
    OTTERBOURG’S CASE. Marcus Otterbourg v. The United States.
    
      On the Proofs.
    
    
      The United States consul at Mexico is placed by the retiring United States minister in charge of the legation, but is not authorized to “ exercise diplomatic functions” by the President, as required by the Act 18tli August, 1856. (11 Stat. L.,p. 139.) Stibsequenily the consul is appointed minister; he tdlces the oath required by the Act July 2,1862, (12 Stat. L.,p. 502,) before the consul-general of Switzerland.
    
    I. Under the Act 18i7i. August, 1856, (fit Stat. L., p. 139,) “ no' consul or officer shall exercise diplomatic functions in any case unless expressly authorized by the President so to do.” A retiring minister cannot insta,1 a consul in the legation, and thus authorize him, nor can the consul receive the piay provided by law for a cha/rgé d’affaires.
    
    II. The act July 2,1862, (12 Stat. L., p. 502,) which irrovides “ that hereafter any person appointed to any office of honor or profit, before entering upon the duties of such office and before being entitled to the salary or other emoluments thereof, talce and subscribe the following oath,” is not complied with unless the oath be' taken before an officer authorized to administer oaths by the laws of the United States. A foreign consul residing in Mexico has no such authority.
    
      Messrs. Blade and Lamon for tbe claimant:
    Tbe claimant was duly appointed consul for tbe United States at tbe city of Mexico in March, 1866, and arrived a tbis post of duty on tbe 8tb day of April, 1866. He continued to act in that capacity until bis appointment by tbe President as envoy extraordinary and minister plenipotentiary to tbe Eepublic of Mexico on tbe 21st day of June, 1867. From tbe time of bis arrival as consul at tbe city of'Mexico, on said 8tb day of April, 1866, until tbe 21st day of June, 1867, in addition to tbe duties imposed upon bim by bis office of consul, he bad charge of tbe records of tbe United States legation at Mexico, and discharged diplomatic functions at that legation on behalf of tbe United States. The official statement of tlie Secretary of State upon tbis subject is as follows. Referring to tbe circumstances and character in which the claimant returned to Mexico, be says:
    
      u In March, 1866, be went back to Mexico as consul and to take charge of tbe archives of tbe legation, Mr. William H. Corwin, acting chargé d’affaires, having been recalled. He reported bimself as having arrived at Mexico on the 8th day of April, 1866, and as being occupied in verifying the inventory of archives and other property of the legation, which was finally completed and he put in charge thereof by Mr. Corwin, in pursuance of the instructions of the State Department, on the 20th day of .the same mouth. He teas thencefomcard recognized as a consular officer, performing, and authorized to perform, diplomatic functions, so far as such were necessary and practicable in the exceptional condition of Mexico and of the relations of this Government to the usurping government of Prince Maximilian, in actual possession of the capital, and to the rightful government of President Juarez, which was generally remote therefrom and migratory with the vicissitudes of war.
    “ Mr. Otterbourg kept the Department informed of the political situation in Mexico. His dispatches, not concerning his commercial functions as consul, but those of a political agent, were classified and preserved among the diplomatic archives.
    “ During'the whole period, from April, 1866, to June 21,1867, during which Mr. Otterbourg was consul and in charge of the legation as aforesaid, there was not in that country any other officer of the United States authorized to perform diplomatic functions therein, except or otherwise than that Lewis D. Campbell, a duly-commissioned minister, was for a day or two upon its coast or in the harbor of Yera Cruz, whence he returned without proceeding to the interior or putting himself in communication with the government of Mexico, except when, in April, 1867, he addressed from Nejv Orleans a letter to the Mexican secretary for foreign-affairs requesting humane treatment for Maximilian in case of his capture.”
    From the 21st day of June, 1867, the date of the claimant’s appointment as minister, until the 22d day of October, 1867, the claimant was the only duly-appointed or recognized minister of the United States to the Eepublic of Mexico.
    The legal propositions resulting from the foregoing facts are as follows:
    First. That the authority of the claimant “ to exercise diplomatic functions” on behalf of thé United States at the legation of the United States in the Eepublic of Mexico, was sufficient to entitle him to receive the compensation provided by law for such service, in addition to his salary as consul.
    The only other question that can arise, so far as this branch of the case is concerned, is whether the appointment of this claimant to discharge the diplomatic duties for which he claims compensation were such as bring him within the provisions of the act which provides for his assignment to such duty. The twelfth section of the act of August, 1856, is as follows:
    “ No consular officer shall exercise diplomatic functions or hold any diplomatic correspondence or relation on the part of the United States in, with, or to the government or country to which he shall be appointed, or any other country or government, when there shall be in such country any officer of the United States authorized to perform diplomatic functions therein, nor in any case unless expressly authorized by the President so to do.” (11th Stat. L., p. 53.)
    The Secretary of State certifies that during the time for which the claimant seeks compensation for such service, “ there was not in that country any other officer of the United States authorized to perform diplomatic, functions therein.” The authority which the claimant received from the Secretary of State “to exercise diplomatic functions” is as conclusive upon the United States of his right to discharge such duties and receive compensation therefor as though his authority had been “ expressly given by the President.” (Wilcox v. Jackson, 13 Peters, 498; Parker v. The United States, 1 Peters, 296; United States v. Miason, 16 Peters, 291; Williams v. The United States, 1 Howe, 290.)
    Second. The appointment of the claimant as “ envoy extraordinary and minister plenipotentiary of the United States to the Bepublie of Mexico,” and his commission as such, were legal and valid, and he is entitled to the salary affixed by law to that office from the date of his appointment to the day of his resignation.
    The President’s power of appointment, as limited by the Constitution, (article 2, sec. 2,) is as follows: “He [the President] shall nominate and, by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established bylaw.”
    The same article and section further provides that “the President shall have power to fill up all vacancies that may happen during tlie recess of the Senate, by granting commissions, which shall expire at the end of their next session.”
    In order to determine, therefore, whether the President might lawfully issue a commission to the claimant as minister, it must be determined:
    Whether there was a vacancy which happened during the recess of the Senate.
    That there was no actual session of the Senate, either at the time of the' appointment of the claimant as minister or at the date of issuing his commission, is very clear; and that the vacancy u to fill up” which he was nominated <£ happened” during the time when there was no actual session of the Senate, is equally clear. Was there a constructive session of the Senate at the time of the appointment of the claimant, so as to deprive the President of the power to appoint him ?
    A statement of facts as they are afforded by the “Journals of the Senate” for the 1st session of the 40th Congress may • aid us in the solution of this question. “ The Congress of that session assembled, in pursuance of a law previously passed for tliat.purpose, on the 4th day of March, 1867, and continued in session until the 30th day of March, 1867, when, by concurrent resolution, it adjourned to meet the 3d day of July, 1867. (See Journal of Senate, 1st session 40th Congress, p. 131.)
    The Senate rras convened in extraordinary session on the 1st day of April, and continued in such session until the 20th day of April, 1867, when it adjourned sine die. (Journal Senate, same session, pp. 193, 209.)
    The Congress reassembled, pursuant to adjournment, on the' 3d of July, 1867, and continued in session until the 21st day of July thereafter, when, by concurrent resolution, it again adjourned to meet on the 21st day of November, 1867, when it reassembled and continued in session from that day until the 2d day of December, 1867, when it adjourned sine die. (Journal Senate, 1st session 40th Cong., pp. 184,191.)
    These facts are sufficient to enable us to direct the attention of the court to the consideration of the questions involved here. We shall be better able to determine whether the claimant was “commissioned during the recess of the Senate,” within the meaning of the Constitution, by considering briefly the dual character in which the Senate acts. The Senate acts in a two-fold capacity. 1st. As a part of the legislative power, when it can act only in connection with, the other branch of the legislative power — the House of Representatives. 2d. As a part of the executive power, so far as that power extends to appointments to office, to which the consent of the Senate is required.
    That the Senate is an essential part of the appointing power under the Constitution cannot be successfully denied. In the exercise of this power it acts independent of its legislative character. If this were not so, there could be no session of the Senate independent of the coordinate branch of the legislature — the House of Representatives.
    That the Senate possesses this double character is clearly demonstrated by authority.
    Story on the Constitution, booh III, chapter 37, sections 1531,1532, 1533, 1534.
    That the Senate is to be regarded as an indispensable part of the appointing power is very forcibly shown by that provision of -the Constitution under which this claimant was commissioned.
    The Constitution itself contemplates this, for it provides that the President “ may, on extraordinary occasions, convene both Houses [of Congress] or either of them.”
    We think it conclusive, therefore, that the Senate acts in a double capacity, and that there may be sessions of it for legislative business as well as for such as may be connected with its executive functions as a part of the appointing power.
    There was “a recess of the Senate” within the meaning of the Constitution at the time the claimant was commissioned.
    A recess, as used here, is defined by Webster to mean “ remission or suspension of business or procedure; intermission, as of a legislative body.”
    There was “ a recess of the Senate,” therefore, from the 20th day of April, 1867, to the 3d day of July, 1867, when the Congress, in pursuance of its resolution of adjournment, reassembled. The vacancy to “fill up” which the claimant was commissioned, “ happened ” during the recess, and the President might therefore lawfully, commission him.
    When did the commission thus issued to the claimant expire?
    The Constitution says they shall expire at the end of the next session of the Senate.
    
      It remains, therefore, to inquire when the end of the session occurred.
    The sessions of Congress are terminated in. two ways: 1st. By adjournment sine die, by agreement of both Houses. 2d. By expiration of the term of service for which the House of Representatives was elected.
    ' As to what constitutes a.session, adjournment, prorogation, and dissolution of a legislative assembly, see Cushing’s Law and Practice of Legislative Assemblies, chapter 6, pp. 200-211.
    
      Mr. Alexander Johnston (with whom was the Assistant Attorney General) for the defendants :
    The.claimant was appointed consul at the city of Mexico, in 1861. In 1865 he resigned, and his resignation was accepted, “ with the request that he would continue to hold the office until, the arrival of a successor.” He returned to the United States; but went back to Mexico in March, 1866, “ as consul, and to take charge of the archives of the legation, Mr. William H. Corwin, acting chargé d’affaires, having been recalled.” He arrived in Mexico City April 8th, 1866, and, about the 20th of that month, received from Mr. Corwin the archives of the legation. On the 21st of June, 1867, he was appointed envoy extraordinary and minister plenipotentiary of the.United States to the Mexican Republic, until the end of the next session of the Senate. The Senate convened on the 3d of July, 1867, and remained in session till the 21st of the same month. Claimant was not nominated to the Senate as minister. General McOler-nand was nominated as minister, and claimant as secretary of legation, on the 19th of July, 1867; and on the 20th both nominations were rejected. By letter of July 22, the day after the Senate adjourned, (which adjournment was to the 21st o'f November,) the Secretary of State advised claimant that his commission as minister “ expired with the close of the late session of the Senate:” but remarked:
    
      t- It will, however, .devolve upon you, as consul of the United States at Mexico, to retain charge of the archives of the legation, and, until, the receipt of further -instructions, to transact any necessary business connected therewith.”
    It is not shown that he acted as consul, or took charge of the archives of tbe legation after receiving this. The fact is, he did not.
    Claimant received notice, by telegraph, of his appointment as minister on the 23d of July, 1867,- and presented his credentials on the 19th of August following. On the 9th of September, 1867, he received his passport from the Mexican government to return to the United States. It does not appear at what time he arrived at the capital.
    He sues for salary as consul in charge of legation, from April 8, 1866, to June 21, 1867, and as minister from the latter date to November 1,1867.
    I. As to claim for salary as “ consul in charge of legation.”
    There is no doubt the claimant is entitled to salary as consul during whatever time he held the office and discharged its duties. But there is no such office known to the law as “ consul in charge of legation,” and, of course, no salary fixed for such office.
    The act of September 30, 1850, (9 Stat. L., p. 542,) provides “that hereafter the proper accounting officers of the Treasury, or other pay officers of the United States, shall in no case allow and pay to one individual the salaries of two different offices, on account of having performed the duties thereof at the same time.” This is the general provision of law on this subject, and must govern this case, unless some subsequent or special provision be found applicable to it.
    II. As to salary as minister.
    The claimant was appointed to fill a vacancy occasioned by the resignation of Mr. Campbell. The claimant does not show when this occurred; but we will admit that, as a matter of fact, it occurred about the 15th of June, 1867, when neither Congress nor the Senate were in actual session.
    Congress adjourned on the 30th of March, 1867, till the 3d of July, 1867; remained in session then till July 21st, on which day it adjourned to November 21,1867 j from which time it remained in session till December 2, 1867, on which day it adjourned sine die. On the 1st of April, 1867, the Senate was convened in extraordinary session, and sat till April 20, when it adjourned without day.
    On the part of the claimant, it is claimed that the adjournment of the Senate on the 20th April created a recess of the Senate, while the adjournment of Congress on the 21st of July did not end tbe session of tlie Senate which commenced on the 3d of July; and that, therefore, the appointment of Mr. Otter-bourg was lawful, and he might, under such appointment, have legally held the office of minister till the 2d of December.
    We do,not take this technical view of an important provision of the Constitution.
    In article 2, section 2, of the Constitution, it is provided that the President “ shall nominate and, by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers, and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not herein otherwise provided for, and which shall be established by law.”
    That this provision of the Constitution should be strictly construed there can be no doubt. It is merely auxiliary to the general provision, and its assistance was not intended to be invoked except where absolutely necessary.
    What constitutes such a “ recess of the Senate ” as is contemplated by the Constitution may not, perhaps, be judicially determined with accuracy. It would, no doubt, be a longer intermission than the three days which the Senate may adjourn without the concurrence of the House of Eepresentatives; but how much longer must, to a great extent, be left to the discretion of the President. The spirit of the Constitution should be regarded in this, and acted upon, as was clearly intended, for the public good.
    To show there was a “recess of the Senate ” when the President appointed Mr. Otterbourg as minister, his counsel say:
    “ A recess, as used here, is defined by Webster to mean ‘ remission or suspension of business or procedure; intermission, as of a legislative body.’ ”
    And yet they argue that there was no recess between July 21 and November 21!
    III. As to salary as consul.
    If the claimant ever became envoy extraordinary and minister plenipotentiary to the Republic of Mexico, he, at the same time, ceased to be United States consul at the city of Mexico j and the office could not revert to him without a new appointment, which he never received. If he did not become minister, he retained his consulship till such time as he may have relinquished the same.
   Peok, J.,

delivered tbe opinion of tbe court:

This claimant by bis petition represents that be beld tbe office of United States consul at tbe city of Mexico on tbe 8tb day of April, 1866, and that William H. Corwin, tbe secretary of legation and cbargé d’affaires of tbe United States in Mexico, left tbe city of Mexico on that day, turning over to claimant tbe archives and property belonging to tbe United States legation, directing bim to act in said Corwin’s place and stead until further orders from tbe State Department.

That by tbe foregoing direction from said Corwin, which tbe claimant calls an appointment, be was required to perform and did perform diplomatic functions and all tbe duties of a cbargé d’affaires from tbe said 6th day of April, 1866, to tbe 21st of June, 1867.

That on tbe said 21st of June, 1867, be was appointed United States minister, and performed tbe duties of that office, in conformity with instructions from tbe State Department, until notified that said appointment was not approved by tbe Senate $ whereupon be immediately returned to Washington and reported at tbe State Department on November 1,1867.

That tbe Fifth Auditor certified bis salary account as consul in charge of legation, from April 8,1866, to June 20,1867, at tbe rate of f2,000 per annum; and as minister, “ to September 30, from the 21st of June, 1867,” at tbe rate of $12,000 per annum.

That tbe First Comptroller deducted all allowance to bim “ as consul in charge of legation and as minister, but admitted and certified tbe salary of a consul.

Claimant insists by bis petition that be is justly entitled to tbe salary provided by law for the office of cbargé d’affaires, or at least of u a consul in charge of legation,” from April 8, 1866, to June 21, 1867, and to tbe salary provided by law for the office of minister from tbe 21st day of June, 1867, to tbe 1st day of November, the day of bis arrival at Washington, on bis return from Mexico.

We find tbe facts to be that the claimant was consul between the 8th day of-April, 1866, and the 1st day of November, 1867. This conclusion is reached by including tbe time which tbe claimant assumes be acted as minister and “consul in charge of legation.” We do not find that be was authorized to perform diplomatic functions for tbe length of time be claims. For that purpose it was necessary he should have had express authority &om the President of the United States through the proper secretary. Mr. Corwin, the retiring minister, could not make the appointment which the claimant relies upon in his petition. It did not rest with him to do so.

By act of Congress approved 18th August, 1856, it is declared that u no consular officer sh^ll exercise diplomatic functions, or hold' any diplomatic correspondence or relation on the part of the United States, in, with, or to the government or country to which he shall be appointed, or any other country or government, when there shall be in such country, any officer of the United States authorized to perform diplomatic functions therein, nor in any ease, unless expressly authorized by the President so to do.” (See Brightley’s Digest, page 158, § 58.)

We are asked to presume that the claimant was authorized to perform diplomatic functions from the correspondence in the record, without any evidence that the President authorized it.' This would be carrying the doctrine of presumptions to an unreasonable extent. We might well presume, if the Secretary of State so said or recognized the action of a consul who exercised diplomatic functions, that the President had authorized the officer to do so. 11 As a general incident to all presumptive evidence, it is requisite that it shall have proper foundation, and not rest upon mere suggestion or surmise. Mere preponderance of probability is not sufficient to constitute a presumption. A presumption can only be supplied when the circumstances are such as to render the opposite supposition improbable. A person who rests his case on the argument that certain circumstances which he adduces afford a presumption of the existence of a disputed fact, is not entitled to any attention whatever if he is in a condition to give direct and positive evidence of the fact if it exists.” In this case we are asked to presume against both the law and the fact.

In conformity to a request from the claimant, this court on the 25th day of November, 1868, applied to the Secretary of State for information; in response to which the Secretary of State sent a memorandum making statements in reference to the services rendered by claimant, which does not state with directness whether the claimant did or did not perform diplomatic functions in Mexico, under his authority or that of the President. Iii reply to a second application on the same behalf, dated the 30th December, 18G8, requesting the Secretary of State to certify to the court the official position of the claimant between the 8th day of April, 1806, and the 1st day of November, 1867, and particularly whether the claimant was authorized to perform diplomatic functions, that gentleman replied, in his official character, under the seal of the Department of State, that claimant “was not required to perform, and did not perform, diplomatie functions during said time f but that he did perform diplomatic functions from the 19th day of August, 1867, until the 9th day of September, folio wing.

For the time certified he is entitled to the additional compensation allowed for a secretary of legation, which we understand to be at the rate of $1,800 per annum.

We would allow the claimant for his services as minister at Mexico had he taken the oath of office required by.the statute, before any person authorized to administer it. Without that the statute forbids the allowance. It 'says:

“ That hereafter every person elected or appointed to any office of honor or profit under the Government of the United States, either in the civil, military, or naval departments of the public service, (excepting the President of the United States,) before entering upon the duties of such office, and before being entitled to the salary or other emoluments thereof, take and subscribe the following oath or affirmation:

I,-, do solemnly swear that I have never voluntarily borne arms against the United States since I have been a citizen thereof,- that I have voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto; that I have neither sought nor accepted, nor attempted to exercise the functions of any office whatever, under any authority or pretended authority in hostility to the United States; that I have not yielded voluntarily any support to any pretended government, authority, power, or constitution, within the United States, hostile or inimical thereto.

“1 And I do further swear that, to the best of. my knowledge and ability, I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of tbe office on wbicb I am about to enter: So help me God.7” (12 Stat. L., p. 502.)

The act is silent as to the person before whom this oath should be taken. This claimant, in Mexico, took and subscribed the oath before the consul-general of Switzerland. His counsel have not furnished us with any evidence of the authority of this officer to administer the oath so as to give effect to the law and justify us in giving him a judgment for his salary. Nor do we know of any right that the consul-general of Switzerland had in the premises.

The record shows that the claimant rendered meritorious service for the United States in Mexico, for a long time, and that he received the approval of the Secretary of State; but-this will not permit us to do ivhat the Department of State might have done’: that is, compensate the claimant according to the value of his services as known to that Department. We have not any discretion beyond the letter of the law, which only authorizes us, under the proofs presented, to pay the claimant as consul for the time he remained in Mexico acting in that capacity. He did not resign his place as consul unless he did so by accepting that of minister, which we find he failed to do.

From the statement of the Comptroller it appears there was due to claimant, as consul for the year ending June 30, 1867, $394 25.' For the residue of the time he served as consul we allow him $338 35. For his services while exercising diplomatic functions, twenty-one days, we allow $85 88.

The case of Savage, in 1 C. Cls. R., p. 170, was, in many respects, different from this, and was decided before the passage of the law requiring that consuls exercising diplomatic functions should be expressly authorized in that behalf.

Judgment is rendered for the claimant for the sum of $818 48. '  