A-16797, JUNE 10, 1927, 6 COMP. GEN. 812

A-16797: Jun 10, 1927

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IS APPARENT FROM THE FACTS BEFORE THE CLERK OF COURT. IF THE INFORMATION FURNISHED THE CLERK OF COURT IS ERRONEOUS OR MISLEADING. OR THE DISQUALIFICATION OF DECLARANT OR PETITIONER OR THE IMPROPRIETY OF EXECUTING AND FILING THE PARTICULAR DOCUMENT IS NOT APPARENT FROM THE FACTS BEFORE THE CLERK OF COURT. THE FACT THAT THE DECLARATION WAS IMMATURE WAS NOT NOTICED BY THE PROTHONOTARY UNTIL AFTER THE PETITION HAD BEEN COMPLETELY EXECUTED BY HIM AND FILED. AT WHICH TIME THE ALIEN WAS AN ACTUAL RESIDENT OF THE STATE OF RHODE ISLAND. THE FACT THAT THE ALIEN DID NOT RESIDE WITHIN THE JURISDICTION OF THE MASSACHUSETTS COURT AS REQUIRED BY THE LAW WAS NOT DISCOVERED BY THE CLERK OF THE COURT UNTIL AFTER THE PETITION HAD BEEN COMPLETELY EXECUTED BY HIM AND FILED.

A-16797, JUNE 10, 1927, 6 COMP. GEN. 812

NATURALIZATION FEES - COLLECTION - VOID OR IMPERFECT PAPERS WHERE THE DISQUALIFICATION OF A DECLARANT TO BECOME A CITIZEN OF THE UNITED STATES OR A PETITIONER FOR NATURALIZATION, OR THE IMPROPRIETY OF EXECUTING AND FILING A DECLARATION OF INTENTION OR PETITION FOR NATURALIZATION, IS APPARENT FROM THE FACTS BEFORE THE CLERK OF COURT, NO FEES SHOULD BE COLLECTED, AND IF COLLECTED IN ADVANCE THEY SHOULD BE RETURNED. IF THE INFORMATION FURNISHED THE CLERK OF COURT IS ERRONEOUS OR MISLEADING, OR THE DISQUALIFICATION OF DECLARANT OR PETITIONER OR THE IMPROPRIETY OF EXECUTING AND FILING THE PARTICULAR DOCUMENT IS NOT APPARENT FROM THE FACTS BEFORE THE CLERK OF COURT, THE PRESCRIBED FEES SHOULD BE COLLECTED FOR ANY SERVICE RENDERED AND SHOULD NOT BE REFUNDED, THOUGH THE DECLARATION OR THE PETITION SHOULD SUBSEQUENTLY BE FOUND BY THE COURT OR OTHERWISE TO BE INVALID.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF LABOR, JUNE 10, 1927:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF APRIL 23, 1927, REFERRING TO DECISION OF JANUARY 21, 1927, A-16797, AND REQUESTING DECISION WHETHER FEES SHOULD BE COLLECTED AND ACCOUNTED FOR ON VOID OR IMPERFECT NATURALIZATION PAPERS IN THE FOLLOWING DESCRIBED CASES:

PETITION NO. 2771, FILED IN THE COMMON PLEAS COURT, LEHIGH COUNTY, PA., ON DECEMBER 16, 1926, BASED ON A DECLARATION OF INTENTION MADE ON JANUARY 24, 1925. ALTHOUGH THE NATURALIZATION LAW PROVIDES THAT THE DECLARATION MUST BE AT LEAST TWO YEARS OLD BEFORE THE PETITION FOR NATURALIZATION MAY BE FILED, THE FACT THAT THE DECLARATION WAS IMMATURE WAS NOT NOTICED BY THE PROTHONOTARY UNTIL AFTER THE PETITION HAD BEEN COMPLETELY EXECUTED BY HIM AND FILED.

PETITION NO. 22104, FILED IN THE DISTRICT COURT OF THE UNITED STATES AT PROVIDENCE, R.I., ON NOVEMBER 18, 1926, BASED ON A DECLARATION OF INTENTION MADE IN THE SUPERIOR COURT OF NORFOLK COUNTY, MASS., ON JANUARY 8, 1923, AT WHICH TIME THE ALIEN WAS AN ACTUAL RESIDENT OF THE STATE OF RHODE ISLAND. THE FACT THAT THE ALIEN DID NOT RESIDE WITHIN THE JURISDICTION OF THE MASSACHUSETTS COURT AS REQUIRED BY THE LAW WAS NOT DISCOVERED BY THE CLERK OF THE COURT UNTIL AFTER THE PETITION HAD BEEN COMPLETELY EXECUTED BY HIM AND FILED.

PETITION NO. 231, COMMON PLEAS COURT OF HARRISON COUNTY, OHIO. AFTER IT WAS PARTLY FILLED OUT BY THE CLERK OF THE COURT, HE DISCOVERED THAT THE APPLICANT, SINCE FILLING OUT HIS PRELIMINARY FORM 2214, HAD MOVED TO THE ADJOINING STATE, PENNSYLVANIA, THE COURTS OF WHICH LATTER STATE AND NOT OF OHIO HAD JURISDICTION OVER THE PETITIONER.

PETITION NO. 685, FILED IN THE COMMON PLEAS COURT, RICHLAND COUNTY, OHIO, ON APRIL 20, 1926. AFTER THIS PETITION HAD BEEN COMPLETELY EXECUTED BY THE CLERK OF THE COURT HE DISCOVERED THAT THE APPLICANT DID NOT HAVE THE FIVE YEAR'S RESIDENCE IN THE UNITED STATES REQUIRED BY THE STATUTE, HAVING ARRIVED IN THIS COUNTRY ON JULY 13, 1921.

DECLARATION NO. 2911, FILED IN THE COMMON PLEAS COURT FOR SOMERSET COUNTY, NEW JERSEY, ON JULY 7, 1926, BY A MARRIED WOMAN. AFTER SHE HAD FILED THE PRELIMINARY FORM 2213 WITH THE CLERK AND AFTER COMPLETELY EXECUTING THIS DECLARATION, THE CLERK DISCOVERED THAT THE WOMAN'S HUSBAND WAS A CITIZEN OF THE UNITED STATES. THE ACT OF SEPTEMBER 22,1922, 42 STAT. 1021, PROVIDES THAT AN ALIEN WOMAN MARRIED TO A CITIZEN OF THE UNITED STATES MAY BE HERSELF NATURALIZED WITHOUT MAKING A DECLARATION OF INTENTION.

PETITION NO. 3517, FILED IN THE COMMON PLEAS COURT, ATLANTIC COUNTY, NEW JERSEY, ON DECEMBER 29, 1926. AFTER HE HAD COMPLETELY EXECUTED AND FILED THIS PETITION THE CLERK OF THE COURT DISCOVERED THAT THE CERTIFICATE OF THE ALIEN'S ARRIVAL, WHICH IS REQUIRED BY LAW TO BE ATTACHED TO AND MADE A PART OF THE PETITION ON THE DATE OF FILING, WAS LACKING.

THE NATURALIZATION LAWS, AND THE REGULATIONS ISSUED PURSUANT THERETO, MAKE CERTAIN REQUIREMENTS RELATIVE TO THE INFORMATION OR FACTS WHICH MUST BE DISCLOSED BY A PERSON PRELIMINARY TO FILING A DECLARATION OF INTENTION TO BECOME A CITIZEN OR A PETITION FOR NATURALIZATION, IN ORDER THAT THE CLERK OF COURT, WITH WHOM THE FILING IS MADE, MAY DETERMINE WHETHER THE FILING IS AUTHORIZED UNDER THE TERMS OF THE CONTROLLING STATUTES AND REGULATIONS. UNDER THE PRACTICE DESCRIBED IN YOUR SUBMISSION, A BLANK FORM, NO. 2214, IS FURNISHED PETITIONER FOR NATURALIZATION, WHICH FORM, WHEN CORRECTLY FILLED IN AND EXECUTED, IS PLACED BEFORE THE CLERK OF COURT AND CONTAINS THE NECESSARY INFORMATION FOR THE CLERK OF COURT TO DETERMINE WHETHER THE FILING OF A PETITION FOR NATURALIZATION IS AUTHORIZED, AND FORM NO. 2213 IS SIMILARLY USED AS TO DECLARATIONS OF INTENTION.

SECTION 13 OF THE ACT OF JUNE 29, 1906, 34 STAT. 600, PROVIDES:

THAT THE CLERK OF EACH AND EVERY COURT EXERCISING JURISDICTION IN NATURALIZATION CASES SHALL CHARGE, COLLECT, AND ACCOUNT FOR THE FOLLOWING FEES IN EACH PROCEEDING:

FOR RECEIVING AND FILING A DECLARATION OF INTENTION AND ISSUING A DUPLICATE THEREOF, ONE DOLLAR.

FOR MAKING, FILING, AND DOCKETING THE PETITION OF AN ALIEN FOR ADMISSION AS A CITIZEN OF THE UNITED STATES AND FOR THE FINAL HEARING THEREON, TWO DOLLARS; AND FOR ENTERING THE FINAL ORDER AND THE ISSUANCE OF THE CERTIFICATE OF CITIZENSHIP THEREUNDER, IF GRANTED, TWO DOLLARS.

THE STATUTE AS AMENDED BY THE ACT OF JUNE 25, 1910, 36 STAT. 830, ALSO REQUIRES QUARTERLY ACCOUNTING AND DEPOSITING OF FEES BY THE CLERK OF COURT AND FIXES THE PROPORTION WHICH THE CLERK MAY RETAIN AND THE PROPORTION WHICH HE IS REQUIRED TO DEPOSIT.

SUBDIVISION B OF RULE 2 OF THE REGULATIONS, PAGE 37, REQUIRES THAT THE FEES PROVIDED FOR BY SECTION 13 OF THE ACT OF JUNE 29, 1906, SHALL BE COLLECTED BY THE CLERK OF COURT IN ADVANCE. HOWEVER, YOU STATE THAT THE PRACTICE OF THE CLERKS OF COURT IN THIS REGARD IS NOT UNIFORM, THAT SOME COLLECT IN ADVANCE AND THAT OTHERS COLLECT AFTER THE PETITION OR DECLARATION HAS BEEN FULLY EXECUTED. IT WOULD APPEAR THAT A REGULATION REQUIRING THAT THE FEE BE DEPOSITED WITH THE CLERK IN ADVANCE WOULD BE PROPER AND SHOULD BE ENFORCED IN ALL CASES. BUT BE THAT AS IT MAY, THE MATTER PRESENTED FOR CONSIDERATION IS WHETHER IN ANY OR ALL CASES FEES SHOULD BE EXACTED FOR VOID OR IMPERFECT DECLARATIONS OF INTENTION OR PETITIONS FOR NATURALIZATION. IF THE FEE IS REQUIRED TO BE DEPOSITED IN ADVANCE THERE WOULD BE INVOLVED THE QUESTION OF REFUNDING, AND IF THE FEE IS NOT CHARGED IN ADVANCE THERE WOULD BE INVOLVED THE QUESTION WHETHER THE FEE SHOULD BE COLLECTED NOTWITHSTANDING THE INVALIDITY OF THE DECLARATION OR PETITION.

THE FEES REQUIRED BY LAW ARE CHARGED FOR A SERVICE RENDERED AND A PRIVILEGE GRANTED, AND IF NO VALID SERVICE IS RENDERED OR PRIVILEGE GRANTED IT NATURALLY FOLLOWS THAT NO FEE SHOULD BE CHARGED. 3 COMP. GEN. 458; 4 ID. 518; 5 ID. 306. THE CLERK OF COURT IS PRESUMED TO KNOW THE REQUIREMENTS OF LAW AND REGULATIONS ISSUED PURSUANT THERETO FOR A VALID DECLARATION OF INTENTION OR PETITION FOR NATURALIZATION. IF THE DISQUALIFICATION OF DECLARANT OR PETITIONER OR THE IMPROPRIETY OF EXECUTING AND FILING SUCH DOCUMENTS IS PATENT FROM THE FACTS BEFORE THE CLERK OF COURT, THE RESPONSIBILITY IS HIS; HE HAS RENDERED NO VALID NECESSARY SERVICE, AND THE FEES SHOULD NOT BE COLLECTED, AND, IF COLLECTED IN ADVANCE, SHOULD BE RETURNED, ASSUMING DEPOSIT OF THE FEES IS SO MADE AS TO BE AVAILABLE FOR REFUND. IF THE INFORMATION FURNISHED THE CLERK OF COURT IS ERRONEOUS OR MISLEADING, OR THE DISQUALIFICATION OF DECLARANT OR PETITIONER OR THE IMPROPRIETY OF EXECUTING AND FILING THE DOCUMENT IS NOT APPARENT FROM THE FACTS BEFORE THE CLERK OF COURT, THE RESPONSIBILITY IS NOT HIS; AND IF ANY SERVICE BE RENDERED IN SUCH CASES THE PRESCRIBED FEES SHOULD BE COLLECTED THEREFOR AND SHOULD NOT BE REFUNDED, NOTWITHSTANDING THAT THE DECLARATION OR PETITION MAY SUBSEQUENTLY BE FOUND TO BE INVALID EITHER BY THE COURT OR OTHERWISE. SEE 3 COMP. GEN. 115; ID. 458; 4 ID. 518.

THESE PRINCIPLES WILL BE APPLIED TO THE SPECIFIC CASES SUBMITTED IN THE ORDER STATED, AS FOLLOWS:

PETITION 2771: BOTH THE PRELIMINARY FORM 2214 AND THE PETITION ITSELF CONTAINED BLANK SPACES FOR THE DATE THE PETITIONER DECLARED HIS INTENTION TO BECOME A CITIZEN. IF THIS WAS PROPERLY FILLED IN, THE CLERK WOULD HAVE BEEN PUT ON NOTICE THAT LESS THAN TWO YEARS HAD ELAPSED SINCE THE DECLARATION OF INTENTION WAS MADE. NO FEE WAS PROPERLY CHARGEABLE.

PETITION 22104: THIS INVOLVES A DECLARATION OF INTENTION INVALID BECAUSE MADE BEFORE A COURT OUTSIDE THE JURISDICTION OF THE RESIDENCE OF THE ALIEN, CONTRARY TO THE REQUIREMENTS OF PARAGRAPH ,FIRST" OF SECTION 4 OF THE ACT OF JUNE 29, 1906, 34 STAT. 596. THIS DECLARATION OF INTENTION WAS REQUIRED TO BE TRANSMITTED WITH FORM 2214 TO THE CLERK OF COURT PRELIMINARY TO THE FILING OF THE PETITION FOR NATURALIZATION, BUT THERE APPEARS NOTHING IN THE COMPLETED FORM OF DECLARATION OF INTENTION TO SHOW THE RESIDENCE OF DECLARANT AT THE TIME HE MADE HIS DECLARATION, TO PUT THE CLERK ON NOTICE OF ANY IRREGULARITY IN THE ISSUANCE THEREOF. SEE FORM APPEARING ON PAGE 17 OF THE REGULATIONS. UNLESS THE FACTS IN FORM 2214 AND THE PETITION FOR NATURALIZATION, OR OTHERWISE BEFORE THE CLERK, AS TO THE PERIOD OF CONTINUOUS RESIDENCE IMMEDIATELY PRECEDING THE PRESENTATION OF THE PETITION, ARE SO INCONSISTENT WITH THE STATEMENTS RELATIVE TO THE PLACE OF THE COURT BEFORE WHICH THE DECLARATION WAS MADE AS TO PUT THE CLERK OF COURT ON NOTICE, IT WOULD APPEAR THAT THE FEE SHOULD HAVE BEEN CHARGED IN THIS CASE.

PETITION 231: CLEARLY NO FEE SHOULD HAVE BEEN CHARGED IN THIS CASE, THE CLERK HAVING DISCOVERED THE IRREGULARITY BEFORE THE SERVICE FOR WHICH THE FEE IS CHARGEABLE WAS COMPLETED.

PETITION 685: THE INFORMATION FURNISHED IN FORM 2214 AND IN THE PETITION ITSELF DISCLOSES THE PERIOD OF RESIDENCE IN THE UNITED STATES, WHICH WOULD HAVE PUT THE CLERK OF COURT ON NOTICE OF THE IRREGULARITY AND NO FEE SHOULD HAVE BEEN CHARGED.

DECLARATION 2911: IT IS UNDERSTOOD THAT IN THIS CASE THE IRREGULARITY WAS DISCOVERED BEFORE THE FILING WAS MADE. IF SO, THE SERVICE FOR WHICH THE FEE WAS CHARGEABLE WAS NOT COMPLETED FOR THE REASON THAT THE STATUTE FIXES THE FEE FOR "RECEIVING AND FILING" THE PETITION. NO FEE SHOULD HAVE BEEN CHARGED IN THIS CASE.

PETITION 3517: THE ABSENCE OF THE CERTIFICATE OF ALIEN'S ARRIVAL SHOULD HAVE BEEN NOTED BY THE CLERK OF COURT. THE RESPONSIBILITY WAS HIS AND NO FEE SHOULD HAVE BEEN CHARGED.