The errors relied upon to obtain a reversal rest on three contentions: (1) That the appointment of Eaton as acting vice consul was without warrant of law, and hence not susceptible of ratification by the state department. (2) Even if the appointment was authorized by law, the statute conferring the power was in violation of the constitution of the United States. (3) Because, even conceding the appointment to have been valid, the court allowed a sum in excess of the amount which the claimant was legally entitled to recover. We will dispose of these contentions in the order stated.
In the third paragraph of section 1674, Rev. St., the following definition is found: 'Vice consuls and vice commercial agents shall be deemed to denote consular officers, who shall be substituted, temporarily, to fill the places of consuls general, consuls or commercial agents, when they shall be temporarily absent or relieved from duty.' And this definition by congress of the nature of a vice consulship was not changed by the amendment to section 4130 of the Revised Statutes by the act of February 1, 1876, as the obvious purpose of that act was simply to provide that, where the words 'minister,' 'consul,' or 'consul general' were generally used, they should be taken also as embracing the subordinate officers who were to represent the principals in case of absence; in other words, that, where a delegation of authority was made to the incumbent of the office, the fact that the name of the principal alone was mentioned should not be considered as excluding the power to exercise such authority by the subordinate and temporary officer, when the lawful occasion for the performance of the duty by him arose. Provision for the appoin ment and the pay of vice consuls are found in the following sections of the Revised Statutes:
'Sec. 1695. The president is authorized to define the extent of country to be embraced within any consulate or commercial agency, and to provide for the appointment of vice consuls, vice commercial agents, deputy consuls and consular agents, therein, in such manner and under such regulations as he shall deem proper; but no compensation shall be allowed for the services of any such vice consul, or vice commercial agent, beyond nor except out of the allowance made by law for the principal consular officer in whose place such appointment shall be made. No vice consul, vice commercial agent, deputy consul, or consular agent, shall be appointed otherwise than under such regulations as have been or may be prescribed by the president.'
'Sec. 1703. Every vice consul and vice commercial agent shall be entitled, as compensation for his services as such, to the whole or so much of the compensation of the principal consular officer in whose place he shall be appointed, as shall be determined by the president, and the residue, if any, shall be paid to such principal consular officer. * * *'
The consular regulations, promulgated with the approval of the president, contain the rules adopted in execution of the powers expressed in the above provisions. When the appointment in controversy took place, the regulations of 1888 were in force, and in sections 36, 87, and 471 thereof were found the rules governing the appointments of vice consuls and temporary vice consuls, and the manner of their payment. These sections are as follows:
'36. Vice consuls general, deputy consuls general, vice consuls, deputy consuls, vice commercial agents, deputy commercial agents and consular agents are appointed by the secretary of state, usually upon the nomination of the principal consular officer, approved by the consul general (if the nomination relates to a consulate or commercial agency), or if there be no consul general, then by the diplomatic representative. If there be no consul general or diplomatic representative, the nomination should be transmitted directly to the department of state, as should also the nomination for subordinate officers in Mexico, British India, Manitoba and British Columbia. The nomination for vice consul general and deputy consul general must be submitted to the diplomatic representative for approval, if there be one resident in the country. The privilege of making the nomination for the foregoing subordinate officers must not be construed to limit the authority of the secretary of state, as provided by law, to appoint these officers without such previous nomination by the principal officer. The statutory power in this respect is reserved, and it will be exercised in all cases in which the interests of the service or other public reasons may be deemed to require it.'