the preliminary hearing before a commissioner, but refers to the requisition to be issued by the proper officer after it has been determined by the commissioner that the person charged with the crime should be held for his surrender to the demanding government. So, it will be noticed that a requisition is a subsequent mandate to be issued by the proper official. The statute above cited, under which I proceeded, is so plain and unequivocal that it seems hardly necessary for me to cite any authority to sustain my contention, but I will cite the case of ex parte McCabe, 46 F. R., 363, and also the case of Castro v. De Uricarte, 16 F. R., 93.'

"The very fact that the surrender of the defendant, the charge. against whom is deemed to have been sustained by sufficient evidence on the commissioner's preliminary hearing, can only be made to a foreign government upon requisition made by the proper authorities thereof, shows conclusively that such preliminary proceedings should not be taken without the initiative of the foreign government. If that were not true the door would be opened for the repudiation of the action of an unauthorized person taking preliminary action in such a case and being the cause of the certification, by a commissioner to the Secretary of State, that a warrant of extradition might issue for a person for whom the proper authorities of no foreign government desired to make requisition. A further reason against such proceeding as the commissioner has adopted and defends is that the collection of the fees and costs of extradition from foreign governments, as provided by the act of June 28, 1902 (32 Stats., 475), might become a matter of courtesy rather than a question of law and of right. The United States has no authority for volunteering its services to a foreign government.

"This line of argument is the basis of all the judicial decisions on the subject that I have seen:

"A requisition from foreign government and mandate from this government are not necessary, under section 5270, R. S., to initiate proceedings in extradition before a committing magistrate, and it is sufficient if it appears that the complaining witness is acting for the foreign government. (In re Orpen, 86 F. R., 760.) The same is held in the following cases: 55 F. R., 376, and 127 U. S., 457; 26 F. R., 852; 33 F. R., 165; 28 F. R., 878; 32 F. R., 583. Under section 5270, R. S. U. S., the complaint may be made by any person acting under authority of the demanding government having knowledge of the facts. 187 U. S., 182.'

"The defendant in this case was discharged, not for lack of jurisdiction, however, for, although the crime for which he was held is not included in the extraditable offenses scheduled in the treaty of August 9, 1842 (8 Stats., 572), it is included in the convention of July 28, 1889 (26 Stats., 1508).

"I decide that the claim is not payable, but hold it suspended awaiting your decision of approval, modification, or disapproval.”

The auditor does not state what statute he is construing. I assume his decision has reference to section 5270, Revised Statutes, to treaty of August 9, 1842 (8 Stat., 572), between the United States and Great Britain, and the commissioners' fee bill, act of May 28, 1896 (29 Stat., 185). So far as his decision holds that a United States

commissioner, in hearing a complaint made by one not shown to be representing the foreign government, is not entitled to fees, it is approved. Whether or not the offense was extraditable is not involved in the auditor's decision.

PAYMENT OF SALARY OF EMPLOYEE REMOVED UNDER INVALID RULE

MANDAMUS.

Where a teacher in the public schools of the District of Columbia was actually removed from her position by reason of the operation of a general rule of the school board, payment of salary to such teacher for the period during which she was thus deprived of her position is not authorized although such rule be declared invalid by the courts and a writ of mandamus issued restoring her to her position and purporting to restore her to a pay status from the date of her removal.

Public funds in the Treasury of the United States can not be reached by mandamus since under the Federal Constitution money may not be withdrawn from the Treasury except in consequence of appropriations made by law. Comptroller Warwick to the president of the Board of Commissioners of the District of Columbia, August 28, 1916:

I have your letter of August 9, 1916, requesting decision whether, under the appropriations "Public schools, D. C., Salaries," for the fiscal years 1915 and 1916 (38 Stat., 517, 532, 533; id., 894, 907, 908), payment is authorized to be made to Mrs. Gladys Strong Hellman, of $1,355.67 as a teacher of class 2, including longevity, from September 1, 1914, to June 11, 1916, a pay roll therefor having been certified by the superintendent of schools and approved by the proper officers of the board of education.

Mrs. Hellman is understood to have been a teacher of class 2 in the Morgan School at the time of her marriage; that under a rule of the board of education her marriage caused her removal as a teacher and her position as a teacher in that school was filled by another; that the courts of the District of Columbia have decided that said board rule was not authorized by law, and have awarded Mrs. Hellman a writ of mandamus restoring her "to the position and emoluments heretofore had and enjoyed by her as aforesaid, as of June 30, 1914, with the increase of salary thereafter provided by law"; and that the board restored her to her position as teacher “in the salary class designated as class No. 2, as of June 30, 1914, with the increase of salary thereafter provided by law" and assigned her to the Brown School.

The board's order in specifically making restoration followed the court's order, and does not necessarily express a decision of the board that she should be paid salary. Nor have the commissioners expressed the desire that, as a matter of policy, the payment should be made.

It is reported that there is a balance in the respective appropriations for these two years sufficient to pay the claimant salary for the period claimed.

The appropriation for the fiscal year 1914 (37 Stat., 938, 954), from the close of which the board's removal dated, provided for: "Teachers: For one thousand seven hundred and fifty-one teachers, to be assigned as follows:

"Teachers in class two, three hundred and thirty-seven in all, at a minimum salary of $600 each;

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The appropriation for the fiscal year 1915 provided for a total of 1,768 teachers, of whom 336 were to be assigned to class 2; and for the fiscal year 1916 the appropriation provided for a total of 1,798 teachers, of whom 341 were to be assigned to class 2.

It will thus be seen that in both the latter fiscal years the total number of teachers was increased, but in the class there was a reduction of one for 1915 and an increase of four for 1916, compared with the number in the fiscal year 1914, from which the removal dated.

Mrs. Hellman was one of a class of teachers. The class had been decreased first and then increased in number the fiscal years following her removal, and the position she held in fact in the Morgan School, as one of that class, was filled upon the vacancy caused by her removal.

It accordingly does not follow from there being a balance in the appropriations that it is because of the vacancy caused by her removal; nor must it be concluded therefrom that the salary of her place was not paid to another, so as to be decisive of the question of making payment now.

The court's order is specifically for restoration as a teacher. It is not an order undertaking to or requiring in itself the payment of the pay.

I am aware that in some municipalities the general funds in the treasury may be reached by mandamus, but these are chartered corporations admitting of a different rule than here. The treasury here concerned is that of the United States, as to which the constitution provides (art. 1, sec. 9, par. 7) moneys shall not be withdrawn there from "but in consequence of appropriations made by law."

And mandamus may not direct payment under the appropriations made in pursuance of the constitutional requirement, because the legality of expenditures from such appropriations has been confided by Congress to the final decision of the accounting officers. (See the various sections of the Revised Statutes applicable to the rendering of accounts by disbursing officers, and the acts of Sept. 2, 1789, 1 Stat., 65; July 31, 1894, 28 Stat., 208, et seq.)

There may be a legal claim without an appropriation being available for payment, having regard to the circumstances which give rise to the claim, and, however the various questions suggested by this claim may be decided, the question eventually for decision must be the availability of the appropriation.

But it is pertinent to remark that the status of claimant is not entirely analogous to that of a suspended employee, because such employee during the period of suspension continues to hold the place in fact; nor is it precisely that arising from a removal based on charges subsequently disproved, in which there is an element of personal wrong.

The removal by the board in the present case was under a rule which was the law in the case, and for all alike, until that law was declared invalid. Of this law, Mrs. Hellman must be presumed to have been well aware and by her marriage invoked its enforcement. And the legal proceedings resorted to are directed not so much to questioning the removal during the period it was effective, as to securing the right to be a teacher in the schools notwithstanding that rule.

Whatever the result, the one questioning is not to be placed in any different position respecting pay for the intermediate time, than those to whom it was made applicable, not questioning, but who because of the successful result may be restored as teachers.

The situation is like that arising from the official enforcement of any law, which being subsequently declared invalid gives no right to redress against the Government.

That it was a rule made by the board itself is immaterial. The board is empowered to make rules for the conduct of the schools, and that a rule has been adopted which is judicially declared invalid is no different from the situation of a lawmaking body enacting laws which are judicially declared invalid.

The claim for the pay must meet the same requirements as must the ordinary claim for pay, so far as concerns the appropriations. This requirement is not one going to services rendered, or the degree of the services rendered, which is an administrative question. The claim must be for pay as pay to which there is prima facie a right and involving a presumption of services rendered, because of the de facto as well as the de jure holding of the place.

These factors are presumptively present for all those appearing on pay rolls, and if any be lacking, aside from the question of contesting claimants and payment to the de facto holder, the accounting officers may well question the legality of the use of the appropriation. The board's rule was executed fully and completely, and the removal as a teacher was a fact. The holding the law invalid does not alter the fact. The claim for pay under the circumstances

sounds more in damages than as for pay, and is at best based upon a constructive holding of position under the court's order.

I think that general appropriations for pay are for pay as commonly understood with respect to the service for which it is so appropriated, and there appears no intent therefrom to provide the pay where it is claimed under circumstances as here, and I am of opinion the pay appropriations are not available for the payment of such claim.

ORGANIZED MILITIA, LONGEVITY PAY AND CONTINUOUS-SERVICE PAY. Officers of the Organized Militia, upon being mustered into the service of the United States pursuant to the act of January 21, 1903, as amended by the act of May 27, 1908, are not entitled to credit, for purposes of longevity pay, for service rendered in the Organized Militia prior to their muster into the service of the United States.

Officers of the Organized Militia, upon being mustered into the service of the United States pursuant to the act of January 21, 1903, as amended by the act of May 27, 1908, are entitled to credit, for purposes of longevity pay, for all service rendered after their muster into the service of the United States.

Officers of the Organized Militia, upon being mustered into the service of the United States pursuant to the act of January 21, 1903, as amended by the act of May 27, 1908, are entitled to credit, for purposes of longevity pay, for any prior service rendered by them in the Regular Army or the Marine Corps. Officers of the Regular Army who are commissioned in a higher grade in the

Organized Militia brought into the military service of the United States pursuant to the act of January 21, 1903, as amended by the act of May 27, 1908, are entitled to longevity increase on pay in the grade in which they are serving in the Organized Militia. Enlisted men of the Organized Militia, upon being mustered into the service of the United States pursuant to the act of January 21, 1903, as amended by the act of May 27, 1908, are not entitled to credit, for purposes of continuous-service pay, for service rendered in the Organized Militia prior to their muster into the service of the United States. Enlisted men of the Organized Militia mustered into the service of the United States pursuant to the act of January 21, 1903, as amended by the act of May 27, 1908, are not entitled to credit, for purposes of continuous-service pay, for service rendered after their muster into the service of the United States.

Enlisted men of the Organized Militia mustered into the service of the United States pursuant to the act of January 21, 1903, as amended by the act of May 27, 1908, are not entitled to credit, for purposes of continuous-service pay, for prior service rendered in the Regular Army or the Marine Corps, except for one enlistment period as provided in the act of May 11, 1908. An enlisted man discharged from the Regular Army and commissioned as an officer in the Organized Militia mustered into the service of the United States pursuant to the act of January 21, 1903, as amended by the act of May 27, 1908, is entitled to credit, for purposes of longevity pay as such officer, for prior service rendered by him in the Regular Army.