ing it. If testimony is reduced to writing, for the information of the United States attorney, it should be at once delivered to him, if present, or forwarded to him, if absent. It is not made to be filed. The rule of court requires a statement on the commissioner's docket, of "the name of the guard, if any, and his fees." As a matter of law, the guard has no fees. The marshal is entitled to mileage for the travel of the guard. Rev. Stat., 829. And he is entitled to a fee for "bringing in, guarding, and returning prisoners."

The charge for filing evidence is disallowed.*
TREASURY DEPARTMENT,

First Comptroller's Office, July 7, 1883.

IN THE MATTER OF THE RIGHT OF A PERSON DULY APPOINTED AS CONSUL, WHO HAS TAKEN THE OATH OF OFFICE, AND GIVEN BOND, TO RECEIVE SALARY BEFORE HE HAS ENTERED ON THE DUTIES OF HIS OFFICE.-DUNN'S CASE.

1. Under the statutes providing for the payment of salaries to diplomatic and consular officers, the right to salary does not exist, until after the officer has taken the oath of office, has filed his bond, the commission has been issued, and the officer has actually entered on his duties as such, by holding himself in exclusive readiness, under the directions of the Department of State to receive instructions 2. The date of the commission, after the oath of office has been taken, is usually the time at which the thirty days for receiving instructions commences, but the Department of State may fix a later date, at which such period of thirty days shall

commence.

3. A consular officer in service at one place, and appointed and commissioned to act at another consulate, cannot receive salary under his new appointment, while he continues to perform the duties under his prior commission.

David M. Dunn, while holding the office of United States consul at Charlottetown, Prince Edward Island, at a salary of $1,500 per annum, was appointed United States consul at Valparaiso, Chili, at a salary of $3,000 per annum, and was commissioned as such June 6, 1883.

Mr. Dunn's bond as consul at Valparaiso, approved by the Secretary of State, and transmitted to the Secretary of the Treasury June 21, was filed in the office of the First Comptroller, June 22, 1883. He alleges that after official notification of his appointment at Charlottetown, he there took the oath of office June 9, as United States consul at Valparaiso.

In point of fact, however, Mr. Dunn continued in the discharge of the duties of the office as consul at Charlottetown up to and including June 30, 1883, and on July 1, 1883, left his post to report to the Department of State in Washington city. He has rendered his account of salary as consul at Charlottetown, Prince Edward Island, for the quarter There are in the United States and Territories about 1,500 commissioners of the circuit courts.

ending June 30, 1883, charging salary for the entire quarter, $375, and credited the fees received for said period, $355.21, and his draft on the Secretary of the Treasury for $19.79, the balance of salary due after deducting the fees received.

Mr. Dunn claims that he should be allowed salary for thirty days, while receiving instructions as United States consul at Valparaiso (Rev. Stat., 1740), and that his salary as consul at Valparaiso, at the rate of $3,000 per annum, should begin with the date of his commission, June 6, 1883.

As Mr. Dunn did not cease to act as consul at Charlottetown, Prince Edward Island, until after June 30, 1883, his account for salary while receiving instructions as consul at Valparaiso, has been made out in this office, from July 1, to July 9, 1883, inclusive. Mr. Dunn stated at Washington city on July 9, 1883, that he would sail for his post on the following day.

The First Comptroller is asked to decide when the right of Mr. Dunn to salary as consul to Valparaiso commenced.

DECISION BY WILLIAM LAWRENCE, First Comptroller.

In an action or proceeding to enforce payment of the salary, or to recover the profits of an office, the right to such salary or profits is generally incident to the title to the office; not to the possession of it, or the performance of its duties. (The people, ex rel. Morton v. Tieman, 30 Barb., 193; Evans's case, 3 Lawrence, Compt. Dec., 111.) But every officer who has the title to an office is not in all cases entitled, before entering on the duties thereof, to the salary authorized by law.

An appointment to office is complete when a person, nominated by the President, has been confirmed by the Senate, and the commission has been signed by the President, and the seal affixed. (United States v. Le Baron, 19 How., 78; Marbury v. Madison, 1 Cranch, 137, 157.) But an appointment may be complete, and yet the title to an office may not thereby vest in the person entitled to take it. In Marbury v. Madison (1 Cranch, 137, 161), decided in 1803, it was said that neither the delivery of a commission, nor its acceptance by a person appointed to office, is necessary "to give validity to an appointment. *The appointment is the sole act of the President: The acceptance is the sole act of the officer, and is in plain common sense posterior to the appointment. As he may resign, so he may refuse to accept; but neither the one nor the other is capable of rendering the appointment a nonentity. A commission bears date, and the salary of the officer commences from his appointment; not from the transmission or acceptance of his commission."

*

In an opinion November 29, 1842 (4 Op. Att.-Gen., 123), Attorney-General Legaré held, that "public officers are entitled to pay and emoluments

appertaining to their office, only from the time they enter upon the performance of duties; but the performance of duties or the condition requisite to the legal ability to perform them, is the equity upon which salaries are predicated." And he said, "officers are now paid only from the day they enter on their duties." There are cases which show that a person once in office is entitled to the salary, whether he performs the duties thereof or not. (Sleigh v. United States, 9 Ct. Cl., 369; Appropriation-Extension Case, 3 Lawrence, Compt. Dec., 213.)

In an opinion June 30, 1855 (7 Op. Att.-Gen., 303), Attorney-General Cushing held, that "the salaries of all judges of courts of the United States, are due from the date of appointment, but the party does not become entitled to draw pay, until he has entered on the duties of his office, or at least taken his official oath."

And the Attorney-General proceeds: "It is said by the court, in the case of Marbury v. Madison (1 Cranch, 161), that 'a commission bears date, and the salary of the officer commences from his appointment.' This, like nearly the whole opinion of the court in that case, is dictum only, and most certainly it is not good law, in the broad generality of the proposition, even in cases where the statute is silent on the subject. Thus it has been the established rule of the Government, to pay foreign ministers, not from the date of their appointment, but from the time when they begin to devote themselves to the public service, that time being fixed by acts performed, as by leaving home to come to the seat of government for instructions, or by understanding between them and the Secretary of State." (See also 7 Op. Att.-Gen., 186.)

In the United States v. Le Baron (19 How., 78), decided in 1856, the court after saying, that "when a person has been nominated to an office by the President, confirmed by the Senate, and his commission has been signed by the President, and the seal of the United States affixed thereto, his appointment to that office is complete," then proceeds to say, 16 Congress may provide, as it has done in this case, that certain acts shall be done by the appointee before he shall enter on the possession of the office under his appointment. These acts then become conditions precedent to the complete investiture of the office; but they are to be performed by the appointee, not by the executive; all that the execu tive can do, to invest the person with his office, has been completed when the commission has been signed and sealed; and when the person has performed the required conditions, his title to enter on the possession of the office is also complete."

On general principles, it seems clear that a person appointed to office does not, merely by virtue of his appointment, become entitled to the salary of the office from the date of the appointment. He certainly cannot, as a general rule, be entitled to the salary until he takes the oath of office, and thus accepts the office. Until he does this, he cannot lawfully perform any duty of the office. The Constitution requires, of all officers, an oath "to support this Constitution." (Const., Art. 6, cl. 3.)

The statute requires an oath of office. (Act June 1, 1789 (1 Stat., 23); McCulloch v. Maryland, 4 Wheat., 416; act July 2, 1862 (12 Stat., 502, sec. 1); Rev. Stat., 1756, 1757, 1836.)

The authorities, already cited, show that an appointment does not per se invest the person appointed to an office with the title thereto. His acceptance, and the oath of office, are necessary to vest the title. Until he takes the oath of office, "he is not actually in office." (7 Op. Att.Gen., 310. See Bowerbank v. Morris, Wall. C. C., 118.) Without the title to an office, there can generally be no right to the salary. (The People, ex. rel. Morton, v. Tieman, 30 Barbour, 193.) The commission of an officer is the evidence of his appointment. It is the evidence on which foreign Governments issue exequaturs to our consular officers. When, in the opinion of the Department of State, it is not expedient to commission a consular officer, although he has conformed to all the legal requirements, a commission is refused him, and he remains a private citizen. The appointing power can refuse to issue a commission, even to a person nominated and confirmed, or revoke it, if issued, and remove the officer. Bowerbank v. Morris, Wall. C. C., 129, and cases cited. Whether, in addition to the resting of the title, the officer must enter on the duties of his office, as a condition precedent to the right to receive salary, may depend on the legislation applicable to the particular office. Thus, the act of September 23, 1789 (1 Stat., 72) expressly provided that judges shall receive pay from the time of their appointment. In other acts, the provision on this subject is repeated. (Act June 15, 1836, 5 Stat., 51, sec. 5; act July 1, 1836, Id. 62, sec. 3; act March 3, 1845, Id. 788, sec. 6; act September 28, 1850, 9 Stat., 522, sec. 7.)

Other statutes are silent on the subject. (Act February 13, 1801, 2 Stat., 100, sec. 41; act February 24, 1807, Id. 421, sec. 5; act March 3, 1849, 9 Stat., 407, sec. 11; act September 9, 1850, Id. 451, sec. 12; Id. 457, sec. 11; 7 Op. Att.-Gen., 307.)

Other statutes give a right to salary from the date of appointment, to be paid only after entering on duty. (Act August 14, 1848, 9 Stat., 328, sec. 11; act March 2, 1853, 10 Stat., 177, sec. 11; act May 30, 1854, Id. 282, sec. 12; Rev. Stat., 1556, Id. 1941; Rev. Stat., 554, 607, 676, 1261, 2208-2211, 2237.) A consul or vice-consul is not invested with the office, nor entitled to salary, until he gives the bond required by law. (Dainese's case, 15 Ct. Cl., 64.) A person having the credentials, showing him to be elected a Representative in Congress, is not invested with the title to his office, until he takes the prescribed oath, which he is not required to take until a session of Congress commences. (Contestant's Widow's case, 3 Lawrence, Compt. Dec., 328; Crowley's case, Id., 355, 431; Williams, June 6, 1874, 14 Op. Att.-Gen., 406; Id., Nov. 2, 1872, 14 Op. Att.-Gen., 133.) But he is entitled to the monthly payment of his salary, prior to that time, beginning with the commencement of the term in Congress for which he is elected. So it is clear, that generally a person appointed to take the place of an officer

in office cannot receive the salary, at least until the officer removed by the operation of the new commission is notified thereof. (Bowerbank v. Morris, Wallace, C. Ct. Pa., 118; 7 Op. Att.-Gen., 310.) This must be so, for the title to one office cannot, as a general rule, vest in two persons at the same time. (Ex parte Hennen, 13 Pet., 230.) In the case of diplomatic and consular officers, this is not strictly the case, when one officer is appointed to supersede another, Congress having, by act of August 18, 1856 (Rev. Stat., 1740), reorganizing the diplomatic and consular service, made special provision for the salary of the outgoing and incoming officer. Thus, the new appointee is paid salary for 30 days while receiving instructions, and also, for the time occupied in going to his post of duty, and the person relieved from duty, is paid until he has given up possession to the new incumbent, and also for the period in making home transit. The new officer is thus, by special enactment, entitled to the salary of the office, fixed by law, for the instruction and transit periods, before he has been fully invested with his office, and his predecessor is paid for the transit period, after he has ceased to be a public officer. In offices, generally, the delay between the appointment of a successor and the removal of an incumbent by notice thereof, is an incident of the transfer of title. (Embry v. United States, 100 U.S., 680.) Until notice of removal, the incumbent is entitled to the salary. (Cushing, August 30, 1853, 6 Op. Att.-Gen., 87.) Some of these general principles are adverted to only for the purpose of aiding in the decision of the question now requiring it. And it is only necessary now, to decide the question actually presented for decision. It is clear that the claimant's right to salary, as consul to Charlottetown, ceased June 30, and as consul at Valparaiso, commenced July 1st. The Revised Statutes provide that:

"SEC. 1691. No consul-general or consul shall be permitted to hold the office of consul-general or consul at any other consulate, or exercise the duties thereof."

Under this, the claimant, while holding the office of consul at Charlottetown, could not also hold the office of consul at Valparaiso. He could not be entitled to the salary of the latter office, prior to the time when he could by law be invested with the title thereto. He could not be, and was not, so invested, until July 1st, 1883. The Valparaiso consulate, like every other consulate, has a post of duty, and a territorial jurisdiction. (Rev. Stat., 1695.) The Revised Statutes provide as to salary, that:

"SEC. 1740. No ambassador, envoy extraordinary, minister plenipotentiary, minister resident, commissioner, chargé d'affaires, secretary of legation, assistant secretary of legation, interpreter to any legation or consulate, or consul-general, consul, or commercial agent, mentioned in Schedules B and C, shall be entitled to compensation for his services, except from the time when he reaches his post and enters upon his official duties to the time when he ceases to hold such office, and for such time as is actually and necessarily occupied in receiving his instructions, not to ex