
    GEORGE W. WILLIAMS v. THE UNITED STATES.
    [No. 14836.
    Decided January 3, 1888.]
    
      On the Proofs.
    
    The claimant brings this action to recover the salary of minister to Hayti. The defendants deny that he ever was the incumbent of the office. The claimant never gave a bond, and did not receive his commission nor enter upon the duties of his office.,
    I. An appointee is not invested with an office nor entitled to the salary thereof until he complies with the conditions imposed by law. He must take the oath of office, and give a bond, if one be prescribed, before he can receive his commission or enter upon his official duties.
    II. The Secretary of State is not bound to issue his instructions to a foreign minister, nor order him to his post, until he has manifested his acceptance of the office and his ability to comply with the conditions precedent by the giving of a bond.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    ' I. The claimant was, on the 2d day of March, 1885, nominated by President Arthur minister resident and consul-general of the United States to Hayti, and on the same day the Senate gave its advice and consent thereto.
    II. In pursuance of such nomination and confirmation a commission was signed by President Arthur on March 3,1885, and given to the claimant by one of the President’s private secretaries to be taken to the Secretary of State. This was after business hours, or after the Secretary had left the Department. The claimant found the private secretary,to the Secretary of State, and with him proceeded to the residence of the latter, where the commission was countersigned by the Secretary of State. The pri vate secretary then and there took charge of the commission, and the next day, March 4, in the forenoon, had it at the State Department, where the seal of the United States was affixed thereto, and a notary public administered to the claimant the oath of office and filed a certificate thereof in the Department. • The commission was there sent to the Bureau of Diplomatic Instruction.
    III. Thereafter, on or about March 5, 1885, the claimant called at the Bureau of Diplomatic Instruction, saw his commission on the desk of the chief of the Bureau, and was permitted to take and read the same, together with an unsigned copy of instructions and a copy of the laws, all of which here-placed on the desk. At the same time he was furnished with a printed blank copy of the form of->bond required by law tobe given by him “ before he receives his commission or enters upon the duties of his office.” (Rev. Stat., § 1697.)
    IY. From that day until April 13 following the claimant reported daily at the Bureau of Diplomatic Instruction, conversed with the chief respecting cases pending between the United States and the Haytian Government, and subsequently thereto he reported occasionally to the Bureau, giving his address, and announcing his willingness tobe communicated with and to be advised and instructed by the Department.
    He has never given nor tendered the official bond required by law, has never received any instruction from the Executive, and has never been ordered to duty.
    V. M ay 7,1885, J. E. W. Thompson, of New York, was appointed and commissioned by the President to the office of minister resident and consul-general to Hayti, and December 10,1885, was nominated to the Senate, and December 13 confirmed to the same office, to fill the vacancy caused by the resignation of John M. Langston; was thereafter duly commissioned, and has ever since held the office.
    YI. The blank bond furnished by the claimant having become defaced, the claimant sent the following letter to the Secretary, and the same has never been answered:
    ‘‘Washington, D. C., April 26, 1885.
    “Sir: I applied at the Bureau of Diplomatic Instruction this morning for a blank bond, that I might execute it and thus comply with the law. I was referred to the chief clerk, and he instructed me to apply for the bond in writing. ' I hasten to comply with his instructions.
    “ I have heard that there is a printed circular of instructions that is placed in the hands of newly-appointed consular and diplomatic officers. I have never been honored with one, and this fact must be my apology for any ignorance I may have exhibited or blunders I may have been guilty of.
    “An early reply is solicited, as I am anxious to comply with theletter as well as the spirit of the law.
    “ Your humble and obedient servant,
    Geo. W. Williams.
    “To the Hon. Thomas F. Bayard,
    “ Department of State. ”
    
      ill)1. George A. King for the claimant:
    The nomination and confirmation of the claimant, followed by his appointment by the President, evidenced by a commission executed by the President and signed by the Secretary of State, having’ the seal of the United States affixed thereto, and duly recorded in the Department of State, followed by the taking of the oath of office, completely invested the claimant with the office. A manual delivery of the commission was, in point of fact, made to him, as shown by the evidence, but this was not necessary in order to the full investiture of the claimant with the office. (Marburg v. Madison, 1 Oraneh, 137; United States y.Le Baron, 19 How., 73; United States v. Schurz, 102 U. U. S. Lb, 378.) It would seem clear then that his salary began to run from the date of his commission, and in fact this court has held, with express reference to consular officers, that compensation begins to run from the date of commission. (Dainese v. United States, 15 C. Cls. B., 64, 78.)
    By section 1740 of the Revised Statutes it is clear that he became entitled to the salary for the thirty days occupied by him in receiving instructions.
    The claimant’s post of duty, until he should have secured the necessary instructions to enable him to properly execute his office, was at the city of Washington. He certainly was not required to go to Hayti without definite instructions as to what he should do after he got there, or without a letter of credence in the form required by international custom. A similar question as to post of duty, considered with reference to officers of the Army, has been decided by the Supreme Court in accordance with the views herein maintained.' (Williamson v. United States, 10 O.'Cls. R., 50.) This, too, in the view recognized by the Revised Statutes in sections 202, 1741, 1742, and 1752.
    Provisions for the giving of bonds have not been considered as anything more than directory statutes. At most they have never been regarded as preventing the complete investiture of the office upon the signing of the commission and the taking of the oath, and have been considered merely as conditions precedent which must be complied with by7 the officer before he can enter upon the enjoyment of the emoluments of the office. (United States v. Bradley, 10 Pet., 353; United States v. Linn, 15 id., 290; United States v. Le Baron, 19 How., 73; United States v, Flanders, 112 U. S. R., 88; Bainese v. United States, 15 C.Cls.R., 64). In this view the requirement of giving a bond can be regarded as of no higher dignity than as a part of the contract upon which the salary can be paid. More especially is this the case in regard to diplomatic and consular officers whose appointment does not and can not constitutionally depend upon the will of any inferior officer, or even upon provisions of statute, but who are appointed by the President, by and with the advice and consent of the Senate, under the power derived by him directly from the Constitution itself. (Byers v. United States.)
    
    All questions of salary are regarded in this court as questions of contract. The Government contracts to pay the officer his salary, and failing to do so is liable to be sued therefor. (Patton v. United States, 7 C. Cls. R., 362, 371.) If the Government contracts to pay the officer his salary upon a certain condition, and itself prevents the performance of that condition, it is liable, notwithstanding the non-performance; for it is an implied condition in every contract that neither party shall prevent the performance of it by the other. (Chicago v. Tilley, 103 U. S. R., 146.) The same principle has been frequently applied to contracts with the Government. {United States v.Peclc, 102 U.S.R., 64; United States v. Mueller, 113 id., Iñ3; Ciarle v. United States, 7 O. Cls. R., 93, 96; Smith v. United States, 11 id., 707; S. O. affirmed, 12 O. Cls., 119.
    This principle applies with special force in the present case, for in the office of minister resident, which was the primary and principal office held by the claimant, he was not, and could not be, required to furnish any bond. The bond was only required of him in the superadded office of consul-general, and it would be unreasonable to hold that the claimant could not become a minister resident without giving a bond required of him in another and subordinate capacity. As the claimant, then, has shown a complete investiture of himself with the office which he claims to have held, and a readiness and an attempt on his part to comply with every provision of law relating to the duties, and a readiness to comply with every instruction and order which might be given him by his superior officers, he is entitled to recover the salary of the position. Active service has never been considered a requisite to enable an officer to recover his salary in this court. It is sufficient that he held the office and was constantly ready and willing to perform the duties thereof. (Ware v. United States. 7 O. Cls. K., 505; Perlcms v. United States, 20 id., 438; affirmed, United States v. Perldns, 116 U. S. B.., 483.)
    
      Mr. Ueber J. May (with whom was Mr. Assistant Attorney-General Howard) for the defendants:
    The claimant’s counsel rely on several decisions of the Supreme Court, which will now be noticed in their order.
    
      Marbury v. Madison (1 Cranch, 137) was decided in 1803 and settled many questions under the law as it then existed, butis clearly inapplicable here.
    
      United States v. Le Baron (19 How., 78) was decided at the December term, 1856. The effect of the decision is that, although the appointment of a postmaster shall have been complete, yet under the postal laws he can not enter upon the duties- of the office until he has given a sufficient bond for the approval of the Postmaster-General.
    The authorities all sustain the position of the defendant in this case. So does the opinion of the Attorney-General, delivered in this case on April 22, 1885. And to the same effect is the opinion given by Attorney-General Bates on May 12, 1862 (10'Op., 251).
    The claimant was required, as a condition precedent to investiture of the office in him, to give a bond with security to be approved by the Secretary of State. He was required to perform this act' precedent to receiving his commission or the salary of the office. This rule is laid down by the Supreme Court and by the Court of Claims. It is also an express statutory requirement.
    The claimant did not give the bond required by law. He never presented any bond to the Secretary of State for approval He attempts to excuse himself, but his excuse is not a legal one, and can not affect the merits of this case.
   Richardson, Ch. J.,

delivered the opinion of the court:

The claimant brings this action to recover the salary of minister resident and consul-general of the United States to Hayti while, as he alleges, he held that office. The defendants deny that he ever was the incumbent of the office so as to be entitled to the emoluments thereof.

The facts are that on the 2d day of March, 1885, the claimant was nominated by the President to that office, and the Senate gave its advice and consent thereto on the same day.

On the next day the President signed his commission, and it was thereupon given to him by the President’s private secretary to be taken to the Secretary of State. The Secretary being-absent from the Department, the claimant found his private secretary, and went with him to the residence of the Secretary, where the commission was countersigned by the latter officer. The private secretary then took charge of the commission, had it with him at the Department the following day, March 4, when the seal was affixed and the claimant took the oath of office, the commission being- retained to await compliance on the part of the claimant with the following provision of Devised Statutes, section 1C97:

“Every consul-general, consul, and commercial agent, before he receives his commission or enters upon the duties of his office, shall give a bond to the United States, with such sureties, who shall be permanent residents of the United States, as the Secretary of State shall approve.” * * *

The claimant never gave a bond, and so did not receive his commission nor enter upon the duties of his office. On his part reliance is placed on the decision of the Supreme Court in Marbury v. Madison (1 Cranch, 137). In that case the question was whether the plaintiff was entitled to the office and commission, and not whether he was actually in office and entitled to its' emoluments. The court held that when he had been nominated and the Senate had consented to the appointment and his commission had been signed by the President and sent to the Secretary of State, his appointment was complete so far as the Executive was concerned, and that he was entitled to the office with or without a commission. But it did not go so far as to hold that such an appointee is actually invested with the office before he performs the conditions x>recedent which are by law required of him. He must take the oath of office, which may be done after the commission is delivered, and, as to the office now under consideration, the appointee must give a bond before he can receive his commission or enter upon the duties of his office.

Until the bond is given or tendered it can not be known that t he appointee ever will accept the office, and the office can not be forced upon him without his consent.

The question does notarise here whether such an officer under some circumstances, and to some extent, might not be held to have been in office and entitled to its salary from the date of his commission or from the date of his takingthe oath, if within a reasonable or proper time his bond should be tendered, because the claimant never tendered a bond at any time.

The Executive was not bound to give the claimant hisinstruc-tions nor order him to his post of duty until the latter had fully manifested his acceptance of the office and his ability to comply with the condition precedent to the right by the giving of a bond with sureties.

The fact that the claimant defaced the blank bond first given to him, and more than fifty days thereafter wrote to the Secretary of State asking for another blank, and saying that he was “ anxious to comply with the letter as well as the spirit of the law,” is wholly immaterial. Excuses for non compliance with the law, however reasonable, could not relieve him from the obligations imposed by its requirements.

After waiting more than forty days the Secretary of State asked the advice of the Attorney-General as to the claimant’s-right to the salary of the office and received the following opinion:

“ Department oe Justice,
Washington, April 22,1885.
“ Sir: Your communication of the 20th April instant asks-my opinion upon this case: Mr. G-eorge W. Williams was appointed by President Arthur miuister resident and consul-general to Hayti,. with the advice and consent of the Senate.
“On the 4th of March, 1.885, Mr. Williams took the oath of office at the Department of State, and was there furnished with a blank form of the official bond which consuls general are-required by law to execute.
“ Mr. Williams has not executed any bond, and the President has determined not to deliver his commission to him.
“ The question submitted is whether Mr. Williams is eutitled to any pay.
“ I am of opinion that he is not entitled to pay as an incumbent of the office mentioned.
“ The commission of Mr. Williams has been held by the Secretary of State in escrow, and its delivery depended upon the-condition prescribed by section 1097 of the Eevised Statutes,, which provides that ‘ every consul-general, consul, and commercial agent, before he receives his commission or enters upon the duties of his office, shall give a bond to the United States ivith ..sureties.’ * * *
“It will be observed that Congress manifests a plain intention that no right of any kind shall accrue from appointment to the offices named until the bond shall have been given, so that if Mr. Williams had been permitted to enter upon the duties of the office in question he could not have received compensation for his services. This exceptional stringency was no doubt •employed for the better protection of the public interests in foreign countries.
“ As Mr. Williams has not given the required bond, it follows that he has never become entitled even to demand his commission, let alone to enter upon the duties of the office; from which it follows, necessarily, that he can not claim any of it s emoluments.
“I have the honor to be, sir, your obedient servant,
“A. IT. Gakland, u Attorney- General.”
“The Secretary op State.”

On the 7th of May, 1885, the office was filled by the appointment of another person, not in place of the claimant, but in place of John M. Langston, the former incumbent.

In our opinion theclaimant was never fully invested with the officer of minister resident and consul-general to Hayti. To use a familiar expression, he failed to “qualify” for the office, (Abbott’s Law Dictionary, vol. 2, “ Qualify”), and is, therefore, not entitled to the salary.

The petition must be dismissed.

Davis, J., did not sit in this case, and took no part in the decision.  