The question considered as to what are "official services"
performed by consuls under the consular regulations of 1874 and
1881, prescribed by the President by virtue of the provisions of §
1745 of the Revised Statutes.
Fees collected by a consul for the examination of Chinese
emigrants going to the United States on foreign vessels, and fees
for certificates of shipment of merchandise in transit through the
United States to other countries, and fees for recording
instruments which are not official documents recorded in the record
books required to be kept by the consul, but relate to private
transactions for individuals not requiring the use of the consul's
title or seal of office, and fees for cattle disease certificates,
and fees for acknowledgments and authentications of instruments
certifying the official character and signatures of notaries
public, and fees for settling private estates, and fees for
shipping and discharging seamen on foreign-built vessels sailing on
the China coast under the United States flag are not moneys which
he is required to account for to the United States.
Fees collected by him for certifying extra copies of
quadruplicate invoices of goods shipped to the United States, and
money received for interest on public moneys deposited in bank, and
fees collected for certificates of shipments or extra invoices, and
fees for certifying invoices for free goods imported into the
United States are moneys which he is required to account for to the
United States.
The practice of consuls to do acts which are not official is
recognized by the statutes and the consular regulations.
The claimant had a judgment in the Court of Claims against the
United States for $13,839.21. Both parties appealed. The items of
the disallowance of which the claimant complained did not amount to
more than $3,000. But it was held that he could avail himself of
anything in the case
Page 133 U. S. 274
which properly showed that the judgment was not for too large a
sum, and this Court, disallowing one of the items allowed to him,
allowed one of the items disallowed and rendered a judgment in his
favor for a less amount than that rendered below.
These were appeals from a judgment in the Court of Claims in
favor of Mosby against the United States. The case is stated in the
opinion.
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
This is a suit brought in the Court of Claims by John S. Mosby
against the United States, claiming to recover the sum of
$29,180.01, moneys which he had received while he was consul of the
United States at Hong Kong, from February 4, 1879, to July 21,
1885, and had paid into the Treasury, the items composing the above
sum being as follows: (1) for examining Chinese emigrants departing
on foreign vessels for the United States, $5,147; (2) for
certifying extra copies or quadruplicate invoices, about $2,000;
(3) for certifying in voices for goods in transit through the
United States to other countries, $5,805; (4) for notarial and
clerical work, $644.01; (5) for services to foreign-built vessels
carrying the American flag, $584, and (6) for certifying invoices
for goods exported to the United States which were on the free
list, and for which no invoice was required by law as a condition
of entry, about $15,000.
The petition alleged that those fees were paid voluntarily to
the claimant by persons at whose request the services were
performed, and were turned by him into the Treasury because he did
not wish to involve himself in a controversy with the department as
long as he held a subordinate position in it, and because he was
compelled to obey its orders or be dismissed from office and
subjected to the imputation of appropriating money which did not
belong to him, and that he credited the
Page 133 U. S. 275
fees to the Treasury, relying on the good faith of the
government to restore to him whatever belonged to him on a final
settlement of his accounts.
The Court of Claims found the facts as follows:
"1. The claimant was consul of the United States at Hong Kong
from February, 1879, until July, 1885, and remained at his post
until the latter date, when he returned to the United States."
"2. During his term, he turned into the Treasury the sum of
$5,147 on account of fees collected for examining Chinese emigrants
going to the United States on foreign vessels. Of this sum,
$3,923.50 were collected prior to September 1, 1881, and $1,223.50
were collected between September 1 and December 31, 1881. Said fees
were voluntarily paid by the masters and charterers of said vessels
at whose solicitation the service was rendered, and were collected
in good faith by the consul."
"3. Soon after assuming charge of the consulate, to-wit,
February 21 and March 19, 1879, claimant informed the Department of
State that since the enactment of the law of February 19, 1862,
prohibiting the coolie trade in which American vessels had been
engaged, it had been the practice at Hong Kong to procure for
American and foreign vessels carrying Chinese passengers to the
United States a consular certificate of the fact that they were
free and voluntary emigrants. The claimant addressed said
communications to the State Department to establish that the fees
belonged to him, but paid into the Treasury, before receiving a
reply, the sum of $731.75. In reply to a claim that he, the consul,
was entitled to such fees, the Secretary of State replied in
substance that the fee is an official fee, and must be accounted
for to the Treasury."
"4. He gave written advice to the agent of the O. & O. S.S.
Co. at Hong Kong, to send steamships which were under the English
flag without a consular certificate for the Chinese emigrants, as
no law required it, and the agent declined to do so. A copy of his
letter to the said agent was forwarded to the State Department. It
does not appear that the department replied to his communication
accompanying said letter. "
Page 133 U. S. 276
"5. The
Bothwell Castle, an English steamship, sailed
from Hong Kong about January 6, 1882, carrying Chinese emigrants
without the usual consular certificate of examination, but with a
letter from the United States consul addressed to the collector at
San Francisco, explaining why the master did not have it. Said
vessel entered the port of San Francisco without trouble about
February 1, 1882; all other foreign vessels after that time ceased
to procure the said consular certificate. A copy of said letter to
the collector at San Francisco was forwarded to State Department,
but claimant did not receive a reply. All emigration fees collected
up to December 31, 1881, were turned into the Treasury."
"6. The sum of $633.25 was collected in January, 1882, for
examination of Chinese on foreign vessels, which was first credited
and then charged back to the Treasury, and a letter was written by
the claimant to the First Comptroller explaining that item in his
accounts. The Comptroller allowed the item as a proper charge."
"7. The charterers of foreign vessels who had paid these fees to
the consul afterwards applied to the Treasury to have them
refunded, which was refused by the Comptroller on the ground 'that
the collection of said fees was proper, and they should not be
refunded.'"
"8. The claimant, after his removal from office, claimed the
emigration fees from foreign vessels. His claim was also
disallowed. The fees collected subsequently to January 3, 1882,
were refunded by the consul to the parties who paid them. The
consul was not charged with the fees so refunded, or those he might
have collected if he had not declined to continue the practice of
examining Chinese emigrants on foreign vessels. The claimant
refused to collect fees after receiving from the State Department
notice that such fees must thereafter be accounted for as official
fees. Said notice, in the form of a letter from the department, was
dated on said date, and reached claimant in due course of
mail."
"9. The claimant paid into the Treasury the sum of $5,805 on
account of fees received by him for certificates of shipment
Page 133 U. S. 277
of merchandise in transit through the United States to other
countries."
"10. The claimant paid into the Treasury the sum of $1,592 for
certifying extra copies or quadruplicate invoices of goods shipped
to the United States. The said sum was collected by claimant before
the 1st day of September, 1881."
"11. He credited and paid to the Treasury $584 on account of
fees collected for shipping and discharging seamen on foreign-built
vessels sailing on the China coast under the United States flag. He
credited and paid into the Treasury $2,095 on account of invoices
certified by him for free goods imported into the United
States."
"12. The claimant credited and paid into the Treasury fees
aggregating $644.01, accruing as follows:"
(a) Recording instruments at various times,
between February 4, 1879, and December
31, 1880 . . . . . . . . . . . . . . . . . . . $ 39.29
(b) Cattle disease certificates, collected in
small items from time to time, between
February 4, 1879, and September
30, 1880 . . . . . . . . . . . . . . . . . . . 152.00
(c) Interest on deposits at the bank, (public
moneys deposited between February
4,1879, and June 30, 1882) . . . . . . . . . . 104.51
(d) Acknowledgments and authentications
of instruments, collected from time to
time in small quantities, between
February 4, 1879, and December 31, 1879,
certifying official character and
signature of notary public . . . . . . . . . . 48.00
(e) Certificates of shipments, or extra
invoices, collected during the December
quarter, 1881, $2.50 each. . . . . . . . . . . 292.00
(f) Five percent, commission on the
estate of Alice Evans, May, 1881 . . . . . . . 8.21
---------
$644.01
"13. The payment by the claimant of these several sums of money
into the Treasury was for the purpose of avoiding a controversy
with the department. Soon after the claimant was removed from
office, and before a final settlement of his accounts, he made a
demand that all fees now claimed be credited to him."
"14. At the request of claimant's counsel, the following facts
are also found: Said claimant wrote to the State Department, March
19, 1879, as stated in finding 3, in which communication he
informed said department that it had been
Page 133 U. S. 278
the habit of his predecessors to retain said fees as unofficial,
and asked to be instructed whether he, the claimant, was not
entitled to same. The said department replied as follows: 'It is
now deemed to be the more advisable course to prescribe the fee as
an official one to be accounted for to the Treasury.' In
instructions to said claimant dated August 26, 1879, the said
department instructed claimant that the fees for acts which the
consul is empowered, but not required by law, to perform and which
relate only to private transactions, are unofficial."
As conclusions of law, the court held that the claimant was
entitled to recover, for item 1 in the petition, $5,147; for item
3, $5,805; for items
b, d, and
f, in finding 12,
being part of item 4, $208.21; for item 5, $584; and, as a part of
item 6, $2,095. It rejected the claim of $1,592 for certifying
extra copies or quadruplicate invoices of goods shipped to the
United States, being the amount proved and found as to item 2, and
also items
a, c, and
e, in finding 12, amounting
to $435.80, being a part of the $644.01 in item 4. A judgment was
rendered for the claimant for $13,839.21, from which both parties
appealed. The opinion of the Court of Claims disposing of the
various matters involved is reported in 24 Ct.Cl. 1.
It is provided as follows by section 1745 of the Revised
Statutes:
"The President is authorized to prescribe from time to time the
rates or tariffs of fees to be charged for official services, and
to designate what shall be regarded as official services, besides
such as are expressly declared by law, in the business of the
several legations, consulates, and commercial agencies, and to
adapt the same, by such differences as may be necessary or proper,
to each legation, consulate, or commercial agency, and it shall be
the duty of all officers and persons connected with such legations,
consulates, or commercial agencies to collect for such official
services such, and only such, fees as may be prescribed for their
respective legations, consulates, and commercial agencies, and such
rates or tariffs shall be reported annually to Congress."
This section concerns itself wholly with "official services."
The tariffs of fees to be prescribed by the President from time
Page 133 U. S. 279
to time are those to be charged for "official services." The
President is to designate what are to be regarded as "official
services," in addition to such as are expressly declared by law.
The inhibition on consular officers as to the collection of fees is
only against the collection, for "such official services," of other
fees than the prescribed fees. It is not claimed by the United
States in this case that the fees sued for by the claimant fall
within the class mentioned in section 1745, of "such as are
expressly declared by law." The question for determination is
whether the fees collected by the claimant, and paid into the
Treasury, were fees for official services within the regulations
prescribed by the President under section 1745.
The claimant acted with propriety, and with a high sense of
honor, in paying the fees into the Treasury in order to avoid a
controversy with the department, and he asserted his right to have
the fees refunded to him by making a demand that they should be
credited to him in his accounts before such accounts were finally
settled. He did not concede the right of the government to retain
the fees, and his action was equivalent to a formal protest made at
the time of paying them over. As is said by Judge Weldon, speaking
for the Court of Claims in its opinion:
"Public officers [upon the question of their compensation and
the payment of money into the Treasury] are not bound, in order to
save their rights, to place themselves in antagonism to the
accounting officers of the department, suffer themselves to be
sued, and incur the odium, for the time, of being in default; but
have the right to pay into the Treasury the disputed moneys and
then seek the courts to adjust and determine their claims against
their superior and sovereign."
Nothing done in the present case can amount to an estoppel
against the claimant.
Part of the fees in question accrued while the consular
regulations of 1874 were in force and part under those of 1881.
These regulations must be considered in regard to each specific
item.
1. As to item (1), $5, 147, the facts relating to that item are
in findings 2 to 8, both inclusive. The consular regulations of
Page 133 U. S. 280
1874 were prescribed by the President on September 1, 1874, and
those of 1881 on May 1, 1881.
Paragraph 321, of the regulations of 1874, is as follows:
"321. All acts are to be regarded as 'official services' when
the consul is required to use his seal and title officially, or
either of them, and the fees received therefor are to be accounted
for to the Treasury of the United States. It is to be observed that
this paragraph uses the word 'required,' and does not say that all
acts are to be regarded as official services when the consul uses
his seal and title officially, or either of them."
Paragraph 333 of those regulations contains a tariff of fees for
107 different services, but none of them specifies the fee for an
examination of Chinese emigrants going to the United States on
foreign vessels.
Paragraph 489 of the regulations of 1881 reads as follows:
"489. All acts or services for which a fee is prescribed in the
tariff of fees are to be regarded as
official services,
and the fees received therefor are to be reported and accounted for
to the Treasury of the United States except when otherwise
expressly stated therein."
Paragraph 496 in those regulations says: "The following is the
revised tariff of official fees, prescribed by order of the
President, and to be observed by all consular officers." Among 106
items contained in that tariff, item 35 prescribes a fee of 25
cents for a certificate "to the examination required by § 2162 of
the Revised Statutes, for each emigrant." (Art. 21.)
Section 2162 of the Revised Statutes, in connection with section
2158, provides for a certificate to be signed by the consul of the
United States residing at the port from which any vessel
registered, enrolled, or licensed in the United States may take her
departure, carrying a subject of China, Japan, or any other
Oriental country, known as a "coolie," containing his name, and
setting forth the fact of his voluntary emigration from such port,
such certificate to be given to the master of the vessel, and not
to be given until the consul is first personally satisfied by
evidence of the truth of the facts therein contained. These
provisions do not refer to
Page 133 U. S. 281
foreign vessels. Article 21 of the regulations of 1881, referred
to in item 35 of paragraph 496, embraces seven paragraphs, and is
headed: "Duties as to American Vessels Engaged in the
Transportation of Chinese and other Emigrants," and the article
expressly states that the duties of the consul under it apply to
vessels of the United States. Article 18 of the regulations of 1874
is to the same purport as article 21 of the regulations of
1881.
Neither in the regulations of 1874 nor in those of 1881 is there
any designation, as an official service, of the examination of the
subjects of China, Japan, or any other Oriental country, known as
"coolies," carried as passengers on board of any vessel other than
a vessel registered, enrolled, or licensed in the United States.
Therefore the consul, in examining Chinese emigrants going to the
United States on foreign vessels, did not perform a service
required by law or by the regulations, or any service specified in
any tariff of fees, or any official service. The fees received for
such service, being paid voluntarily to the consul by the person to
whom it was rendered, became the private property of the consul,
and not the money of the United States. This view is not varied by
the fact that the person employed the consul to render the service
because he was consul, or by the fact that the consul attached his
seal as evidence of his official character, because he was not
required by any law or regulation to use either his seal or his
title of office officially, nor was any fee prescribed for the
service in any tariff of fees.
The practice of consuls to do acts which are not official is
recognized in several places in the consular regulations of 1874,
as in paragraphs 296 and 297, where it is stated that consuls are
at liberty to examine titles for their countrymen at home, "or to
do other services for them in a foreign land," "for a private
compensation, if it does not interfere with the performance of
their official duties;" in paragraph 308, the performing of
notarial acts; in paragraph 309, the taking the acknowledgment of
deeds, and the taking of depositions and affidavits, under the laws
of the states and territories of the union, for use as evidence in
such states and territories
Page 133 U. S. 282
respectively; in paragraph 310, the execution of a commission
for taking testimony under the authority of a state or territorial
tribunal, which function paragraph 311 states "is regarded as
outside of the regular duties and responsibility of a consular
officer," and in regard to which paragraph 312 states as
follows:
"It is to be understood that in such cases the consular officer
does not act in his quality of an agent of the federal government,
but simply as a citizen of the United States, whose local position
and character render him available to his fellow citizens for such
services as might have been rendered by a private individual. He
should make himself as useful as he can to his fellow citizens,
without giving offense to the government which gives him his
exequatur. But it must be understood in all such cases that he acts
as a private citizen, and that the government cannot in any way be
made responsible for his acts."
Like provisions are found in paragraphs 471 to 477 of the
consular regulations of 1881, and paragraph 478 of the latter
says:
"The compensation or fee of a consular officer for performing a
notarial service, executing a judicial commission, or letters
rogatory, or the unofficial services referred to in paragraphs 471,
472, and 475, is not an official, but a personal fee, for which he
is not responsible to the government as for official fees unless
the service, or a part of it, is one for which a fee is prescribed
in the tariff of fees. In that case, he must account to the
government for the fee prescribed in the tariff."
Section 1724 of the Revised Statutes makes a consul liable for
the omission to collect any fees "which he is entitled to charge
for any official service." By § 1726, it is made the duty of a
consular officer to "give receipts for all fees collected for his
official services;" by section 1727, to keep a fee book for the
registry of "all fees so received by him;" and by section 1728, to
render with his account of fees received a full transcript of such
register, and make oath that it contains
"a full and accurate statement of all fees received by him, or
for his use, for his official services as such consular officer,
during the period for which it purports to be rendered. "
Page 133 U. S. 283
It is quite clear, therefore, that the statutes and regulations
make a distinction between official and unofficial services
rendered by a consul. The allowance to the claimant of the item of
$5,147 was therefore proper.
2. The next item, but which was disallowed, is $1,592 for
certifying extra copies of quadruplicate invoices of goods shipped
to the United States, and which sum was collected by the claimant
before the 1st of September, 1881, and is covered by finding 10. It
is stated in the opinion of the Court of Claims that all such fees
paid after the regulations of 1881 took effect have been refunded,
and are not now in controversy.
Sections 2853 and 2855 of the Revised Statutes, as they stood
prior to the 1st of July, 1880, when the Act of June 10, 1880,
c.190, 21 Stat. 173, took effect, provided as follows:
"SEC. 2853. All invoices of merchandise imported from any
foreign country shall be made in triplicate, and signed by the
person owning or shipping such merchandise, if the same has
actually been purchased, or by the manufacturer or owner thereof,
if the same has been procured otherwise than by purchase, or by the
duly authorized agent of such purchaser, manufacturer, or
owner."
"SEC. 2855. The person so producing such invoice shall at the
same time declare to such consul, vice-consul, or commercial agent
the port in the United States at which it is intended to make entry
of merchandise, whereupon the consul, vice-consul, or commercial
agent shall endorse upon each of the triplicates a certificate,
under his hand and official seal, stating that the invoice has been
produced to him, with the date of such production, and the name of
the person by whom the same was produced, and the port in the
United States at which it shall be the declared intention to make
entry of the merchandise therein mentioned. The consul,
vice-consul, or commercial agent shall then deliver to the person
producing the same one of the triplicates, to be used in making
entry of the merchandise; shall file another in his office, to be
there carefully preserved, and shall, as soon as practicable,
transmit the remaining one to the collector of the port of the
Page 133 U. S. 284
United States at which it shall be declared to be the intention
to make entry of the merchandise."
Paragraph 491, of the consular regulations of 1874 reads as
follows:
"491. Consular officers will, on request of the proper
collectors, supply them, free of charge, with copies of any such
documents on file in their offices as they may need in the
discharge of their official duties. Copies prepared by other
persons for their own use will, on request, be certified on payment
of two dollars. When, however, duplicates of originals are required
or the copy is prepared by the consul, the schedule fee will be
exacted as for original service."
A like provision is found in paragraph 668 of the regulations of
1881.
By section 4 of the Act of June 10, 1880, before referred to, it
was provided that sections 2853 and 2855 of the Revised Statutes
should be so amended as to require that all invoices of merchandise
imported from any foreign country and intended to be transported
without appraisement to any of the ports mentioned in section seven
of that act should be made in quadruplicate, and that the consul,
vice-consul, or commercial agent, to whom the same should be
produced, should certify each of said quadruplicates under his hand
and official seal in the manner required by section 2855, and
should
"then deliver to the person producing the same two of the
quadruplicates, one to be used in making entry at the port of first
arrival of the merchandise in the United States and one to be used
in making entry at the port of destination, file another in his
office, there to be carefully preserved and as soon as practicable
transmit the remaining one to the collector or surveyor of the port
of final destination of the merchandise,
provided however
that no additional fee shall be collected on account of any service
performed under the requirements of this section."
By item 36 of the tariff of fees, in paragraph 333 of the
regulations of 1874, a fee of $2.50 is prescribed for a certificate
"to invoice, including declaration, in triplicate." Nothing is
there said as to a fee for a copy of an invoice, but in paragraph
491, before quoted, a fee of $2 is prescribed for a certificate to
a copy of a document on file in the office of a consular officer,
which would include an invoice. In the tariff of fees in
paragraph
Page 133 U. S. 285
496 of the regulations of 1881, in item 26, a like fee of $2.50
is prescribed for a certificate "to invoice, including declaration
in triplicate," and a like fee of $2 under paragraph 668 of the
regulations of 1881.
The charges which make up the $1,592 are manifestly for official
services, which can be performed only under the hand of the consul
and his seal of office to the certificate. As is said by the Court
of Claims:
"The act pertains to a duty specifically prescribed by the laws
of the United States and upon a tender of the fee the party making
application is entitled to have a certificate attached to the
instrument, if it is a copy of the document executed in triplicate.
The party being entitled to the certificate, it is the duty of the
officer to attach his official seal upon payment of the fees. This
is an official duty, and the emolument becomes an official
fee."
The item of $1,592 was therefore properly disallowed.
3. The item of $5,805, which was allowed, is covered by finding
9, and is for fees received for certificates of shipment of
merchandise in transit through the United States to other
countries. These were not the invoices referred to in sections 2853
and 2855 of the Revised Statutes, either as they originally stood
or as they were amended by the Act of June 10, 1880. The law did
not require the consul to issue those certificates; no provision
was made for a fee for them in the regulations of 1874 or in those
of 1881, and it does not appear that the regulations of the
Treasury Department required a consul to perform any duty in
relation to such goods. This item was therefore properly
allowed.
4. The next item, $644.01, relates to fees "for notarial and
clerical work," being six items covered by finding 12. Of these,
item
a, being fees collected for "recording instruments at
various times, between February 4, 1879, and December 31, 1880,
$39.29," was disallowed. This item was rejected by the Court of
Claims because it did not appear from the specification or proof
what was the character of the instruments recorded and because it
was therefore said to be impossible to determine whether the
recording came within the regulations of 1874 or those of 1881, and
because, for aught that
Page 133 U. S. 286
appeared, the instruments might have been those specially
provided for by the tariff of fees in the regulations.
But we think the Court of Claims erred in rejecting that item.
The fees accrued from February 4, 1879, to December 31, 1880, while
the regulations of 1874 were in force. Article 25 of those
regulations, headed "Record Books and Archives," in paragraphs 398
to 414, requires that a consul shall keep various books of records.
Of course the fees in question were not for keeping such record
books or for recording in them the instruments which were recorded
in them, because such instruments were all of them official
documents, and the fact that the item covers fees collected by the
consul for recording instruments and paid into the Treasury shows
that the recording did not relate to official instruments or to
official acts, but related to private transactions for individuals,
not requiring the use of the consul's title or seal of office. This
item should have been allowed.
Item
b, in finding 12, which was allowed, is for
"cattle disease certificates, collected in small items from time to
time, between February 4, 1879, and September 30, 1880, $152." It
was properly allowed, as there is nothing in the statutes or in the
regulations in relation to the duties or powers of a consul as to
"cattle disease," or certificates respecting the same.
Item
c, in finding 12, is: "Interest on deposits at the
bank -- public moneys deposited between February 4, 1879, and June
30, 1882, $104.51." This was disallowed, and we think properly. The
moneys are stated to be "public moneys," in respect to which the
consul was a trustee, and any interest which he received on the
funds belonged to the United States. He was not required to put the
funds out at interest, but if he did so, the accretion belonged to
the government.
Item
d in finding 12, which was allowed, is for
"acknowledgments and authentications of instruments, collected from
time to time in small quantities, between February 4, 1879, and
December 31, 1879, certifying official character and signature of
notary public, $48." These were not official services required by
statute or the regulations, and were rendered to
Page 133 U. S. 287
persons who requested their performance. The allowance of this
item was proper.
Item
e in finding 12, which was disallowed, is for
"certificates of shipments, or extra invoices, collected during the
December quarter, 1881, $2.50 each, $292." This disallowance was
proper for the reasons stated in regard to the item of $1,592.
Item
f in finding 12 is for "five percent commission on
the estate of Alice Evans, May, 1881, $8.21." This evidently was a
fee in the settlement of a private estate, and was properly
allowed. Thus, of the $664.01 in finding 12, items
a, b,
d, and
f are allowable, amounting in all to $247.50,
instead of $208.21 allowed by the Court of Claims.
5. The next item, and which was allowed, is $584 on account of
fees collected for shipping and discharging seamen on foreign-built
vessels sailing on the China coast under the United States flag,
and is covered by finding 11. The claimant insists that while he
had authority to perform those services, he was not required to do
so by any statute or regulation.
Paragraph 194 of the regulations of 1881 says:
"194. In the case of American or foreign-built vessels purchased
abroad and wholly owned by American citizens, it is known that the
crews are usually made up of men who are not American citizens and
who have not acquired the character of American seamen under the
law and as set forth in paragraph 199. Seamen of this class, when
not serving under a contract made in the United States, are not
regarded as within the jurisdiction of a consular officer as to
their shipment or discharge."
In paragraph 131 of the regulations of 1874, it is said that the
statutory authority of a consul to act in respect to the discharge
of seamen from a vessel of the United States clearing from a port
of the United States is limited to
"1st. The sale in a foreign country of a ship or vessel
belonging to a citizen of the United States. 2d. The discharge,
with his own consent, of a seaman or mariner, being a citizen of
the United States. 3d. A discharge after a survey of the vessel,
and finding the same unseaworthy. "
Page 133 U. S. 288
In the present case, what the consul did was to ship and
discharge seamen on foreign-built vessels sailing on the China
coast under the United States flag. It must be taken that these
seamen were not American citizens, and that the vessels did not
clear from a port of the United States so as to come within the
provisions of paragraphs 128, 129, 130, and 131 of the regulations
of 1874. The item of $584 was therefore properly allowed.
6. The next item allowed was one of $2,095 for certifying
invoices "for free goods imported into the United States," and is
covered by finding 11. This allowance seems to have proceeded upon
the view that the law did not require an invoice of goods which
were not subject to duty; that the consul had no official duty to
perform in respect to an invoice of such goods; that the service
was performed at the instance of the shipper, and for his
convenience; that the matter was one purely personal between the
consul and the party who paid the fee for the certificate, and that
as the government was not interested in the goods, the consul was
under no obligation to account to the United States for the
fees.
We think this view was erroneous. By section 2853 of the Revised
Statutes, "all invoices of merchandise imported from any foreign
country" are to be made in triplicate, whether the goods have
actually been purchased or have been procured otherwise than by
purchase. By § 2854, "all such invoices" are required, before the
merchandise is shipped, to be produced to the proper consul. By
section 2855, the person producing "such invoice" is to make a
specified declaration, and the consul is to endorse upon each of
the triplicates a specified certificate, and is to transmit one of
the triplicates "to the collector of the port of the United States
at which it shall be declared to be the intention to make entry of
the merchandise." By section 2860, it is provided that except as
allowed in the four preceding sections which do not apply to the
present question, "no merchandise imported from any foreign place
or country shall be admitted to an entry unless the invoice
presented in all respects conforms to the requirements" of sections
2853, 2854, and 2855, and has thereon the certificate of the consul
specified in those sections, nor unless the invoice is verified at
the time of making the entry, by a specified
Page 133 U. S. 289
oath, nor unless the triplicate transmitted by the consul to the
collector has been received by him. By section 2851, a consul is
entitled to demand and receive a fee of $2.50 for taking the
verification of an invoice and making the certificate. It is quite
clear, therefore, that there can be no entry without a properly
certified invoice.
By paragraph 462 of the regulations of 1874 and paragraph 637 of
those of 1881, "all invoices of importations from countries in
which there are" consular officers
"must, before the shipment of the merchandise, be produced to
and authenticated by the United States consular officer nearest the
place of shipment for the United States."
In addition to this, it is entirely clear that the question of
determining whether goods to be shipped will, when imported into
the United States, be free from duty is a question which could not
be left to the determination of a consul. It often involves
intricate points of fact and of law, and must be as wholly
cognizable by the proper officers and tribunals of the United
States, appointed for the purpose, as the question of the proper
rate of duty on dutiable goods.
The item of $2,095 was therefore improperly allowed.
It results, therefore, that the items to be allowed are $5,147,
$5,805, $247.50, and $584, being an aggregate of $11,783.50.
It is contended for the United States that the claimant has no
right to appeal in regard to the items which he claims were
improperly disallowed, because they do not in the aggregate amount
to more than $3 000. But we are of opinion that, as section 707 of
the Revised Statutes authorizes an appeal to this Court on behalf
of the United States from all judgments of the Court of Claims
adverse to the United States, and as the appeal by the United
States in this case is from the judgment of $13,839.21 in favor of
the claimant, it is competent for the claimant, as he also has
taken an appeal from that judgment, to avail himself of anything in
the case which properly shows that that judgment was not for too
large a sum.
The judgment of the Court of Claims is reversed, and the
case is remanded to that court, with a direction to enter a
judgment in favor of the claimant for $11,783.50.