A-20784, DECEMBER 20, 1927, 7 COMP. GEN. 398

A-20784: Dec 20, 1927

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IS NOT AVAILABLE FOR REFUND OF BAIL REMITTED BY ORDER OF A UNITED STATES DISTRICT COURT UNDER AUTHORITY OF SECTION 1020. WAS AMENDED TO READ AS FOLLOWS: AN ORDER HAVING BEEN HERETOFORE ENTERED IN THIS CAUSE ESTREATING THE BAIL OF THE SAID SAM CILUFO AND LEO TORRE FOR FAILING TO APPEAR AND ANSWER IN SAID CAUSE. WHERE THEY NOW ARE. IT IS NOW HERE ORDERED THAT THE SAID ORDER ESTREATING BAIL BE VACATED AND SET ASIDE AND THE PENALTY THEREOF. THE ORDER OF THE COURT IS AUTHORIZED UNDER SECTION 1020. IS FORFEITED BY A BREECH OF THE CONDITION THEREOF. THE APPROPRIATION SOUGHT TO BE CHARGED IS "REFUNDING MONEYS ERRONEOUSLY RECEIVED AND COVERED (JUSTICE)" AS PROVIDED UNDER SECTION 3689. IN THE FOLLOWING TERMS: THERE ARE APPROPRIATED.

A-20784, DECEMBER 20, 1927, 7 COMP. GEN. 398

MISCELLANEOUS RECEIPTS - REFUND OF BAIL REMITTED BY A UNITED STATES DISTRICT COURT THE PERMANENT ANNUAL APPROPRIATION "REFUNDING MONEY ERRONEOUSLY RECEIVED AND COVERED (JUSTICE)," AUTHORIZED BY SECTION 3689, REVISED STATUTES, IS NOT AVAILABLE FOR REFUND OF BAIL REMITTED BY ORDER OF A UNITED STATES DISTRICT COURT UNDER AUTHORITY OF SECTION 1020, REVISED STATUTES, THE AMOUNT OF WHICH HAS BEEN COVERED INTO THE TREASURY AS A MISCELLANEOUS RECEIPT.

DECISION BY COMPTROLLER GENERAL MCCARL, DECEMBER 20, 1927:

THE DEPARTMENT OF JUSTICE HAS FORWARDED TO THIS OFFICE FOR DIRECT SETTLEMENT APPROVED VOUCHER IN THE AMOUNT OF $6,000 IN FAVOR OF VITO PALAZZOLA, BONDSMAN, REPRESENTING REFUND OF BAIL PAID IN THE CASE OF UNITED STATES V. SAM CILUFO AND LEO TORRE, PURSUANT TO THE ORDER OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN, SOUTHERN DISTRICT, ESTREATING THE BAIL UPON DEFAULT OF THE TWO DEFENDANTS.

IT APPEARS THAT ON JANUARY 9, 1926, THE COURT VACATED THE ORDER PREVIOUSLY ENTERED ESTREATING THE BAIL, AND BY COURT ORDER DATED AUGUST 25, 1927, COPY OF WHICH HAS BEEN FILED AS A BASIS FOR THE CLAIM, THE PREVIOUS ORDER DATED JANUARY 9, 1926, WAS AMENDED TO READ AS FOLLOWS:

AN ORDER HAVING BEEN HERETOFORE ENTERED IN THIS CAUSE ESTREATING THE BAIL OF THE SAID SAM CILUFO AND LEO TORRE FOR FAILING TO APPEAR AND ANSWER IN SAID CAUSE, AND THE PENALTY OF THEIR APPEARANCE BOND, TO WIT, SIX THOUSAND DOLLARS ($6,000.00), HAVING BEEN PAID INTO COURT BY THE SURETY THEREON, AND THE SAID AMOUNT DEPOSITED IN THE FOURTH NATIONAL BANK OF GRAND RAPIDS, TO THE CREDIT OF THE UNITED STATES TREASURER, AND THE SAID SURETY, HAVING NOW CAUSED THE SAID CILUFO AND TORRE TO SURRENDER THEMSELVES TO THE CUSTODY OF THE MARSHAL OF THIS DISTRICT, WHERE THEY NOW ARE, AND FROM THE FACTS PRESENTED TO THE COURT, IT APPEARING THAT THERE HAS BEEN NO WILLFUL DEFAULT ON THE PART OF SAID SAM CILUFO, SAID LEO TORRE, SAID VITO PALAZZOLA, OR ANY OF THEM, AND THAT A TRIAL CAN, NOTWITHSTANDING, BE HAD IN THE CAUSE, AND THAT PUBLIC JUSTICE DOES NOT OTHERWISE REQUIRE THE SAME PENALTY TO BE ENFORCED, AND IT FURTHER APPEARING PROPER AND ADVISABLE THAT THE SAID ORDER ESTREATING THE BAIL OF SAID DEFENDANTS CILUFO AND TORRE BE VACATED AND SET ASIDE, IT IS NOW HERE ORDERED THAT THE SAID ORDER ESTREATING BAIL BE VACATED AND SET ASIDE AND THE PENALTY THEREOF, TO WIT, SIX THOUSAND DOLLARS ($6,000.00), RETURNED TO THE SURETY UPON THEIR APPEARANCE BOND.

THE ORDER OF THE COURT IS AUTHORIZED UNDER SECTION 1020, REVISED STATUTES, WHICH PROVIDES AS FOLLOWS:

WHEN ANY RECOGNIZANCE IN A CRIMINAL CAUSE, TAKEN FOR, OR IN, OR RETURNABLE TO, ANY COURT OF THE UNITED STATES, IS FORFEITED BY A BREECH OF THE CONDITION THEREOF, SUCH COURT MAY, IN ITS DISCRETION, REMIT THE WHOLE OR A PART OF THE PENALTY, WHENEVER IT APPEARS TO THE COURT THAT THERE HAS BEEN NO WILLFUL DEFAULT OF THE PARTY, AND THAT A TRAIL CAN, NOTWITHSTANDING, BE HAD IN THE CAUSE, AND THAT PUBLIC JUSTICE DOES NOT OTHERWISE REQUIRE THE SAME PENALTY TO BE ENFORCED.

THE APPROPRIATION SOUGHT TO BE CHARGED IS "REFUNDING MONEYS ERRONEOUSLY RECEIVED AND COVERED (JUSTICE)" AS PROVIDED UNDER SECTION 3689, REVISED STATUTES, IN THE FOLLOWING TERMS:

THERE ARE APPROPRIATED, OUT OF ANY MONEYS IN THE TREASURY NOT OTHERWISE APPROPRIATED, FOR THE PURPOSES HEREINAFTER SPECIFIED, SUCH SUMS AS MAY BE NECESSARY FOR THE SAME RESPECTIVELY; AND SUCH APPROPRIATIONS SHALL BE DEEMED PERMANENT ANNUAL APPROPRIATIONS.

REFUNDING MONEYS ERRONEOUSLY RECEIVED AND COVERED:

TO REFUND MONEYS RECEIVED AND COVERED INTO THE TREASURY BEFORE THE PAYMENT OF LEGAL AND JUST CHARGES AGAINST THE SAME.

AN EXPRESS LIMITATION OR CONDITION HAS BEEN ATTACHED TO THE AVAILABILITY OF THIS PERMANENT ANNUAL APPROPRIATION FOR REFUNDS; THAT IS TO SAY, IT IS AVAILABLE ONLY IN THOSE CASES IN WHICH, AT THE TIME THE MONEY WAS COVERED INTO THE TREASURY, THERE WAS OUTSTANDING A LEGAL AND JUST CHARGE IN THE NATURE OF A LIEN AGAINST THE MONEY. THE APPROPRIATION IS INTENDED ONLY TO ENABLE THE SETTLEMENT OF SUCH LEGAL AND JUST CHARGES THAT HAD BEEN PREVENTED BY THE COVERING OF THE MONEY INTO THE TREASURY. 10 COMP. DEC. 239; 14 ID. 82; 17 ID. 270; 21 ID. 697; 4 COMP. GEN. 520; 6 ID. 293.

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

THE CLAIM MUST BE AND IS DISALLOWED.

THERE WOULD APPEAR TO BE FOR CONSIDERATION BY THE ADMINISTRATIVE OFFICE WHETHER THE CLAIM SHOULD BE REPORTED TO THE CONGRESS FOR AN APPROPRIATION OR SUBMITTED AS A PRIVATE CLAIM. SEE ACT OF FEBRUARY 23, 1927, PRIVATE 385 (S. 2618), 44 STAT. 333, PART. 2. ..END :