When a consul of the United States, in his regular accounts and
settlements with the Treasury, charges himself with fees received
by him as consul for which he is not obliged to account, and pays
the same into the Treasury with each settlement, and retires, and
makes his final settlement with the Treasury on the same basis, he
cannot, in an action commenced in the Court of Claims three years
after his retirement, recover back such payments, but they will be
regarded as wholly voluntary payments.
The case is stated in the opinion.
Page 168 U. S. 274
MR. JUSTICE PECKHAM delivered the opinion of the Court.
The Court of Claims in this case gave judgment in favor of the
appellee upon these facts: Thomas B. Van Buren, a citizen of the
United States, was appointed consul general of the United States at
the port of Yokohama, Japan, and held office from June, 1874, until
June, 1885. While at Yokohama, Mr. Van Buren received fees for
certifying invoices of merchandise shipped from that port through
the United States in bond to foreign countries, amounting to the
sum of $4,115, which fees were paid into the Treasury of the United
States, under the rules, regulations, and requirements of the
Departments of State and Treasury, requiring fees to be so
accounted for and paid to the United States. There were 1,646 of
these invoices. Of the merchandise so shipped, that covered by 523
of the invoices was stopped in transit for consumption in the
United States, without further consular certificates, and the
declarations or invoices and certificates made by the consul were
accepted by the customs officers of the United States as
sufficient. The fees collected for certifying these 523 invoices
amounted to $1,307.50. The merchandise described in 478 of the
1,646 invoices passed in transit through the United States to
foreign countries, and was exported from the United States. The
fees collected for certifying these invoices amounted to $1,195.
With regard to 645 of the 1,646 invoices, there was no evidence
either that the merchandise described in the invoices was stopped
in transit and entered for consumption in the United States or that
it passed in transit through the United States to foreign
countries. The fees collected for certifying these invoices
amounted to $1,612.50. Mr. Van Buren's accounts for the total of
all these among other fees were settled at the Treasury Department,
and in the settlements he was charged with these as for official
fees.
The Court of Claims found that it was not shown that the reason
for paying said fees into the Treasury was to avoid controversy
with any department of the government, or that Mr. Van Buren made
any demand to have the fees refunded to him or credited to him
before said accounts were finally settled,
Page 168 U. S. 275
or that, before the final settlement of his accounts at the
Treasury Department, he made any objection or protest against said
fees' being charged to him as official fees. The court gave the
claimant judgment for the total of the three sums above mentioned,
being $4,115.
The judgment in this case was mainly based by the court below
upon the case of
United States v. Mosby, 133 U.
S. 273, and it was there held that the invoices referred
to in §§ 2853 and 2855, Rev.Stat., either as they stood originally
or as they were amended by the Act of June 10, 1880, did not
include invoices for the shipment of merchandise in transit through
the United States to other countries, and that the law did not
require a consul to issue certificates in such cases; that no
provision was made for a fee for them in the regulations of 1874 or
those of 1881, and that it did not appear that the regulations of
the Treasury Department required a consul to perform any duty in
relation to such goods. The claim of the claimant in regard to such
fees was allowed as a proper claim against the government.
It is stated in the brief of counsel for the government therein
that, in the
Mosby case, neither the Court of Claims nor
this Court was given the benefit of any information as to what
transit invoices were, and it is now said that both the courts were
mistaken in holding that the invoices in the
Mosby case
were not those referred to in the above-numbered sections of the
Revised Statutes, and it is said that it now appears by the
evidence before the court that such invoices are the identical
invoices described by those sections, and that section 2860, in
providing that
"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 §§ 2853, 2854 and 2855,
and has thereon the certificate of a consul, vice-consul or
commercial agent in those sections specified,"
makes it necessary to have the consular certificate given in
this case.
We are not now called upon to question the decision in the
Mosby case. We think there is another ground upon which to
base a reversal of the judgment herein, which is that the
Page 168 U. S. 276
payments made by Mr. Van Buren of the fees covered by his claim
were wholly voluntary, and that the general rule applicable to
voluntary payments should be enforced.
The petition in this case was not filed until the 30th of March,
1888, and Mr. Van Buren's term of service expired in June, 1885.
From the commencement of that service in 1874 up to the termination
of his office and the final settlement of his accounts, no whisper
of any claim on his part against the government was ever heard from
Mr. Van Buren. It does not appear that he had the least doubt that
the government was entitled to all the fees paid over by him to it,
and in all the various settlements of his accounts with the
Treasury Department, and in his correspondence, so far as this
record shows, no claim was ever made or hint given on his part that
he had the least title to retain these fees or to recover them back
if paid to the government. There is no pretense that he paid the
fees into the Treasury to avoid a controversy with any department
of the government, or that he ever made any objection or protest
against the fees' being charged to him as official fees. The Court
of Claims so finds in substance. If a voluntary payment can be made
to the government, it seems to us that this is such a case; and,
unless it be declared that the law of voluntary payments is not
applicable to the case of a payment by an official to the
government, we think the payments made by the original claimant
were voluntary. This is not a case of an order or direction for the
payment of these moneys, given to Mr. Van Buren by the officers of
the Treasury or State Departments; nor it is a case where the
failure to pay the moneys might be regarded as disobedience to the
peremptory order of a superior officer, nor a payment under duress.
The facts show nothing but a voluntary payment of money to the
government, without claim of any right to retain one penny of
it.
In
United States v. Lawson, 101 U.
S. 164, the collector received an order in writing from
the commissioner of customs, his superior, requiring him to account
for all fees received by him as collector. Under that order, he
paid the fees in controversy into the Treasury, and it was held
that,
Page 168 U. S. 277
having thus paid them pursuant to a peremptory order of his
superior officer, he was not precluded from thereafter recovering
them in a suit against the United States.
To the same effect is
United States v. Ellsworth,
101 U. S. 170,
where the ruling in the
Lawson case is followed. In the
Ellsworth case, the Court said, after referring to the
penalties for noncompliance with the requirements of the law in
paying over moneys:
"Viewed in the light of these penal provisions, the payments in
question made under the peremptory order of the commissioner cannot
be regarded as voluntary in the sense that the party making them is
thereby precluded from maintaining an action to recover back so
much of the money paid as he was entitled to retain. Call it
mistake of law or mistake of fact, the principles of equity forbid
the United States to withhold the same from the rightful
owner."
In both of the cases, in addition to the general law upon the
subject of moneys received for the use of the United States to be
paid into the Treasury, there was a distinct and peremptory order
that the moneys in question should be paid, and it was in
compliance with such order from a superior officer that the moneys
were paid.
In
Swift Co. v. United States, 111 U. S.
22, the payments were held to be not voluntary because
the purchaser of the stamps from the government had to take them on
the terms which the government imposed, or else go out of business.
In that case, however, it appeared that the leading manufacturers
of matches, among whom was William H. Swift (who upon the
organization of the claimant corporation, in 1870, became one of
its large stockholders and treasurer), had made repeated protests
to the officers of the internal revenue bureau against the methods
adopted by it in computing commissions for proprietary stamps sold
to those who furnished their own dies and designs. It appeared that
the rule of the department was one adhered to during the whole time
of its existence, and it was announced by the internal revenue
commissioner that such ruling would not be altered: and, as it was
necessary for those in the business to have the stamps in order to
continue their business, it was held by this
Page 168 U. S. 278
Court that they were not obliged to continuously protest, and
that settlements made with the Treasury officials upon the basis of
the correctness of the custom of the department in regard to the
sale of stamps and commissions thereon did not bar the claimant's
right to recover the moneys which the department ought to have
paid, but did not; that the position of the parties was such as to
render these continuous protests unnecessary. Various cases are
cited by Mr. Justice Matthews, in delivering the opinion of the
Court, showing what amounts to an involuntary payment.
In the
Mosby case,
supra, it appears that the
claimant asserted his right to the moneys, and had correspondence
with the officers of the department in relation thereto, and only
paid the moneys to avoid a contest with his superior officers.
Nothing in any case cited is inconsistent with the view that the
payments in this case were wholly voluntary in their nature, as
such, cannot be recovered back.
For these reasons, without considering other questions appearing
in the record, we think the judgment of the Court of Claims should
be
Reversed, and the case remanded to that court with
instructions to dismiss the petition.