The consul, where a seaman is entitled to the privileges of an American seaman, and is destitute, is the proper judge as to the ship on board of which he should be placed for his return to the United States. Matthews r. Offley, 3 Sumner, 115. IX. SALARY AND FEES. 1. SALARY AND ALLOWANCES. § 732. "Whatever weight of argument there may be intrinsic to the case itself, or resulting from the practice of some other nations, in favor of a consular establishment supported by salaries, it is perfectly certain that no such system will be sanctioned by the Congress of the United States.” Mr. J. Q. Adams, Sec. of State, to Mr. Hill, consul at Rio de Janeiro, April 30, 1819, 2 MS. Desp. to Consuls, 159, in reply to a communication urging the expediency of allowing salaries to consuls generally. For Mr. Livingston's report of March 2, 1833, on the American consular system, see S. Doc. 83, 22 Cong., 2 sess. Section 3 of act of 1866 (Revised Statutes, § 1729) is limited to unsalaried consuls and commercial agents and does not embrace consular agents. Stanbery, At. Gen., 1866, 12 Op. 97. A diplomatic and consular appropriation act which transfers a consulate from the class in which it had stood to a lower class, with a smaller salary, repeals, by necessary implication, so much of the prior legislation as had placed the consulate in the previous class with a higher salary. Mathews r. United States (1887), 123 U. S. 182. Where Congress omitted to appropriate for the continuance of the office of consul-general of the United States at Cairo, the Department of State accepted, with thanks, the offer of the incumbent "to keep the office open and to perform such services as may be required of you by this government without other compensation than the honor attached to such a post," pending the submission to Congress, at its next session, of the reasons" showing the necessity of keeping up the post." Mr. John Davis, Act. Sec. of State, to Mr. Comanos, No. 81, Aug. 20, 1884, A substitute or vice-consul, left in charge of the consulate during the temporary absence of the consul, is to be compensated out of the statute emoluments of the office, subject to regulations of the Department. An acting consul in charge of a consulate during actual vacancy of the consulate is entitled to receive the statute compensation of the office. Cushing, At. Gen., 1856, 7 Op. 714. The Revised Statutes confer upon the President full power, in his discretion, to appoint vice-consuls and fix their compensation, to be paid out of the allowance made by law for the principal consular officer in whose place such appointment may be made. The fact that the minister resident and consul-general at Siam had obtained leave of absence and was ill and unable to discharge his duties, and that the vice-consul previously appointed had failed to qualify, created a temporary vacancy and justified the emergency appointment of a viceconsul to fill it; and the person so appointed was entitled to receive the salary fixed by law for the minister resident and consul-general, which salary was single and indivisible. United States v. Eaton (1898), 169 U. S. 331. Where a vice-consul-general is appointed by the diplomatic representative to fill the office in case of an emergency, and immediately enters on the discharge of the duties thereof, and is recognized by the Department of State, he is entitled to compensation from the time of appointment, though his bond is not executed until sometime later. United States v. Eaton (1898), 169 U. S. 331, 18 S. Ct. 374. See Boyd v. United States, 31 Ct. Cl. 158. A vice-consular officer, acting during his principal's absence, is entitled to compensation for the whole term of such absence, though it may extend beyond the statutory period of 60 days. Boyd v. United States, 31 Ct. Cl. 158. A consul's bond takes effect from the time of its approval by the Secretary of State. (R. S. § 1697.) And where an appointee was commissioned consul on the 18th of January and his bond, dated the 13th of the same month, was not approved until the 27th, this was held valid. Williams, At. Gen., 1872, 14 Op. 7. Attestation is not essential to the validity of a consular bond. Wirt, At. Gen., 1820, 1 Op. 378. In the instructions of a consul of the United States to Tunis, there occurred the following: "On your way to Tunis, (perhaps at Malaga or Marseilles,) you may probably devise means for the liberation of our unfortunate captives at Algiers. Should you find a suitable channel, therefore, through which you can negotiate their immediate release, you are authorized to go as far as three thousand dollars a man; but a less sum may probably effect the object. If success should attend your efforts, you will draw upon this Department for the necessary funds for paying their ransom, and providing for their comfortable return to their country and friends." The consul employed an agent at Cadiz for a certain hire and a promise of additional pay in case of success, to endeavor to effect the release of the captives, and then drew bills on the Department of State, in favor of a merchant at Gibraltar, for the compensation stipulated to be paid, etc. It was advised that the employment of an agent was justified under the power. Objection, however, was made to the manner of the employment, as being inconsistent with the true meaning of the instructions; and, after a consideration of all the proceedings, which were much complicated by several matters somewhat foreign to the main business, it was advised that an application to Congress would be necessary. Rush, At. Gen., 1816, 1 Op. 196. An expenditure of $5.73 by the vice-consul at Bangkok, for lights on the celebration of the king's birthday, when approved by the State Department, should be allowed by the Treasury accounting officers. United States v. Eaton, 169 U. S. 331, 18 S. Ct. 374. The provision of the act of Congress of May 1, 1810, fixing a salary to the consul at Algiers, and assigning to him certain duties, treating that place as belonging to a Mohammedan power, ceased to be operative when the country of which it was the principal city became a province, of France. (See acts of March 1, 1855, and August 18, 1856.) Mahoney v. United States, 10 Wall. 62. By the act of April 5, 1906, entitled "An act to provide for the reorganization of the consular service of the United States," consulsgeneral are divided into seven classes, with salaries, respectively, of $12,000, $8,000, $6,000, $5,500, $4,500, $3,500, and $3,000; consuls are divided into nine classes with salaries respectively of $8,000 (including only Liverpool), $6,000 (including only Manchester), $5,000, $4,500, $4,000, $3,500, $3,000, $2,500, $2,000. Act of April 5, 1906, section 2. 2. FEES. $733. "The question considered, as to what are 'official services' performed by consuls under the Consular Regulations of 1874 and 1881, 151 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 acknowledgements and authentications of instruments certifying the official character and signature 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 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." Syl., United States v. Mosby (1890), 133 U. S. 273. Under Revised Statutes, section 1709, which makes it the duty of consuls and vice-consuls to administer upon the personal estate left by Americans dying within their consulates, and under the Consular Regulations of 1888, paragraph 508, the fee of five per cent allowed for such services is an official fee, to be accounted for to the Treasury. United States v. Eaton, 169 U. S. 331; 18 S. Ct. 374. Under sections 1703 and 1733, Revised Statutes, consular agents may retain, as compensation for their services, a sum not to exceed $1,000 annually out of the fees received by them, and the residue, if any, is to be paid to and retained by the principal consular officer, provided that such residue, together with similar fees received from other consular agencies or vice-consulates in his territory, does not exceed $1,000 a year. Griggs, At. Gen., Aug. 1, 1898, 22 Op. 163. A consul, who is entitled to retain in any year not more than a certain amount out of fees collected by a consular agent in his district, and who is removed during the fiscal year, is not allowed to retain all the fees then collected up to the full annual limit, but, under Revised Statutes, § 2687, only an amount proportionate to the part of the fiscal year during which he continued in office. Marston v. United States, 71 Fed. Rep. 496, 18 C. C. A. 216. Claimant, who had been appointed consul at P., was instructed by the Department of State that N., which was previously embraced within the limits of his consulate, had been made an independent consulate. During the time he acted as consul, the consular agent at N. collected and failed to account for a large amount of fees. Held, that the amount of fees embezzled by the consular agent should not be charged to claimant. Sampson v. United States, 30 Ct. Cl. 365. Consular fees received for unofficial and notarial services and for fees and fines collected in the consular courts belong to the consul. Boyd v. United States, 31 Ct. Cl. 158. The certification of invoices of merchandise shipped from a foreign port in transit through the United States, in bond, to another foreign port is an unofficial act, and the fee is the personal emolument of the consular officer, though the goods are stopped in transit and duties paid. Wilson v. United States (1896), 32 Ct. Cl. 64. "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, can not, 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." United States v. Wilson (1897), 168 U. S. 273. "Court fees are fixed in each country by the United States minister, independently of the action of the minister in any other country. |