If the question arising under section 1765 were one of first impression I would feel constrained to hold that Congress meant what it said, and that any public officer with a salary of $2,500 attached was prohibited from receiving any other pay than that attached to his office as compensation for the performance of any duty or service, although outside of the duties of the office he was holding when called upon or appointed to perform such other duties or services.

But the Supreme Court has taken a different view of these sections. In United States v. Winston, 170 U. S., 522 et seq., it is held that the boundaries of the office of the district attorney are the limits of his official duties, and if he is called upon by the Attorney-General to do professional duty and services for the Government outside of the limits of his district, and is allowed compensation therefor, he is entitled to receive the same if he has the certificate required by section 365 of the Revised Statutes.

There is no reason why the same conclusion would not have been arrived at if the employment had been made of the assistant district attorney instead of the district attorney himself. Neither section 1764 nor 1765 was referred to in said decision. The compensation allowed the district attorney by the Attorney-General in that case was specifically referred to by Justice Brewer, who prepared the opinion, as extra compensation. The opening sentence of the opinion is:

"Is a district attorney entitled to extra compensation for services rendered under direction of the Attorney-General in the conduct of a Government case in the court of appeals?" Further in the opinion he says:

"Whenever the Attorney-General calls upon a district attorney to appear for the Government in a case pending in the court of appeals, he is not directing him in the discharge of his official duties as district attorney, but is employing him as special counsel. The duties so performed are not performed by him as district attorney, but by virtue of the special designation and employment by the Attorney-General, and the compensation which he may receive is not part of his compensation as district attorney.'

This decision was handed down May 9, 1898. No mention is made therein, as before suggested, of the sections of the statutes, supra, prohibiting payments for extra compensation. It is not inferable that the Supreme Court in this case, and in the Garter case and Herron case, all decided on the same day,

would have rendered judgment against the United States for the amounts of compensation agreed upon by the AttorneyGeneral if payments of such compensation were prohibited by any of the statutes above referred to.

Sections 1763, 1764, and 1765 were before the Supreme Court for construction in the case of the United States v. Saunders, 120 U. S., 126 et seq., where it is said:

"We are of opinion that, taking these sections all together, the purpose of this legislation was to prevent a person holding an office or appointment, for which the law provides a definite compensation by way of salary or otherwise, which is intended to cover all the services which, as such officer, he may be called upon to render, from receiving extra compensation, additional allowances, or pay for other services which may be required of him either by act of Congress or by order of the head of his Department, or in any other mode, added to or connected with the regular duties of the place which he holds; but that they have no application to the case of two distinct offices. places, or employments, each of which has its own duties and its own compensation, which offices may both be held by one person at the same time. In the latter case he is, in the eve of law, two officers, or holds two places or appointments, the functions of which are separate and distinct, and according to all the decisions, he is in such case entitled to recover the two compensations. In the former case he performs the added duties under his appointment to a single place, and the statute has provided that he shall receive no additional compensation for that class of duties, unless it is so provided by special legislation.'

It is not difficult, bearing in mind this language, to understand why these statutes were not commented on in the Winston case, supra. The only difference between the Winston case and the one under consideration is that Winston was the district attorney and Mr. Pagin an assistant district attorney.

Following the decisions of the Supreme Court in these cases, in its construction of sections 1764 and 1765, supra, and especially section 1765, it must be held that the prohibition therein contained against a person holding an office from receiving extra or additional compensation, is only applicable to such extra or additional compensation for services or duties performed by him pertaining to the office which he holds or which may be added thereto and required of him as such officer, and does not attach to extra compensation allowed him for duties or services performed under an employment outside of the duties of his respective office or place.

The duties performed by Mr. Pagin for which the amount in question was allowed him by the Attorney-General were outside of his duties as assistant district attorney, and the performance of such duties did not constitute him an officer of the Government, and he is not prohibited from receiving compensation for the same by any of the respective statutes above referred to.

But, as held in United States v. Crosthwaite (168 U. S., 375), the certificate of the Attorney-General provided for in section 365 of the Revised Statutes is a prerequisite to the payment of this compensation.

Therefore the Auditor is authorized, this account being reopened, on the filing of such certificate to allow the disbursing officer credit for said sum of $390 disallowed in my former decision above set out, and to make the proper transfer of appropriation, as herein directed.

COMPUTING PAY OF TEACHERS IN THE DISTRICT OF COLUMBIA.

A person who was appointed a teacher in the public schools of the District of Columbia at $500 per annum, to take effect on September 26, 1904, which was after the commencement of the school year, is not entitled to pay prior to the date of his actual appointment

The provision in the act of April 28, 1904, for computing payments of annual or monthly compensation does not apply to teachers in the .public schools of the District of Columbia.

(Comptroller Tracewell to the Commissioners of the District of Columbia, December 10, 1904.)

By your reference, dated December 1, 1904, of a communication from the auditor of the District of Columbia, dated November 29, 1904, you request my decision of the questions. therein presented as follows:

"I have the honor to submit the following statement of facts involving a construction of the rules and regulations of the public schools with respect to the payment of the salaries of teachers, upon which, in my opinion, a decision of the Comptroller of the Treasury is desirable.

"Rule 25 of the rules for the government of public schools of the District of Columbia, prescribed by the board of education pursuant to law (act of June 6, 1900, 31 Stat., 565) is as follows:

"The salaries of all teachers duly elected, whose services commence with the school year and who shall perform their duties, shall begin on the 1st day of September, and shall be paid in ten monthly installments, the first to be made on the 1st of October, or as near that date as practicable. The salaries of other teachers shall begin when they enter upon their duties. The pay for a school day shall be the thirtieth part of the tenth part of the annual salary of the teacher.'

"By letter of September 27, 1904, the secretary of the board of education advised the Commissioners respecting certain changes affecting the pay rolls for the teachers of the public schools of the District of Columbia for the month of September, 1904.' At the end of the list of changes, as given in said letter, it is stated:

"The foregoing changes to take effect September 1, 1904, unless otherwise noted.'

"In said list the following notations occur:

"A. B. McLear appointed teacher at $500 per annum, to take effect September 26, 1904.'

"M. M. Marsden appointed teacher at $500 per annum, to take effect September 26, 1904.'

"Agnes Stewart appointed teacher at a salary of $500 per annum, to take effect September 26, 1904.'

"Under the construction placed upon the letter of the secretary of the board of education of September 27, 1904, considered in connection with rule 25 above quoted, the three teachers above-named were allowed salary from and including September 26, 1904, the date on which their appointments took effect, to the end of said month; that is, each of said teachers were allowed five days' salary in the month of September, or five-thirtieths of the full salary for one month. This allowance agrees with the charges on the pay roll as originally certified and submitted to this Office.

"Subsequently, vouchers in favor of each of the aforenamed teachers were transmitted to this Office, allowing to each the sum of $38.33, less the sum of $8.33 previously paid to each on the September pay roll, leaving a net balance of $30 due to each teacher.

"The sum of $38.33, credited to each teacher on the vouchers submitted, is arrived at by deducting from the full month's salary of $50 the sum of $11.67, being the amount of salary for seven days, said number of days being the difference between the 19th day of September, the date on which the public schools were opened, and the 26th day of September, the date on which the appointments of each of the aforenamed teachers took effect.

"In explanation of this allowance the secretary of the board of education states as follows:

"Your letter of the 21st instant, in reference to the vouch

ers of A. B. McLear, M. M. Marsden, and Agnes Stewart, teachers appointed, to take effect September 26, but for whom pay is asked for the full month of September, with the exception of the first seven school days which they did not teach, was considered by the board of education at the meeting held on Wednesday evening. It is true that the appointments were made to take effect September 26, because the schools were not opened until September 19, and it was impossible to complete the organization sooner by the appointment of these teachers to fill the vacancies. This, however, should not deprive them of what they are justly entitled to. All teachers who commenced work on September 19, the opening day of school, were paid from the 1st of September, and it is believed that the equity in the case demands that the salaries of the teachers named be deducted only for the time they did not teach, which would be seven-thirtieths of the salary due for said month, and it is so recommended by the board of education."

"Upon the facts presented I have the honor to recommend that the opinion of the Comptroller of the Treasury be requested as follows:

"(a) Whether the aforenamed teachers, whose appointments took effect on September 26, 1904, are entitled to pay only from and after that date, making an allowance of five days' salary to each for the month of September, 1904; or

(b) Whether the said teachers may be lawfully allowed salary for the full month of September, less the period of seven days intervening, between the 19th day of September, when the schools were opened, and the 26th day of said month, when the salary of each took effect."

The teachers who were appointed on September 26, 1904, were not teachers prior to the date of their appointment, and, therefore, they are not entitled to pay as teachers for any time prior to that date. Rule 25, prescribed by the board of education, quoted in the communication of the auditor of the District, supra, also provides that the salaries of teachers other than those whose services commence with the school year "shall begin when they enter upon their duties."

Under this rule, and which rule enters into and becomes a part of the employment of every teacher in the schools of the District, the salaries of such teachers who are not employed at the beginning of the school year, viz, September 1, shall only commence at the date they enter upon their duties as such teachers. The latter clause of the rule clearly fixes the amount a teacher shall receive for the remainder of the month 28007-Vol. 11-05-19