B-11533, AUGUST 14, 1940, 20 COMP. GEN. 90

COMPENSATION - PRIOR TO ACCEPTANCE OF APPOINTMENT - UNITED STATES JUDGES A UNITED STATES DISTRICT JUDGE IS NOT ENTITLED TO THE SALARY OF HIS OFFICE FOR ANY PERIOD BEFORE THE DATE OF ACTUAL ACCEPTANCE OF HIS APPOINTMENT EITHER BY THE TAKING OF THE OATH OR OFFICE OR BY SOME OTHER SPECIFIC ACTION AFTER ISSUANCE OF THE COMMISSION.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, AUGUST 14, 1940:

I HAVE YOUR LETTER OF JULY 29, 1940, AS FOLLOWS:

HONORABLE ADRIAN J. CAILLOUET, UNITED STATES DISTRICT JUDGE FOR THE EASTERN DISTRICT OF LOUISIANA, CLAIMS COMPENSATION FROM THE DATE OF HIS APPOINTMENT AS DISTRICT JUDGE, NAMELY, APRIL 23, 1940, TO MAY 1, 1940, THE DAY WHEN HE TOOK THE OATH OF OFFICE, WHICH HAS BEEN TAKEN AS THE DAY FOR BEGINNING THE RUNNING OF THE COMPENSATION, PAYMENT OF WHICH HE HAS RECEIVED. THE FACTS IN THIS MATTER ARE AS FOLLOWS: FOLLOWING THE APPOINTMENT OF JUDGE CAILLOUET BY THE PRESIDENT AND THE CONFIRMATION OF THE APPOINTMENT BY THE SENATE, THE OFFICIAL COMMISSION WAS ISSUED TO JUDGE CAILLOUET DATED APRIL 23, 1940, AND WAS PHYSICALLY RECEIVED BY HIM APRIL 26, 1940. PRIOR TO THE CONFIRMATION OF THE APPOINTMENT BY THE SENATE, OCCURRING NECESSARILY PRIOR TO THE ISSUANCE OF THE COMMISSION TO JUDGE CAILLOUET ON APRIL 23, 1940, JUDGE CAILLOUET ADVISES THIS OFFICE THAT HE FORMALLY SIGNIFIED TO THE PRESIDENT HIS INTENTION TO ACCEPT THE APPOINTMENT IF THE NOMINATION WAS CONFIRMED BY THE SENATE; THAT IMMEDIATELY UPON SUCH CONFIRMATION JUDGE CAILLOUET CEASED THE PRACTICE OF LAW AND FREED HIMSELF FROM ALL INCONSISTENT RESPONSIBILITIES IN ORDER TO ENTER AT ONCE UPON THE PERFORMANCE OF HIS JUDICIAL DUTIES. THE VIEW OF JUDGE CAILLOUET IS THAT ACCEPTANCE OF THE JUDGESHIP HAD BEEN EVIDENCED BY HIM AT THE TIME OF THE ISSUANCE OF THE OFFICIAL COMMISSION, NAMELY ON APRIL 23, 1940, AND THAT IN CONSEQUENCE HE IS ENTITLED TO A SALARY PROVIDED FOR A UNITED STATES DISTRICT JUDGE FOR THE PERIOD FROM APRIL 23 TO MAY 1, 1940, FOR WHICH HE HAS NOT YET BEEN PAID. I APPEND TO THIS LETTER A LETTER FROM JUDGE CAILLOUET UNDER DATE OF JULY 11, 1940, STATING HIS CLAIM, AND ALSO A COPY OF THE NEWSPAPER KNOWN AS THE HOUMA DAILY COURIER, PUBLISHED IN HOUMA, LOUISIANA, IN WHICH JUDGE CAILLOUET HAD PRACTICED PRIOR TO HIS APPOINTMENT AS UNITED STATES DISTRICT JUDGE, CONTAINING A STATEMENT BY JUDGE CAILLOUET SUBMITTED BY HIM IN EVIDENCE OF HIS ACCEPTANCE OF THE POSITION OF UNITED STATES DISTRICT JUDGE AS EARLY AS THE DATE OF THE ISSUANCE OF HIS COMMISSION, NAMELY, APRIL 23, 1940.

I SHALL BE OBLIGED IF YOU WILL CAUSE A PREAUDIT TO BE MADE OF THE CLAIM OF JUDGE CAILLOUET AND WILL ADVISE ME WHETHER HE IS ENTITLED TO RECEIVE THE COMPENSATION OF A UNITED STATES DISTRICT JUDGE FOR THE PERIOD FROM APRIL 23 TO MAY 1, 1940, IN ADDITION TO THE SALARY ACCRUING ON AND AFTER THAT DATE.

THE STATEMENT OF JUDGE CAILLOUET DATED JULY 11, 1940, IS AS FOLLOWS:

WITH FURTHER REFERENCE TO THE SUBJECT MATTER OF MY OFFICIAL SALARY, IN VIEW OF:

ST. THE OPINION ON THE SUBJECT OF " TERM OF JUDICIAL SALARY," CONTAINED IN VOL. 7 OF THE " OPINIONS OF ATTORNEYS GENERAL," AT PAGE 303 ET SEQ; WHEREBY IT APPEARS THAT THE SALARY WAS AND IS DUE FROM THE MOMENT OF APPOINTMENT;

2ND. THAT I FORMALLY SIGNIFIED TO PRESIDENT ROOSEVELT MY INTENTION TO ACCEPT THE APPOINTMENT AS UNITED STATES DISTRICT JUDGE FOR THE EASTERN DISTRICT OF LOUISIANA, IF HIS NOMINATION WERE CONFIRMED BY THE SENATE;

THAT I DID ACTUALLY CEASE THE PRACTICE OF LAW IMMEDIATELY UPON SUCH CONFIRMATION, HAVING NO LONGER A GAINFUL OCCUPATION, AND MY SOLE CONCERN HAVING BEEN TO PLACE MYSELF IN READINESS TO OFFICIALLY QUALIFY AS SOON AFTER THE RECEIPT OF THE OFFICIAL COMMISSION EVIDENCING MY APPOINTMENT, AS IT WAS HUMANLY PRACTICABLE TO DO;

THAT I DID WIND UP, WITHIN LESS THAN A MONTH, AN ACTIVE PRACTICE OF LAW, IN WHICH I WAS ALONE ENGAGED, SO THAT I WAS ABLE TO QUALIFY ON MAY ST, OR WITHIN FIVE DAYS AFTER THE COMMISSION PHYSICALLY REACHED ME ON APRIL 26TH (THOUGH DATED APRIL 23RD);

AND THAT THE QUESTION OF MY ACCEPTANCE OF THE JUDGESHIP PRIOR TO MY TAKING THE OATH ON MAY ST, SEEMS TO BE THE SOLE QUESTION TO BE DETERMINED BEFORE PAYMENT OF THE SALARY FROM THE MOMENT THAT IT BECAME DUE, I.E., ON APRIL 23RD, 1940, CAN BE AUTHORIZED BY THE COMPTROLLER GENERAL,

I NOW SUBMIT, OVER AND ABOVE MY PRESENT STATEMENT OF FACTS, THE STATEMENT THAT I GAVE TO THE PRESS IMMEDIATELY FOLLOWING THE CONFIRMATION BY THE SENATE OF MY NOMINATION OF PRESIDENT ROOSEVELT, AND MUST ASK THAT YOU AUTHORIZE PAYMENT OF THAT PART OF MY OFFICIAL SALARY WHICH BECAME DUE FROM THE MOMENT OF MY APPOINTMENT, ON APRIL 23RD, 1940, AND FOR WHICH I AM YET TO RECEIVE REMITTANCE; MY SALARY PAYMENTS, AS YOU KNOW, HAVING BEGUN ONLY WITH MY TAKING THE OFFICIAL OATH, ON MAY ST, 1940.

I NEED NOT HERE REITERATE WHAT I HAVE SEVERAL TIMES WRITTEN TO YOUR OFFICE, I.E., THAT I, NATURALLY, DO NOT WANT TO MAKE CLAIM FOR, OR ACCEPT, ONE DOLLAR OVER AND ABOVE WHAT I AM LAWFULLY DUE, BUT AS THE MATTER NOW STANDS BEFORE ME, IT DOES SEEM THAT, BY EVERY TEST, IF THE SALARY BE DUE FROM THE MOMENT OF MY APPOINTMENT, THE SAME SHOULD BE SO PAID.

IT IS WELL SETTLED THAT OFFICERS APPOINTED BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, ARE ENTITLED TO COMPENSATION NOT NECESSARILY FROM THE DATE OF THE COMMISSION ISSUED BY THE PRESIDENT, BUT FROM THE DATE OF ACCEPTANCE OF THE APPOINTMENT AFTER THE ISSUANCE OF THE COMMISSION. IN OTHER WORDS, BEFORE COMPENSATION BECOMES PAYABLE IN SUCH CASES THERE MUST BE SOME AFFIRMATIVE ACTION ON THE PART OF THE NOMINEE TO SHOW HIS ACCEPTANCE OF THE APPOINTMENT AFTER THE ISSUANCE OF THE COMMISSION BY THE PRESIDENT; AND THE DATE ON WHICH SUCH AFFIRMATIVE ACTION IS TAKEN DETERMINES OR FIXES, AS A GENERAL RULE, AND IN THE ABSENCE OF STATUTORY PROVISION OTHERWISE, THE COMMENCEMENT OF THE OFFICER'S RIGHT TO SALARY. UNITED STATES V. FLANDERS ET AL., 112 U.S. 88; UNITED STATES V. EATON, 169 U.S. 331, 348.

THE SUBJECT MATTER OF THE OPINION OF THE ATTORNEY GENERAL REFERRED TO IN THE LETTER OF JUDGE CAILLOUET (7 OP. ATTY. GEN 303) WAS THE COMPENSATION PAYABLE TO COMMISSIONERS FOR THE SETTLEMENT OF PRIVATE LAND CLAIMS IN CALIFORNIA UNDER THE ACT OF MARCH 3, 1851, 9 STAT. 631, SECTION 17 OF WHICH PROVIDED " THAT EACH COMMISSIONER APPOINTED UNDER THIS ACT SHALL BE ALLOWED AND PAID AT THE RATE OF SIX THOUSAND DOLLARS PER ANNUM; * * * THE AFORESAID SALARIES TO COMMENCE FROM THE DAY OF THE NOTIFICATION BY THE COMMISSIONERS OF THE FIRST MEETING OF THE BOARD," WHICH WAS AMENDED BY A LATER ACT OF MARCH 3, 1853, 10 STAT. 208, TO PROVIDE THAT "THERE SHALL BE PAID EACH COMMISSIONER * * * THE SUM OF EIGHT THOUSAND DOLLARS, IN LIEU OF THE COMPENSATION HERETOFORE ALLOWED.'

ASIDE FROM THE QUESTION OF THE DATE ON WHICH THE AMENDMENT INCREASING THE RATE OF COMPENSATION BECAME EFFECTIVE, THERE WAS CONSIDERED IN THE OPINION THE QUESTION OF THE BEGINNING DATE OF THE SALARY OF A COMMISSIONER APPOINTED AFTER THE FIRST MEETING OF THE BOARD.

IN A DISCUSSION OF THE MATTER THE OPINION SPECIFICALLY RECOGNIZED:

* * * 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.

WITH RESPECT TO JUDICIAL SALARIES THE OPINION STATES, PAGE 307, THAT:

THE FIRST ACT MAKING PROVISION FOR THE COMPENSATION OF THE JUDGES OF THE SUPREME COURT AND OTHER COURTS OF THE UNITED STATES, ENACTS EXPRESSLY THAT THEY SHALL RECEIVE PAY FROM THE TIME OF THEIR APPOINTMENT (ACT OF SEPTEMBER 23, 1789, I STAT. AT LARGE, P. 72).

SOMETIMES, IN SUBSEQUENT ACTS OF THIS CLASS, THE SAME ENACTMENT IS REPEALED (REPEATED). ( SEE FOR EXAMPLE, V. STAT. AT LARGE, P. 51; IBID. P. 62; IBID. P. 788; IX STAT. AT LARGE, P. 522.) IN OTHER CASES, THE LAW SAYS NOTHING ON THE SUBJECT. (SEE FOR EXAMPLE, II STAT. AT LARGE, P. 100; IBID. P. 421.) BUT ALL THE ACTS ON THIS SUBJECT, BEING IN PARI MATERIA, ARE TO BE CONSTRUED TOGETHER AS A WHOLE; AND WHETHER THE DATE OF COMMENCEMENT OF A JUDICIAL SALARY BE MENTIONED IN A STATUTE OR NOT, IF NOTHING TO THE CONTRARY BE SAID THEY MUST BE HELD IN LAW AS COMMENCING WITH THE DATE OF APPOINTMENT.

THESE STATEMENTS IN THE OPINION MAY HAVE BEEN THE BASIS FOR THE STATEMENT IN THE FOURTH PARAGRAPH OF THE SYLLABUS 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.' IT IS NOT SO CLEAR, HOWEVER, FROM THE OPINION AS A WHOLE THAT SUCH STATEMENT IN THE SYLLABUS IS AN ACCURATE STATEMENT OF WHAT THE OPINION HELD IN THIS RESPECT --- PARTICULARLY IN VIEW OF THE PARAGRAPH, PAGE 310, OF THE OPINION IN WHICH IT IS SAID:

THE NEW PROVISIONS IN THE CASE OF OREGON, WASHINGTON, KANSAS, AND NEBRASKA, ARE SUGGESTIVE OF A THOUGHT, WHICH IT SEEMS REASONABLE TO APPLY TO ALL JUDICIAL OR OTHER SALARIES PAYABLE FROM THE DATE OF APPOINTMENT, TO WIT, THAT THE PARTY SHALL HAVE ENTERED UPON THE DUTIES OF HIS OFFICE, OR AT LEAST HAVE TAKEN HIS OFFICIAL OATH, BEFORE HE CAN CLAIM PAYMENT OF SALARY; BECAUSE, UNTIL HE DOES THAT, HE IS NOT ACTUALLY IN OFFICE.

AS HERETOFORE STATED, THE SUBJECT MATTER OF THE OPINION WAS NOT THE SALARY OF JUDGES OF COURTS OF THE UNITED STATES BUT OF CERTAIN COMMISSIONERS UNDER A SPECIFIC ACT OF CONGRESS, SO THAT AT BEST THE OPINION EXPRESSED THEREIN WITH RESPECT TO JUDICIAL SALARIES IN GENERAL MUST BE CONSIDERED A DICTUM. FURTHERMORE, THERE IS NOTHING IN THE OPINION WHICH WOULD WARRANT THE CONCLUSION THAT THE SALARY OF A JUDICIAL OFFICE SHOULD BEGIN FROM THE DATE OF AN UNACCEPTED APPOINTMENT. ON THE CONTRARY, IT SEEMS APPARENT FROM THE OPINION AS A WHOLE THAT THE TERM "APPOINTMENT" AS USED THEREIN MEANT AN APPOINTMENT FULLY COMPLETED BY THE ACCEPTANCE THEREOF.

SUCH VIEW OF THE MATTER APPEARS TO BE SUPPORTED BY THE PRACTICE WHICH HAS BEEN FOLLOWED SINCE THE OPINION IN QUESTION OF PAYING THE SALARIES OF JUDGES OF THE SUPREME COURT AND OF OTHER COURTS OF THE UNITED STATES FROM A DATE ON OR SUBSEQUENT TO THE DATE OF APPOINTMENT-- AFTER CONFIRMATION--- ON WHICH THE OFFICE WAS ACCEPTED BY THE TAKING OF AN OATH OR OFFICE OR BY SOME OTHER SPECIFIC ACTION AFTER ISSUANCE OF THE COMMISSION. IN THIS CONNECTION ATTENTION IS INVITED TO DECISION OF A FORMER COMPTROLLER OF THE TREASURY (19 COMP. DEC. 126) IN WHICH IT WAS HELD THAT---

WHERE A UNITED STATES DISTRICT JUDGE HAS BEEN COMMISSIONED, QUALIFIED, AND ENTERED UPON THE DUTIES OF HIS OFFICE BY TRANSACTING ADMINISTRATIVE BUSINESS OUTSIDE OF HIS DISTRICT, HE IS ENTITLED TO THE SALARY OF HIS OFFICE NOTWITHSTANDING HE HAS NOT ENTERED UPON HIS STRICTLY JUDICIAL FUNCTIONS.

IN THAT CASE THE NOMINATION OF THE JUDGE WAS CONFIRMED BY THE SENATE FEBRUARY 20, 1912, AND AFTER THE ISSUANCE OF HIS COMMISSION AS JUDGE FOR THE DISTRICT OF NEW MEXICO, HE TOOK THE OATH OF OFFICE ON FEBRUARY 23, 1912, WHILE IN WASHINGTON, D.C., AND IMMEDIATELY ASSUMED THE DISCHARGE OF ADMINISTRATIVE DUTIES TO THE EXTENT OF CONDUCTING OFFICIAL CORRESPONDENCE, ETC., ALTHOUGH HE DID NOT EXERCISE JUDICIAL FUNCTIONS UNTIL HE RETURNED TO NEW MEXICO A FEW DAYS LATER, HIS FIRST JUDICIAL ACT APPARENTLY HAVING BEEN PERFORMED ON MARCH 1, 1912. IT WAS HELD BY THE COMPTROLLER OF THE TREASURY IN THAT CASE THAT THE JUDGE WAS ENTITLED TO HIS SALARY FROM FEBRUARY 23, 1912, THE DATE ON WHICH HE TOOK THE OATH OF OFFICE IN WASHINGTON AND ASSUMED THE OFFICE OF JUDGE.

THE FACT THAT JUDGE CAILLOUET SIGNIFIED HIS INTENTION TO ACCEPT THE OFFICE WHEN HIS NOMINATION WAS CONFIRMED BY THE SENATE AND THEREFORE THE COMMISSION WAS ISSUED DOES NOT CONSTITUTE ACCEPTANCE OF THE COMMISSION OR APPOINTMENT AFTER THE ISSUANCE OF THE SAME. THERE IS AN ESSENTIAL DIFFERENCE BETWEEN ANNOUNCING AN INTENTION TO ACCEPT AND AN ACTUAL ACCEPTANCE. IT APPEARS FROM HIS OWN STATEMENT IN THE LETTER OF JULY 11, 1940, THAT HE DID NOT QUALIFY FOR OR ENTER UPON THE DUTIES OF THE OFFICE UNTIL MAY 1, 1940, WHEN HE TOOK THE OATH OF OFFICE, HIS LETTER STATING " THAT I DID WIND UP, WITHIN LESS THAN A MONTH, AN ACTIVE PRACTICE OF LAW, IN WHICH I WAS ALONE ENGAGED, SO THAT I WAS ABLE TO QUALIFY ON MAY ST, OR WITHIN FIVE DAYS AFTER THE COMMISSION PHYSICALLY REACHED ME ON APRIL 26TH.' AS DISCLOSED BY THE RECORD JUDGE CAILLOUET WAS ENGAGED IN THE PRACTICE OF LAW AT THE TIME OF HIS APPOINTMENT, AND IT MAY BE HE FELT THAT IT WOULD NOT BE PROPER FOR HIM TO ACCEPT THE APPOINTMENT OR OFFICE OF JUDGE UNTIL HIS ACTIVE PRACTICE OF LAW WAS ENTIRELY WOUND UP. BUT, WHATEVER MAY HAVE BEEN THE REASON, THE FACT APPEARS TO BE THAT HE DID NOT TAKE THE OATH OF OFFICE, ENTER UPON DUTY OR OTHERWISE ASSUME THE OFFICE OF JUDGE UNTIL MAY 1, 1940. THEREFORE, PAYMENT OF SALARY TO JUDGE CAILLOUET FOR ANY PERIOD PRIOR TO MAY 1, 1940, IS NOT AUTHORIZED.