(concurring.) There is no doubt that Gen. Duane is still in the military service of the United States. His connection with the army continues, and, although he is relieved from present duty, congress may at any time recall him to active service. Still his position is very much that of a public servant who has been retired upon a pension; His reduced pay is given as a reward for past services; and he is kept nominally in the army, not with a view to actual duty, but that he maybe under control and discipline. Thus the enjoyment of what amounts to a pension is made to depend upon continuous good behavior; for he is still an officer, and can be dismissed the service for conduct unbecoming an officer and a gentleman. Clearly, then, he is still an officer, though retired from active service, and as such distinguished by the federal statutes, in several important particulars, from officers wholly retired from the service. The question here, however, is not, as it was in ¡7. S. v, Tyler, 105 U. S. 244, whether he is nominally in the military service, and entitled as such to what is called “longevity pay, ” but whether he holds a federal office, within the letter or spirit of chapter 584 of the Laws of 1888. The question is a close one; but upon full consideration I am inclined, though not without hesitation, to agree with Mr. Justice Daniels. If the letter of the act of 1888, as earnestly contended for by the people, is to govern, I agree that there is only one federal office in question, and that that office is held, not by Gen. Duane, but by his successor, Gen. Casey. Gen. Duane is simply an officer without an office, so declared bylaw.
But I cannot think that the spirit of the act, and the mischiefs aimed at, are to be ignored; nor should the rule of strict construction with regard to disqualifying statutes be disregarded. Looked at from these points of view, we cannot give this act a construction so narrow as to deprive the city of some of the best engineering service at its command; nor can we ascribe such an intention to the legislature. The real object of the provision under consideration was, doubtless, to prevent the holding of two distinct offices by one person, and to require the appointment to these commissionerships of men who could give their undivided' attention to the duties of the position. Gen. Duane’s situation, under the federal statutes, is such that he can give his whole time and attention to the aqueduct service, as fully and freely as though he were not borne upon the army register. He may, possibly, it is true, be assigned to duty at the Soldiers’ Home, and such .assignment maybe independent of his will. So, possibly, he may be assigned to active duty by congress. But he has not been assigned to any such duty. When he is, it will be time enough to say to him: “ You now hold a federal office, which is incompatible with the exclusive service due to the municipality.” Even the duty to be performed at the Soldiers’ Home would be, in a certain sense, the holding of a new and independent office; for the only duty to be performed at the Home is the holding there of one of three offices,—governor, deputy-governor, or secretary; and, while such duty is called for by the military status, it is not a strictly military duty. The essence of office is duty; and, while a person may be retained in a military or governmental system as a legal appendage, either as an honor to the individual or for some special purpose of control, yet he cannot be said to hold an office, in any genuine or vital sense, when there is no duty attached to the situation, and the officer is required to render no service.
My best judgment, upon the whole, is that the federal office contemplated by the act of 1888 is an office to which there is attached some active duty, the performance of which might interfere with the adequate discharge of the holder’s duty to the municipality.