B-14015, DECEMBER 30, 1940, 20 COMP. GEN. 337

B-14015, DECEMBER 30, 1940, 20 COMP. GEN. 337

ALIENS - EMPLOYMENT - STATUTORY PROHIBITION - CITIZENSHIP STATUS DETERMINATION PAYMENT OF COMPENSATION DURING FISCAL YEARS 1939 AND 1940 TO A POSTMASTER WHOSE DECLARATION OF INTENTION TO BECOME A CITIZEN HAD LAPSED PRIOR TO DATE OF THE POST OFFICE DEPARTMENT APPROPRIATION ACT FOR FISCAL YEAR 1939 CONTRAVENED THE CITIZENSHIP PROVISIONS OF SAID ACT AND SIMILAR ACT FOR 1940, AND AMOUNT PAID SHOULD BE REFUNDED, BUT SINCE HE FILED A NEW DECLARATION OF INTENTION BEFORE DATE OF APPROVAL OF THE 1941 APPROPRIATION ACT, HE IS NOT DISQUALIFIED FROM RECEIVING HIS SALARY UNDER THIS LATER ACT. QUESTION WHETHER LAPSING OF FIRST DECLARATION NULLIFIED HIS ELIGIBILITY TO HOLD THE OFFICE OF POSTMASTER IS PRIMARILY FOR DETERMINATION BY POST OFFICE DEPARTMENT AND CIVIL SERVICE COMMISSION.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE POSTMASTER GENERAL, DECEMBER 30, 1940:

I HAVE YOUR LETTER OF DECEMBER 13, 1940, AS FOLLOWS:

QUESTION HAS BEEN RAISED AS TO THE ELIGIBILITY OF EDWARD R. TURK TO CONTINUE TO HOLD THE OFFICE OF POSTMASTER AT THE FOURTH-CLASS POST OFFICE OF DOCTORTOWN, WAYNE COUNTY, GEORGIA. THE UNCERTAINTY AS TO MR. TURK'S STATUS ARISES FROM THE FACT THAT HE IS STILL AN ALIEN ALTHOUGH AT THE TIME THE ACT OF MARCH 28, 1938 ( PUBLIC, NO. 453, 75TH CONGRESS), WAS PASSED MR. TURK WAS ABLE TO ESTABLISH THAT HE HAD COMPLIED WITH THE TERMS OF THAT ACT, HAVING EXECUTED A DECLARATION OF INTENTION OF BECOMING A CITIZEN IN APRIL 1928.

AN INVESTIGATION OF THIS CASE HAS DISCLOSED THAT MR. TURK IS A SLOVENIAN OF YUGOSLAVIAN NATIONALITY AND THAT HIS FIRST DECLARATION OF INTENTION WAS FILED IN THE UNITED STATES COURT AT SAVANNAH, GEORGIA, ON APRIL 12, 1928. THE RECORDS FURTHER SHOW THAT A NEW DECLARATION OF INTENTION WAS FILED WITH THE SAME COURT ON FEBRUARY 14, 1940. MR. TURK, IN A LETTER ADDRESSED TO POST OFFICE INSPECTOR MCKAY ON NOVEMBER 1, 1940, STATED THAT HE HAS MADE THREE DECLARATIONS OF INTENTION BUT LET THE FIRST TWO LAPSE. AS THE MATTER NOW STANDS MR. TURK WILL NOT BE ELIGIBLE TO PETITION THE COURT FOR NATURALIZATION UNTIL FEBRUARY 14, 1942.

YOUR DECISION IS REQUESTED ON THE QUESTION WHETHER THE ACTION OF MR. TURK IN PERMITTING HIS DECLARATION OF INTENTION TO LAPSE NULLIFIED HIS ELIGIBILITY TO HOLD THE OFFICE OF POSTMASTER; ALSO WHAT BEARING HIS LATEST DECLARATION OF INTENTION MAY HAVE UPON THE ACTION TO BE TAKEN IN HIS CASE.

WITH RESPECT TO THIS SUBJECT, THE TREASURY AND POST OFFICE DEPARTMENTS APPROPRIATION ACTS FOR THE FISCAL YEARS 1939, 1940, AND 1941, APPROVED MARCH 29, 1938 (52 STAT. 148), MAY 6, 1939 (53 STAT. 683), AND MARCH 25, 1940 (54 STAT. 78), RESPECTIVELY, EACH CONTAINS AN APPROPRIATION RESTRICTION AS FOLLOWS:

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 OFFICER OR EMPLOYEE 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 HAS FILED A DECLARATION OF INTENTION TO BECOME A CITIZEN OR WHO OWES ALLEGIANCE TO THE UNITED STATES: * * *

IN DECISION OF AUGUST 15, 1940, 20 COMP. GEN. 94, 95, WHEREIN WAS CONSIDERED A SIMILAR APPROPRIATION RESTRICTION, IT WAS STATED:

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 AND 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.

IN THE INSTANT CASE THE DECLARATION OF INTENTION FILED IN APRIL 1928 HAD LAPSED PRIOR TO MARCH 28, 1938, AND MAY 6, 1939, DATES OF APPROVAL OF THE APPROPRIATION ACTS FOR THE FISCAL YEARS 1939 AND 1940, CONTAINING THE RESTRICTION IN QUESTION, AND IT IS UNDERSTOOD THE POSTMASTER DID NOT FILE ANOTHER DECLARATION OF INTENTION TO BECOME A CITIZEN UNTIL FEBRUARY 14, 1940, WHICH DATE WAS AFTER MARCH 6, 1939, THE DATE OF APPROVAL OF THE APPROPRIATION ACT FOR THE FISCAL YEAR 1940, BUT PRIOR TO MARCH 25, 1941. CONTRARY TO THE STATEMENT IN THE CONCLUDING SENTENCE OF THE FIRST PARAGRAPH OF YOUR LETTER, THE DECLARATION OF INTENTION FILED IN APRIL 1928 DID NOT QUALIFY THE POSTMASTER TO RECEIVE COMPENSATION DURING THE FISCAL YEARS 1939 AND 1940.

ACCORDINGLY, UNDER THE PLAIN TERMS OF THE STATUTE ALL AMOUNTS OF COMPENSATION PAID EDWARD R. TURK AS POSTMASTER DURING THE FISCAL YEARS 1939 AND 1940, OR FROM FUNDS THEREBY AUTHORIZED TO BE EXPENDED, WERE PAID IN CONTRAVENTION OF LAW AND MUST BE REFUNDED. 17 COMP. GEN. 1047; ID. 1104; 18 ID. 868.

HOWEVER, THE POSTMASTER HAVING BEEN "IN THE SERVICE OF THE UNITED STATES" ON MARCH 25, 1940, THE DATE OF APPROVAL OF THE APPROPRIATION ACT FOR THE FISCAL YEAR 1941, AND HE, PRIOR TO SAID DATE, HAVING FILED A DECLARATION OF INTENTION TO BECOME A CITIZEN, WHICH DECLARATION IS STILL VALID, HE IS NOT DISQUALIFIED BY THE APPROPRIATION RESTRICTION FROM RECEIVING HIS PROPER SALARY UNDER AUTHORITY OF THE FISCAL YEAR 1941 APPROPRIATION ACT. 20 COMP. GEN. 201, 203.

REFERRING TO THE CONCLUDING PARAGRAPH OF YOUR LETTER, YOU ARE ADVISED THAT WHILE, FOR THE REASONS HEREINBEFORE STATED, THE FACT THAT THE DECLARATION OF INTENTION FILED IN APRIL 1928 HAD LAPSED, DISQUALIFIED THIS POSTMASTER FROM RECEIVING SALARY DURING THE FISCAL YEARS 1939 AND 1940, THIS OFFICE MAY NOT UNDERTAKE TO PASS UPON THE QUESTION OF WHETHER THAT FACT "NULLIFIED HIS ELIGIBILITY TO HOLD THE OFFICE OF POSTMASTER"--- THAT BEING A MATTER PRIMARILY FOR DETERMINATION BY THE POST OFFICE DEPARTMENT AND THE UNITED STATES CIVIL SERVICE COMMISSION. THE DECLARATION OF INTENTION FILED FEBRUARY 14, 1940, MERELY QUALIFIES HIM TO RECEIVE COMPENSATION DURING THE CURRENT FISCAL YEAR IF HE HOLDS THE OFFICE, AND IS NOT PER SE DETERMINATIVE OF THE QUESTION OF HIS ELIGIBILITY TO HOLD THE OFFICE.