(dissenting.) I cannot concur in the conclusions arrived at by Mr. Justice Daniels and Mr. Justice Barrett. It seems to me that the United States statutes and the decisions of the United States su*444preme court should be conclusive as to the status of a person who, because of his official position, is drawing a salary from,the treasury of the federal government. The Revised Statutes of the United States (section 1094) expressly declare that the defendant is a part of the army of the United States, because he holds a commission as an officer of the army on the retired list. The United States supreme court, in the case of U. S. v. Tyler, 105 U. S. 245, expressly held that officers on the retired list still remain in the military service of the United States, and, because they are still in such service, are entitled to the longevity pay allowed by section 1262 of the Revised Statutes of the United States. The defendant, holding a commission as an officer in the army of the United States, and being still in the military service, and being entitled to pay from the federal treasury because he holds such commission and is in such service, certainly holds a federal office, just as much as he would if he had never been,retired. The contrary view repeals the statute, and reverses the decision of the supreme court of the United States, it seems to me. Furthermore, the consolidation act, section 55, chapter 410, Laws 1882, provides as follows: “Any person holding office, whether by election or appointment, who shall, during his term of office, accept, hold, or retain any other civil office of honor, trust, or emolument, under the government of the United States, (except commissioners for the taking of bail, or register of any court,) or of the state, (except the office of notary public or commissioner of deeds, or officer of the national guard,) or who shall hold or accept any other office connected with the government of the city of Hew York, or who shall accept a seat in the legislature, shall be deemed thereby to have vacated every office held by him under the city government.” Under this statute, officers of the army of the United States, on the retired list or otherwise, could be employed by the city government, because they hold no civil office, the office which they did hold being a military one and not a civil one. The language of the act whereby the aqueduct commissioners were appointed is strikingly and essentially different, and it provides that such commissioners and their successors shall hold no other federal, state, or municipal office, except the office of notary public or commissioner of deeds,—not no other civil office, as in the consolidation act, but no other office whatever, civil or military. It would seem that the legislature intended that an aqueduct commissioner should have no connection whatever with the federal, state, or municipal government, except such as arose from the office as aqueduct commissioner. The defendant, therefore, being an officer in the army of the United States, and entitled to pay as such, and being in the military service of the United States, as determined by the United States supreme court, was not eligible to the office of aqueduct commissioner.