B-11429, AUGUST 15, 1940, 20 COMP. GEN. 94

B-11429, AUGUST 15, 1940, 20 COMP. GEN. 94

ALIENS - EMPLOYMENT - STATUTORY PROHIBITION THE INTERIOR DEPARTMENT APPROPRIATION ACT, 1941, PROHIBITS PAYMENT OF COMPENSATION AS AN EMPLOYEE OF THE UNITED STATES TO AN ALIEN WHOSE DECLARATION OF INTENTION TO BECOME A CITIZEN HAD LAPSED PRIOR TO THE APPROVAL OF SAID ACT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, AUGUST 15, 1940:

I HAVE YOUR LETTER OF JULY 22, 1940, AS FOLLOWS:

I AM ENCLOSING A MEMORANDUM FROM THE OFFICE OF THE SOLICITOR IN WHICH I AM ADVISED THAT SECTION 5 OF THE INTERIOR DEPARTMENT APPROPRIATION ACT OF 1941 DOES NOT PROHIBIT THE USE OF FUNDS THEREIN APPROPRIATED TO PAY THE COMPENSATION OF VILLY M. HANSEN, SUBFOREMAN ON THE BOULDER CANYON PROJECT, NEVADA, IN THE CIRCUMSTANCES SET OUT IN THE MEMORANDUM. THIS CASE IS SUBMITTED TO YOU FOR A RULING IN VIEW OF POSSIBLE APPLICATION OF THE DECISION OF THE ACTING COMPTROLLER GENERAL REPORTED IN 18 COMP. GEN. 90.

I WILL APPRECIATE YOUR ADVICE AS TO WHETHER THE PAYMENT OF COMPENSATION TO THIS EMPLOYEE IS PROHIBITED.

IT APPEARS FROM THE MEMORANDUM FROM THE OFFICE OF THE SOLICITOR THAT MR. HANSEN FILED A DECLARATION OF INTENTION TO BECOME A CITIZEN APRIL 3, 1920, IN THE CIRCUIT COURT OF BUTTE COUNTY, S.DAK.; THAT HE SERVED IN THE UNITED STATES ARMY, AND THAT HE WAS UNDER THE IMPRESSION THAT THAT CONSTITUTED HIM A CITIZEN.

THE FACTS PRESENT A PARALLEL CASE TO THAT CONSIDERED IN THE DECISION REPORTED IN 18 COMP. GEN. 90, IN WHICH THE CONCLUDING PARAGRAPH STATES:

IN THE ABSENCE OF A DECISION BY COMPETENT AUTHORITY EITHER THAT MR. LOGHAN'S DECLARATION OF INTENTION COUPLED WITH HIS MILITARY SERVICE WAS EQUIVALENT TO A DECLARATION TO BECOME A CITIZEN WHICH REMAINED IN FORCE ON APRIL 27, 1938, OR THAT HE WAS A CITIZEN ON OR PRIOR TO JULY 1, 1938, THE APPROPRIATION RESTRICTION QUOTED IN YOUR LETTER WOULD PRECLUDE PAYMENT TO HIM OF SALARY DURING THE FISCAL YEAR 1939, UNTIL SUCH TIME AS HE BECOMES A CITIZEN.

SECTION 5 OF THE DEPARTMENT OF THE INTERIOR APPROPRIATION ACT FOR 1941, APPROVED JUNE 18, 1940, PUBLIC, NO. 640, 54 STAT. 462, PROVIDES:

NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT OR AUTHORIZED HEREBY TO BE EXPENDED SHALL BE USED TO PAY THE COMPENSATION OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT OF THE UNITED STATES, OR OF ANY AGENCY THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE GOVERNMENT OF THE UNITED STATES, WHOSE POST OF DUTY IS IN CONTINENTAL UNITED STATES UNLESS SUCH PERSON IS A CITIZEN OF THE UNITED STATES, OR A PERSON IN THE SERVICE OF THE UNITED STATES ON THE DATE OF THE APPROVAL OF THIS ACT WHO BEING ELIGIBLE FOR CITIZENSHIP HAD THERETOFORE FILED A DECLARATION OF INTENTION TO BECOME A CITIZEN OR WHO OWES ALLEGIANCE TO THE UNITED STATES.

THE OPINION EXPRESSED IN THE MEMORANDUM FROM THE OFFICE OF THE SOLICITOR, STATED BRIEFLY, IS TO THE EFFECT THAT THE ACT DOES NOT REQUIRE A VALID AND SUBSISTING DECLARATION OF INTENTION; THAT A PERSON WHO HAS ONCE FILED A DECLARATION OF INTENTION TO BECOME A CITIZEN IS WITHIN THE LETTER OF THE LAW. IT IS NOTED THERE IS NO ATTEMPT MADE TO SHOW THAT MR. HENSON IS A CITIZEN OR THAT HE OTHERWISE OWES ALLEGIANCE TO THE UNITED STATES, SO THAT HIS RIGHT TO RECEIVE COMPENSATION AS AN EMPLOYEE OF THE UNITED STATES UNDER SECTION 5, SUPRA, MUST DEPEND ENTIRELY ON THE QUESTION OF WHETHER HE HAD FILED A DECLARATION OF INTENTION TO BECOME A CITIZEN WITHIN THE MEANING OF THAT SECTION.

IN NATURALIZATION PROCEEDINGS UNDER EXISTING LAWS A DECLARATION OF INTENTION TO BECOME A CITIZEN LAPSES AFTER SEVEN YEARS AFTER IT WAS MADE. 8 U.S.C. 379. HENCE, FOR NATURALIZATION PURPOSES THERE WAS NO VALID SUBSISTING DECLARATION OF INTENTION ON THE DATE OF THE APPROVAL OF THE ACT OF JUNE 18, 1940. THE ADMITTED PURPOSE OF SECTION 5 OF SAID ACT IS TO PROHIBIT THE PAYMENT OF COMPENSATION TO ALIENS, AND THE EXCEPTION IN CASES WHERE THE ALIEN "HAD THERETOFORE FILED A DECLARATION OF INTENTION TO BECOME A CITIZEN" MUST BE REGARDED AS HAVING REFERENCE TO A DECLARATION OF INTENTION WHICH, IT REASONABLY MAY BE PRESUMED, WILL RIPEN INTO CITIZENSHIP.

ACCORDINGLY, IN THE PRESENT CASE, SINCE THERE WAS NO VALID DECLARATION OF INTENTION IN EXISTENCE ON THE DATE OF THE APPROVAL OF THE ACT OF JUNE 28, 1940, IT MUST BE HELD THAT THE PROVISIONS OF SECTION 5 OF SAID ACT PROHIBIT THE PAYMENT OF COMPENSATION TO MR. HANSEN ..END :