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companied by certificate that sterling exchange on London was 1 shilling 31& pence.
The Auditor, in settling these accounts, computed the rupee at its commercial or par value--that is, at the rate of 15 to the sovereign-as modified by the cost of sterling exchange on London, and in those accounts wherein it was shown that exchange on London was 1 shilling 3}& pence per rupee, the computation was made accordingly and claimant credited at the rate or value of one-sixteenth of a penny to each rupee, as loss by exchange. These remarks apply more particularly to the account for the quarter ending September 30, 1900, for commencing with October 1, 1900, the value given the rupee by the mint is practically the same as its commercial value, and from and after January 1, 1902, it is exactly the same, viz, 1 shilling 4 pence, or $0.32141.
To illustrate: In the account for the quarter ending September 30, 1900, consul claimed $26.75 as loss by exchange on a draft for $69.81, drawn for his contingent expenses for the quarter ending June 30, 1900. The gross amount of this draft in rupees at the mint rate (80.203) was 343.89. The bank paid him 211.97, which at the mint rate equalled $43.03, a difference of $26.78 (claim is for 3 cents less). At the commercial rate ($0.3213) his draft was worth in rupees 215.26, a difference of 3.29, equaling $1.07, which was deducted and the balance disallowed: Claimed $26.75, deducted $1.07, disallowed $25.68; first subitem supra.
It is quite clear that at no time during the period covered by these accounts was the commercial or par value of the rupee less than that given it by the Auditor; but claimant contends that the Auditor's action was erroneous because section 3564, Revised Statutes, declares that the value of foreign coin shall be the pure metal of such coin.
The full text of this section is as follows:
“The value of foreign coin, as expressed in the money of account of the United States, shall be that of the pure metal of such coin of standard value; and the values of the standard coins in circulation of the various nations of the world shall be estimated annually by the Director of the Mint, and be proclaimed on the first day of January by the Secretary of the Treasury."
This section was amended by section 25 of the tariff act of 1894 (28 Stat., 552), so as to require these estimates to be made quarterly and proclaimed on the 1st day of January, April, July, and October of each year.
This section, when read as a whole, indicates quite plainly that while foreign coins are to be valued according to the pure metal in them, such value must be estimated by the Director of the Mint and proclaimed by the Secretary of the Treasury, and such action has not been considered as conclusive, when the foreign coin fluctuated in value. Thus, previous to October 1, 1900, when the rupee fluctuated, its value was to be determined by consular certificate, although its estimated value was at a certain rate, but from and after that date its value was determined upon the basis of its relation to the sovereign—that is, upon the fact that 15 rupees were equal to 1 sovereign.
This question of the exchange value of the rupee was carefully considered at the request of the Secretary of State, upon a protest of this claimant against being required to calculate the value of the rupee at its commercial value instead of at its mint rate, and in a decision dated July 20, 1898 (Letters, vol. 10, p. 109), it was held that the estimated mint rate was not conclusive.
In that decision it is said:
“Mr. Morey's contention, that the estimate of the value of foreign coins made quarterly by the Director of the Mint, should govern, can not be agreed to.
“The value of an English pound sterling is fixed at $4.8665 by section 3565 of our Revised Statutes. If in Ceylon 16 rupees are worth one pound according to the existing rate of exchange, then it is clear that a rupee is, at that place, worth about 30.42 cents in United States money.
"When 16 rupees are worth one pound at his consulate, I see no reason why he should expect his Government to pay him 20 or 24 rupees for every $4.86 of his draft.”
This decision, rendered under the conditions existing prior to October 1, 1900, applies with much greater force to conditions existing since that date, so if the value of the rupee were now computed at what claimant calls its bullion value (80.207), and the Government were to settle with him on that basis, he would, for every $4.8664 drawn for by him, get the equivalent of about 234 rupees, worth at his consulate more than 14 pounds sterling, or about $7.62 in our money, a profit of some $2.76.
I have endeavored to look at this matter in all its bearings. It is the most important question in connection with these appeals and I have therefore carefully considered it, and perhaps have extended it to greater length than is necessary, but from whatever view point I take I am unable to see any merit in claimant's contention, or error in the Auditor's action. Therefore the Auditor's disallowance of this item must be and is affirmed.
Item 2: Charges for revenue stamps for vice and deputy consul's bond, $7.87.
This is a contingent expense, dependent upon the approval of the State Department. It has never been so approved and therefore can not be allowed. The Auditor's disallowance of this item is also affirmed.
Item 3. Fees for certificates to vessels' manifests (8922), claimed by the consul to be notarial or unofficial but held by the Auditor to be official and charged accordingly.
It may be well to say here that under the tariffs of consular fees, regulated by the President (section 1745 Revised Statutes), some of these fees are designated as “official fees," for which all salaried consuls must account to the Secretary of the Treasury (Id., 1747), and others as "notarial or unofficial fees” which belong to the consul, but must be reported. (Par. 486, Consular Regulations of 1896.)
Under the tariff in force prior to October 1, 1897, fees for like manifests were designated "official," the fee therefor being fee No. 97, to wit: "Certificate to a vessel's manifest, $2.50." (Par. 533, C. R. of 1896.) On that date, however, a new tariff was promulgated by which the former tariff, as to items, was much curtailed, and a number of items of fees under the old tariff, grouped and put under general or less specitic items. Among such items is official fee No. 22, which reads as follows:
“Preparation and execution for vessels or seamen of any certificate for which a form is given in the Consular Regulations, or similar service not otherwise provided for, $2.00.
The Auditor held that the fees now in question fell under this item and charged them up against the consul. This, the consul alleges, was error, and contends that these fees fall under notarial or unofficial fee No. 4 (same tariff), viz: **Certifying to official character of a foreign notary or other
official, $2.00.” (See consul's letter to Auditor, dated May 30, 1903, filed with certificate No. 14718.)
There appears to me to be but little if any connection between the services here performed and fee No. 4, supra, nor is it covered by any other notarial fee provided by said tariff; therefore it must be covered, if provided for at all, by some item in the tariff of official fees. If the President had intended these fees to be unofficial, he could and doubtless would have made specific declaration thereof, as was done in relation to fees for authenticating lists or manifests of immigrants, which by the former tariff (par. 533, C. R.) were official, No. 25, while under the present tariff they are notarial, No. 5.
I think the Auditor properly held that the fees now in question fell under official fee No. 22, supra, and his action touching this item is also affirmed.
Item 4: Charges for expenses and interest on dishonored drafts, $18.10.
These drafts were not paid because at the time they were received the accounts of the consul were in such condition as to make their payment unwarrantable, or at least inadvisable. They were returned to the consul, who never again presented them, and they were never paid. Under these circumstances I think these expenses are personal to the consul, and the Government is not liable therefor. The Auditor's disallowance of this item is also affirmed.
Item 5: Overcollections of fees for certificates to invoices, $2,416.68.
This item is made up of two subitems, one for fees collected from October 1, 1900, to February 12, 1902 ($1,026.26), under the old bond; and the other for like collections from February 12, 1902, to May 21, 1903 ($1,390.42), under the new bond.
As to the first subitem I make the following extract from the Auditor's statement of differences to the consul dated April 25, 1904, a copy of which is filed with certificate No. 4718:
"724 certificates to invoices for which you charged a fee each of R. 12.07, as shown by the triplicate invoices received at this office from collectors of customs, making at $0.32415 for the rupee, $3.9159104 each, aggregating $2,835.12, instead of the amount of $1,810.00, which the said certificates to invoices would yield at the legal fee of $2.50 (the fee fixed by law, section 2851, Revised Statutes, and fee 1, tariff of October 1, 1897), making an overcollection of $1,025.12; 2 copies of invoices *
for which you charged each R. 4.83, equal to $1.57 each instead of $1.00. Overcollection, $1.14. (Total, $1,026.26.)”
The second subitem relates to 982 certificates, and the charges and disallowances are in the same ratio.
It will be observed that there is no disallowance in this item of any collections by claimant prior to October 1, 1900, when the gold standard was established in India, so, eliminating so much of my remarks on item 1, supra, as relate to transactions for the quarter ending September 30, 1900, the principles there announced apply with equal force here.
There is, however, one other question in connection with these overcharges which requires notice.
Paragraph 522, Consular Regulations of 1896, reads:
**522. No additional charges allored. When a fee is fixed in the tariff of fees for any particular act or service no additional fee is to be demanded for signature, attestation, or affixing the seal of office; nor may any subordinate in the consulate charge a fee for a service rendered by him in connection with any service, official or unofficial, performed by the principal officer and for which the latter has charged a fee.
“In regard to the verification of invoices, a penalty is provided for charging for blank forms, advice, or for clerical services in the preparation of the declaration or certificate, or for receiving any fee greater than that authorized by law; and if a consular officer collects, or knowingly allows to be collected, any other or greater fees than are allowed by law for any service he is liable in treble the amount of the unlawful charge besides the liability to refund it. The practice of charging a personal fee for preparing an invoice is forbidden. In such case the Secretary of the Treasury is authorized to retain the amount of the overcharge out of the compensation of the conşular officer. (R. S., secs. 1716, 1723.) Provision has been made by law for the refundment at the Treasury of fees and charges erroneously collected by consular officers from the regularly documented vessel of the United States when the claim shall have been made within one year from the date of collection. (23 Stat., 59, sec. 26.)"
I have quoted this paragraph in full for the purpose of showing how the Department of State and the President regard this matter of overcharges by consular officers and