#### JOSEPH W. NICHOLAS v. THE UNITED STATES.

[No. 33263.

Decided May 13, 1918.]

*On the Proofs.*

*Civil service employee, condition precedent to recover pay.*— Where, an employee of the United States in the classified civil service is discharged from the service and claims the pay of the office subsequent to his removal, it must appear affirmatively that he was willing and able to discharge the duties of the office during said period.

*464
      *The Reporter’s*statement of the case:

*Mr. W. E. Russell*for the plaintiff. *Spoor & Russell*and *Dudley da Miehener*were on the briefs.

Plaintiff’s removal was an absolute nullity, being unlawful, invalid and of no force and effect, and contrary to civil service Rule XII, section 2, as amended by Executive Order of February 8, 1912, to articles 1385 and 1386 of the Customs Laws and Regulations of 1908, and to section 6 of the act of August 24,1912, 37 Stat., 555. *United States*v. Wichersham, 201 U. S., 390; *Perlcins*v. *United*States, 20 C. Cls., 438; 116 U. S., 483; *United States ex rel Newcomer*v. *Postmaster,*221 Fed., 687; *People ex rel Keech*v. *Thompson,*94 N. Y., 459; *People ex rel Munday*v. Commissioners, 72 N. Y., 445; *City of Roclcford*v. *Gompton,*115 Ill. App., 406; *City of Chicago*v. Luthardt, 191 Ill., 516; *People*v. *Stevenson,*272 Ill., 215; *Roth et al.*v. *State,*158 Ind., 242; *Leonard*v. *Terre Haute,*93 N. E.j 872; *Seifen*v. *City of Racine,*129 WIs., 343; *Ledbetter*v. State, 10 Ala., 241; *Nolen*v. *State,*118 Ala., 154; *Garvey*v. *City of Lowell,*199 Mass., 47; *Tucher*v. *City of Boston,*223 Mass., 478; *State ex rel Deni-son*v. *City of St. Louis,*90 Mo., 19; *Houston*v. *Estes,*35 Tex. Civ. App., 99.

Plaintiff never having been lawfully removed is entitled to the salary of his office accruing from the date of his removal. *Lellman*v. *United States,*37 C. Cls., 128; *United States*v. *Wichersham, supra; Perlcins*v. *United States, supra; Fitzsimmons*v. *City of Brooklyn,*102 N. Y., 536; *Emmitt*v. Mayor, 128 N. Y., 117; *Wardlaw*v. *Mayor,*137 N. Y., 194; *People ex rel Nugent*v. *Police Commissioners,*114 N. Y., 245; *Jones*v. *City of Búfalo,*178 N. Y., 45; *City of Chicago*v. *Luthardt, supra; People*v. Stevenson, *supra; People*v. *Bradford,*267 Ill., 486; *State ex rel Worrell*v. *Carr,*129 Ind., 44; *Rasmussen*v. *Commissioners,*45 L. R. A., 295; *Leonard*v. *Terre Haute, supra; Seifen*v. *City of Racine, supra; Andrews*v. *City of Portland,*79 Me., 484; *Garvey*v. *City of Lowell, supra; Tucher*v. *City of*Boston, *supra; State ex rel Chapman*v. *WaTbridge,*153 Mo., 194; *Houston*v. *Estes, supra; EveriTl*v. *Swann,*20 Utah, 56.

*465As plaintiff has stood ready, willing, and able to render services during the period of his unlawful removal, he is entitled to a judgment for the full amount sued for.

*Mr. Harvey D.*Jacob, with whom was *Mr. Assistant Attorney General Huston Thompson,*for the defendants.

The following are the facts of the case as found by the court:

I. The plaintiff, Joseph W. Nicholas, is a citizen of the United States and a resident of the State of Maryland and was duly appointed an inspector of customs in the port of Baltimore on January 28, 1902, at a compensation of $4 per diem for every day in the year. He continued under the aforesaid appointment to and including February 20, 1913. On that day he was summarily discharged from the service of the United States by the collector of customs of the port of Baltimore pursuant to instructions issued by the Secretary of the Treasury.

At the time of his discharge from said service he was in the classified civil service of the United States. Before and at the time of his discharge aforesaid charges had been preferred against him by a committee appointed by the Secretary of the Treasury to examine into and report upon the conduct of the customs business at Baltimore. The said Joseph W. Nicholas had no notice of these charges and was not furnished with a copy thereof, nor was he allowed a reasonable time for personally answering the same in writing.

II. There has been no evidence taken in this case to show either the willingness or the ability of the plaintiff to perform the duties of his office as inspector of customs from the date of his removal from the service on February 20, 1913. It does not appear that he made any report in person or in writing to the office of the collector of customs at Baltimore.

The plaintiff is the sole owner of this claim, and no assignment or transfer of the claim, or any part thereof or interest therein, has been made.

*466Hat, Judge,

delivered the opinion of the court:

Both the plaintiff and defendants have discussed in their briefs the question of the legality of the removal from office of the plaintiff and the effect and meaning of section 6 of the act of August 24, 1912. We do not deem it necessary to pass upon those questions in view of the fact that the plaintiff has failed to show affirmatively his willingness and ability to discharge the duties of the office in question from the date of his removal therefrom down to the present time. If it should be held that the plaintiff was illegally removed from the office which he held, still in order that he may recover the salary which is alleged to be due him from the time of his alleged illegal removal therefrom to the present time it must appear affirmatively in the record that he was willing and able to discharge the duties of the office. There is no evidence in this record that such was the case. Indeed, there is no evidence of any kind of such willingness or ability. *United States*v. Wickersham, 201 U. S., 390, 399; *Perkins*v. *United*States, 20 C. Cls., 438, 441; *Miller*v. *United*States, 45 C. Cls., 509, 517.

The petition -will therefore be dismissed, and it is so ordered.

DowNey, *Judge;*BarNey, Judge; Booth, Judge, *and*Campbell, *Chief*Justice, concur.