
    ARCHIBALD J. SAMPSON v. THE UNITED STATES.
    [No. 18559.
    Decided May 27, 1895.]
    
      On the Proofs.
    
    The claimant is appointed consul at Paso del Norte. He is instructed that Nogales, previously embraced within the limits of the consulate, has been made an independent consulate. During the time he acts as consul, the consular agent at Nogales collects and fails to account for a large amount of fees. The loss is charged to the claimant and deducted from his compensation.
    I. When Congress makes an appropriation for the salary of a consul at a place where there has previously been only a consular agency, it is sufficient warrant for the President to appoint a consul there.
    II. Consular agents are not regarded as officers within the meaning of the Revised Statutes (section 1756), and are not required to take the oath of office or give a bond, but are accountable to the consul under whom they act.
    
      III. A consul is 'bound to know that under tbe Revised Statutes (section 1691), be is not permitted to hold the office of “ consul at any other consulate or exercise the duties thereof."
    
    IV. Instructions to consular officers in relation to their duties are recognized by the Revised Statutes (section 1740), as well as by Consular Regulations.
    
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the court:
    I. The claimant is a citizen of the United States residing at Phoenix, in Maricopa County, in the Territory of Arizona.
    II. On the 20th July, 1889, the claimant was appointed •consul of the United States at Paso del Norte, Mexico. He qualified as such on the 24th July, 1889, and held the office until August 17,1893.
    III. Long prior to the claimant’s appointment as aforesaid the President had, pursuant to Bevised Statutes, section 1695, embraced within the limits of said consulate Nogales, Mexico, by appointing thereat a consular agent. But by the Act February 26, 1889 (25 Stat. L., 702), an appropriation of $1,500 was made as salary for a consul at said place for the fiscal year ending June 30,1890, and like appropriations were made therefor during the time of the claimant’s service as such consul.
    IY. Before entering upon the discharge of his duties as sueh consul the claimant was instructed with reference thereto by the Assistant Secretary of State having charge thereof and by the chief of the consular bureau in the State Department, and among other things was instructed that Nogales had been made an independent consulate and that he would have nothing to do therewith. The claimant received no other or different instruction until after the shortage referred to in finding vi, when he was informed that he would be held responsible for the fees collected at Nogales.
    Y. The claimant entered upon the discharge of the duties of said office, and relying upon the instructions so given him in respect to Nogales as an independent consulate, he had nothing to do therewith and never received any report or money therefrom.
    
      VI. During the time of the claimant’s service as such consul the consular agent at Nogales, without the knowledge or consent of the claimant (except as such knowledge or consent may be imputed by law), collected and failed to account for a large amount of fees, amounting at least to $344.25, which were charged to the claimant, and said sum of $344.25 deducted from the compensation due him as such consul, and which sum, though payment thereof has been demanded, still remains in the Treasury.
    
      Mr. Joseph K. MeCammon and Mr. James H. Hayden for the claimant.
    
      Mr. Charles W. Bussell (with whom was ilir. Assistant Attorney-General Hodge) for the defendants.
   Peelle, J.,

delivered the opinion of the court:

This action is to recover the balance due on compensation for services as consul at Paso del Norte, Mexico, which was withheld from the claimant to make good a shortage in the account of the consular agent at Nogales, Mexico, which latter, before the claimant’s appointment, had been embraced within the limits of the consulate at Paso del Norte.

The Act February 26,1889 (25 Stat. L., 702), appropriating $1,500 to pay the salary of a consul at Nogales, Mexico, for the fiscal year ending June 30, 1890, was passed long before the claimant’s appointment and like appropriations were made therefor during his continuance in office.

Before entering upon the discharge of his duties as such consul he was instructed therein by those having the matter in charge in the State Department; and among other things he was instructed that Nogales had been made an independent consulate and that he would have nothing to do therewith.

The only question presented therefore is as to whether or not the claimant can be held responsible for the failure of the consular agent at Nogales to account for the fees collected by him.

Under section 2, article 2, of the Constitution the President has the power to “nominate and by and with the advice and consent of the Senate shall appoint ambassadors, other public ministers find consuls * * * whose appointments are not herein otherwise provided for, and which shall be established by law,” etc.

Under this provision of the Constitution the defendant’s counsel in his oral argument contended, relying upon the opinion of Attorney-General Cushing (7 Op. Atty. G., 186, cited in Byers’ Case, 22 C. Cls. R., 64), that the President has the power, the Senate consenting, to appoint consuls of any rank at any time and at any place; and that Congress could not extend or limit his power with reference thereto; and that although Congress may by law create a consulate by appropriating money to pay the salary of a consul at such place, yet the President, if he sees fit, may refuse to make such appointment, and may continue such consulate as a consular agency within the limits of another consulate.

We need not, however, pursue this line of thought further, as it is clear that under the provisions of the Constitution cited the President has the power to appoint consuls “which shall be established by law,” whatever his power may be otherwise.

Therefore, when Congress made the appropriation to pay the salary of such consul, although Nogales, as a consular agency, had theretofore been embraced within the limits of the consulate at Paso del Norte, we think it clear, even if no presumption existed in favor of the President making such appointment, that the appropriation was a sufficient warrant for him to do so. (See note to Supp. R. S., vol. 1, 2d ed., p. 118.)

The instruction in respect to Nogales as an independent consulate was doubtless based on the appropriation referred to, and may at least be regarded as an indication of what the practice of the Department had been under like appropriations, as well as the probable action of the President with reference thereto.

Consular agents, though appointed by the Secretary of State under a regulation of the President, usually on the nomination of the consul whose agent he is, are not regarded as officers of the United States within the meaning of Revised Statutes, section 1756, as they are not required to take the oath of office or to give bond to the United States, though through their respective consulates, to whom they are responsible, they are required to conform to the laws and regulations governing the consular service. (See pars. 477, 42, 23, and 36, Consular Regulations, and 9 Fed. R., 159.)

After tbe appointment of a consular agent as indicated, tbe consul and sucb agent, under paragraph 477, Consular Begu-lations, may and usually do enter into an agreement “ as to tbe division of tbe receipts of tbe agency witbin tbe limit allowed to each for bis services; ” and paragraph 42 thereof provides that “no bond or oath of office is required of consular agents, but a consular officer having agents under bis supervision' may take from them sucb bond as be may deem proper for bis own protection.”

But tbe claimant, relying upon the instruction, as we think it was bis right and duty to do, especially in view of tbe appropriation theretofore made to pay tbe salary of a consul at Nogales, would not seek an agreement with the consular agent then serving there as to a division of fees, nor would be make sucb agent bis agent by requiring him to give a bond “for bis own protection,” as be might otherwise have done.

Tbe claimant was bound to know that under Bevised Statutes, section 1691, be was not permitted to bold tbe office of “consul at any other consulate or exercise tbe duties thereof.”

Under Bevised Statutes, section 1752, “tbe President is authorized to prescribe sucb regulations and make and issue sucb orders and instructions not inconsistent with tbe Constitution or any law of tbe United States in relation to tbe duties of all diplomatic and consular officers * * * as be may think conducive to tbe public interest,” and tbe same section provides that “it shall be tbe duty of all sucb officers to conform to sucb regulations, orders, and instructions.”

Consular officers are entitled by tbe provisions of Bevised Statutes, section 1740, to pay for tbe time actually and necessarily occupied in receiving their instructions. So that instructions to consular officers in relation to their duties are recognized by statute, as well as by consular regulations, and tbe statute makes it tbe duty of sucb officers to conform to sucb instructions.

We are unable to see that tbe instruction given was in conflict with tbe Constitution or with any law or regulation in relation to tbe duties of tbe claimant as sucb consul.

On tbe contrary, we think tbe instruction was not only prompted by tbe appropriation referred to, but that it was tbe right of those having tbe matter in charge to give tbe instruction they did; and tbe claimant having complied therewith, and having received no other or different instructions until after the shortage charged to him had occurred, he is entitled to his compensation as such consul j and judgment will therefore be entered for the sum of $344.25.

Nott and Davis, J. J., were not present when this-case was tried and took no part in the decision.  