"Mr. E. P. Hanna, who held the position of solicitor in the office of the Judge-Advocate-General at the time the salary was increased in the act approved June 29, 1906, and who was continued as solicitor when the office of solicitor was established and separated from that of Judge-Advocate-General, died July 3, 1909.

"The decision of the Comptroller is requested as to whether the limitation contained in the naval act approved June 29, 1906, with regard to the position of solicitor in the office of the Judge-Advocate-General of the Navy applies to the position of solicitor in the office of the solicitor, Navy Department, authorized in the legislative act approved May 22, 1908, and continued in the legislative act approved March 4, 1909 (35 Stat., 883)."

The act of April 17, 1900 (31 Stat., 117), making appropriations for the legislative, executive, and judicial expenses of the Government for the fiscal year ending June 30, 1901, contains the following provision:

"JUDGE-ADVOCATE-GENERAL, UNITED STATES NAVY: For a solicitor, to be an assistant to the Judge-Advocate of the Navy, and to perform the duties of that officer in case of his death, resignation, absence, or sickness, two thousand five hundred dollars."

The above provision of the act of April 17, 1900, supra, was continued in the same terms in the annual legislative, executive, and judicial appropriation acts to and including the act of June 22, 1906, making appropriations for the fiscal year 1907, and I think may be regarded as permanent legislation. The act of June 29, 1906 (34 Stat., 555), making appropriations for the naval service for the fiscal year 1907 provided that:

"The solicitor in the office of the Judge-Advocate-General of the Navy shall hereafter receive an annual salary of four thousand dollars during the service of the present incum

bent."

The act of June 30, 1906 (34 Stat., 646), an act making appropriations to supply deficiencies in the appropriations for the fiscal year ending June 30, 1906, and for prior years, and for other purposes, provided:

"OFFICE OF JUDGE-ADVOCATE-GENERAL, UNITED STATES NAVY: For additional amount for salary of the solicitor, assistant to the Judge-Advocate-General, as provided in the naval appropriation act for the fiscal year nineteen hundred and seven, one thousand five hundred dollars.”

The act of February 26, 1907 (34 Stat., 969), an act making appropriations for the legislative, executive, and judicial expenses of the Government for the fiscal year ending June 30, 1908, and for other purposes, provided:

"JUDGE-ADVOCATE-GENERAL, UNITED STATES NAVY: For a solicitor, to be an assistant to the Judge-Advocate of the Navy, and to perform the duties of that officer in case of his death, resignation, absence, or sickness, four thousand dollars."

The act of May 22, 1908 (35 Stat., 218), an act making appropriations for the legislative, executive, and judicial expenses of the Government for the fiscal year ending June 30, 1909, and for other purposes, provided:

"OFFICE OF THE SOLICITOR: Solicitor, who shall perform the duties of the Judge-Advocate-General of the Navy in case of the death, resignation, absence, or sickness of that officer, four thousand dollars."

The act of March 4, 1909 (35 Stat., 883), an act making appropriations for the legislative, executive and judicial expenses of the Government for the fiscal year ending June 30, 1910, and for other purposes, provided:

"OFFICE OF THE SOLICITOR: Solicitor, four thousand dollars."

By the above statutes by a series of appropriations "For a solicitor, to be an assistant to the Judge-Advocate of the Navy, and to perform the duties of that officer in case of his death, resignation, absence, or sickness," extending from April 17, 1900, to June 29, 1906, the salary of that office was fixed at $2,500. By the latter act it was provided that “the solicitor in the office of the Judge-Advocate-General of the Navy shall hereafter receive an annual salary of $4,000 during the service of the present incumbent," and by the act of June 30, 1906, Congress appropriated $1,500 “for additional amount for salary of the solicitor, assistant to the JudgeAdvocate-General," as provided in said act of June 29, 1906.

I think it is clear that by the acts of June 29 and June 30, 1906, supra, Congress regarded the act of April 17, 1900, fixing the salary of the office of solicitor, as still in force, and that, while Congress was willing to grant an additional amount of $1,500 for salary" during the service of the (then)

present incumbent," it was not willing to appropriate more than $2,500 for salary for any other person.

In other words, construing together the statutes up to that time, the salary for the office when held by any other person than the incumbent thereof on June 29, 1906, should be $2,500, but so long as it should be held by the then "present incumbent " it should be $4,000.

In the next appropriation bill (act of February 26, 1907) for the year ending June 30, 1908, Congress appropriated $4,000" For a solicitor, to be an assistant to the Judge-Advocate of the Navy, and to perform the duties of that officer in case of his death, resignation, absence, or sickness." This was but a continuation of the acts of June 29 and 30, 1906, namely, $2,500 under the act of April 17, 1900, and $1,500 is added because of the act of June 29, 1906, making $4,000 to be paid to the solicitor "during the service of the present incumbent."

In the next appropriation bill (act of May 22, 1908) for the year ending June 30, 1909, the designation is, "OFFICE OF SOLICITOR: Solicitor, who shall perform the duties of the Judge-Advocate-General of the Navy in case of the death, resignation, absence, or sickness of that officer," and the words "to be an assistant to the Judge-Advocate of the Navy" are omitted.

In the next appropriation bill (act of Mar. 4, 1909) for the year ending June 30, 1910, the designation is "OFFICE OF THE SOLICITOR: Solicitor, four thousand dollars," and not only the words "to be an assistant to the Judge-Advocate of the Navy," but also the words " and to perform the duties of that officer in case of his death, resignation, absence, or sickness." are omitted. By the act of February 26, 1907, when the office was appropriated for under the title "JudgeAdvocate-General, United States Navy," and the acts of May 22, 1908, and March 4, 1909, when the office was appropriated for under the title "Office of the solicitor," the appropriations provided for clerks and messengers for the office.

Because some of the appropriation acts" for a solicitor" were made under the title in the appropriation bill of " Office of Judge-Advocate-General, United States Navy," or "Judge-Advocate-General, United States Navy," or "Office

of the solicitor," or because some of the acts specified that he was "to be an assistant to the Judge-Advocate of the Navy and to perform the duties of that officer in case of his death, resignation, absence, or sickness," while others only specified "who shall perform the duties of the Judge-AdvocateGeneral of the Navy in case of the death, resignation, absence, or sickness of that officer," while others wholly failed to specify his duties, or because the later acts provided for clerks or messengers for that office or officer while the former did not, do not, in my opinion, evince an intention on the part of Congress to create a new and different office than the one created by the act of April 17, 1900.

After the act of June 29, 1906, no reference is made to the act of April 17, 1900. If the act of April 17, 1900, is repealed, such repeal is by implication only. If it is not repealed, and the later acts above mentioned create a new office of solicitor, then the law provides for two solicitors with an appropriation for one and no appropriation for the other.

Offices created by Congress and not protected from interference by the Constitution may be abolished by Congress. The duties or compensation or both may be increased or lessened at the will of Congress. Whether the duties of "solicitor" are somewhat different or are increased or lessened from what they were under the act of April 17, 1900, does not appear, nor do I think it material to know; for if the duties were somewhat changed or increased or lessened, I do not think such fact would have the effect to abolish the office created by the act of April 17, 1900, or to create a new and different office. If Congress had intended to abolish the office as created by the act of April 17, 1900, or by the later acts mentioned to create a new office, I am of opinion it would have said so in plain and unmistakable terms.

Answering your question, I am of opinion that the limitations contained in the act of June 29, 1906, apply to the solicitor in the office of solicitor, Navy Department.

PER DIEMS OF COURT CRIERS.

When a crier attends in the United States circuit court presided over by a circuit judge and also attends in the United States circuit and district courts presided over by a district judge, both judges sitting at the same time and in different rooms in the same building, the payment to said crier of more than a single per diem for such attendance is prohibited by section 715, Revised Statutes. Comptroller Tracewell to J. M. Millikan, United States marshal, July 27, 1909:

I am in receipt of your letter of the 20th instant, as follows: "I have the honor to submit herewith claim of W. J. Gentry for services as crier for the United States circuit court, western district of North Carolina, at Asheville, N. C., which has been presented to me for payment.

"I have refused payment of this account because of the fact that he has been paid a per diem for each day covered by this account as crier in the circuit court, and I respectfully ask for an advance opinion as to the propriety of paying a second time for those days. The vouchers are in proper shape and in duplicate.

"The account heretofore paid covering same dates was for services as crier in the circuit court, presided over by Hon. J. C. Pritchard, United States circuit judge. The claim presented herewith is for services as crier in the circuit and district courts, and presided over by Hon. Wm. T. Newman, United States district judge.

"The sessions of court were held in the same building, but in different rooms."

Section 715, Revised Statutes, as amended by subsequent annual appropriation acts, authorizes the appointment of one crier and three bailiffs in the United States circuit court, and one crier and three bailiffs in the United States district court, except in the southern district of New York. Said section, as amended by the act of March 3, 1905 (33 Stat., 1259), provides that a per diem of $3 shall be paid to each of said criers and bailiffs for their services. Section 715 also expressly provides that:

"Such compensation shall be paid only for actual attendance, and, when both courts are in session at the same time, only for attendance on one court."

The above legislation prohibiting the payment of more than a single per diem to any crier or bailiff for attendance on the same day when both the circuit and district courts are in session at the same time was referred to in the case of