Nicholas v. United States

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.