A-86722, JULY 12, 1937, 17 COMP. GEN. 21

A-86722: Jul 12, 1937

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IN EXCESS OF AN AMOUNT COMMENSURATE WITH THE FEE CHARGED IS UNAUTHORIZED. IS AS FOLLOWS: THE ATTACHED LETTER DATED MAY 24. THAT AN INSURANCE FEE IN THE SUM OF EIGHT CENTS WAS PAID ON THE PARCEL AT THE TIME OF MAILING. THAT THE ARTICLE WAS DAMAGED TO THE EXTENT OF $6. THAT INDEMNITY IN THAT AMOUNT WAS PAID BY THE POSTMASTER AT DETROIT. CREDIT IN THE SUM OF $5 WAS ALLOWED THE POSTMASTER AT DETROIT. AS IT IS CLEAR THAT THE PERSON WHO PRESENTED THE PARCEL FOR MAILING AND THE ACCEPTING POSTAL EMPLOYEE HAD IN MIND A VALUATION IN EXCESS OF $5. THE POSTMASTER AT THE OFFICE OF MAILING WAS AUTHORIZED BY THIS OFFICE TO COLLECT THE ADDITIONAL SUM OF TWO CENTS FROM THE SENDER. IS IN PERTINENT PART AS FOLLOWS: UNDER DATE OF NOVEMBER 16.

A-86722, JULY 12, 1937, 17 COMP. GEN. 21

POST OFFICE DEPARTMENT - INSURED PARCELS - INDEMNITY PAYMENTS IN EXCESS OF AMOUNT AUTHORIZED FOR FEE PAID PAYMENT OF INDEMNITY BY POSTAL AUTHORITIES IN CONNECTION WITH INSURED PARCELS, IN EXCESS OF AN AMOUNT COMMENSURATE WITH THE FEE CHARGED IS UNAUTHORIZED, NOTWITHSTANDING THE SUBSEQUENT COLLECTION OF AN ADDITIONAL FEE IN ATTEMPTED JUSTIFICATION OF THE AMOUNT OF IDEMNITY PAID. DECISION A -62482, AUGUST 19, 1935, DISTINGUISHED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE POSTMASTER GENERAL, JULY 12, 1937:

LETTER OF THE THIRD ASSISTANT POSTMASTER GENERAL DATED MAY 28, 1937 (22695-P), IS AS FOLLOWS:

THE ATTACHED LETTER DATED MAY 24, 1937, FROM THE POSTMASTER AT DETROIT, MICH., RELATES TO THE CLAIM FOR IDEMNITY COVERING INSURED PARCEL NO. 89, MAILED ON OCTOBER 3, 1936, BY GEORGE G. EVANS, AT IDLEWILD, MICH., ADDRESSED TO THE SAVAGE ARMS CORPORATION, AT UTICA, N.Y.

THE EVIDENCE SHOWS THAT THE PARCEL CONTAINED A RIFLE VALUED BY THE SENDER AT $25; THAT AN INSURANCE FEE IN THE SUM OF EIGHT CENTS WAS PAID ON THE PARCEL AT THE TIME OF MAILING; THAT THE ARTICLE WAS DAMAGED TO THE EXTENT OF $6, AND THAT INDEMNITY IN THAT AMOUNT WAS PAID BY THE POSTMASTER AT DETROIT, MICH.

CREDIT IN THE SUM OF $5 WAS ALLOWED THE POSTMASTER AT DETROIT, MICH., BY YOUR OFFICE IN THIS CASE.

AS IT IS CLEAR THAT THE PERSON WHO PRESENTED THE PARCEL FOR MAILING AND THE ACCEPTING POSTAL EMPLOYEE HAD IN MIND A VALUATION IN EXCESS OF $5, THE POSTMASTER AT THE OFFICE OF MAILING WAS AUTHORIZED BY THIS OFFICE TO COLLECT THE ADDITIONAL SUM OF TWO CENTS FROM THE SENDER.

KINDLY GIVE CONSIDERATION TO THE REQUEST OF THE POSTMASTER AT DETROIT, MICH., THAT CREDIT IN THE ADDITIONAL SUM OF $1 BE ALLOWED HIM IN THIS CASE AND ADVISE THIS OFFICE REGARDING THE ACTION TAKEN BY YOU.

A LETTER OF MAY 24, 1937, FROM THE POSTMASTER AT DETROIT, MICH., TO THE THIRD ASSISTANT POSTMASTER GENERAL INCLOSED WITH THE ABOVE-QUOTED LETTER, AND IN WHICH APPEARS REQUEST FOR REVIEW OF THE ACTION OF THIS OFFICE, IS IN PERTINENT PART AS FOLLOWS:

UNDER DATE OF NOVEMBER 16, 1936, THIS CLAIM WAS PAID BY THIS OFFICE IN THE AMOUNT OF $6.00.

ON FEBRUARY 24, 1937, THE GENERAL ACCOUNTING OFFICE ADVISED THAT THE CLAIM HAD BEEN SUSPENDED FOR VERIFICATION OF AMOUNT OF INSURANCE FEE PAID.

UNDER DATE OF MARCH 11 THE MATTER WAS REPORTED TO YOUR OFFICE.

ON APRIL 24 THE GENERAL ACCOUNTING OFFICE ADVISED THIS OFFICE THAT INDEMNITY IN THIS CASE HAD BEEN ALLOWED IN THE AMOUNT OF $5.00 DUE TO THE FACT THAT NO FEE WAS COLLECTED AT THE TIME OF INSURING THE PARCEL TO ALLOW INDEMNITY IN EXCESS OF THAT AMOUNT.

THE EVIDENCE IN THE CASE SHOWS THAT BOTH THE PERSON THAT PRESENTED THE PARCEL AND THE ACCEPTING EMPLOYEE HAD IN MIND A VALUATION IN EXCESS OF $5.00 BUT THROUGH SOME INADVERTENCE, THE POSTMASTER AT IDLEWILD, MICHIGAN, ONLY COLLECTED A FEE OF 8 CENTS.

IN ADDITION TO THE FACTS STATED BY THE ABOVE-QUOTED LETTERS, IT APPEARS THAT SUBSEQUENT TO THE SETTLEMENT OF THE CLAIM, THE POSTMASTER AT THE MAILING OFFICE COLLECTED AN ADDITIONAL 2 CENTS TO BRING THE AMOUNT COLLECTED FOR THE INSURANCE FEE UP TO THE AMOUNT REQUIRED BY THE STATUTE TO COVER INSURANCE NOT TO EXCEED $25.

THE PRIVILEGE OF PROTECTING THIRD- AND FOURTH-CLASS MAIL BY INSURANCE IS STRICTLY STATUTORY. SEE SECTION 8 OF THE ACT OF AUGUST 24, 1912, 37 STAT. 558, AS AMENDED BY THE ACT OF JUNE 7, 1924, 43 STAT. 562. THE FEES TO BE PAID FOR THE PRIVILEGE OF INSURING SUCH MAIL ARE DEFINITELY ESTABLISHED BY SECTION 211 OF THE ACT OF JUNE 28, 1932, 47 STAT. 340, AS FOLLOWS:

SEC. 211. (A) THE FEE FOR INSURANCE SHALL BE 5 CENTS FOR INDEMNIFICATION NOT TO EXCEED $5; 10 CENTS FOR INDEMNIFICATION NOT TO EXCEED $25; 15 CENTS FOR INDEMNIFICATION NOT TO EXCEED $50; 25 CENTS FOR INDEMNIFICATION NOT TO EXCEED $100; 30 CENTS FOR INDEMNIFICATION NOT TO EXCEED $150; AND 35 CENTS FOR INDEMNIFICATION NOT TO EXCEED $200. * * *

AND IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF AUGUST 24, 1912, SUPRA, THERE HAS BEEN PROMULGATED BY THE POSTMASTER GENERAL, PARAGRAPH (B) OF SECTION 1386, POSTAL LAWS AND REGULATIONS, 1932, AS FOLLOWS:

THE FEES FOR INSURANCE SHALL BE IN ADDITION TO THE POSTAGE, AND BOTH FEES AND POSTAGE SHALL BE PREPAID WITH STAMPS AFFIXED.

THUS THE FEES TO BE CHARGED FOR INSURING PARCELS SENT BY THIRD- OR FOURTH -CLASS MAIL AND THE TIME FOR COLLECTING SUCH CHARGES ARE DEFINITELY FIXED BY STATUTE AND BY REGULATIONS THEREUNDER. THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF UNITED STATES V. SHIELDS, 153 U.S. 88, AT PAGE 91, STATED:

* * * FEES ALLOWED TO PUBLIC OFFICERS ARE MATTERS OF STRICT LAW, DEPENDING UPON THE VERY PROVISIONS OF THE STATUTE. THEY ARE NOT OPEN TO EQUITABLE CONSTRUCTION BY THE COURTS NOR TO ANY DISCRETIONARY ACTION ON THE PART OF THE OFFICIALS.

IN VIEW OF THE SPECIFIC TERMS OF THE STATUTE AND OTHER CIRCUMSTANCES APPEARING, THERE IS NO AUTHORITY IN POSTAL EMPLOYEES TO CHARGE FEES OTHERWISE THAN AS PROVIDED BY THE LAW AND THE REGULATIONS MADE PURSUANT THERETO. THE SUBSEQUENT CHARGING AND COLLECTING OF AN ADDITIONAL FEE APPARENTLY FOR THE EXPRESS PURPOSE OF INCREASING THE LIABILITY OF THE GOVERNMENT IS CLEARLY NOT AUTHORIZED. IN THE PRESENT CASE THE FEE COLLECTED AT TIME OF MAILING BEING SUFFICIENT TO COVER INDEMNITY ON THE PACKAGE TO THE EXTENT OF $5, BUT INSUFFICIENT TO COVER INDEMNITY FOR A GREATER AMOUNT, AND THERE BEING NO STATUTORY PROVISIONS FOR PRORATING THE AMOUNT COLLECTED, THERE IS NO AUTHORITY OF LAW FOR THE ALLOWANCE OF AN AMOUNT IN EXCESS OF $5.

ACCORDINGLY, THE CLAIM FOR ANY AMOUNT IN EXCESS OF THAT ALLOWED BY THE SETTLEMENT OF APRIL 24, 1937, MUST BE, AND IS, DISALLOWED.

IN REACHING THIS CONCLUSION I HAVE GIVEN DUE CONSIDERATION TO THE DECISION OF THE FORMER COMPTROLLER GENERAL TO YOU DATED AUGUST 19, 1935, A -62482, IN WHICH UNDER FACTS SIMILAR TO THOSE INVOLVED IN THE PRESENT CASE IT WAS SAID IN PART:

* * * AS A FEE OF EIGHT CENTS WAS NOT A FEE PROVIDED IN THE STATUTE, IT WAS EVIDENT THEREFROM THAT A MISTAKE WAS MADE, AND AS THE EIGHT CENT FEE PRIOR TO JUNE 28, 1932, WAS THE PROPER FEE FOR THE INSURANCE OF PARCELS VALUED BETWEEN $9 AND $25, A PRESUMPTION ARISES THAT BOTH THE PARTY INSURING THE PARCEL AND THE CLERK ACCEPTING THE PARCEL HAD IN MIND A VALUATION IN EXCESS OF $5. * * *

BASED UPON THE PRESUMPTION OF A MISTAKE THE DECISION IMPLIED THAT A CLAIM FOR ADDITIONAL INDEMNITY, IF SUBMITTED, WOULD RECEIVE FAVORABLE CONSIDERATION. WHILE THE CONCLUSION REACHED IN THAT DECISION MAY HAVE BEEN JUSTIFIED WITH RESPECT TO A CASE WHICH AROSE IN JULY 1934, ONLY A LITTLE OVER 2 YEARS FROM THE DATE OF THE ACT OF JUNE 28, 1932, CHANGING THE FEE RATES, THE BASIS OF A PRESUMED MISTAKE IS NOT SO READILY APPARENT IN A CASE WHICH AROSE, AS IN THE PRESENT MATTER, OVER 4 YEARS AFTER SAID ACT BECAME EFFECTIVE. IN ANY EVENT, I AM UNABLE TO CONCLUDE OR CONSIDER THAT SAID DECISION SHOULD GOVERN AS A PRECEDENT THE ACTION IN THE PRESENT CASE.