A-5818, DECEMBER 9, 1924, 4 COMP. GEN. 520

A-5818: Dec 9, 1924

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" IS NOT APPLICABLE TO THE REFUNDING OF CUSTOMS FINES ERRONEOUSLY IMPOSED. 1924: I HAVE YOUR LETTER OF OCTOBER 16. THE FACTS OF THE CASE GIVING RISE TO YOUR SUBMISSION ARE STATED THEREIN AS FOLLOWS: THE DEPARTMENT IS IN RECEIPT OF A LETTER FROM THE COLLECTOR OF CUSTOMS AT OGDENSBURG. IT WAS DISCOVERED. WAS PAID BY THE CARRIER ON JANUARY 4. THE FINE WAS SUBSEQUENTLY COVERED INTO THE TREASURY. ARE NOT AUTHORIZED TO BE WITHDRAWN THEREFROM OR OTHERWISE APPLIED EXCEPT IN CONSEQUENCE OF APPROPRIATIONS MADE BY LAW. THERE HAS BEEN GIVEN NO AUTHORITY BY APPROPRIATION OR OTHERWISE TO WITHDRAW MONEYS FROM THE TREASURY FOR REFUND OF CUSTOMS FINES CLAIMED TO HAVE BEEN ERRONEOUSLY IMPOSED AS IN THIS CASE AFTER THE AMOUNT COLLECTED HAS BEEN COVERED INTO THE TREASURY.

A-5818, DECEMBER 9, 1924, 4 COMP. GEN. 520

MISCELLANEOUS RECEIPTS - REFUNDING CUSTOMS FINES ERRONEOUSLY DEPOSITED AND COVERED INTO TREASURY THE PERMANENT ANNUAL APPROPRIATION CONTAINED IN SECTION 3689, REVISED STATUTES, TO "REFUND MONEYS RECEIVED AND COVERED INTO THE TREASURY BEFORE THE PAYMENT OF LEGAL AND JUST CHARGES AGAINST THE SAME," IS NOT APPLICABLE TO THE REFUNDING OF CUSTOMS FINES ERRONEOUSLY IMPOSED, COLLECTED, DEPOSITED AND COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, DECEMBER 9, 1924:

I HAVE YOUR LETTER OF OCTOBER 16, 1924, REQUESTING DECISION AS TO THE AVAILABILITY OF FUNDS FOR THE REFUNDMENT OF CUSTOMS FINES ERRONEOUSLY IMPOSED, COLLECTED, DEPOSITED AND COVERED INTO THE TREASURY OF THE UNITED STATES AS MISCELLANEOUS RECEIPTS.

THE FACTS OF THE CASE GIVING RISE TO YOUR SUBMISSION ARE STATED THEREIN AS FOLLOWS:

THE DEPARTMENT IS IN RECEIPT OF A LETTER FROM THE COLLECTOR OF CUSTOMS AT OGDENSBURG, N.Y., REGARDING THE QUESTION OF REFUNDMENT OF A PART OF A FINE OF $87.50 IMPOSED UPON THE RUTLAND RAILROAD COMPANY FOR THE IRREGULAR DELIVERY OF A SHIPMENT OF ONE PACKAGE OF EFFECTS COVERED BY BAGGAGE CHECK NO. 432728.

IT WAS DISCOVERED, UPON REVIEWING THE CASE, THAT AN ADDITIONAL FINE OF 25 PERCENT OF THE ESTIMATED DUTY ON THE IMPORTATION HAD BEEN ERRONEOUSLY IMPOSED, AND, ACCORDINGLY, THE DEPARTMENT, ON JUNE 24, 1924, REDUCED THE AMOUNT OF FINE FROM $87.50 TO $70. ON JULY 12, 1924, THE COLLECTOR AT OGDENSBURG ADVISED THAT THE FINE, AS ORIGINALLY IMPOSED, WAS PAID BY THE CARRIER ON JANUARY 4, 1924, AND HAD BEEN DEPOSITED TO THE CREDIT OF THE TREASURER OF THE UNITED STATES. THE FINE WAS SUBSEQUENTLY COVERED INTO THE TREASURY.

MONEYS DEPOSITED AND COVERED INTO THE GENERAL FUND OF THE TREASURY OF THE UNITED STATES, EVEN THOUGH ERRONEOUSLY SO DEPOSITED, ARE NOT AUTHORIZED TO BE WITHDRAWN THEREFROM OR OTHERWISE APPLIED EXCEPT IN CONSEQUENCE OF APPROPRIATIONS MADE BY LAW. THERE HAS BEEN GIVEN NO AUTHORITY BY APPROPRIATION OR OTHERWISE TO WITHDRAW MONEYS FROM THE TREASURY FOR REFUND OF CUSTOMS FINES CLAIMED TO HAVE BEEN ERRONEOUSLY IMPOSED AS IN THIS CASE AFTER THE AMOUNT COLLECTED HAS BEEN COVERED INTO THE TREASURY, ALTHOUGH IT APPEARS THAT IN A FEW SIMILAR CASES PRIOR TO SEPTEMBER 13, 1923, REFUNDMENTS WERE MADE AND CHARGED UNDER THE APPROPRIATION FOR "REFUNDING MONEYS RECEIVED AND COVERED," SECTION 3689, REVISED STATUTES, UPON THE APPROVAL AND RECOMMENDATION OF THE SECRETARY OF THE TREASURY AND UNDER A MISAPPREHENSION OF THE PURPOSES FOR WHICH SAID APPROPRIATION WAS AVAILABLE. WHEN THESE ERRONEOUS SETTLEMENTS CAME TO MY ATTENTION IT WAS DEEMED NEITHER NECESSARY NOR ADVISABLE TO ATTEMPT TO RECOVER THE AMOUNTS OF THE REFUNDMENTS THUS MADE, THERE BEING NO QUESTION AS TO THE PROPRIETY OF THE ALLOWANCES FROM ANY STANDPOINT OTHER THAN THE MATTER OF THE AVAILABILITY OF THE APPROPRIATION.

WITH REFERENCE TO ONE OF THE REFUNDS JUST REFERRED TO, YOU WERE ADVISED BY LETTER OF SEPTEMBER 13, 1923, AND YOU ARE AGAIN ADVISED, THAT SUCH SETTLEMENT, OR ANY OTHER LIKE SETTLEMENT---

* * * IS NOT TO BE CONSIDERED AS AUTHORIZING A DEPARTURE FROM THE PRACTICE HERETOFORE OBTAINING WITH REFERENCE TO THE AVAILABILITY OF THE APPROPRIATION MADE UNDER SECTION 3689, REVISED STATUTES, FOR REFUNDING MONEYS ERRONEOUSLY RECEIVED AND COVERED. THE RULE ANNOUNCED IN 10 COMP. DEC. 239, IS NOT TO BE REGARDED AS SET ASIDE, CHANGED, OR MODIFIED BY THE SETTLEMENT OF JANUARY 11, 1923, IN THE CASE OF M. BERRIES AND CO.

THE DECISION, 10 COMP. DEC. 239, PROVIDES, QUOTING THE SYLLABUS, AS FOLLOWS:

THE PERMANENT ANNUAL APPROPRIATION CONTAINED IN SECTION 3689, REVISED STATUTES, TO "REFUND MONEYS RECEIVED AND COVERED INTO THE TREASURY BEFORE THE PAYMENT OF LEGAL AND JUST CHARGES AGAINST THE SAME," IS NOT APPLICABLE TO THE REFUNDING OF A FINE COLLECTED AND COVERED INTO THE TREASURY.

THE RULE AS THUS ANNOUNCED IS CORRECT AND SHOULD BE OBSERVED IN ALL CASES INVOLVING CLAIMS FOR REFUND OF CUSTOMS FINES.