Norton, J. delivered the opinion of the Court—Cope, J. concurring.
*145The question presented in this case is, whether the defendant was ineligible to the office of District Judge of this State by force of section twenty-one, article four, of the Constitution, which provides that no person holding any lucrative office under the United States, or any other power, shall be eligible to any civil office of profit under this State. At the time of his election, the defendant “ held and discharged the duties of the office of Inspector of the Customs of the United States at Trinidad, in Klamath counly, under and by virtue of the appointment of the Collector of the Port of San Francisco, at a salary of three dollars and seventy-five cents per day, payable monthly.” It is not claimed that this appointment was ever approved by the Secretary of the Treasury. By section two, article four, of the Constitution of the United States, the President, with the consent of the Senate, is empowered to appoint all officers whose appointment is not otherwise provided for; “ but the Congress may by law vest the appointment of such inferior officers as they may think proper in the President alone, in the Com-is of law, or in the heads of Departments.” By section twenty-one of the Act of Congress of March 2d, 1799, it is provided that the Collector “ shall, with the approbation of the principal officer of the Treasury Department, employ proper persons as Weighers, Gaugers, Measurers and Inspectors at the several ports within his district.” Attorney General Wirt, in 1821, gave his opinion to the President, that by the true construction of this law “ the names of the individuals proposed to be appointed shall be submitted (by the Collector) to him, (the Secretary of the Treasury) and that no one shall be appointed who shall not be approved by him.” Attorney General Legare, in an opinion given to the Secretary of the Treasury in 1843, referring to the above opinion of Mr. Wirt-, says: “ This, I have no doubt, is true, and indeed the only possible construction under the Constitution. Congress has power to vest the appointment of these inferior officers in the heads of Departments. It has no power to vest it in Collectors.” In the same opinion Mr. Legare says: “All permanent Inspectors are officers of the Government of the United States, not mere occasional deputies, employes or agents of the Collector,” and “ it is plain (under the Act of 1799) that the Collectors of the Customs *146were authorized to appoint occasional Inspectors, whose services were demanded by extraordinary exigencies in the service.” (1 Opinions of Attorney General, 459; 4 Id. 162.) Assuming these opinions of the Attorney General to be the true construction of the law, as we do, the defendant, at the time of his election to the office of District Judge, did not hold a lucrative office under the United States. His nomination by the Colector had not been approved by the Secretary of the Treasury. Whether he be considered as an “ occasional employé,” or as a person exercising the duties of an office without authority, he did not hold a lucrative office within the meaning of the prohibitory provision of the Constitution of this State. This provision, we think, can only apply to a person who rightfully holds an office. Unless he holds rightfuly, although his acts as a defacto officer may be vald so far as they affect third persons, he can have no right to any salary or emoluments of the office, or to any protection for his acts as an officer. (Riddle v. The County of Bedford, 7 Serg. & Rawle, 386.) If the employment of the defendant in the discharge of the duties of Inspector was under such circumstances that he could not claim for himself the rights of an officer, properly so caled, he cannot be disfranchised of any of his rights of a citizen on the ground that he is such officer, whatéver labilties or penalties he may incur for acts done in such employment. The disability must be clearly establshed by which a citizen is to be debarred of his right to an office, or the pubic restricted in them right of selecting their officers.
