 1877.
    “D. Moultor,
    
      'Dep’ty Collector.
    
    “Approved.
    
      " Auditor.
    
    “Deceived from Lot M. Morrill, collector of the customs for the district of Portland & Falmouth, on the 4th day of December, 1877, the sum of sixty-one dollars and fourteen cents, in full of the above account, having signed duplicate receipts.
    “$61.14.
    “Charles J. Barbour.”
    
      IX. It does not appear that at tbe time of receiving and receipting for tbe said sum of 161.14, or at any time thereafter, tbe claimant made any claim of being still an assistant appraiser, or any demand to be allowed to discharge tbe duties of that office.
    
      Mr. George L. Douglas for tbe claimant.
    
      Mr. George G. Wing (with whom was tbe Assistant Attorney-General) for tbe defendants:
    Tbe relation of tbe government and its officers is reciprocal, and office does not mean simply tbe obligation to pay a salary to a certain citizen. It is tbe duty of paying such a citizen only as has performed, or lias done all be can to perform, certain duties according to bis oatli. But there is no evidence that tbe defendants prevented this claimant from assuming tbe office after tbe time be now claims be bad tbe right.
    As tbe record stands he never performed tbe slightest service subsequent to December 3, 1877; never offered to, nor ever appeared at tbe rooms be bad formerly occupied, where be knew was tbe a-ssistant appraiser’s place. He thus appears- as having practically abandoned bis position. (Thwing and Town's Gases, 16 O. 01s. R., 18.)
   Drake, Ob. J.,

delivered tbe opinion of tbe court:

This case arises under section 1768 of tbe Revised Statutes, which is as follows:

“Sec. 1768. During any recess of tbe Senate tbe President is authorized, in bis discretion, to suspend any civil officer appointed by and with tbe advice and consent of tbe Senate, except judges of the courts of tbe United States, until tbe end of the next session of the Senate, and to designate some suitable person, subject to be removed, in bis discretion, by tbe designation of another, to perform the duties of such suspended officer in tbe mean time; and tbe person so designated shall take tbe oath and give the bond required by law to be taken and given by tbe suspended officer, and shall, during tbe time be performs tbe duties of such officer, be entitled to tbe salary and emoluments of tbe office, no part of which shall belong to tbe officer suspended. Tbe President shall, within thirty days after tbe commencement of each session of tbe Senate, except for any office which in bis opinion ought not to be filled, nominate persons to fill all vacancies in office which existed at tbe meeting of tbe Senate, whether temporarily filled or not, and also in the place of all officers suspended; and if tbe Senate during such session shall refuse to advise and consent to an appointment in the place of any suspended officer, then, and not otherwise, the President shall nominate another person as soon as practicable to the same session of the Senate for the office.”

On the part of the claimant it is urged that his suspension could continue no longer than “the end of the next session of the Senate;” and that as soon as that session ended he was entitled to resume the office from which he had been suspended.

On behalf of the defendants it is contended that that right of the claimant was cut off by the exception declared in the second sentence of that section, in these words: “The President shall, within thirty days after the commencement of each session of the Senate, except for any office which in his opinion ought not to be filled, nominate persons to fill all vacancies in office which existed at the meeting of the Senate, whether temporarily filled or not, and also in the place of all officers suspended,.” It is claimed on the part of the defendants, that the exception there gave the President the privilege of not filling an office at all, where the incumbent had been suspended; and that, in this case, the President had, from December 3,1877, until February, 1881, shown by his not nominating anyone for this office, that in his opinion it ought not to have been filled; and therefore that the claimant is not entitled to the salary of the office during that period.

The view we take of what is the controlling point of the case dispenses with the necessity of passing upon the questions presented in the above positions.

The real question involved, as it seems to us, is whether, assuming thé claimant’s right to resume the office at the end of the session of the Senate, he did not, by his own course of action, lose that right. In our opinion he did. He knew that the President had determined to vacate the office on the 31st of July, 1877, and that his resignation of it was desired by that day. He declined to tender it then, but, as we conceive, accomplished it on and after the 4th of December following.

The resignation of an office is the act of giving it up, and is synonymous with surrender, relinquishment, abandonment, renunciation. A written declaration of resignation is popularly supposed to be the mode by which such act is to be manifested; but, in law, if no statute require the act to be in writing, it. is unnecessary. A resignation may be either in writing or by parol, and it may be either express or by implication. In either case the question is simply as to the intention to resign, surrender, relinquish, abandon, or renounce the office (Van Orsdall v. Hazard, 3 Hill (N. Y.), 243); and that intention maybe inferred from the conduct of the party (Ibid; State v. Aucker, 2 Richardson, 245). If that conduct take the shape of non-user or neglect of duties, so as to amount, in itself, to an actual vacation, but without express renunciation, of the office, it must be when the non-user or neglect is not only total and complete, but of such continuance, or under such circumstances as clearly indicate absolute relinquishment. (Page v. Hardin, 8 B. Monroe, 648.)

In the light of these doctrines, how stands the claimant here?

As before stated, he knew that his resignation had been asked for by the President, and he refused it, preferring rather to be suspended.

It appears, too, that he was well advised, at and immediately after the time of his suspension, that it was proper for him, in order to preserve his supposed right to the office, to appear before the appraiser, as he did several times within a week after that event, and demand to be allowed to discharge the duties of the office.

He was bound to know that if no nomination of his succesor should be made and confirmed at the next session of the Senate, it woidd be his right to resume the office immediately after the end of that session.

In the interval between his suspension and the end of that session, he knew that there was due him from the government the sum of $61.14, balance of salary from August 1 to August 9, 1877; which, so far as appears, he never sought to obtain payment of till the day after the Senate adjourned, when he received and receipted for it.

Knowing, or bound to know, all these things, what did he do when the day arrived that it was his legal right to resume the ■office of which he had not been deprived, but from which he had only been suspended? Did he then again demand to be allowed to return to his official station and duties ? Not at all. On the contrary, he called for the balance of salary that had been due him for nearly four months, and having received it turned his back on the custom-house, and, so far as appears, never offered to perform service as assistant appraiser, or made the least movement to assert bis right to the office; nor did he make any demand, in any shape, for the salary subsequently accruing, until his petition was filed in this court on the 23d of March, 1881, demanding $8,875 as the salary of the office from the 31st of July, 1877, the date of his suspension, to the 18th of February, 1881. If these circumstances do not evince an intention to abandon, surrender, and renounce the office, it would not be easy to conceive of a.ny that would have had that effect. We have no doubt that the course he pursued was as cléar and absolute a resignation of the office as if he had addressed to the President a written declaration to that effect. On the 4th of December, 1877, he ceased, by his own act, to have any right to the office, and therefore his claim for the subsequent salary is wholly baseless.

As, however, his i>etition claims the salary during the period of his suspension, it is necessary to dispose of that demand. To do so it is only requisite to refer to the words of the statute, declaring that no part of the salary of a suspended officer shall belong to him during the period of his suspension.

The judgment of the court is that the claimant’s petition be dismissed.  