Mahoney v. United States

APPEAL from the Court of Claims, the case being this:

An act of Congress, 'fixing the compensation of public ministers and of consuls residing on the coast of Barbary, and for other purposes,' passed on the 1st of May, 1810, provides that the President shall not allow 'to any consul, who shall be appointed to reside at Algiers, a greater sum than at the rate of $4000 per annum as a compensation for all his personal services and expenses.' Provision is made by the same act for salaries to consuls at Tangiers, Tripoli, and Tunis, other towns of the same coast.

At the time when this act was passed, Algiers was and had long been the capital, regency, or pachalic of the same name; one of the well-known Barbary States, a Mohammedan power, and dependent on the Ottoman empire; from which empire Turkish pirates had issued in early days, establishing themselves as sovereign masters of the city of Algiers. In 1830, a French army landed on the African coast, and after some fighting Algiers opened its gates, and the Dey gave up his city and government. The city then, A. D. 1831, became and still remains the capital of the French colonial province of Algeria; French tribunals, including at Algiers a tribunal of commerce, having largely displaced the native.

The act of 1810 above-mentioned, specified the sum which might be allowed to consuls residing at Algiers, Tangiers, Tripoli, and Tunis-all of them ports of what were known as the already mentioned Barbary States. It also provided that 'no consul of the United States, residing in the Barbary States, should own, in whole or in part, a vessel, or be concerned in trade;' and some other provisions in the act showed that had reference to a consul at Algiers as a place under the control of one of these same states.

An act subsequent to the conquest of Algiers by the French the act of March 1st, 1855-making provision for consuls in the 'Barbary States,' fixed a compensation for consuls at the last three named places italicized as above, but made no provision for the appointment or payment of a consul at Algiers; and a still later act-that of August 18th, 1856, making similar provision, and specifically mentioning the last three, but not specifically mentioning Algiers-enacted that consuls for places not thus specifically mentioned should be entitled, as compensation for their services, to such fees as they might collect.

With this act of 1810 on the statute-book, but after the conquest of Algiers already mentioned, one Mahoney, in 1854, was appointed consul of the United States at the city of Algiers, in the north of Africa. He soon afterwards entered upon the discharge of his duties, and continued in office until November, 1859, when he resigned. During this period he received no salary from the government, nor did he make any return to the government of fees received by him as consul, but he was paid the necessary expenses of his office, and was allowed by the Department of State to transact business as a merchant. Whilst in office he preferred no claim for any salary or compensation for his services, nor did he afterwards advance any such claim until July, 1865. He then presented his claim for $4000 a year as salary to the Treasury Department. That department referred the matter to the State Department, and Mr. Seward, then Secretary of State, informed him that his claim could not be allowed. Its payment was accordingly refused. He then brought suit in the Court of Claims to recover the amount.

That court, which found as facts the matters stated in this last paragraph, dismissed the bill, holding among other things as matter of law, that from and after the recognition of Algeria by the United States as a province of France, the powers and duties of the consulate at Algiers were regulated and defined by the treaties of the United States with France, and that the consul became entitled to receive and hold his fees of office and to transact business, and was not entitled to receive the salary of $4000 per annum, authorized by the act of 1810, fixing the compensation of consuls residing on the coast of Barbary.

From this dismissal Mahoney, the claimant, appealed.

Mr. T. J. D. Fuller, for the appellant, contended that the conquest of Algiers by the French, and their taking possession of it, could not repeal, annul, or even impair an act of Congress; that though the changed state of things, brought about by the conquest, was a good reason why Congress should alter the law passed before the change, yet if Congress did not alter it the law remained.

Nor could it be argued as a fact, he contended, that old Algiers had so completely ceased to exist as that the statute of 1810 became null. Neither town, port, nor people had disappeared from the exact place where they were. It was still the same city; a port of the sea frequented as before by merchants, and for commerce and trade. The only change was that it had ceased from being a power subject to Turkey, and had become a vice-royalty or dependency of France. But, he argued, that the office being a commercial, and not a diplomatic one, it mattered not whether Algiers became subject to the sovereignty of France, or remained subject to the Ottoman Porte. The port remained the same, and the laws regulating the consulate the same; just as if the island of Cuba should be ceded by Spain to any other European power, Havana would remain a commercial port, and the salary fixed by law to the American consul residing there also remain.

Mr. Talbot, contra, was stopped by the court.

Mr. Justice FIELD, after stating the facts as found by the Court of Claims, delivered the opinion of the court.