A-34355, DECEMBER 1, 1930, 10 COMP. GEN. 240

A-34355: Dec 1, 1930

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IS EARNED WHEN THE APPLICATION. IS RECEIVED AND FILED BY THE GOVERNMENT. " IS NOT EARNED UNLESS THE CERTIFICATE HAS ACTUALLY BEEN ISSUED. THAT IS. THE QUESTION HERE PRESENTED IS WHETHER THE FEE SHOULD BE REFUNDED TO THE APPLICANT UNDER THE PROVISIONS OF YOUR DECISION OF JUNE 10. WHERE IT WAS HELD THAT THE FEES REQUIRED BY LAW ARE CHARGED FOR A SERVICE RENDERED OR A PRIVILEGE GRANTED. IF NO VALID SERVICE IS RENDERED OR PRIVILEGE GRANTED. THE FACT THAT THE APPLICANT WAS LAWFULLY ENTITLED TO MAKE AN APPLICATION FOR DERIVATIVE CITIZENSHIP. SHE IS ESTOPPED FROM ABANDONING HER APPLICATION AND RECEIVING A REFUND OF THE FEE WHEN SUCH ABANDONMENT IS BEFORE THE RENDERING OF ANY SERVICE ON THE PART OF THE GOVERNMENT.

A-34355, DECEMBER 1, 1930, 10 COMP. GEN. 240

NATURALIZATION - REFUND OF FEES THE FEE OF $10 REQUIRED BY SECTION 33 (A) OF THE ACT OF JUNE 29, 1906, AS AMENDED BY SECTION 9 OF THE ACT OF MARCH 2, 1929, 45 STAT. 1515, TO BE PAID AS A CONDITION PRECEDENT TO THE MAKING OF AN APPLICATION FOR A CERTIFICATE OF DERIVATIVE CITIZENSHIP, IS EARNED WHEN THE APPLICATION, APPARENTLY VALID, IS RECEIVED AND FILED BY THE GOVERNMENT, A SERVICE HAVING BEEN RENDERED OR A PRIVILEGE GRANTED, AND MAY NOT BE REFUNDED SIMPLY BECAUSE THE APPLICANT DESIRES TO WITHDRAW THE APPLICATION PRIOR TO THE COMPLETION OF ACTION BY THE GOVERNMENT IN ISSUING THE CERTIFICATE. COMP. GEN. 35 DISTINGUISHED. THE FEE OF $5 REQUIRED BY SECTION 5 OF THE AMENDATORY ACT OF MARCH 2, 1929, 45 STAT. 1513, FOR A "CERTIFICATE OF ARRIVAL ISSUED FOR NATURALIZATION PURPOSES," IS NOT EARNED UNLESS THE CERTIFICATE HAS ACTUALLY BEEN ISSUED, THAT IS, PREPARED READY FOR DELIVERY, AND MAY BE REFUNDED UPON THE WITHDRAWAL OF THE APPLICATION IF THE CERTIFICATE HAS NOT BEEN SO PREPARED.

DECISION BY COMPTROLLER GENERAL MCCARL, DECEMBER 1, 1930./*

THE COMMISSIONER OF NATURALIZATION HAS FORWARDED TO THIS OFFICE FOR PREAUDIT ADMINISTRATIVELY APPROVED VOUCHER IN FAVOR OF MARGARETHA GERATHS, FOR $15, CLAIMING REFUND OF FEES PAID IN CONNECTION WITH AN APPLICATION, FORM NO. 2400, RECEIVED MARCH 14, 1930, FOR A CERTIFICATE OF DERIVATIVE CITIZENSHIP, THE LETTER OF TRANSMITTAL STATING, IN PART, AS FOLLOWS:

BEFORE ANY SERVICE, OTHER THAN RECEIVING THE APPLICATION FORM AND TRANSMITTING THE FEE TO THE BUREAU, THE APPLICANT REQUESTED A REFUND OF THE FEE ON THE GROUND THAT SHE DESIRED TO ABANDON HER REQUEST FOR A CERTIFICATE OF NATURALIZATION. THE QUESTION HERE PRESENTED IS WHETHER THE FEE SHOULD BE REFUNDED TO THE APPLICANT UNDER THE PROVISIONS OF YOUR DECISION OF JUNE 10, 1927, 6 C.G. 812, WHERE IT WAS HELD THAT THE FEES REQUIRED BY LAW ARE CHARGED FOR A SERVICE RENDERED OR A PRIVILEGE GRANTED, AND IF NO VALID SERVICE IS RENDERED OR PRIVILEGE GRANTED, IT NATURALLY FOLLOWS THAT NO FEE SHOULD BE CHARGED, OR WHETHER IN THE LIGHT OF YOUR DECISION OF OCTOBER 21, 1930, A-33715, THE FACT THAT THE APPLICANT WAS LAWFULLY ENTITLED TO MAKE AN APPLICATION FOR DERIVATIVE CITIZENSHIP, AND DID MAKE SUCH APPLICATION IN THE MANNER AND FORM PRESCRIBED BY LAW, SHE IS ESTOPPED FROM ABANDONING HER APPLICATION AND RECEIVING A REFUND OF THE FEE WHEN SUCH ABANDONMENT IS BEFORE THE RENDERING OF ANY SERVICE ON THE PART OF THE GOVERNMENT.

SECTIONS 5 AND 9 OF THE ACT OF MARCH 2, 1929, 45 STAT. 1513, 1515, PROVIDE AS FOLLOWS:

SEC. 5. FOR ANY CERTIFICATE OF ARRIVAL ISSUED FOR NATURALIZATION PURPOSES A FEE OF $5 SHALL BE PAID TO THE COMMISSIONER OF NATURALIZATION, WHICH FEE SHALL BE PAID OVER TO AND DEPOSITED IN THE TREASURY IN THE SAME MANNER AS OTHER NATURALIZATION FEES.

SEC. 9. SUCH ACT OF JUNE 29, 1906, AS AMENDED, IS AMENDED BY ADDING AT THE END THEREOF THE FOLLOWING:

"SEC. 33. (A) ANY INDIVIDUAL OVER TWENTY-ONE YEARS OF AGE WHO CLAIMS TO HAVE DERIVED UNITED STATES CITIZENSHIP THROUGH THE NATURALIZATION OF A PARENT, OR A HUSBAND, MAY, UPON THE PAYMENT OF A FEE OF $10, MAKE APPLICATION TO THE COMMISSIONER OF NATURALIZATION, ACCOMPANIED BY TWO PHOTOGRAPHS OF THE APPLICANT, FOR A CERTIFICATE OF CITIZENSHIP. UPON OBTAINING A CERTIFICATE FROM THE SECRETARY OF LABOR SHOWING THE DATE, PLACE, AND MANNER OF ARRIVAL IN THE UNITED STATES, UPON PROOF TO THE SATISFACTION OF THE COMMISSIONER THAT THE APPLICANT IS A CITIZEN AND THAT THE ALLEGED CITIZENSHIP WAS DERIVED AS CLAIMED, AND UPON TAKING AND SUBSCRIBING TO, BEFORE A DESIGNATED REPRESENTATIVE OF THE BUREAU OF NATURALIZATION WITHIN THE UNITED STATES, THE OATH OF ALLEGIANCE REQUIRED BY THE NATURALIZATION LAWS OF A PETITIONER FOR CITIZENSHIP, SUCH INDIVIDUAL SHALL BE FURNISHED A CERTIFICATE OF CITIZENSHIP BY THE COMMISSIONER, BUT ONLY IF SUCH INDIVIDUAL IS AT THE TIME WITHIN THE UNITED STATES. IN ALL COURTS, TRIBUNALS, AND PUBLIC OFFICES OF THE UNITED STATES, AT HOME AND ABROAD, OF THE DISTRICT OF COLUMBIA, AND OF EACH STATE, TERRITORY, OR INSULAR POSSESSION OF THE UNITED STATES, THE CERTIFICATE OF CITIZENSHIP ISSUED UNDER THIS SECTION SHALL HAVE THE SAME EFFECT AS A CERTIFICATE OF CITIZENSHIP ISSUED BY A COURT HAVING NATURALIZATION JURISDICTION.'

THE AMOUNT OF $15 IN REALITY CONSTITUTES TWO FEES, $10 FOR AN "APPLICATION * * * FOR A CERTIFICATE OF CITIZENSHIP" (SEC. 33 (A) OF THE STATUTE), AND $5 "FOR ANY CERTIFICATE OF ARRIVAL ISSUED FOR NATURALIZATION PURPOSES" (SEC. 5 OF THE STATUTE). FOR THE $10 FEE THE GOVERNMENT RECEIVES AND FILES THE APPLICATION FOR CERTIFICATE OF DERIVATIVE CITIZENSHIP, AND UPON THE COMPLETION OF THE NECESSARY PRELIMINARY INVESTIGATION AND ADJUDICATION, ISSUES THE CERTIFICATE IF THE APPLICANT IS FOUND TO BE A CITIZEN AND WITHIN THE UNITED STATES AT THE TIME. WHEN AN APPLICATION, APPARENTLY VALID, IS RECEIVED AND FILED BY THE GOVERNMENT, A SERVICE HAS BEEN RENDERED OR A PRIVILEGE GRANTED. AS THE FEE OF $10 REQUIRED TO BE PAID IN ADVANCE AT THE TIME OF SUBMITTING THE APPLICATION IS NOT DIVISIBLE UNDER THE TERMS OF THE STATUTE, IT MUST BE CONSIDERED THAT THE ENTIRE AMOUNT HAS BEEN EARNED WHEN THE APPLICATION PROPERLY IS RECEIVED AND FILED BY THE GOVERNMENT, AND SAID FEE MAY NOT BE REFUNDED SIMPLY BECAUSE THE APPLICANT DESIRES TO WITHDRAW THE APPLICATION PRIOR TO THE COMPLETION OF ACTION BY THE GOVERNMENT IN ISSUING THE CERTIFICATE. THIS IS TO BE DISTINGUISHED FROM A CASE WHERE THE CONTROLLING STATUTE EXPRESSLY PROVIDES A DIFFERENT FEE FOR FILING APPLICATION AND FOR ISSUING THE CERTIFICATE, ETC.

SEE, FOR INSTANCE, DECISION OF JULY 23, 1930, 10 COMP. GEN. 35, WHEREIN WAS CONSIDERED SECTION 1 OF THE ACT OF JUNE 4, 1920, 41 STAT. 750, PROVIDING A FEE OF $1 FOR EXECUTING EACH APPLICATION FOR A PASSPORT, AND $9 FOR EACH PASSPORT ISSUED, IT BEING HELD IN THAT CASE THAT THE $9 FEE, BUT NOT THE $1 FEE, WAS AUTHORIZED TO BE REFUNDED WHEN THE APPLICATION FOR A PASSPORT WAS WITHDRAWN PRIOR TO FINAL ACTION IN ISSUING THE PASSPORT.

HOWEVER, AS TO THE $5 FEE FOR A "CERTIFICATE OF ARRIVAL ISSUED FOR NATURALIZATION PURPOSES" FIXED BY SECTION 5 OF THE STATUTE, THERE ACTUALLY MUST BE "ISSUED"--- THAT IS, PREPARED READY FOR DELIVERY--- A CERTIFICATE OF ARRIVAL BEFORE THE FEE PRESCRIBED BY THE STATUTE IS EARNED. IF IN THIS CASE THE CERTIFICATE OF ARRIVAL HAD NOT BEEN SO PREPARED, REFUND OF THE $5 FEE IS AUTHORIZED.

IN THE SOPHIE EITEL CASE CONSIDERED IN THE DECISION OF OCTOBER 21, 1930, A-33715, THE STATEMENT IN THE SUBMISSION THAT NO CERTIFICATE OF ARRIVAL "WAS OBTAINED" WAS UNDERSTOOD TO MEAN THAT SHE HAD NOT RECEIVED THE CERTIFICATE, THERE APPEARING NOTHING TO SHOW THAT THE CERTIFICATE HAD NOT BEEN PREPARED READY FOR DELIVERY TO HER. THEREFORE THERE APPEARS NO CONFLICT BETWEEN THE DECISIONS OF JUNE 10, 1927, AND OCTOBER 21, 1930, CITED IN YOUR SUBMISSION IN THIS CASE.

IN THE INSTANT CASE THE VOUCHER IN FAVOR OF MARGARETHA GERATHS WILL BE CERTIFIED FOR PAYMENT IN THE AMOUNT OF $5 ONLY.