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each day in a month such clerk was absent from duty not in a pay status, one-thirtieth of the monthly installment of his pay would be deducted. If a different construction had been given the act, all clerks and employees in the Government service receiving an annual or monthly salary or compensation could be absent from their duties on the 31st day of any month without loss of salary or compensation. Such construction of necessity could not be given the act. It left as the only alternative the above ruling that for each day's absence from duty when without pay, the one-thirtieth part of the monthly salary or compensation should be deducted.
Following this rule Mr. Asmuth is not entitled to be paid any salary or compensation for the month of December.
While this ruling apparently works a hardship in this individual case, an opposite ruling would lead to the payment of a full month's salary to every clerk and employee of the Government drawing an annual or monthly salary, notwithstanding the fact that they performed no labor whatever on the 31st day of a month.
This statute at best is arbitrary. I have tried to so construe it in individual cases to pay a clerk or employee for every day he actually serves in a month. This is one instance in which it can not intelligently be so construed.
If we had a law providing that clerks and employees under annual salaries should be paid the 365th part of such salary for every day's service, justice and right could be done in each case; but this is impossible under this statute.
You are not authorized to pay the voucher in question.
PAYMENT OF CONSULS' FEES BY FOREIGN-BUILT VESSELS OWNED BY AMERICAN CITIZENS.
Foreign-built vessels owned by American citizens are not "American vessels," within the meaning of section 1720, Revised Statutes, unless they come within the provisions of the registry laws, and therefore they are not entitled to the exemption from payment of consul fees provided for by said section.
(Decision by Comptroller Tracewell, January 28, 1905.)
John Goodnow, consul-general of the United States at Shanghai, China, appealed January 6, 1905, from the action of the Auditor for the State and other Departments in making
certain charges against him for receiving and delivering ship's papers in case of foreign-built American-owned vessels, and disallowing the same under certain settlements of his accounts, as follows:
1. Amount suspended December 29, 1903, by Cert. No. 42016, and disallowed July 30, 1904, by Cert. No. 47217...
2. Amount suspended December 29, 1903, by Cert. No. 42178, and disallowed July 30, 1904, by Cert. No.
3. Amount suspended October 13, 1904, by Cert. No. 48182, and disallowed December 23, 1904, by Cert. No. 49324.
4. Amount suspended July 30, 1904, by Cert. No. 46964, and disallowed December 23, 1904, by Cert. No. 49334.
1, 320. 16
The Auditor charged said fees against the consul-general, under the authority of section 1724, Revised Statutes, on the ground that he should have collected and accounted for the same under paragraph 349 of the Consular Regulations of 1896, and No. 18 of the Tariff of Fees promulgated by the President October 1, 1897.
Section 1724 of the Revised Statutes provides:
"Every consul-general, consul, or commercial agent, mentioned in Schedules B and C, or vice-consul, or vice-commercial agent, appointed to perform the duty of any such officer mentioned in Schedules B and C, who omits to collect any fees which he is entitled to charge for any official service shall be liable to the United States therefor, as if he had collected the same; unless, upon good cause shown therefor, the Secretary of the Treasury shall think proper to remit the same."
Said Schedule B is a portion of section 1690 of the Revised Statutes, and includes Shanghai among the ports entitled to a consul-general. The fees involved in this case have not been remitted by the Secretary of the Treasury under said section 1724.
Section 349 of the Consular Regulations of 1896 provides:
"When in foreign ports they (undocumented foreign-built vessels) are also subject to tonnage and other consular fees from which regularly documented vessels are exempt."
No. 18 of said Tariff of Fees of October 1, 1897, is as follows:
"For receiving and delivering ship's register and papers, including consular certificates, as prescribed in forms Nos.
13 and 14, 1 cent on every ton, registered measurement (net), of the vessel for which the service is performed, if under 1,000 tons; but for American vessels running regularly by weekly or monthly trips, or otherwise, to or between foreign ports this tonnage fee will not be charged for more than four trips in a year. And for every additional ton over 1,000, one-half of 1 cent."
* * *
The consul-general, in making this appeal, defends his action under section 1720 of the Revised Statutes, which provides:
"American vessels running regularly by weekly or monthly trips, or otherwise, to or between foreign ports shall not be required to pay fees to consuls for more than four trips in a year."
He contends that as section 12 of the act of June 26, 1884 (23 Stat., 56), prohibits the collection of such fees from American vessels, unless said section 1720 refers to foreign-built American-owned vessels, it becomes self-conflicting and inoperative; and further that to hold that such foreign-built vessels must pay tonnage dues on each trip would be such a discrimination against them as to drive that class of vessels from the foreign trade, a result which could not have been intended by Congress.
Section 12 of the act of June 26, 1884, supra, provides:
"That on and after July first, eighteen hundred and eightyfour, no fees named in the tariff of consular fees prescribed by order of the President shall be charged or collected by consular officers for the official services to American vessels and seamen. Consular officers shall furnish the master of every such vessel with an itemized statement of such services performed on account of said vessel, with the fee so prescribed for each service, and make a detailed report to the Secretary of the Treasury of such services and fees, under such regulations as the Secretary of State may prescribe; and the Secretary of the Treasury shall allow consular officers who are paid in whole or in part by fees such compensation for said services as they would have received prior to the passage of this act: Provided, That such services, in the opinion of the Secretary of the Treasury, have been necessarily rendered; and a sum sufficient for the payment of such compensation, when thus adjusted by the Secretary of the Treasury, is hereby appropriated out of any money in the Treasury not otherwise appropriated."
Prior to the passage of the above act of June 26, 1884, vessels which were liable to pay fees to consular officers of the
United States were of two classes-documented and undocumented. The first class, or documented vessels, were those coming under the provisions of sections 4131 and 4132 of the Revised Statutes, which read:
"SEC. 4131. Vessels registered pursuant to law, and no others except such as shall be duly qualified according to law, for carrying on the coasting trade and fisheries, or one of them, shall be deemed vessels of the United States and entitled to the benefits and privileges appertaining to such vessels; but they shall not enjoy the same longer than they shall continue to be wholly owned by citizens and to be commanded by a citizen of the United States. And officers of vessels of the United States shall in all cases be citizens of the United States."
"SEC. 4132. Vessels built within the United States and belonging wholly to citizens thereof, and vessels which may be captured in war by citizens of the United States, and lawfully condemned as prize, or which may be adjudged to be forfeited for a breach of the laws of the United States, being wholly owned by citizens, and no others, may be registered as directed in this title."
Within the second class, or undocumented vessels, were those foreign-built vessels owned by American citizens, which, though precluded from registry by reason of their foreign build, were yet entitled to protection by virtue of their American ownership. (Cons. Regs. of 1896, pars. 341-6.)
The act of June 26, 1884, supra, was passed "To remove certain burdens of the American merchant marine and encourage American foreign-carrying trade," and it will be noted that under section 12 the United States assumed the burden of paying consular fees of the vessels designated by said section to its officers who are paid in whole or in part by fees. Unless, therefore, foreign-built American-owned vessels are "American vessels" within the meaning of said section 12, it follows that they are not thereby exempted from the payment of consular fees.
This question was passed upon by the Attorney-General of the United States soon after the passage of the act of June 26, 1884, and in two opinions, found in 18 Op. Att. Gen., 111 and 234, he construed the term "American vessels" to apply only to regularly documented vessels of the United States. In the latter of these opinions the principal question
raised by this appeal was presented, and in the concluding paragraph of that opinion he said:
"I conclude, therefore, that foreign-built vessels owned by citizens of the United States are not embraced in the provision of the act of 1884 forbidding the collection of fees by consular officers from American vessels."
The conclusions reached by the Attorney-General, as above stated, have not been modified or overruled by any later decision either of the Attorney-General or of the courts of the United States, to which my attention has been called, and must therefore be accepted as the correct interpretation of section 12 of the act of June 26, 1884.
His reasoning in said cases applies with equal force to the construction of the term "American vessels" in section 1720 of the Revised Statutes. Foreign-built vessels, even though owned by Americans, are not "American vessels" unless they come within the provisions of the registry laws, hereinbefore cited, and therefore are not entitled to the benefits of said section 1720.
The decision of the Auditor is therefore affirmed.
COMPENSATION OF JURY
OF THE SUPREME COURT OF THE DISTRICT OF
The clerk of the supreme court of the District of Columbia, the United States marshal, and the collector of taxes, constituting the jury commission of the supreme court of the District, are not entitled to compensation other than the regular salaries of their respective offices for their services as such jury commissioners, such services being in the nature of extra duties added by Congress to their respective offices for which they can not be paid additional compensation.
(Comptroller Tracewell to Aulick Palmer, marshal, January 28, 1905.)
I am in receipt of your communication of the 18th instant, which reads:
"In view of the provision of section 198 of the District of Columbia Code (31 Stat., 1222), as follows:
"Jurors.-The clerk of the supreme court of the District