732
I'EDERAL REPOnTER,
vol. 41.
No. 95, and Southern Pac. R. 00. v. J.'M. Patf,er1J(Jfl. etal., No. 96, were tried, argued, and submitted together with the present one, and, as they involve substantially the same question, wbat bas been here said will apply to them also. In each case there must be judgment for defendants dismissing the bill.
HOLLANDER t1. BAIZ, (DlBtnct
Consul Genera!.l February 10, 18110.)
Court. 8. D. New
Ax8AsUDOllS AND CONSULS-AO'l'IONs-J"UIUSJ>IC'1'ION......"PUBLIO MINISTBR"-RBV. 687-0:r:rIOBR IN CHARGlil OJ' LBGATION.
ST. I
The defendant, being sued as consul in Uie district court, pleaded that he was a publio minister of Central America, and as such suable only in the supreme court, under section 687, Rev. St., and moved, upon affidavits and certified papers, to diamiss the cause before trial. The defendant was all American citizen; and l upon leave of absence of the minister from Central America, the latter arrangea with our department of state to r,eoeiva through .tile consul any comInunication of which he might be made the channel. The defendant was never presented as a diplomatio officer, 'nor does his name apJilear as such on the official record, nor was he ever addressed by any dlplomatio tItle of office Ilamed in section 1674, sUbd. 5, though he was twice addressed by our department of as "in ohargtl, of the legation," llld, ieceived two, notices usu,'aily given to ,diplomatic offioers. No certificate from t.he department of state Was produced bY side ,as to the 8tatu8 of the defendant. Held,' (1) that the cause oould not be dismissed on motion, except on inC\lDtrovertibie evidence that the defendant was a publio mlnistert and that the eviq,enO!l.produced was not of that" char,acter,: (2) that a "public minIster" was a person invEisteawith "the principaldiplbIllatic functions" (section 4180) under one of the eight tttJes of office named in ,section 16,74, 8ubd.5, and that the papers submitted did not warrant the inference that the was made, or intendt'd to ,be made, adinter£m,' oNlther diplOmatic offioorj (8) that there was no evidenQe of1ntention to waive JUrisdiotion 0:( the defendant as an American citizen. And, upon these grounds, held. that' the defepdant was not entitled to the, immuni· tieS,of sections 687; 4008, and the motion was denied.
At Law. Motion to dismiss for want df jurisdiction. R. D. Btmedict, for plaintiff. Billing8 &:- CWdozo, (JOBephH. of counsel,) for defendant. BROWN, J. The defendant,being sued as consul onJuly 2, 1889, for alleged libel on tbe plaintiff, pleaded', among other defenses, that frOID on or about January 16, 1889, to July 10, 1889, he was the "acting miuister, and sole of Guatemala, and "exclusively in charge of the diplomatic affairs of that republic in the United and that thiscoftrt has no jurisdiction of this action. It is now moved, before trial, to dismiss tbe action, for want of jurisdiction, upon affidavits accompanied by certified copies of various letters from the departments of state,which it is claimed show incontrovertibly that the defendant, at the time when process was served on him, was a "public minister." I On a'subsequent application by the defendant to the supreme court for a writ prohibiting the district court,from proceeding further, with the oause for want 01 jurisdiotion, the application was denied on the meritll. See Inre Baia,. 10 l;lup. Ct. Rep. 8M. '.: ,. ' , ',';
HOLLANDER fl. BAIL
733
against whom, under of the United States Revised Statutes, no suit could be brought except in the supreme court. The papers submitted show that on .January 6, 1889, Mr. Lainfiesta, then minister from Guatemala, Salvador, and Honduras to this country,being about to depart on leave of absence, addressed a note to Mr. Bayard, secretary of state, stating that fact, and asking him "to please allow that the consul general of Guatemala, Salvador, and Honduras, in New York, Jacob Baiz, should communicate to the office of the secretary of. state any matter whatever relating to the peace of Central America that .may be of llufficiEmt importance to be brought without delay to the notice" of the department. On January 24, 1889, the secretary of atata addressed a note to Mr. Baiz, as consul general, reciting Mr. Lainfiestlit's intended departurtl and request, as above stated, and added: "The secretary of state will have pleasure in receiving any communication in relation to Central America of which you may be made the channel, as intimated by Senor Lainfiesta." On March 6, 1889, notice of Mr. Blaine's appointment as secretary of state was sent to Mr. Baiz, who was then addressed as "in charge of the legations of Guatemala, Salvador, and Honduras." Such notices, it is said, are never given to any but diplomatic officers. On April 1, 1889, he was addressed in the same style in a note from the secretary stating Mizner as an envoy, etc., to Guatemala, Salvathe appointment of dor, and Honduras, in place of Mr. Hall, recalled, and desiring Mr. Baiz to apprise those governments. of the appointment. In six other communications from the state department, Mr. Baiz was addressed as "consul general," and in his notes to the department relative to diplomatic matters Mr. Baizused only the title of cQnsul general; and by the same title only was he .addressed by his own government. In the Official Circular, corrected to June 13, 1889, concerning the foreign legations, the absence. Qf Mr. Lainfiesta is mentioned. A foot-note reads: "Jacob Baiz, consul general, in charge of business of legation, New York." This circular states the naII\es of the diplomatic officers from each country, with the dates of their presentation. His from such dates that their official reIation is recognized. Mr. Baiz's name does not appear in this list, and it does not appear that he was ever "presented." Attaches and 8r'cretaries of legation appear in this list, with the dates of their presentation. A let_ ter from thfl department of state to the plaintiff's attorney, dated October 4, 1889, signed by the second assistant secretary, states that during the absence of Mr. Lainfiesta "the business of the legation was conducted by Consul General Baiz, but without diplomatic character." Since that letter, both sides. have sought to obtain from the state department all official certificate of the status of Mr. Baiz. It has declined to furnish more than a resume of the facts. 1. To authorize me to dismiss the cause on motion, it must appear by evidence that could not be overcome at the trial that the ciefendant was a "public minister," within section 687. There are but two kinds of direct evidence, that pccur to me, which could be of this canviz.: Fir8t, a certificate of the secretary of state that
FEDERAL' BEPUR:l1ERj Vol.
41.
the defehdant ,vasa 'publio; ,rilinistel', received as 'suo'ltj and, \:lxereising such functions; or,8eCOnd, proof'ofthe:exercistlby the ;defei:tdant cif"the principal idiplomatic functions "under some one' (jf the' titles of diplo'matie :office' asrecogniied 'and the law of natibns. In this {lase we ,have neither. ,In the(nbsence'of such direct evidence, Tam asked oo'draw a Gonolrisive inf.erende that the' defendant was a pUblic minister'froin ·a;variety of. circumstances 'presented by the affidavits, Those circumstances, asaboveredted, are di'Verile,and tend in some measure to opposite' conclusions, while the best evidence is nob yet forth.. 'hut may be produced at the trial, with other evidence which the affidavits show to exist, but'which could not be obtained for useori this motion. Considering that the question whether the defEmaantwas a "public minister II or not is an issue of fact' raised by the pleadings, which, must ordinarily be tried by a jury, and that, the defendant cannot, against his objection, be requ'ired to produce his counter-evidence on a motion like this, instead of at the trial, I am satisfied that it would be error to decide that issue on ,this motion, in the absence of the higHest Rndmost unimpeachahleevidence, upon mere inference drawn from circumstances that at best are diverse and incompltlte, and might be rebutted at the trial. 2. But upon the evidence submitted lam not at all clear that the proper inference wOl1ldbe that ,the defendant was'a "publio minister," within section 687. That secti<)ll mnst be constniedwith reference to other sectioDsof the .Revised Statutes, in pari rmateria. Section 687 manifestly refers to the saine "'public ministerS''' as section 4063,llnd is therefore liniited sections 4130 and 1674. Section 4130 says that "the word \ ihinister' '" '" * shall be understood to mean the per'flon invested with and exercising the principal'diplomatic functions." "Section 1674, subd. 5, says "diplomatic officer" shall be deemed to include "ambassadors, * *. * -'charges d'affaires, agents and secreta,.; Ties of legation, and none others." For the defendant, it is urged that he was charge d'affaires ad interim. The latter officer, appointed as such by a retiring minister, and.duly recognized as !'Iuch, though of lower rank than a charge d'affaires accredited by his sovereign, is entitled, I have no douht, to the immunities of the statute, because invested with and exercising ad interim "the principal diplomatic fUIl'Ctions." Section 4130. The term "charge d'affaires" is a distinctive title ofoffice,-a diplomatic title in; universal use long 'before our statutes were passed. Had Mr. Baiz been appointed, presented, and received under the title of officeof"charge d'affaires ad interim," no question would remain. But he was not appointed or received under that title, or uuder any other diplomatic title of office. He was: never addressed by any such title, either by our government or by his own. Considering the high prerogatives of diplomatic officers, the extraordinary immunities accorded them, and the questions of rank and precedence within the corps, it is manifest that the title of office under which each is accredited and received is-of the utmost importance.'I'he: title is the distinguishing mark both of the office and of the Without the title, neither the office nor
. ' lIOLI,4,NDltR,
v.
:aAIZ.
theofficial'character can pioperly'.be said to exist. It is equally im:" portan! that such high immunities should not rest upon any doubtful claim, .or .be' attached to any equivocal position.. These immunities are not a meTe personal privilege. They are attached to the office, as repr&1 sentingtheforeignsovereignty. Dat'i8 v. Packard, 7 Pet. 276, 284. With.., out the office, therefore, they do not exist; nor can a foreign stateju6tl!y: <::Iaim that a pers6n represents its sovereignty,or is entitled to munity ofsDch representation,unless he is appointed priate and recognized title 'Of office to which that immunity belongs, nol" unless he is duly accredited and received as such. Thestatutecollfines it to persons invested with "the principal diplomatic functions." i. to thosehaying:theJull ordinary diplomatic powersjandsection 1674 declarEiB that" diplomatic officer" means one of the ,eight kinds therein oomedby their titles, and no others. Next in importance. to the absence of any official diplomatic title i$ the questiom: of the ,inte-nt. .If the, intent were clear that Mr..Baiz should hold and exercise one of the recognized diplomatic .offices, any mere in,foJ:'lDiality, in his appointment might be disregarded. The letters of Mr;:Lainfiestaiand:Mr; Bayard of January 16th and 24th, respectively, are,ofcmet'importance on this point. But! find it difficult to suppose that Mr. Lf.dnfiesta would have employed any such language as "please aIlowthe:coIisulgeneral., Mr· .Baiz, to communicate any matter that witboutdelay," had he designed to appoint Mr. Baiz to the:officeofcharge d'affaires ad interim, or as.agentor secretary of tionjor thaHhe secretary could have supposed he was accepting a d'affai1les whim he wrote Mr. ;BaH:, as cOnBulgeneral,saying he "would , receiveany'communieation itirelation to Central America of which he might be made thechaIinel." Thelauguage employed by each, aud the absence of any diplomatic title, seem to me to indicate strongly ,that nQ appointment ofMr. Baiz to any recognized diplomatic office was intended by either; and that the common intent wItS to make him, by courtesy, merely a channel of auy necessary communication, in the abseuce of any .In thi$ vjew i the use, in two communications out of diplomatic eight to Mr. Baiz from' tliedepartment of state,' of words describing him as Clin charge of the Jegatiou/' The similarity in literal meaning between those English words and the French words "charge p,'affq,jres ,", has no significance. The difference between them' is aU ·im.. porta;nt;'ill that the latter 'are the title of a diplomatic office, and,,the formet, are not. To appoint a person chief bridge-builder could not be understood as. intended to invest him with the ecclesiastical functions of the" Pootifex Maximus." The address to Mr. Baiz as" in charge of. the Iegai!OIl' "'J,11 noway added to.or changed his offiqliUrelatiou, or his inimunity from suit or arrest. He had,charge of the legation ad interim, not as a' diplomatic officer, but as custodian, through whom ,it was by COUl'.., tesyarrangedthat uecessary communications might be sent. It was appropriate/therefore, that he should of the change of officers. This view explaius the absence of Mr. Baiz'g Dame from the offiCial list as a diplomatic officer, and theJact that he was never preseuted. 'JIhe
e.,
736'
FEDERAL REP()R't:ER,
date or prl;lsentment marks the date of investiture and recognition of diplomatic fUQCltious. "Oharges d'affaires ad interim;" says Martens, "are preseritedas:such." Guide Diplomatique, (5th Ed.) 61, § 16. It is to be presumed that the reason why Mr. Baiz was not presented as charge d'affaires ad interim was because it was not intended to make him such ap.officer. Had it been intended to make him charged'ajfa,iresad interim, hisown government would naturally have addressed him by that title, and Yr. Baiz would have been entitled to draw pay as such an officer. The absence of these circumstances also indicates the contrary intention. The fact that Mr. Baiz was an American citizen isa;Iso against t,he deferidant'scontention. ,It is a mooted question whether a citizen is ever entitled to such immunity. He is not entitled to it unless jurisdiction ovel' him is waived by accepting him as a foreign minister. No such waiver ought to be inferred upon a mere implication,. where the intent to appoirit the person to any diplomatic office is itself in doubt, through the minor character of the functions to be exercised, and the failure to designate him by any title of office. The evidence is insufficient to show that Mr. Baiz was intended to represent the sovereignty of Guatemala, Salvador, and Honduras ina gelleraldiplomatic capacity. The original letters of Mr. Lainfiestaand Mr. Bayard seem to contemplate, as I have· said, that Mr. Baiz should serve only asa mere channel of communication during the absence of any diplomatic representative. If diplomatic officers'do perform this function1,itis among the smallest of their duties. An American citizen and conaulof a foreign state, invested with this function, and no and without any diplomatic' title f1f. office, I cannot as invested with "the principal diplomatic functions," (section 4130,) or as entitled to the of an accredited diplomatic minister. The motion is denied.
STEWART 11.
ST.
LOUIS,
FT. S. & W. R. Co.
(Circuit Oourt, D. Kansas. February 26, 1887.)1 L CoRPOUTIONS.,...SALES BY DIREOTORS TO CORPORA.TION.
a.
T.and,A., for a small sum, purchal!led a road-bed, the construction of cost ol:l1y $2,000, caused a railroad company to be organized, and, with others, became directOrs thereof, and while in this relation contracted with the directors to sell read-bed to tbe company fcr$2(lO,OOO cash or bonds, and $H,600,OOO of capital The sale was formally ratified at a meeting of tbe directors, and entered on the records of and afterwards the stockholders unaminous· ly approved thepurcbase. At the time of the sale tbere were no stockholders, and file stock thus issued wasal1 that had been subscribed. Tbe company had no property except ita and the road"bed, and the value of notes and stock issued to T·.and A. had .no marketable value. Held, that the sale was not fraudulent.. . ·
BA.M:E-COIIIIPBNSATION OF OFFIOERS.
Where it is 'Understood by the directors of a corporation that ita omcers are to be paid for their llervices, though. no salary is fixerl . a note &iven at the end of the year for a reasonable sum then agreed upon is valid.. '
'Publication delayed byfaUure to receive copy.