B-106220, FEBRUARY 4, 1952, 31 COMP. GEN. 356

B-106220: Feb 4, 1952

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1952: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 8. THAT YOU WERE CHARGED WITH VIOLATION OF MAXIMUM PRICE REGULATION NO. 127. THAT A PENALTY WAS LEVIED AGAINST YOU IN THE AMOUNT OF $4. 043.08) UNDER PROTEST WAS REJECTED BY THE OFFICE OF PRICE ADMINISTRATION AND YOU WERE REQUIRED EITHER TO PAY THE SAID AMOUNT OF $6. YOU WERE NOT ONE OF THE PROTESTANTS REFERRED TO AND THE SAID ORDERS DID NOT PURPORT TO AFFECT MATTERS SUCH AS YOURS IN WHICH JUDGMENTS THERETOFORE HAD BEEN ENTERED BY COURTS. IT IS TO BE NOTED THAT JUDGMENT AGAINST YOU HAD BEEN ENTERED JULY 17. IT IS NOT ONE OF THE FUNCTIONS OF THIS OFFICE TO REVIEW THE JUDGMENTS OF COURTS OR TO AUTHORIZE THE REFUND OF ANY AMOUNT PAID IN SATISFACTION OF A COURT JUDGMENT.

B-106220, FEBRUARY 4, 1952, 31 COMP. GEN. 356

COURTS - JUDGMENTS, DECREES, ETC. - REFUND OF PENALTIES PAID PURSUANT TO CONSENT JUDGMENTS WHERE A JOBBER-CONVERTER PAID A PENALTY LEVIED BY A UNITED STATES DISTRICT COURT CONSENT JUDGMENT RATHER THAN DEFEND A PENDING COURT ACTION FOR THE VIOLATION OF A MAXIMUM PRICE REGULATION AND SUBSEQUENT THERETO THE ADMINISTRATOR, OFFICE OF PRICE ADMINISTRATION, GRANTED RELIEF TO OTHER CONTRACTORS CHARGED WITH THE SAME VIOLATION, SUCH RELIEF ACTION FORMS NO BASIS FOR REFUNDING TO THE JOBBER-CONVERTER THE AMOUNT PAID PURSUANT TO THE CONSENT JUDGMENT FOR THE PENALTY LEGALLY IMPOSED PURSUANT TO THE LAW AND REGULATIONS IN EFFECT AT THE TIME OF THE VIOLATION.

COMPTROLLER GENERAL WARREN TO UTTAL BROTHERS, FEBRUARY 4, 1952:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 8, 1951, IN EFFECT REQUESTING RECONSIDERATION OF THE ACTION OF THIS OFFICE IN ISSUING SETTLEMENT DATED OCTOBER 3, 1951, WHICH DISALLOWED YOUR CLAIM IN THE AMOUNT OF $6,043.08 FOR REFUND OF THAT AMOUNT PAID BY YOUR PURSUANT TO A CONSENT JUDGMENT ENTERED IN THE DISTRICT COURT OF THE UNITED STATES, SOUTHERN DISTRICT OF NEW YORK, ON JULY 17, 1945.

IT APPEARS FROM THE RECORD, INCLUDING INFORMATION FURNISHED BY YOU, THAT YOU WERE CHARGED WITH VIOLATION OF MAXIMUM PRICE REGULATION NO. 127, ORDER NO, 8, COVERING THE PERIOD JULY 1, 1943, TO JUNE 30, 1944, BY EXCEEDING YOUR QUOTA AS A JOBBER-CONVERTER OF FINISHED PIECE GOODS; THAT A PENALTY WAS LEVIED AGAINST YOU IN THE AMOUNT OF $4,028.72; THAT YOUR OFFER TO PAY ONE AND ONE HALF TIMES THAT AMOUNT ($6,043.08) UNDER PROTEST WAS REJECTED BY THE OFFICE OF PRICE ADMINISTRATION AND YOU WERE REQUIRED EITHER TO PAY THE SAID AMOUNT OF $6,043.08 WITHOUT PROTEST OR TO DEFEND THE THEN PENDING COURT ACTION, THEREBY RISKING JUDGMENT FOR TREBLE DAMAGES; AND THAT YOU THEREUPON CONSENTED TO ENTRY OF JUDGMENT FOR THE SAID AMOUNT OF $6,043.08 AND PAID THAT AMOUNT WITHIN 90 DAYS THEREAFTER.

IT APPEARS FURTHER THAT BY ORDERS DATED NOVEMBER 29, 1946, IN MATTERS THEN PENDING BEFORE THE OFFICE OF PRICE ADMINISTRATION ( DOCKET NOS. 1127- 72-P AND 1127-85-P) INVOLVING PROTESTS BY SEVEN JOBBER CONVERTERS AGAINST MAXIMUM PRICE REGULATION NO. 127 AND ORDER NO. 8, ABOVE REFERRED TO, THE ADMINISTRATOR ORDERED THAT THE PROTESTANTS BE GRANTED RELIEF RETROACTIVELY TO JULY 1, 1943, AND THAT ENFORCEMENT ACTIONS PENDING AGAINST THEM BE DROPPED. HOWEVER, YOU WERE NOT ONE OF THE PROTESTANTS REFERRED TO AND THE SAID ORDERS DID NOT PURPORT TO AFFECT MATTERS SUCH AS YOURS IN WHICH JUDGMENTS THERETOFORE HAD BEEN ENTERED BY COURTS. IT IS TO BE NOTED THAT JUDGMENT AGAINST YOU HAD BEEN ENTERED JULY 17, 1945--- MORE THAN 16 MONTHS PRIOR TO ISSUANCE OF THE SAID ORDERS OF NOVEMBER 29, 1946.

IT IS NOT ONE OF THE FUNCTIONS OF THIS OFFICE TO REVIEW THE JUDGMENTS OF COURTS OR TO AUTHORIZE THE REFUND OF ANY AMOUNT PAID IN SATISFACTION OF A COURT JUDGMENT. IT IS TRUE THAT A FINE OR PENALTY ILLEGALLY IMPOSED MAY BE RECOVERED BACK WHERE PAID INVOLUNTARILY AND UNDER DURESS. HOWEVER, IF THE PERSON PAYING THE SAME HAS AN ALTERNATIVE, SUCH AS PROCEEDING TO SUIT OR TAKING AN APPEAL, SUCH PAYMENT IS DEEMED VOLUNTARY. 36 C.J.S. ( FINES), SECTION 17. ALSO, THE FACT THAT THE ALTERNATIVE MAY ENTAIL SOME INCONVENIENCE OR TROUBLE OR INVOLVE PUBLICITY REFLECTING ON THE TRADE REPUTATION OF THE PAYEE WOULD NOT MAKE THE PAYMENT ANY LESS VOLUNTARY. IBID. IN THE INSTANT MATTER, THE PENALTY INVOLVED WAS LEGALLY IMPOSED PURSUANT TO THE LAW AND REGULATIONS THEN IN EFFECT. WITH YOUR CONSENT, IT WAS GIVEN THE SANCTION OF A COURT JUDGMENT AND SUCH JUDGMENT WAS PAID BY YOU IN FULL.

IN VIEW OF THE FOREGOING, THERE IS NOT PERCEIVED ANY SOUND BASIS FOR ALLOWANCE OF YOUR CLAIM BY THIS OFFICE. ACCORDINGLY, UPON REVIEW, THE SETTLEMENT OF OCTOBER 3, 1951, IS FOUND CORRECT AND HEREBY IS SUSTAINED.