Opinion of the Court. "5, The Bothwell Castle, an English steamship, 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 the 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 explaining 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 $5805 on account of fees received by him for certificates of shipment Opinion of the Court. of merchandise in transit through the United States to other countries. "10. The claimant paid into the Treasury the sum of $1592 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 foreignbuilt vessels sailing on the China coast under the United States flag. He credited and paid into the Treasury $2095 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 ..... (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.. 152 00 104 51 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 Opinion of the Court. 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, $5147; for item (3), $5805; for items b, d, and ƒ in finding 12, being part of item (4), $208.21; for item (5), $584; and, as a part of item (6), $2095. It rejected the claim of $1592 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 C. 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 for such official services such and only such fees as may be prescribed for their respective legations, consulates, and commercial agencies, and such rates or tariffs shall be reported annually to Congress." This section concerns itself wholly with "official services." "The tariffs of fees to be prescribed by the President from time Opinion of the Court. The to time are those to be charged for "official services." President is to designate what are to be regarded as "official services," in addition to such as are expressly declared by law. The inhibition on consular officers, as to the collection of fees, is only against the collection, for "such official services," of other fees than the prescribed fees. It is not claimed by the United States in this case that the fees sued for by the claimant fall within the class mentioned in section 1745, of "such as are expressly declared by law." The question for determination is, whether the fees collected by the claimant, and paid into the Treasury, were fees for official services, within the regulations prescribed by the President nder section 1745. The claimant acted with propriety, and with a high sense of honor, in paying the fees into the Treasury, in order to avoid a controversy with the Department; and he asserted his right to have the fees refunded to him, by making a demand that they should be credited to him in his accounts, before such accounts were finally settled. He did not concede the right of the government to retain the fees; and his action was equivalent to a formal protest made at the time of paying them over. As is said by Judge Weldon, speaking for the Court of Claims in its opinion: "Public officers (upon the question of their compensation and the payment of money into the Treasury) are not bound, in order to save their rights, to place themselves in antagonism to the accounting officers of the Department, suffer themselves to be sued, and incur the odium, for the time, of being in default; but have the right to pay into the Treasury the disputed moneys, and then seek the courts to adjust and determine their claims against their superior and sovereign." Nothing done in the present case can amount to an estoppel against the claimant. Part of the fees in question accrued while the consular reg ulations of 1874 were in force, and part under those of 1881. These regulations must be considered in regard to each specific item. 1. As to item (1), $5147, the facts relating to that item are in findings 2 to 8, both inclusive. The consular regulations of Opinion of the Court. 1874 were prescribed by the President on September 1, 1874, and those of 1881 on May 1, 1881. Paragraph 321 of the regulations of 1874 is as follows: "321. All acts are to be regarded as 'official services,' when the consul is required to use his seal and title officially, or either of them; and the fees received therefor are to be accounted for to the Treasury of the United States." It is to be observed that this paragraph uses the word "required," and does not say that all acts are to be regarded as official services when the consul uses his seal and title officially, or either of them. Paragraph 333 of those regulations contains a tariff of fees for 107 different services; but none of them specifies the fee for an examination of Chinese emigrants going to the United States on foreign vessels. Paragraph 489 of the regulations of 1881 reads as follows: "489. All acts or services for which a fee is prescribed in the tariff of fees are to be regarded as official services, and the fees received therefor are to be reported and accounted for to the Treasury of the United States, except when otherwise expressly stated therein." Paragraph 496 in those regulations says: "The following is the revised tariff of official fees, prescribed by order of the President, and to be observed by all consular officers." Among 106 items contained in that tariff, item 35 prescribes a fee of 25 cents for a certificate "to the examination required by section 2162 of the Revised Statutes, for each emigrant. (Art. 21.)" Section 2162 of the Revised Statutes, in connection with section 2158, provides for a certificate to be signed by the consul of the United States residing at the port from which any vessel registered, enrolled or licensed in the United States may take her departure, carrying a subject of China, Japan or any other Oriental country, known as a coolie, containing his name, and setting forth the fact of his voluntary emigration from such port, such certificate to be given to the master of the vessel, and not to be given until the consul is first personally satisfied by evidence of the truth of the facts therein contained. These provisions do not refer to |