purposes for which he was required to return to the United States, and that, while he so remained here for such purposes and by such authority, he was not "absent from his post" within the meaning of section 1742 of the Revised Statutes, and, hence, by reason of such absence, did not lose his right to salary. That case is to be understood with reference to the facts upon which it was decided. Absence from a post means a temporary vacation; and a post or place cannot be vacated, unless it has been occupied. If a "diplomatic or consular officer" can remain in the United States upon salary after the instruction-period, and prior to making transit, it renders a portion of the statute null and void. The statute, which gives a right to salary, is to be construed to effect its object, rather than by its exact words. Its purpose is, to prohibit payment of salary to a diplomatic or consular officer absent, by leave or otherwise, beyond the term of sixty days in one year, when he was not performing service as such officer. It is not designed to deny salary to a diplo matic or consular officer, who, after having entered on duty, continues thereon, wherever he may be required by the President to go. Its sole object is, to prevent absence from duty-not absence from place. It would be a most inconvenient and dangerous doctrine, to hold that absence from place would deprive a diplomatic officer of the right to his salary. Any doubt as to the construction of the statute is, on principle, and on reasons of public policy, to be decided in favor of the officer, and so in favor of the payment of salary. (Utah District Attorney's case, 3 Lawrence, Compt. Dec., 122.)

Under the Constitution, the President has authority, "by and with the Advice and Consent of the Senate," to "appoint Ambassadors, other public Ministers and Consuls," &c. (Const. United States, Art. II, sec. 2, par. 2). This power cannot be taken away by statute (Cushing, May 25, 1855, 7 Op. Att. Gen., 189; 2 Story, Const., § 1524). But Congress can by statute prescribe the conditions upon which salaries shall be paid. And even if the President may, under the Constitution, appoint a minister without reference to a particular place of foreign service, yet Congress can, for the purpose of paying salary, if for no other purpose, fix a place where the official service of a minister shall commence, and make the payment of salary dependent on such commencement of foreign service. And all this has been done by the statute, which declares, that "no minister * shall be entitled to compensation for his services, except from the time when he reaches his post and enters upon his official duties," besides that for the time occupied in receiving instructions, and "in making the direct transit" to "his post of duty." And the statute establishes foreign posts of duty for certain diplomatic officers respectively named in section 1675 of the Revised Statutes, at which posts duty must be entered upon as a condition precedent to the payments of the regular salaries. It is not doubted but that the President may require a "diplomatic officer" to remain in the United States for official purposes beyond the period

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of thirty days employed in receiving instructions. Such officer is simply the diplomatic representative or agent of the President, and so, necessarily, like any general agent, is subject to the control of his principal. But the right to salary is dependent on the statute.

The claimant is not entitled to compensation for the thirty-two days he was detained in the United States after the period of thirty days during which he was receiving instructions had expired.

TREASURY DEPARTMENT,

First Comptroller's Office, August 2, 1883.

IN THE MATTER OF THE RIGHT OF A MARSHAL TO A FEE OF "TWO DOLLARS A DAY," FOR ATTENDING BEFORE A COMMISSIONER OF THE CIRCUIT COURT, WHEN THERE IS NO EXAMINATION OF A CRIMINAL CHARGE, BUT ONLY A CONTINUANCE THEREOF TO A SUBSEQUENT DAY.-MARSHAL'S ATTENDANCE CASE.

1. A marshal of the United States is entitled to a fee of "two dollars a day," for the services of himself and "each deputy, not exceeding two," in "attending examinations [of criminal charges] before a commissioner [of the circuit court], and [in] bringing in, guarding, and returning prisoners charged with crime"; and for the usual services incident to a trial or trials.

2. The marshal is not entitled to the fee of "two dollars a day," for attending before a commissioner of the circuit court, when there is no examination of a criminal charge, but only a continuance thereof to a subsequent day.

Sections 823 and 829 of the Revised Statutes provide that:-"The following and no other compensation shall be taxed and allowed to marshals, *

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For attending examinations before a commissioner [of the circuit court], and bringing in, guarding, and returning prisoners charged with crime, and witnesses, two dollars a day; and for each deputy not exceeding two, necessarily attending, two dollars a day."

Deputy marshals are not technically officers, but are employés of the marshal, who is paid for their services. (Rev. Stat., 780, 841.)

The question is presented to the First Comptroller for his decision thereon-whether a marshal is entitled to a fee of "two dollars a day," when his deputy attends before a commissioner of the circuit court, or brings in before such commissioner, guards, and returns a prisoner confined in jail, and there is no examination of a criminal charge, but the hearing thereof is continued to a subsequent day.

DECISION BY WILLIAM LAWRENCE, First Comptroller.

Section 847 of the Revised Statutes provides that each commissioner shall be entitled to receive, "for hearing and deciding on criminal charges, five dollars a day for the time necessarily employed."

It has been decided that a "commissioner is not entitled to a per diem fee merely for the continuance of the hearing of a criminal charge by reason of the absence of witnesses, or for other cause." (Commissioners' Per Diem Case, 3 Lawrence, Compt. Dec., 268.) This decision is correct, and is affirmed.

Section 829 of the Revised Statutes gives a marshal the right to a fee of "two dollars a day" for his services, or those of his deputy, in "attending examinations before a commissioner, and bringing in, guarding, and returning prisoners charged with crime."

When a prisoner confined in jail on a criminal charge is brought in before a commissioner for trial, and is guarded and returned to jail without trial, the marshal is not entitled to the fee of "two dollars a day." This fee is not given for attending at a postponement or continuance of a case; but, (1) for attending at the trial of the case, (2) for bringing in, guarding, and returning the prisoner, and (3) for guarding and calling witnesses and performing the usual services incident to such trial. A postponement of the examination of a charge is not an examination of the charge.

The theory of the law is, that a trial or examination of a criminal charge, will generally consume most of the time for one or more days, while the consideration and decision of a motion for postponement will generally occupy but little time. And when a postponement occurs, and the accused is actually committed to jail, the practice has been to allow the marshal a fee of two dollars for serving the warrant to commit, and fifty cents for commitment (Rev. Stat., 829). If in case of postponement the accused is released on bail, the marshal has a fee of fifty cents for the discharge. His compensation is thus provided for in such case. When a prisoner is in custody of the marshal for one or more days during a trial, no fee is allowed for any warrant of commitment, nor for service in committing (Rev. Stat., 1030). The per diem compen. sation during an examination is all the marshal is entitled to receive.

The marshal is entitled to the fee of "two dollars a day," when the person charged has not been committed to jail, if all the other services mentioned are performed on an examination of the charge by the commissioner.

The accounts of marshals will be settled on the principles stated. TREASURY DEPARTMENT,

First Comptroller's Office, August 4, 1883.

IN THE MATTER OF THE AUTHORITY OF AN AGENT WHO, BY VIRTUE OF A POWER OF SUBSTITUTION, HAS APPOINTED A SUBSTITUTE.— AGENT'S SUBSTITUTION CASE.

1. When a power of attorney authorizes an agent to do certain specified acts, and to substitute any proper person to perform them, the power of the agent to do such acts ceases upon the appointment of the substitute, and only the latter can act as agent, until his authority is revoked by the principal.

2. The power of a principal, to revoke the appointment of his agent, generally exists by implication from the authority to appoint.

3. The doctrine, that a power of appointment to an agency carries with it by implication a power of removal and reappointment ad libitum, applies only to the principal or original appointing power, and not to an agent with a special and limited power of substitution.

4. An agent with a simple power of substitution exhausts his power, and is functus officio, when he appoints a substitute.

5. In such case, the agent can no longer act himself, nor can he revoke the appointment of a substitute or appoint another.

6. A power of attorney may, by express provision, give an agent authority to act after his appointment of a substitute, and may expressly authorize him to revoke the power of a substitute and to appoint others in his discretion.

July 23, 1883, the Barber Asphalt Paving Company, a West Virginia corporation, adopted the following resolution:

"Resolved, That Amzi L. Barber, the President of The Barber Asphalt Paving Company, be, and he is hereby, authorized to indorse and collect for and on behalf of that Corporation any draft or check drawn by the Commissioners of the District of Columbia on the United States Treasury, [and] issued in payment of any claim or demand of the said corporate body, to receive and receipt for the same, or any moneys payable by reason of such draft, and to do all things necessary under the laws of the United States or under any regulation in this regard; and further, that he be, and is hereby, authorized, for the purpose of such indorsement, receipt, and collection, to substitute any proper person, in writing under the corporate seal, as Attorney-in-fact for him and for and in behalf of the said corporate body, and that the acts of such person in such regard shall have the same force to bind the said corporate body as if such indorsement and collection were made by the said President, under this authority, or in his official capacity."

July 24, 1883, A. L. Barber executed, in due form, under the corporate seal of said corporation, a power of attorney, saying:

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"That I, Amzi L. Barber *, do hereby make, constitute, and appoint Joseph Paul, * *, the true and lawful attorney for said Corporation, authorizing him to endorse for it, all checks or drafts drawn by the Commissioners of the District of Columbia on the Treasurer of the United States; and the said Attorney is also authorized to receive and receipt for the money or drafts aforesaid, and to do everything whatsoever necessary, under the statutes or regulations, as fully as I could do if personally present, hereby ratifying and confirming, for and in behalf of the said Corporation, all that may be done by said Attor ney by virtue hereof."

The First Comptroller is asked for an opinion on the questionwhether A. L. Barber may now indorse and collect the drafts drawn by the Commissioners of the District of Columbia, on the Treasurer of the United States in payment of any claim or demand of the said corporation? See act June 20, 1874 (18 Stat., 116, 117); act February 27, 1877, (19 Stat., 249); act June 11, 1878 (20 Stat., 103-105, secs. 3, 4); act March 3, 1879 (20 Stat., 410); act March 3, 1883 (22 Stat., 470); Rev. Stat., 3620; 15 Op. Att.-Gen., 288, 303; 1 Lawrence, Compt. Dec., 2nd ed., App., ch. xv, 631; Op. Att.-Gen., June 29, 1883; Annual Report First Comptroller of October 20, 1882; District Commissioners' case, ante, 388; Story, Agency, 3d ed., §§ 468, 475, 499; Story, Bailments, 4th ed., § 207; Pothier, de Mandat, n., 118; 1 Domat, Civil Law, B 1, tit. 15, sec. 4, art. 1, by Strahan; Hunt v. Rousmanier, 8 Wheat. 201.

OPINION BY WILLIAM LAWRENCE, First Comptroller.

A statement of some well-settled principles may aid in the solution of the question presented for consideration.

A power of attorney with a power of substitution therein, like every written instrument, is to be so construed as to give effect to the intention of the parties thereto (Wharton, Agency, 221, 223; Story, Agency, § 67; Brown and Company v. M'Gran, 14 Pet., 479). This intention is to be ascertained from the words employed, from such surrounding circumstances as by the rules of construction may be properly considered, and by the rules of interpretation specially applicable to such power. Powers of attorney are also to be somewhat strictly construed (Morrell v. Frith, 3 Mee. and W., Ex., 402; Neilson v. Harford, 8 Id., 806; Withington v. Herring, 5 Bing., 442; Wood v. Goodridge and another, 6 Cush., 117; Bouvier, Law Dic., Tit. Power of Attorney; Very v. Levy, 13 How., 345; Ferreira v. Depew, 17 How., N. Y., Prac., 418; Wharton, Agency, 214). A party who executes a power of attorney may insert therein a power of substitution (Berger v. Duff, 4 Johns., Ch., 368), and may expressly give to the original and the substituted agent, each, a continuing authority to execute such power of substitution. It has been held, that a power to two persons, named as "the attorney or attorneys" of the principal, is a joint power to both, and a several power to each (Greenleaf's Lessee v. Birth, 5 Pet., 131). The principal may at any time revoke a power, unless it be executed on a sufficient consideration, or be coupled with an interest (Wharton, Agency, 94-97). The power now under consideration is revocable by the principal. An agent charged with a duty requiring the exercise of discretion and judgment, or one appointed by reason of his peculiar aptitude in the service required, cannot, without express authority, depute his power to a substitute (2 Kent, Comm., 633; Wharton, Agency, 28, 276, 579, 645, 709, 756). But an agent may, without express authority, appoint a substitute in those cases (1) where the custom of business sanctions such