
    EDGAR M. WILSON, Administrator of Van Buren, v. THE UNITED STATES.
    [No. 16090.
    Decided December 21, 1896.]
    
      On the Proofs.
    
    The decedent was consul-general at Yokohama. In his absence, from May 8,1885, to June 8,2885, the vice-consul-general was in charge of the consulate. He received fees for certifying invoices of merchandise shipped from Yokohama in transit through the United States in bond to foreign countries. These fees were paid into the Treasury and charged against decedent as official fees in the settlement of his accounts.
    I. When certificates to invoices of merchandise shipped from one foreign port in transit through the United States in bond to another foreign port are procured, the certification is an unofficial act and the fefe the personal emolument of the consular officer.
    II. When the invoices were certified and the fees paid, the transaction was complete. The fact that some of the goods were stopped in transit and the duties paid can not re-troact to divest the officer of his fees.
    
      The Reporters7 statement of tbe case:
    Tbe following are tbe facts of tbe case as found by tbe court:
    I. Tbomas B. Yan Burén, a citizen of the United States, was appointed consul-general of tbe United States at tbe port of Yokohama, Japan, and held office from June, 1874, until June, 1885.
    May 7,1885, Yan Burén left Japan for tbe United States, and from May 8,1885, to June 30,1885 (both dates included), George E. Rice was in direct charge of tbe consulate-general, be being tbe vice-consul-general.
    II. Tbe claims presented in tbe petition for fees “ for certifying invoices of goods exported to tbe United States which were free of duty,” and for certifying “ extra or quadruplicate copies of invoices,” have been abandoned by the claimant, under tbe decision of tbe Supreme Court of tbe United States in tbe case of United States v. Mosby (133 U. S., 273).
    III. During bis term of office Yan Burén, while at Yokohama, and (during bis absence on leave) tbe vice-consul-general received fees for certifying invoices of merchandise (at tbe rate of $2.50 for each invoice) shipped from said port of Yokohama in transit through the United States in bond to foreign conn-tries amounting to the sum of $4,322.50, which fees were paid into the Treasury of the United States under the rules, regulations, and requirements of the Departments of State and of the Treasury requiring fees to be so accounted for and paid to the United States.
    The number of these invoices was 1,646. These invoices followed Forms 138 or 139 of the Consular Eegulations, except that after the word “ America” in the last paragraphs of said forms the words “in transit for” were added; following which came the name of some foreign country which was to be reached by crossing the United States.
    Of the merchandise so shipped, that covered by 523 of said invoices was stopped in transit and entered for consumption in the United States without further consular certificate, and the declarations or invoices and certificates as hereinbefore described were accepted by the customs officers of the United States as sufficient. The fees collected for certifying these 523 invoices amounted to $1,307.50.
    IY. Yan Buren’s accounts for the fees hereinbefore described were settled at the Treasury Department, and in the settlement he was charged with said fees as for official fees.
    It is not shown that the reason for paying said fees into the Treasury was to avoid a controversy with any Department of the Government, or that Yan Burén made any demand to have the fees refunded to him or credited to him before said accounts were finally settled, or that before the final settlements of said accounts at the Treasury Department he made any objection or protest against said fees being charged to him as official fees.
    Y. The merchandise described in 478 of said 1,646 invoices passed in transit through the United States to foreign countries and was exported from the United States. The fees collected for certifying these invoices amounted to $1,195.
    As to 645 of said 1,646 invoices, it is not shown either that the merchandise described in the invoices was stopped in transit and entered for consumption in the United States or that it passed in transit through the United States to a foreign country. The fees collected for certifying these invoices amounted to $1,612.50.
    
      VI. During bis term of office, to wit, after March 31,1881, and before May 7,1885, the claimant’s testator charged and collected fees at the rate of $2 each, certifying “ quadruplicate or extra copies of invoices” of merchandise imported into and entered for consumption in the United States, no part of which sum has been accounted for or paid into the Treasury of the United States.
    VII. These fees were voluntarily paid by shippers, at whose solicitation the service was rendered, were collected in good faith, and credited by Van Burén to the Treasury.
    
      Mr. John 8. Mosby for the claimant.
    
      Mr. Felix Brannigcm (with whom was Mr. Assistant Attorney - General Dodge) for the defendants.
   Davis, J.,

delivered the opinion of the court:

While plaintiff’s intestate was cousul-general in Japan, he certified invoices for goods intended at that time to be shipped through the United States to a foreign port. The fees for this service he would be entitled to retain as his personal emolument, under the decision in Mosby’s Case, were nothing else developed as to the transaction. It appears, however, that some of the goods covered by these invoices were in fact stopped in transit while within the territorial jurisdiction of the United States, were entered for consumption within the United States, and did not in fact leave the United States. There is no intimation of any fraud, collusion, or bad faith in any of the transactions, nor is there reason to suspect either. The shipper, when he procured the certificates to the invoices, intended that the goods should go beyond the United States, The certification, therefore, was an unofficial act, and the fee was the personal emolument of the consul-general. This court so decided in Mosby’s Case, saying:

“ The third item of charge in claim is for certifying invoices for goods in transit through the United States to other countries, $5,805.
“This amount was collected by claimant during the time he officiated as consul at Hongkong, and was paid into the Treasury. For the purpose of avoiding delay and annoyance the shippers of goods through the United States procured from the consul what is called ‘ transit invoices.’ They are not the invoices referred to in the sections of the statute above quoted, but such invoices as accompanied goods in transit through, the United States. The law did not require the consul to issue such certificates, and hence no provision was made for them either in the regulations of 1874 or 1881. Nor do the regulations of the Treasury Department require the consuls to perform any duty in relation to such goods.” (Gen. Reg. Treas. Dept., 1884, p. 361; Mosby v. United States, 34 C. Cls. R., 13.)

The Supreme Court affirmed this court, saying:

“The item of $5,806, which was allowed, is covered by finding 9, and is for fees received for certificates of shipment of merchandise in transit through the United States to other countries. These were not the invoices referred to in sections 2853 and 2855 of the Revised Statutes, either as they originally stood or as they were amended by the act of June 10,1880. The law did not require the consul to issue those certificates; no provision was made for a fee for them in the regulations of 1874, or in those of 1881; and it does not appear that the regulations of the Treasury Department required a consul to perform any duty in relation to such goods. This item was, therefor, properly allowed.” (United States v. Mosby, 133 U. S. R., 285.)

There therefore is left for us but one point, viz, W as the character of the consul-general’s fee determined by the facts existing at the time he performed the service and did he then become entitled to the fee, or was his right to the fee to be determined only after the goods had reached a final destination somewhere at some indefinite time and after an undetermined delay — that is, was the consul-general bound to follow these goods until they were actually consumed in Havana, Buenos Ayres, London, or St. Petersburg, or were his rights determined and his responsibilities ended when in good faith he certified the invoices and received his pay?

The statement of the proposition seems to us to carry its answer. When the invoices were certified, it was intended that the goods should go beyond the United States. That being so, the certification was unnecessary in law, the fee was unofficial, and the consul-general might retain it. The transaction was then complete and ended. Later we reach another transaction absolutely disconnected from the first one. To this transaction the consul-general was not a party, and of it he had no knowledge. The owners of the goods stopped them in transit and, presumably, paid the duties, if there were any due. This was a transaction absolutely independent of the previous consular act performed in Japan, and could not revert to tbat act to change its character.

When the consul charged this fee, he was entitled to retain it, and the subsequent change of the shippers’ plans should not retroact to divest him of his title to the fee. The defendants might by statute or regulation have required the shipper to pay as a condition to entry for consumption in the United States a fee equal to the consular fee for certifying the invoices, and thus have adequately protected themselves.

Former judgment affirmed.  