Attention is called to the fact that the fees of commissioners and notaries public are different in different divisions of the courts in the district of Alaska, the above schedules giving the amounts an officer is entitled to pay in each district.

I have the honor to advise you that fees for services in question should be charged under the foregoing regulations. The schedule of fees being somewhat lengthy is not set forth in detail herein. It is suggested that a copy of the regulations containing the same can be secured from the Attorney-General.

SALARIES OF CONSULS WHEN UNAVOIDABLY DELAYED FROM FORMALLY ENTERING UPON THEIR DUTIES AFTER RECEIPT OF THEIR EXEQUATURS.

When United States consuls have received their exequaturs, and adverse circumstances or obstacles arise which necessarily cause a delay in the consuls' formally entering upon duty, to which causes they in no way improperly contribute, they should, in contemplation of law, be considered in a pay status in practically the same manner as if they were still awaiting recognition and authority to act.

A United States consul, who has received his exequatur but is delayed four days from formally entering upon his duties by the refusal of his predecessor to turn the consulate over to him, although he exhausted every means considered by him proper to gain earlier possession of the office, is entitled to his salary for the said four days, payable from the appropriation "Salaries of consular officer while receiving instructions and in transit," contained in the act of March 2, 1909 (35 Stat., 674), notwithstanding the fact that his predecessor has received the regular salary as consul covering the four days' delay.

Decision by Comptroller Tracewell, March 30, 1910:

Andrew J. McConnico, United States consul at St. Johns, Quebec, appealed March 18, 1910, from the action of the Auditor for the State and other Departments in the settlement of his account for the quarter ended September 30, 1909, under the appropriation "Salaries, consular officers, while receiving instructions and in transit," wherein the Auditor, per certificate No. 5084, D. F. O., February 24, 1910, disallowed salary claimed by the consul for August 17, 18, 19, and 20, 1909, amounting to $22.22.

The Auditor disallowed the item in question upon the ground that the consul, having reached his post and having

received his exequatur, that is, his official recognition and authority to act, prior to August 17, was not entitled to salary for the four days enumerated because he did not actually take charge of the consulate and formally enter upon the duties of his office at his post until August 20.

The consul admits that he was present at his post August 17, 18, 19, and 20, and was in receipt of his exequatur on August 17, but explains that his predecessor refused to turn the consulate over to him until about noon on the 20th, although he exhausted every means considered by him proper to gain earlier possession of the office.

The consul's predecessor, Mr. Deal, appears to have remained in possession of the consulate and official archives, seals, papers, equipment, etc., and to have discharged the duties of consul until August 20, and has been paid the regular salary of the office up to and including that date, and, I am informed, is now out of the service.

It further appears in evidence that the consul, Mr. McConnico, on August 16 advised his predecessor, Mr. Deal, that he was ready to take charge and desired to enter upon his official duties at once, but the latter informed him that the official records would not be completed and in condition to turn over the consulate for a few days. On August 17 the office was closed, the keys were in Mr. Deal's possession, and the latter was out of town. On the 18th Mr. McConnico again made application to Mr. Deal for possession, "and went so far as to make an inventory of the government property, but Mr. Deal was still unprepared, so he stated." On the 19th demand for possession of the consulate was again made by Mr. McConnico, but without any better success. On the 20th Mr. McConnico "urgently and emphatically insisted" upon taking possession and "demurred positively," as he states, to any further procrastination on the part of Mr. Deal, who, "about noon" on that day, finally consented to transfer the consulate to Mr. McConnico, and the latter thereupon took formal charge and entered upon his official duties. In his appeal the consul further says:

"My contention is, that my predecessor had the keys, the fee-stamps, the consular seals, and everything appertaining to the consulate, and that it would have been a difficult mat

ter for me or any other man to have gained possession of the consulate at an earlier date without resorting to means which in all probability would not be commended."

The appropriation involved herein, to wit, "Salaries, consular officers, while receiving instructions and in transit," act of March 2, 1909 (35 Stat., 674), is in express terms applicable to the payment of salaries of consuls while receiving instructions, not to exceed thirty days, as provided by section 1740 of the Revised Statutes; also while in transit to their posts, and "while awaiting recognition and authority to act" after reaching their posts.

Upon the receipt by a consul of his exequatur, or permission to act, it is his duty, under paragraph 57 of the Consular Regulations of 1896, to "apply to the person having charge of the consular seals and public property of the office for their delivery to him," and it is also his duty to make “an inventory jointly with his predecessor" of the books and "other effects." Section 58 of the said regulations requires the consul to transmit to the Auditor "a certificate executed jointly by himself and his predecessor * * showing the date of actual entry on his duties," and also provides that "he may then take charge of the seals, archives, and property of the office." Under the latter section Mr. McConnico filed the following certificate with the Auditor:

"CONSULATE OF THE UNITED STATES AT

"St. John's, Quebec, August 20, 1909. "We certify, on this the 20th day of August, 1909, the services of Charles Deal ceased, and he is entitled to his salary, or fees, including said day; and that the services of Andrew J. McConnico commenced the day following, he having received the archives, a full and complete inventory having been made and forwarded to the Department of State, as required by paragraph 57 of the Consular Regulations.

"ANDREW J. MCCONNICO, U. S. Consul, "CHARLES DEAL, late U. S. Consul." It will be observed that while awaiting his exequatur a consul is entitled to be paid salary from the appropriation above mentioned, although he has not during such time actually entered upon his duties at the consulate. This appropriation is, therefore, one granted by Congress apparently

for the purpose, among other things, of compensating a consul after reaching his post and during the time he is necessarily compelled to await actual entry upon his official duties, that is, from the date he reaches his post to the time he takes charge of the consulate, provided any delay in entering upon his duties is not due to laches on his part.

I do not think the law contemplates that a consul upon arriving at his post in a foreign country shall be deprived of salary during a period that he is waiting and ready to take charge but is unable to actually enter upon the discharge of his duties by reason of adverse circumstances intervening, over which he has no control, and arising from extraneous causes, or attributable to the conduct of other officials. The law expressly provides for the payment of his salary "while awaiting recognition and authority to act," and while this provision particularly refers to the period while awaiting his exequatur, it is, nevertheless, apparent that the object of securing this exequatur is not fully accomplished until the consul is in a position to properly discharge his official duties, and I am constrained to hold that where adverse circumstances or obstacles arise which necessarily cause a delay in the consul's formally entering upon duty, and he does not in any improper way contribute to such causes, he should, in contemplation of law, be considered in a pay status in practically the same manner as if he were still awaiting recognition and authority to act. Any other construction would be extremely technical and would work an unwarranted hardship in the present case, and one I do not think is justified under the facts, the law, or the Consular Regulations. It is more reasonable to conclude that the spirit and intent of the law is that a consul, under the circumstances described, should be paid his salary and not deprived thereof.

In view of the above, I am of opinion that Mr. McConnico is entitled to salary for August 17, 18, 19, and 20, 1909, payable from the appropriation above mentioned. The action of the Auditor is therefore overruled and a certificate of differences in favor of the consul will issue accordingly.

MOUNTS OF ARMY OFFICERS WHEN DETAILED AT EDUCATIONAL INSTITUTIONS.

Cavalry and field artillery officers on the active list of the Army, below the grade of major, who are detailed at educational institutions, are required to be mounted during such detail within the meaning of the act of May 11, 1908 (35 Stat., 108), and if they provide suitable mount or mounts at their own expense they are entitled to the addition to their pay on that account and to the allowances for mounts as authorized by law. Decision by Assistant Comptroller Mitchell, March 31, 1910:

The Auditor for the War Department has submitted for approval, disapproval, or modification his decision of the 10th instant making an original construction of a statute as follows:

"In the examination of accounts of disbursing officers of the War Department, now under consideration in this office, the question arises as to the right of an officer of cavalry, or light artillery, below the grade of major, detailed for duty with educational institutions under the provisions of section 1225, Revised Statutes as amended, to the addition to his pay (including forage, shoeing, etc., for his authorized number of horses), as provided by act of May 11, 1908, when such officer provides himself with mounts at his own expense. The act of May 11, 1908 (35 Stat., 108), provides:

"That hereafter the United States shall furnish mounts and horse equipments for all officers of the Army below the grade of major required to be mounted, but in case any officer below the grade of major required to be mounted provides himself with suitable mounts at his own expense, he shall receive an addition to his pay of one hundred and fifty dollars per annum if he provides one mount, and two hundred dollars per annum if he provides two mounts.'

"In construing this act, in his decision dated August 21, 1909 (16 Comp. Dec., 110), the Assistant Comptroller, in the concluding paragraph of that decision, said:

"Upon the facts stated by the Auditor and as they are understood, viz, that Captain Tilford's assignment to duty is for service on a government transport, and that such assignment is not merely temporary, I do not think he is entitled to said addition to his pay any more than if he were a captain of infantry and had never been required to be mounted, and to hold otherwise would be a discrimination in favor of an officer of cavalry which is inconsistent with the purpose of said act, which is to equalize the pay of army officers of the several grades in all branches of the service."

"It therefore appears that the question of whether an officer of the Army is entitled to an addition to his pay for