B-132701, OCT. 21, 1957

B-132701: Oct 21, 1957

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ATTORNEYS AT LAW: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 11. WHICH WAS DUE MR. WAS APPLIED IN PARTIAL LIQUIDATION OF THE INDEBTEDNESS. SINCE THE PAYMENTS IN QUESTION WERE MADE AFTER THE ALLOTMENT HAD BEEN DISCONTINUED BY MR. YOU SAY THAT IT IS YOUR OPINION THAT UNDER OHIO LAW. IT IS A FUNDAMENTAL DOCTRINE THAT PARTIES RECEIVING MONEYS ILLEGALLY PAID BY A PUBLIC OFFICER ARE LIABLE IN EQUITY AND GOOD CONSCIENCE TO REFUND THEM. IT WAS HELD THAT THE SUPPOSED HARDSHIP OF REFUNDING WHAT THE RECIPIENT MAY HAVE SPENT. IT WAS HELD THAT THE RECIPIENT. WAS LIVING IN ALABAMA WHEN THE PAYMENTS WERE MADE AND SINCE IT APPEARS THAT SHE IS STILL LIVING IN THAT STATE.

B-132701, OCT. 21, 1957

TO HERSHEY, HATCH, BROWNE, WILSON AND COOK, ATTORNEYS AT LAW:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 11, 1957, CONCERNING THE CLAIM OF THE UNITED STATES AGAINST MRS. NANCY O. ASHBURN, ROUTE 1, ARAB, ALABAMA, BY REASON OF AN OVERPAYMENT OF CLASS E ALLOTMENT, AT THE RATE OF $75 A MONTH, MADE TO HER DURING THE 12 MONTH PERIOD FROM JULY 1, 1952, TO JUNE 30, 1953, INCIDENT TO THE SERVICE OF HER SON, ARTHUR L. ASHBURN, IN THE UNITED STATES AIR FORCE. THE SUM OF $71.24, WHICH WAS DUE MR. ASHBURN AS OF OCTOBER 9, 1953, THE DATE OF HIS DISCHARGE, WAS APPLIED IN PARTIAL LIQUIDATION OF THE INDEBTEDNESS, REDUCING IT FROM $900 TO $828.76.

SINCE THE PAYMENTS IN QUESTION WERE MADE AFTER THE ALLOTMENT HAD BEEN DISCONTINUED BY MR. ASHBURN, YOU EXPRESS THE OPINION THAT SECTION 894 OF TITLE 10, U.S.C. LIMITS RECOVERY OF THE UNITED STATES TO AN ACTION AGAINST THE OFFICER WHO FAILED TO MAKE THE REPORT OF THE DISCONTINUANCE OF THE ALLOTMENT. ALSO, YOU SAY THAT IT IS YOUR OPINION THAT UNDER OHIO LAW, WHICH YOU ASSUME WOULD CONTROL SUCH COLLECTION ACTION, THE PAYER OF THE MONEY COULD NOT RECOVER IF THE PAYEE WOULD BE PREJUDICED BY SUCH COLLECTION.

ALTHOUGH SECTION 16 OF THE ACT OF MARCH 2, 1899, 30 STAT. 981, AS AMENDED, 10 U.S.C. 894 (1952 ED.), DID PROVIDE THAT, IF PRACTICABLE, ERRONEOUS ALLOTMENT PAYMENTS SHOULD BE RECOVERED FROM THE OFFICER WHO FAILED TO REPORT ANY FACT WHICH RENDERED THE ALLOTMENT NOT PAYABLE, IT IS A FUNDAMENTAL DOCTRINE THAT PARTIES RECEIVING MONEYS ILLEGALLY PAID BY A PUBLIC OFFICER ARE LIABLE IN EQUITY AND GOOD CONSCIENCE TO REFUND THEM. WISCONSIN CENTRAL RAILROAD CO. V. UNITED STATES, 164 U.S. 190, 212. UNITED STATES V. BENTLEY, 107 F.2D 382, 384, IT WAS HELD THAT THE SUPPOSED HARDSHIP OF REFUNDING WHAT THE RECIPIENT MAY HAVE SPENT,CANNOT STAND AGAINST THE INJUSTICE OF KEEPING WHAT NEVER RIGHTFULLY BELONGED TO HIM AT ALL. IN UNITED STATES V. NORTHWESTERN NATIONAL BANK AND TRUST CO. OF MINNEAPOLIS, 35 F.SUPP. 484, 486, IT WAS HELD THAT THE RECIPIENT, SINCE HE MERELY RECEIVED SOMETHING FOR NOTHING. THE THEORY BEING THAT THE RESTITUTION RESULTS IN NO LOSS TO THE RECIPIENT, SINCE HE MERELY RECEIVED SOMETHING FOR NOTHING.

SINCE MRS. NANCY O. ASHBURN, WHO RECEIVED THE ERRONEOUS ALLOTMENT PAYMENTS IN QUESTION, WAS LIVING IN ALABAMA WHEN THE PAYMENTS WERE MADE AND SINCE IT APPEARS THAT SHE IS STILL LIVING IN THAT STATE, IT DOES NOT APPEAR THAT THE OHIO STATUTES WOULD CONTROL ANY COLLECTION ACTION IN THE MATTER.