
    JULIUS STAHEL v. THE UNITED STATES.
    [No. 16826.
    Decided March 2, 1891.]
    
      On the Proofs.
    
    This suit is brought by the consul-general at Shanghai for fees which he paid into the Treasury pursuant to orders of the Secretary of State, but which he claimed were for unofficial services.
    I.The Revised Statutes (§ 1745) authorize the President “ to designate what shall he regarded as official services, besides such as are expressly declared by law," and the Consular Regulations, 1881, designate services rendered by consuls to foreign-built unregistered vessels owned by American citizens as official services. Whether the shipowner was under legal obligations to pay such fees is a distinct question not before the court.
    II.There are but two limitations upon the power of the President to designate the official services of a consul; he can not decíate a fee to be unofficial which the law declares to be official, nor prescribe a fee for a service which the law declares shall be rendered gratuitously.
    III. If the President directs the collection of fees illegally, the owner may - have a right of recovery against the Government; but the officer who performs the service and collects the fees has no claim to the money.
    IV. The President may at any time transfer a fee from the unofficial to the official, or vice versa; and he may increase, diminish, or abolish a fee.
    
      The Reporters’ statement of the case :
    The following are the facts of this case as found by the court:
    I. Plaintiff was consul-general of the United States, and in charge of the consulate-general at Shanghai from July 14,1884, to July 13,1885, inclusive.
    II. As said consul-general he performed certain services to unregistered foreign-built vessels owned by citizens of the United States between August 11,1884, and August 23,1884, inclusive, and collected thereafter at the consulate-general at Shanghai, paid into the Treasury of the United States, and credited in the record of Treasury fees (for the quarter ending
    
      September 30, 1884) tbe sum of $663.71, and that said fees were as follows:
    (а) Tonnage dues. $>455.71
    (б) Report to customs....... 70.00
    (c) Form No. 35 (appendix regulations).>
    
      (d) Seal to bill of sale...£
    
      (e) Oath of appointment of master. 20.00
    (/) Bill of health .... 2.50
    603.71
    Said fees were paid by tbe owners and charterers of said vessels for whom tbe services were rendered, and they were collected in good faith by tbe consul.
    III. ^ That as said consul-general, in charge of said consulate, plaintiff performed certain services to unregistered foreign-built vessels owned by citizens of the United States between August 24,1884, and July 13,1886, inclusive; the fees for these services were not collected by the plaintiff; they amounted to the sum of $5,997.09; said services were as follows:
    (g) Eor shipping and discharging seamen upon unregistered foreign-built vessels owned by citizens of the United States.. $3,865.00
    
      (h) For tonnage dues. 1,482.59
    (i) For report to customs. 572.00
    For oath of appointment of master. 24.00
    (7c) For seal to hill of sale.i gg ^
    (Z) For form No. 35 (appendix regulations).$
    (m) For bill of health. 20.00
    These collections were made from the owners of the said vessels on or about the 20th day of January, 1886, by Enoch J. Smithers, vice-consul-general of the United States at Shanghai, and were by him paid into the Treasury of the United States; they were then taken up and credited on a special record of Treasury fees, dated January 13,1886, as fees for services performed by plaintiff; the said services were rendered tor the owners of said vessels, and the fees were paid by them.
    IY. Between July 14,1884, and July 13,1885, inclusive, plaintiff certified invoices of goods shipped in transit through the United States; the foes received therefor amounted to $1,055; these fees were paid into the Treasury of the United States, and the returns therefor were made upon the records of Treasury fees for the quarters ending, respectively, September 30, 1884, December 31,1884, March 31, 1885, and June 30,1885, and the fractional quarter ending July 13,1885; the said services were rendered for the owners of the goods, who paid the fees.
    V. July 9,1885, the plaintiff collected at the said consulate-general $270.21, being 5 per cent, on $5,404.29, the amount of the estate of John Carter, deceased; this sum was afterwards paid into the Treasury of the United States by G. H. Scidmore, then vice -consul-general at Shanghai, credited to the Government, and recorded in the record of Treasury fees from July 1, to July 13,1885, of fees collected by plaintiff.
    YI. The payment by plaintiff of these several sums of money into the Treasury was required, and made in good faith for the purpose of avoiding controversy with the Department.
    Y1I. Items o, d, 7c, and l (form 35, appendix regulations, and seal to bill of sale) were abandoned upon the trial.
    Upon the foregoing facts the court 'decided as conclusion of law:
    Upon the authority of Mosby v. The United States (133 U. S. B., 273; 24 C. Oís. B., 1), the plaintiff was entitled to recover the following sums:
    For fees for certifying invoices of goods shipped in transit
    through the United States between July 14,1884, and July 13, 1885 ....|1,055.00
    For the services described in finding v. 270.21
    For shipping and discharging seamen upon foreign-built vessels. 3,865.00
    Total. 5,190.21
    
      Mr. Robert A. Howard for the claimant.
    
      Mr. Henry M. Foote (with whom was Mr. Assistant Attorney- General Cotton) for the defendants.
   Davis, J.,

delivered the opinion of the court:

Section 1745 of the Be vised Statutes authorizes the President to prescribe the “rates or tariff 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.” Pursuant to this authority the President has published a volume entitled “Consular Regulations.” containing the regulations and instructions, including a tariff of fees to be charged for official services, for the information and government of consular officers of the United States. The regulations of 18S1 were in force during the entire period covered by this action.

As to the authority conferred by section 1745 (Rev. Stat.) the Supreme Court said:

“This section concerns itself wholly with “official services.’* The tariffs of fees to be prescribed by the President from time to time are those to be charged for official services.” The President is to designate what are to lie regarded as “official services” in addition to such as are expressly declared by law.” (Mosby v. The United States, 133 U. S. R., 273.)

Section 180 of the Consular Regulations (1881) provides as follows:

“These provisions respecting tonnage and other fees and the deposit of a ship’s papers apply to American or foreign built vessels purchased abroad and wholly owned by citizens of the United States, in the same manner as to regularly documented vessels.”

While plaintiff was consul-general at Shanghai, China, he performed services for vessels of this description, and there were paid into his office “ tonnage dues” and fees for “ report to customs,” for “oath and appointment of master,” and for “ bill of health,” which he turned into the Treasury, and now claims were his personal emolument.

On behalf of plaintiff it is contended that the vessels to which the consular services were rendered were not .ships or vessels of the United States $ that, while entitled-to Government protection as property of citizens of the United States, they were under no legal obligation to obtain and pay for the services of consuls at foreign ports; that having done so, the fees paid therefor were “unofficial,” not “official” fees, as the consul acted unofficially, and not under warrant of lawj that is, his services were personal.

Before considering this proposition it should be noted that the question before us is not primarily whether vessels of this class are obliged to pay fees of the kind complained of, but whether, when paid, the President can classify these fees as official fees or must regard them as unofficial fees.

The monéy has in fact been paid the Consular Begulations, in fact, affix to it an official character, and it is now in the national Treasury.

Whether the shipowner was under legal obligation to pay these fees is one question; whether, when paid, the consul may retain them as fees for unofficial service is another question.

The power of the President under section 1745 of the Revised Statutes is very broad, and authorizes him to prescribe the rates of fees to be charged for official services, to designate what shall be regarded as official services, “ besides such as are expressly declared by law,” and to adapt the rates or tariffs of fees to the different consulates. There seem to be but two limitations upon his power — one (expressed) which 'prevents him from declaring afee to be unofficial which the law declares official; and one (implied) which prevents him from prescribing a fee for a service which the law declares shall be rendered gratuitously.

It may or may not be that the President had not the power to force the shipowner to pay the these fees 5 as to this, of course we express no opinion; but if he had not the power and the fees were illegally collected, we still fail to see how the consul can base upon this fact a claim to retain, as a personal emolument, the money so illegally collected. The President has directed the collection of fees of this class and has marked them with an official stamp; if the fee is illegally collected, the owner may perhaps have a right of recovery against the Government, which directed their collection, but the subordinate officer who performed the services and collected the fees under the distinct order of the President, which at the same time classified the services and the fees as official, can not lay claim to the money thus coming into his hands.

Subject to the limitations we have suggested the President may at any time transfer a fee from the unofficial to the official schedule or mee versa ; or he may increase, diminish, or abolish a fee, and his directions in this regard are binding upon the officers of the consular service. In the words of the Supreme Court, speaking by Mr. Justice Blatchford:

“The President is to designate what are to be regarded as “official services” in addition to such as are expressly declared by law (supra).”

These items are therefore not allowed, and judgment will be entered in favor of plaintiff for the other items of his claim which are within the decision in Mosby’s Case. Judgment for plaintiff in the sum of $5,190.21.  