
    MARGARET M. BOYD, EXECUTRIX, v. THE UNITED STATES. LEWIS A. EATON v. THE SAME.
    [Nos. 18527, 18691.
    Decided February 10, 1896.]
    
      On the Proofs.
    
    Boyd, minister and consul-general at Siam, appoints Eaton vice consul-general to act during Iris absence, and returns to the United States. He is allowed and paid half his salary while on leave of absence for sixty days, but nothing subsequently. Eaton gives a bond prescribed by the Department; performs the duties of minister and consul-general, and his temporary appointment is regarded by the Department as being required by the emergency.
    I.It has long been settled that a vice-consul, acting during the absence of his superior or during a vacancy in the office, shall be compensated from the salary of that office. The same principle applies to a vice-consul-general.
    II.Yice-consular officers are those who replace the chief of post during his absence, and are not to be confounded with deputy consular officers, who act during the presence of the superior.
    III.The compensation of a vice-consular officer acting during'his principal’s absence is paid out of the compensation of his principal, and may extend beyond a period of sixty days.
    IY. A vice-consul’s compensation begins with his principal's absence, and not with the approval of his bond.
    Y. Consular fees received for unofficial and notarial services, and for fees and fines collected in the .consular courts, are not for services required by the Kevised Statutes (§ 4120) or by the Consular Regulations, 1888; they belong to the consul.
    
      The'Reporters’ statement of tbe case:
    Tbe following are tbe facts of tbis case as found by tbe court:
    I. October 1,1890, Sempronius H. Boyd was commissioned as minister resident and consul-general of tbe United States for Siam. Boyd assumed tbe dual office and performed bis official duties until February 11, 1893; bis salary was paid bim until July, 1892.
    II. July 12, 1892, Boyd, being, as be was advised and believed, hopelessly ill, obtained a leave of absence with permission to visit tbe United States. August 27,1892, be arrived at bis home in Missouri. His leave of absence expired Octo. ber 26,1892. After that date his health fluctuated until June 22,1891, when he died. Plaintiff Margaret M. Boyd is Sem-pronius H. Boyd’s widow and'executrix.
    III. Before leaving Bangkok, believing his illness would terminate fatally and being desirous to protect the interests of the Government during his absence and until the then expected arrival from the United States of Bobert M. Boyd, whom Sempronius Boyd desired should act as consul-general, the latter called to his aid Lewis A. Eaton (now a plaintiff herein, who was then a missionary at Bangkok) and asked him to take charge of the consulate and its archives. Thereupon the following letter, dated June 21,1892, was written by Boyd, and the following document was signed by Eaton:
    “U. S. Leg-atioN and Consulate-General,
    
      “Banglcolc, June 21, 1892.
    
    “Erom Luang Devawongsee Yaroprokan,
    
      “Minister for Foreign Affairs.
    
    “Monsieur le Ministre: It is with exceeding regret to me to be forced to abandon my diplomatic and consular duties at the court of His Majesty, with the enjoyment, pleasure, comfort, and-genuine friendship so marked and distinguished, which the representative of-the U. S. fully appreciated and imparted to his Government.
    “All the physicians advise me to go soon to a cold climate. The President has wired me to that effect. In 20 or 30 days I may be strong enough for a sea voyage, of which I will avail myself. I am authorized to designate and do designate L. A. Eaton vice-consul-general until I am able to assume. If not incompatible with public affairs, I beg you to so regard him.
    “Monsieur le ministre, I am too weak and feeble to call in person, which I would so much like to have done, and expressed my thanks and that of my Government to the foreign office and attaches.
    “ With assurance of my high consideration, I have the honor to be, Monsieur le ministre, your obedient servant,
    “ S. H. Boyd.”
    “ Kingdojvi op Siam, U. S. Legation,
    
      “Banglcolc, June 23rd, 1892.
    
    “I, L. A. Eaton, citizen of the United States of America, residing in Bangkok, in the Kingdom of Siam, and being by the Hon. S. H. Boyd, U. S. minister resident and consul-general, because of sickness and inability to discharge the duties devolving upon him as such officer, have been appointed, empowered, authorized, and nominated to H. E. the President of the
    
      United'States, acting consul-general for tbe Kingdom of Siam, and having formally accepted the same, I do solemnly swear that I will faithfully discharge the duties of the office, conform to the requirements of the State Department at Washington, D. 0., preserve the property of the United States under my charge, and turn over and deliver at the termination of my official position everything belonging to the G-overnment under my control. So help me G-od.
    “L. A. EATON.”
    “ Kingdom: op Siam, Bangkok, U. S. Legation,
    “ June 23rd, 1892.
    
    
      u L. A. Eaton, being this day appointed by me acting consul-general, was by me duly sworn to the facts in the statement-above his signature preparatory to the discharge of his duties.,
    
      u Witness my hand and official seal day and date above.
    “S. H. Boyd, [seal.]
    
      Min. Bes. and, O. G., TI. 8. A.”
    Boyd believed he had authority for this action.
    IY. At the date of the letter aforesaid Sempronius H. Boyd was physically unable to perform the duties of his office, and Bobert M. Boyd, who had been appointed vice-consul-general November 10,1891, had not qualified as such officer, but had left Siam for the United States about March 30, 1892, and in June, 1892, was in the United States.
    Y. Sempronius H. Boyd received leave of absence and left Siam for the United States July 12,1892, and in due course arrived there. The period of sixty days after his arrival expired October 26, 1892; he did not return to his post.
    YI. Eaton acted under whatever authority was given him by the communication appearing in finding in, and with the approval of the Department of State.
    That Department acknowledged his communications, and acted upon them as communications from a person authorized to perform the duties of minister resident and consul-general in the emergency then existing. Boyd upon his departure from Bangkok transferred the charge of the legation and consulate-general to Eaton. At the time of Boyd’s departure there was in Siam no vice-consular officer regularly appointed and qualified to assume the official duties. Bobert M. Boyd had been appointed to that position November 10, 1891, but he had not, at the date of the minister’s departure from Siam,. given bond or qualified to assume tbe duties. The Department of State regarded the temporary appointment of Eaton as required by the emergency.
    YII. June 13,1893, Eaton began the discharge of the duties imposed upon him by Sempronius II. Boyd; he took an oath of office June 23,1892; from July 12, 1892, to and including May 17, 1893, he was in sole charge of the interests of the Government at Bangkok, and performed whatever duties were required there of either a minister resident or a consul-general, with the knowledge of the Department of State and with that Department’s approval.
    YIII. September 2,1892, Eaton executed (under instructions from the Department of State) an official bond calling himself acting consul-general of tho United States at Bangkok; this was received at the Department of State and was approved January 3, 1893; subsequently, under instructions from the Deq>artment of State, dated January 24, 1893, he executed another bond as vice-consul-general of the United States at Bangkok, which was approved by the Secretary of State April 23, 1893. Both of these bonds bore date June 13,1892, with the knowledge and consent of Eaton’s sureties thereon, and were so dated because of a pencil memorandum on each bond when received in blank by Eaton from the Department of State, directiug him to insert the date of his appointment in the blank space reserved for the date.
    IX. Eaton rendered to the accounting officers of the Treasury his account for salary for the entire period of his sendee, in which he charged and claimed one-half of the salary of $5,000 per annum appropriated for said post of minister resident and consul-general, from July 12, 1S92, to October 26, 1892; that is, from the departure of the minister to and including the date on which the leave of absence for sixty days (excluding transit time) expired, and the full salary at the rate of $5,000 per annum from October 27, 1892, to May 17, 1893, inclusive.
    X. Eaton also rendered with his salary account a return of all fees collected during the entire period of his service both fees official and unofficial, including fees notarial and fees and fines received in the United States consular court at Bangkok, amounting in all to $245.41; these fees are set forth in Exhibit O to the petition. During the period in dispute in this case Eaton did not assume to act as interpreter or prison keeper nor assume to receive pay as such, nor did be receive pay other than as is shown in these findings; but it does not appear that he was replaced in either post, nor does it appear whether there were any actual services as interpreter or prison keeper to be performed, or that any other person performed service as interpreter or prison keeper.
    XI. In the settlement of Eaton’s salary accounts by the Treasury the total amount of fees received, to wit, $245.41, was charged to him and covered into the Treasury. The one-half salary from July 12,1892, to October 26,1892, amounting to $726.90, was suspended fór “further information,” which was thereafter furnished, but this sum remains unpaid. The full salary from October 27,1892, to May 17,1893, amounting to $2,792.35, as approved by the Department of State, was allowed and credited. Deducting from this $245, leaves in Eaton’s favor a balance of $2,546.94, which was certified to his credit by the First Comptroller December 4, 1893, no part of which has been paid.
    XII. Eaton also rendered to the Department of State his account of disbursements from the contingent fund of the legation and consulate-general from July 1,1892, to April 30, 1893, which was there approved. In the settlement of said accounts by the accounting officers of the Treasury the sum of $5.73, expended by Eaton for candles and lanterns, was suspended for information, which was thereafter furnished, but said sum remains disallowed and unpaid.
    XIII. The items composing the sum of $3,456.98, for which Eaton prays judgment as hereinbefore set forth, are:
    (a) Notarial and.unofficial fees ($114.41) and consular court fees ($63), erroneously included as official consular fees and charged to claimant per report No. 162708. $177.41
    (Z>) One-half the salary of the post at Bangkok, from July 12, 1892, to October 26, 1892, suspended per report No. 162708, yet unpaid. 726. 90
    (c) Balance found due and certified in favor of claimant by the .First Comptroller December 4, 1893, per report No. 162708, no part of which has been paid. 2,546.94
    (d) Item 'of contingent expenses, suspended per report No. 162709, due and unpaid. 5.73
    Total. 3,456.98
    No part of which has been paid.
    
      
      Mr. Thomas O. Fletcher for Boyd:
    1. Tbe contract of Boyd witli Eaton speaks for itself; the only construction which is borne out by its wording is that Eaton was to have the pay of interpreter and prison keeper. His afterthought, iu anticipation of Boyd’s death, to claim the salary of consul-general, instead of the pay of interpreter, and prison keeper, is apparent on the face of the evidence submitted in this case. He is entitled to that if he claim it, but he can not forego the salary of interpreter and prison keeper merely to strengthen his claim for the pay of minister and consul-g-eneral. Boyd being dead, it is not competent for Eaton to testify to any matters outside of the agreement in writing. The bond of Eaton as vice-consul-general, approved by himself, cuts no figure in the matter of his appointment.
    2. The legal rights of these parties must be determined by the law as presented to the court; the mere legal opinions of witnesses called by Eaton, and the detailed statements of such witnesses as to the general practice by the clerks and officials of the Treasury or other Departments, are not competent evidence in this case.
    3. At most, Eaton, even if he could claim any salary at all under his agreement, can not legally claim the same until the approval of his bond as vice-consul-general, which was not till 28th April, 1893. Minister Boyd left Siam 11th July, 1892; had 60 days’ leave of absence and obtained an extension of 30 days, making 90 days, and not till after the expiration of that time, to wit, 12th October, could Eaton claim exceeding one-half the salary even if there had been no agreement made as to compensation with Minister Boyd. (See par. 471, pp. 167-168, H. S. Consular Eegulations.) The regulation clearly contemplates the making just such an arrangement by a consul-general to have his office cared for in his absence as Boyd made with Eaton.
    
      Mr. John B. Garrison for Eaton:
    September 28, 1894, the First Comptroller requested the Auditor to make a supplemental statement of claimant’s salary account, and charge back the salary previously allowed him, from October 27, 1892, up to April 27,1893, which statement was accordingly made by the Auditor, and certified by the Comptroller on October 4,1894.
    
      Tliis action was based on a recent decision of tbe Comptroller, that a vice-consular officer is not entitled to salary previous to the date of the approval of his bond notwithstanding he may have entered upon the duties of the office during the absence of the principal officer, and performed them for a period before the bond was approved.
    This ruling is a reversal of the long-established practice of the accounting officers, under which the claimant’s accounts were allowed and certified by the Comptroller on December 4, 1893, and is contrary to the rule laid down in paragraph 471, clause 1, p. 1G7, of the U. S. Consular Regulations of 1888, under which the vice-consular officer, acting in the absence of the principal, is entitled to compensation from “the date of assuming the duties of the office.”
    Where the vice-consular officer has been permitted by the Government to enter upon and discharge the duties of the office, for a period of time prior to the date of his giving bond, or prior to the date of the approval of the bond, and his services have been accepted, his compensation has been allowed (prior to the recent decision of the Comptroller) from the date on which ho assumed the duties of the office.
    The compensation for services rendered and accepted, prior to the date of giving bond or prior to the date of .approval of the bond, is not forfeited because the bond was not given within the time prescribed in the statute.
    “There is,” said Lord Mansfield, in Bex v. Loxdale, 1 Burrow, 447, “a known distinction between circumstances which are of the essence of the thing required to be done by an act of Parliament, and clauses merely directory. The precise time in many cases is not of the essence.” Following this principle, the courts have, by great weight of authority, held that statutes requiring that bonds shall be given by public officers within a specified time, although couched in the most explicit language,, are directory only. (United States v. Bradley, 10 Peters, 343; United States v. Linn, 15 Peters, 313; City of Chicago v. Gage, 95 Ills., 593; The State v. Toomer, 7 Rich. S. C., Law, 216; State v. Churchill, 41 Mo., 41; Sproiclv. Jjawrence, 33 Ala., 674; People v. Holley, 7 Wend. (N. T.), 481; State v. County Court, 44 Mo., 230;" State v. Porter, 7 Ind., 294; State v. Falconer, 44 Ala., 696; State v. Colvig, 15 Or eg., 57; State v. Pede, 30 La., Ann., 280; Kearney v. Andrews, 10 N. J., Chancery (Stockton),. 70; State of Maryland v. Commissioners of Baltimore County, 29 Md., 516; Sweatee v. United States, 9 Orauch, 38.)
    As tlie failure to give tlie bond within the prescribed time does not of itself work a forfeiture, a fortiori is this so, when the failure was Ihrough no fault of the officer. (Boss v. Williamson, 43 Ga., 501; State y. Hadley, 27 Ind., 496.)
    The doctrine laid down in the cases cited does not conflict with the decision in United States v. Le Baron (19 Wallace, 73) nor with that in Dainesey. United States (15 C. Gis. B., 64), nor in Williams v. United States (23 C. Cls. B., 46), which have been cited in support of the position that a vice-consular officer is not entitled to compensation for services performed previous to the date of the approval of his bond.
    The question before Attorney-General Bates (10 Op., A. G., 250) was whether the salary of the recently appointed and confirmed marshal of the United States consular court at Shanghai commenced with the date of his appointment or with the date of his entry upon duty in China; and his opinion was that the salary of said officer might properly begin after his taking the oath of office and giving bond, and before his departure for his post of duty, for time and labor devoted to “preliminary duties” performed after his taking the official obligations, and before he left the country, as well as the time occupied in reaching his official post. Manifestly this opinion has no relation to the compensation of an officer, who has been permitted to enter upon the duties of his office, and has for some period performed services, which have been accepted before the time of his giving bond or the date of its approval.
    In United States v. Flanders (112 U. S. Beports, 88) the case was square and directly presented for decision by the Supreme Court, as to the right of a collector of internal revenue to compensation, who, having been duly appointed by a commission dated March 4, 1863, entered upon the discharge of his official duties ás collector on March 11,1863, but did not take the oath-of office or give bond until May 15, 1863.
    The language of the statute then in force respecting the oath of office (which was carried into section 1756 Bevised Statutes, and that section repealed by the Act May 13,1884 (23 Stat., 22, sec. 2) is most explicit in its terms, requiring not only that the oath should be taken “before entering upon the duties” of the office, but also “before being entitled to any of the salary or other emoluments thereof.”
    
      Yet tbe court held that the collector was entitled to the compensation provided by the law then in force respecting the compensation of collectors of internal revenue, ‘‘from the-time when, after receiving his commission, he was permitted by the Government to discharge the duties of the office and his services were accepted therein, although, during a portion of such time, he had not taken his official oath nor given his official bond.”
    
      Mr.- O. W. Btissell (with whom was Mr. Assistant Attorney-G-eneral Dodge) for the defendants:
    Eaton claims salary as vice-consul-general or acting consul-general at Bangkok, and the estate of S. H. Boyd claims the same salary, Boyd having been minister resident and consul-general during the same periodB.B.Boyd had been appointed vice-c'onsul-general. Both the Boyds were absent the greater part of the time, and Eaton claims to have been appointed by Minister Boyd and to have performed the duties. Eaton contends that “ practically the offices, both as minister resident and consul-general and vice consul-general, were vacant” when he was appointed by S. H. Boyd,, who was taken sick.
    Claimant Eaton’s counsel argue at length to prove that, if a man be appointed to an office and perform the duties thereof, he is entitled to compensation if he afterwards qualifies himself to hold the office. The courts seem to make a sharp distinction between what the Government does and what the person appointed is to do; between the appointing, on one side, and qualifying by taking oath and giving bond, etc. We do not feel disposed to quarrel with this argument. It is merely to say that qualifying on the part of the appointed is not what gives a man an office so much as the appointment; but it is conceded that at some time there must be a qualifying or there can be no compensation for previous service.
    It follows from this that B. B. Boyd was vice-consul-general at Bangkok at the time Eaton claims to have been the same (from June 13,1892, to May 17,1893). The consul-general had regularly nomin ated Boyd and he had been regularly appointed. It may be that the commission or certificate of appointment dated November 10, 1891, lay in the State Department until November 22,1892 (Evid., p. 5) and that it was, unlike that of Marbury (1 Cranch, 137), revocable. But it was not revoked;. it was transmitted, and under it B'oyd acted, after qualifying bimself so to do. Section 45 of the Consular Regulations shows that some time before November 22,1892, Boyd’s bond had been approved and his oath of office taken. But the appointment conferred the office according to the Supremo Court in Marbury v. Madison, and subsequent cases, without anything else whatever. If, however, we require more, and rely upon the principle of relation back, then Boyd was completely invested with the office from November 10, 1891. He was present in Bangkok on and after February 11,1893, at his post and waiting for his recognition by Siam, which is to say, was there performing his duties.
    It is equally clear that the office of minister resident and consul-general was not vacant until the other Boyd resigned or died or his successor ivas appointed — some time after the last date with which we are concerned in this case.
    It was not vacant on June 13, 1892, or June 23,1892, when said Boyd, the minister and consul-general, undertook to appoint L. A. Eaton “acting consul-general.”
    This seems too clear for discussion, and yet the only conceivable argument in favor of Eaton’s having been appointed vice-consul-general by the minister must be derived from Consular Regulations 87. If the minister did not get authority from that section as qualified by sec. 88, then his act of appointing was absolutely ultra vires, null and void. And if so, the law contended for by the claimant does not apiily, for there was no anointment by the Government to which the subsequent qualifying could relate with the effect contended for. Qualifying for an office to which a man has not been appointed is an absurdity.
    That section 87 provides for an appointment by the minister when both the consulate and vice-consulate are vacant, of a person to be designated as vice-consul,“insteadof acting consul,” who was to qualify by giving a proper bond in the manner prescribed for such officers (vice-consuls).
    The minister was at his post and was sick. He was minister resident and consul-general. He was sick in both capacities, and if the consulate-general was thereby made vacant, so was the ministry. But if the ministry, was vacant, then he was not a minister and not qualified to appoint anyone; if the ministry was not vacant, then the consulate was not vacant, and the case provided for by section 87 did not exist.
    
      It is, therefore, clear on the one hand that Eaton was not really appointed to the office of vice-consul, and would not have been had he been expressly so appointed instead of being appointed acting consul-general, whatever that office is. (20 Opin., 92.)
    It is clear, on the other hand, that the Boyd who was vice-consul was vice-consul at that time, however he may have been neglecting his duties, which were to stay at his post and wait for the consul-general to leave.
    As Milton says of the angels, “They also serve who only stand and wait.”
    But Eaton, July 13, 1892, writes to the Secretary of State that the minister and consul-general, being in feeble health, has left for home, “having transferred the charge of the legation to me.” This letter is numbered 29, and is signed “ acting consul-general.”
    The minister and consul-general was sick, and he was left in charge of the legation — that is all. Later (Evid., p. 6), and after an inconsequential letter about flags, etc., the Acting-Secretary of State transmits him a form of bond, addressing him as “Acting consul-general,” as he had called himself.
    It does not appear that his pretended appointment was forwarded, or any further explanation of the sudden substitution of himself for the minister and consul-general.
    There is no such office as “acting consul-general,” and it is quite immaterial whether the claimant was appointed to it or recognized as holding it or not; but he was recognized as a minister, if he was recognized as an acting consul-general, and the testimony shows that the intention was not to recognize him as holding the only office he now claims to have held, i. e., vice-consul, for Boyd was recognized as holding that office. Eaton is presumed to know the law, and he and the officials of the State Department alike were bound by the law and the President’s formal regulations. lie was a missionary, and in no sense subject to orders from those officers. He volunteered to perform services, knowing by presumption, that he was not holding any office; knowing as fully as those officers that there was no such office as acting consul-general, and that the minister had no right to appoint him to that office or that of vice-consul. ITe dealt with them on a perfect equality and as a volunteer, and has nothing to complain of. He called himself “acting consul-general,” and some of tbein so addressed 1dm. This is not equivalent to an appointment as vice-consul. Tbe minister did not appoint 1dm vice-consul and bence it can not be said tliat tliere was a ratification of such an appointment.
    Ratification is only of a thing which has been done. Boyd never appointed Eaton to the office of vice-consul-general. There is no such office as that of acting consul-general; hence it is not possible to ratify an appointment to it. If Eaton ever was appointed vice-consul it was by the Assistant Secretary’s letter of January 24,1893.
   Davis, J.,

delivered the oinnion of the court:

While Sempronius IL Boyd held the dual office of minister and consul-general in Siam lie fell seriously ill, and, obtaining the proper leave of absence, ho returned to the United States, where he remained until his death, which occurred June 22, 1894. His statutory leave of absence with pay ceased October 26,1892, after which date he had no claim to salary.

Before leaving Bangkok, he asked Eaton (a plaintiff herein), then a missionary in Siam, to take charge of the consulate and its archives. Boyd wrote the minister of foreign affairs of Siam informing him of his contemplated departure, and that he designated Eaton “vice-consul general.” Two days later (June 23, 1892) Eaton took an oath which contained the statement that he had been “ appointed, empowered, authorized, and nominated to” the President “acting consul-general for the Kingdom of Siam; ” that he accepted the office and swore to faithfully discharge the duties of the office, conform to regulations, preserve the Government property, and “turn over and deliver, at the termination of my official position, everything belonging to the Government under my control.”

The same day Boyd stated, under his hand and seal, writing as “minister resident and consul-general,” that he had that day appointed Eaton acting consul-general. Previous to this (November 10, 1891), Robert M. Boyd, a son of Sempronius Boyd, had been appointed vice-consul-general; he had not, however, qualified as such officer, and left for the United States March 30,1892, whence he did not return. His appointment under these circumstances has no bearing upon this case.

The statute makes a salary allowance to ministers and consuls absent with leave for a period not exceeding sixty-days after their arrival at their homes.

We have now to decide as to Eaton’s status during’ Boyd’s absence. Boyd, the minister, acted under the spur of necessity, as he was forced to suddenly leave his post, and having no secretary of legation to assume the duties of the office he turned to Eaton for aid as a fellow-citizen in a city where few Americans could be found. In tho appointment of Eaton, Boyd exercised all the power he possessed, and intended to use all this power; the action was reported to the Department of State, and, as the Assistant Secretary said, “the temporary appointment of Mr. Eaton was therefore required by the emergency;” the Assistant Secretary further says as to Eaton’s official dispatches, “they were duly acknowledged by the. Department as communications from a person authorized to perform tho duties of minister resident and consul-general in the emergency then existing.” Eaton took charge of the office and performed the duties of minister resident and consul general during Boyd’s illness until the latter’s departure from Bangkok, and for this period Eaton makes no claim for compensation. July 13,1892, Eaton informed the Department of Boyd’s departure and that he had assumed charge of the legation and consulate-gen eral; he remained in charge to (and including) May 17, 1893, during this time performing the duties of the combined offices. A form of bond was sent Eaton by the Department of State describing him as “ acting consul-general,” and this was afterwards amended by the Department when he was described as “vice-consul-general.” Both bonds were approved by the Department of State as required by law. (R. S., sec. 1698.)

It has long been settled that a vice-consul, acting during the absence of his superior or during a vacancy in the office, shall be compensated from the salary of that officer. This was settled before the act of August 18,1856, the act reorganizing the consular service. In the case of Ooxie, who, without regular appointment, remained in charge of the consulate in the Barbary States after the death of his father (the consul), the Attorney-General advised the President that the salary be X>aid him, saying:

“The public service requires that the duties of the office should be discharged by some one, and where, upon the death of tbe consul, a person wlio is iu possession of tbe papers of tbe consulate,' enters on tbe discharge of its duties and fulfills them to tbe satisfaction of tbe Government, I do not perceive wby be should not be recognized as consul for tbe time be has acted as such, and performed tbe services to tbe public, and if be is so recognized, tbe law of Congress entitles him to bis salary.” (Op. Atty. Geni., vol. 2, p. 521.)

June 3, 1856, Mr. Marcy, Secretary of State, asked of tbe Attorney-Gen eral tbe following questions:

“1. When a consul is absent from bis post is tbe person whom tbe consul, with tbe sanction of tbe Department, has. left in charge of tbe consulate and performing the duties, entitled to tbe statute salary?

“2. If a consulate becomes vacant by death, resignation, or removal of tbe incumbent, is tbe individual who shall have been placed by a minister or other authorized agent of tbe Government in charge of tbe office entitled to the salary?”

Mr. Cushing, in answer to Mr. Marcy’s inquiries, held “that tbe substitute consul, or locum tenens, is to be paid out of tbe salary or to go uncompensated,” and said:

“ 1. A substitute or vice-consul left in charge of tbe consulate during tbe temporary absence of tbe consul is to be compensated out of tbe statute emoluments óf tbe office, subject to tbe regulations of tbe Department.

“ 2. An acting consul, in charge of a consulate during actual vacancy of tbe consulate, is entitled to receive tbe statute compensation of tbe office.” (7 Op. Atty. Genl., 714; see also Wharton’s Digest, vol. 1, sec. 118, p. 772.)

Section 1695 (R. S.) authorizes tbe President—

“To define the extent of country to be embraced within any consulate or commercial agency, and to provide for tbe appointment of vice-consuls, vice commercial agents, deputy consuls, and consular agents therein, in such manner and under such regulations as be shall deem proper, but no compensation shall be allowed for the services of any such vice-consul or vice com* mercial agent beyond nor except out of tbe allowance made by law for tbe principal consular officer in whose place such appointment shall be made.”

Section 1703 (R. S.) provides that—

“Every vice-consul and vice commercial agent shall be entitled, as compensation for bis services as such, to the whole or so much of tbe compensation of the principal consular officer in whose place be shall be appointed as shall be determined by tbe President, and tbe residue, if any, shall be paid to such principal consular officer.”

Nice consular officers are those who replace the chief of post during his abseuce, and are not to be confounded with deputy consular officers who act during’ the presence of the superior. (Cons. Reg’, of 1888, paragraphs 19 and 31, pp. 7 and 13.) Compensation of such officers is thus fixed by the regulations (sec. 471, Reg. of 1888):

“1. In case the principal officer is absent on leave for sixty days or less in any one calendar year and does not visit the United States, the vice consular officer acting in his place is entitled to one-half of the compensation of the office from the date of assuming its duties, unless there is an agreement for a different rate, the principal officer receiving the remainder. But after the expiration of the sixty days, or after the expiration of the principal’s leave of absence (if less than sixty days), the vice consular officer is entitled to the full compensation of the office.

IC2. If the principal visits the United States on such leave and returns to his post, the foregoing rule will include the time of transit, both from and to his post, as explained in paragraph 4G0. But if the principal does not return to his post, either because of resignation or otherwise, the rule will embrace only the time of absence not exceeding sixty days, together with the time of transit from his post to his residence in the United States.”

While section 1742 of the Revised Statutes provides that—

“ No diplomatic or consular officer shall receive salary for the time during which he maybe absent from his post, by leave or otherwise, beyond the term of sixty days in any one year; but the time equal to that usually occupied in going to and from the United States, in the case of the return on leave of such diplomatic or consular officer to the United States, may be allowed in addition to snch sixty days.”

The compensation of a vice consular officer acting during his principal’s absence (when alone he can act) is paid out of the compensation of his principal, and continues during the principal’s absence, even if that absence exceeds the statutory sixty days. (12 Opin. Att. Gen., 410.)

In settling the accounts of Boyd and Eaton, the Treasury allowed Boyd full salary to (including) July 11, 1892, and onelialf salary after his departure from Siam (July 12, 1892), to (including) October 26,1892, when his sixty days’ leave with pay (excluding transit time) expired.

The statute stopped Boyd’s salary October 26, 1892, which was sixty days after his arrival in the United States, and his claim for salary after tliat date and to February 11, 1893, was not approved by the Department of State nor paid, nor should it be.

Eaton’s accounts as vice-consul-general were approved by the Department of State, being presented upon the'theory that he was entitled to full salary (at the rate of $5,000 per annum) from October 27,1892, to (including) May 17,1893. The Treasury did not allow the claim made by Eaton for one-half salary from July 12,1892, to October 26, 1892, to wit, from the date of Boyd’s departure from Siam to the date when his leave with pay expired. The reason for this was that the Comptroller understood there was an agreement between Boyd and Eaton by which Eaton was to receive only the salaries of interpreter and prison keeper to the legation.

Eaton gave a bond as soon as he could; the form of this bond was prescribed by the Department of State, which later became dissatisfied with its form and sent him another bond in blank, which he diligently perfected and returned to the Department. It is suggested that he is not entitled to the salary of the office for the period between his appointment by Boyd and the date of the approval of the bond, although he had entered upon the duties of the office and performed them during the period in question.

The general rule is that a vice-consul is entitled to compensation when his chief is absent, and then from the date of assuming the duties of the office. (Cons. Reg. 1888, sec. 471, clause 1, p. 167.) If Eaton had been appointed in due course by the Secretary of State prior to entering upon the duties of the office there could be no question now as to his rights to the pay. But as he was designated by Boyd prior (necessarily) to confirmation by the Department, and had to await approval from that Department — instructions and a form of bond — a period necessarily elapsed between his designation to the office and the approval of his bond by the Department. In the nature of things this was unavoidable. It is prescribed - by the regulations and has long been the custom for the pay of a vice consular officer to begin upon the date when he assumes the duties of his office; that is, upon the departure of his superior officer, and this custom is of great if not controlling weight. (United States v. Moore, 95 U. S., 763; United States v. State Bank, 6 Peters, 29; United States v. McDaniel, 7 id,, 1.)

It is true that the vice-consul must before ho enters on the execution of his trust give bond with such sureties as shall be approved by the Secretary of State.” (Sec. 39, p. 16, Cons. Reg., 1888.) And this bond must be received, approved, and filed before his accounts can be adjusted at the Treasury. This, however, does not necessarily affect the right to compensation during the period between appointment and receipt of bond.

We therefore conclude that Eaton is entitled to one-half the salary of the post from July 12, 1892, to October 26,1892, and to full salary from that date to May 17, 1893. (Rex v. Lonsdale, 1 Burrow, 447; United States v. Bradley, 10 Peters, 343; United States v. Linn, 15 Peters, 313; City of Chicago v. Gage, 95 Ill., 593; State v. Toomer, 7 Rich. S. C. Law, 216; State v. Churchill, 41 Mo., 41; Sprowl v. Lawrence, 33 Ala., 674; People v. Holley, 7 Wendell (N. Y.), 481; State v. County Court, 44 Mo., 230; State v. Porter, 7 ind., 294; State v. Falconer, 44 Ala., 696; State v. Colrig, 15 Oreg., 57; State v. Peck, 30 La. An., 280; Kearney v. Andrews, 10 N. J. Chan., 70; State of Maryland v. Commissioners, 29 Md., 516; Speake v. United States, 9 Cranch, 28; Ross v. Williamson, 44 Ga., 501; State v. Hadley, 27 Ind., 496.).

In United States v. Flanders (112 U. S., 88) the Supreme Court held:

“If he is appointed, and acts and collects the moneys and pays them over and accounts for them, and the Government accepts his services and receives the moneys, his title to the compensation necessarily accrues unless there is a restriction growing out of the fact that another statute says that he must take the oath before being entitled to any of the salary or other emoluments’ of the office. But we are of opinion that the statute is satisfied by holding that his title to receive, or retain, or hold, or appropriate, the commissions as compensation, does not arise-until he takes and subscribes the oath or affirmation, but that when he does so his compensation is to be computed on moneys collected by him from the time when, 'under his appointment, he began to perform services as collector, which the Government accepted, provided he has paid over and accounted for such moneys (p. 91).”

On this branch of the case, Eaton will recover one-half salary from July 12,1892, to October 26,1892, amounting to $726.90; full salary from October 27, 1892, to May 17,1893 ($2,792.35), less the fees charged to him, to wit, $245.41; that is, to a balance of $3,273.84.

As to the smaller items of his account, these are for fees received for unofficial and notarial services, and should be allowed. (United States v. Mosby, 133 U. S., 287; Stahel v. United States, 26 C. Cls. R., 193.)

The sum of $63, fee and fines, collected in the consular court are for services not required by statute nor specified as official in the consular regulations, and should be allowed. (Sec. 4120, R. S., sec. 1396, p. 472; U. S. Cons. Reg. of 1888.)

These fees were expended for consular court expenses, for which Eaton has not been repaid. The petty item for lights upon the King’s birthday was approved by the Department of State and appears to be a charge within the discretion of that Department; it is therefore allowed.

Judgment in favor of plaintiff Eaton for $3,456.98.

Petition of Sempronius H. Boyd’s administratrix dismissed.  