United States v. Mosby Mosby v. United States

• Citation: 133 U.S. 273,33 L.Ed. 625,10 S.Ct. 327
• Parties: UNITED STATES v. MOSBY. MOSBY v. UNITED STATES
• Decision Date: 03 February 1890
• Court: United States Supreme Court

133 U.S. 273

10 S.Ct. 327

33 L.Ed. 625

UNITED STATES v. MOSBY.

MOSBY

v. UNITED STATES.

February 3, 1890.

Asst. Atty. Gen. Maury, for the United States.

John S. Mosby and W. Willough-by, for Mosby.

BLATCHFORD, J.

This is a suit brought in the court of claims by John S. Mosby against the United States, claiming to recover the sum of $29,180.01, moneys which he had received while he was consul of the United States at Hong Kong, from February 4, 1879, to July 21, 1885, and had paid into the treasury, the items composing the above sum being as follows: (1) For examining Chinese emigrants departing on foreign vessels for the United States, $5,147; (2) for certifying extra copies or quadruplicate invoices, about $2,000; (3) for certifying in voices for goods in transit through the United States to other countries, $5,805; (4) for notarial and clerical work, $644.01; (5) for services to foreign-built vessels carrying the American flag, §584; and (6) for certifying invoices for goods exported to the United States which were on the free-list, and for which no invoice was required by law as a condition of entry, about $15,000. The petition alleged that those fees were paid voluntarily to the claimant by persons at whose request the services were performed, and were turned by him into the treasury because he did not wish to involve himself in a controversy with the department as long as he held a subordinate position in it, and because he was compelled to obey its orders or be dismissed from office and subjected to the imputation of appropriating money which did not belong to him; and that he credited the iees to the treasury, relying on the good faith of the government to restore to him whatever belonged to him on a final settlement of his accounts.

The court of claims found the facts as follows: '(1) The claimant was consul of the United States at Hong Kong from February, 1879, until July, 1885, and rem ined at his post until the latter date, when he returned to the United States. (2) During his term he turned into the treasury the sum of $5,147 on account of fees collected for examining Chinese emigrants going to the United States on foreign vessels. Of this sum, $3,923.50 were collected prior to September 1, 1881, and $1,223.50 were collected between September 1 and December 31, 1881. Said fees were voluntarily paid by the masters and charterers of said vessels at whose solicitation the service was rendered, and were collected in good faith by the consul. (3) Soon after assuming charge of the consulate, to-wit, February 21 and March 19, 1879, claimant informed the department of state that since the enactment of the law of February 19, 1862, prohibiting the coolie trade in which American vessels had been engaged, it had been the practice at Hong Kong to procure for American and foreign vessels carrying Chinese passengers to the United States a consular certificate of the fact that they were free and voluntary emigrants. The claimant addressed said communications to the state department to establish that the fees belonged to him, but paid into the treasury, before receiving a reply, the sum of $731.75. In reply to a claim that he, the consul, was entitled to such fees, the secretary of state replied, in substance, that the fee is an official fee, and must be accounted for to the treasury. (4) He gave written advice to the agent of the O. & O. S. S. Co., at Hong Kong, to send steam-ships which were under the English flag without a consular certificate for the Chinese emigrants, as no law required it, and the agent declined to do so. A copy of his letter to the said agent was forwarded to the state department. It does not appear that the department replied to his communication accompanying said letter. (5) The Bothwell Castle, an English steam-ship, sailed from Hong Kong about January 6, 1882, carrying Chinese emigrants without the usual consular certificate of examination, but with a letter from the United States consul addressed to the collector at San Francisco, explaining why the master did not have it. Said vessel entered the port of San Francisco without trouble about February 1, 1882; all other foreign vessels after that time ceased to procure the said consular certificate. A copy of said letter to the collector at San Francisco was forwarded to state department, but claimant did not receive a reply. All emigration fees collected up to December 31, 1881, were turned into the treasury. (6) The sum of $633.25 was collected in January, 1882, for examination of Chinese on foreign vessels, which was first credited and then charged back to the treasury; and a letter was written by the claimant to the first comptroller explaintiff that item in his accounts. The comptroller allowed the item as a proper charge. (7) The charterers of foreign vessels who had paid these fees to the consul afterwards applied to the treasury to have them refunded, which was refused by the comptroller on the ground 'that the collection of said fees was proper, and they should not be refunded.' (8) The claimant, after his removal from office, claimed the emigration fees from foreign vessels. His claim was also disallowed. The fees collected subsequently to January 3, 1882, were refunded by the consul to the parties who paid them. The consul was not charged with the fees so refunded, or those he might have collected if he had not declined to continue the practice of examining Chinese emigrants on foreign vessels. The claimant refused to collect fees after receiving from the state department notice that such fees must thereafter be accounted for as official fees. Said notice, in the form of a letter from the department, was dated on said date, and reached claimant in due course of mail. (9) The claimant paid into the treasury the sum of $5,805 on account of fees received by him for certificates of shipment of merchandise in transit through the United States to other countries. (1 ) The claimant paid into the treasury the sum of $1,592 for certifying extra copies or quadruplicate invoices of goods shipped to the United States. The said sum was collected by claimant before the 1st day of September, 1881. (11) He credited and paid to the treasury $584 on account of fees collected for shipping and discharging seamen on foreign-built vessels sailing on the China coast under the United States flag. He credited and paid into the treasury $2,095 on account of invoices certified by him for free goods imported into the United States. (12) The claimant credited and paid into the treasury fees aggregating $644.01, accruing as follows:

(a) Recording instruments at various times,

between February 4, 1879, and December

31, 1880............................ $ 39 29

(b) Cattle disease certificates, collected in

small items from time to time, between

February 4, 1879, and September

30, 1880............................. 152 00

(c) Interest on deposits at the bank, (public

moneys deposited between February

4, 1879, and June 30, 1882).......... 104 51

(d) Acknowledgments and authentications

of instruments, collected from time to

time in small quantities, between

February 4, 1879, and December 31, 1879,

certifying official character and

signature of notary public............ 48 00

(e) Certificates of shipments, or extra

invoices, collected during the December

quarter, 1881, $2.50 each............ 292 00

(f) Five per cent, commission on the

estate of Alice Evans, May, 1881....... 8 21

---------

$644 01

'(13) The payment by the claimant of these several sums of money into the treasury was for the purpose of avoiding a controversy with the department. Soon after the claimant was removed from office, and, before a final settlement of his accounts, he made a demand that all fees now claimed be credited to him. (14) At the request of claimant's counsel, the following facts are also found: Said claimant wrote to the state department, March 19, 1879, as stated in finding 3, in which communication he informed said department that it had been the habit of his predecessors to retain said fees as unofficial, and asked to be instructed whether he, the claimant, was not entitled to same. The said department replied as follows: 'It is now deemed to be the more advisable course to prescribe the fee as an official one to be accounted for to the treasury.' In instructions to said claimant, dated August 26, 1879, the said department instructed claimant that the fees for acts which the consul is empowered, but not required by law, to perform, and which relate only to private transactions, are unofficial.'

As conclusions of law, the court held that the claimant was entitled to recover, for item 1 in the petition, $5,147; for item 3, $5,805; for items b, d, and f, in finding 12, being part of item 4, $208.21; for item 5, $584; and, as a part of item 6, $2,095. It rejected the claim of $1,592 for certifying extra copies or quadruplicate invoices of goods shipped to the United States, being the amount proved and found as to item 2; and also items a, c, and e, in finding 12, amounting to $435.80, being a part of the $644.01 in item 4. A judgment was rendered for the claimant for $13,839.21, from which both parties appealed. The opinion of the court of claims, disposing of the various matters involved, is reported in 24 Ct. Cl. 1.

It is provided as follows by section 1745 of the Revised Statutes: 'The president is authorized to prescribe, from time to time, the rates or tariffs 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, in the business of the several legations, consulates, and commercial agencies, and to adapt the same, by such differences as may be necessary or proper, to each legation, consulate, or commercial agency; and it shall be the duty of all officers and persons connected with such legations, consulates, or commercial agencies to collect...