B-128843, AUG. 30, 1956

B-128843, AUG. 30, 1956

TO THE POSTMASTER GENERAL:

REFERENCE IS MADE TO LETTER DATED AUGUST 3, 1956, FROM THE ACTING POSTMASTER GENERAL REQUESTING ADVICE AS TO WHETHER THE POST OFFICE DEPARTMENT MAY REIMBURSE, FROM AMOUNTS RECOVERED IN A CRIMINAL PROCEEDING FOR MAIL THEFT AND DENOMINATED BY THE COURT AS A "FINE IN LIEU OF TITUTION," THOSE PATRONS OF THE MAIL WHOSE IDENTITIES ARE KNOWN FOR THE AMOUNT OF THE LOSS SUSTAINED BY THEM AS THE RESULT OF THE PECULATIONS.

IT IS REPORTED THAT AFTER APPREHENSION OF A CLERK AT THE ELLWOOD CITY, PENNSYLVANIA, POST OFFICE FOR THEFT FROM THE MAILS, IN THE APPROXIMATE AMOUNT OF $500, HE PLEADED GUILTY AND WAS SENTENCED TO JAIL FOR A TERM OF SIX MONTHS AND ORDERED TO PAY A FINE OF $400 AND COURT COSTS. THE FINE WAS PAID IN FULL. THEREAFTER THE POST OFFICE DEPARTMENT MADE DEMAND UPON THE CLERK FOR THE APPROXIMATE AMOUNT HE HAD ADMITTED STEALING, $500. WHEN INFORMED OF THIS DEMAND, THE PROBATION OFFICER ADVISED THE COURT OF HIS UNDERSTANDING THAT THE TOTAL AMOUNT EMBEZZLED WAS BETWEEN $400 AND $500 AND PETITIONED THE COURT TO AMEND THE ORIGINAL SENTENCE TO READ,"A $400 FINE IN LIEU OF RESTITUTION.' THE COURT THEREAFTER ORDERED THE SENTENCE SO AMENDED. IT IS FURTHER REPORTED THAT $160.06 OF THE AMOUNT STOLEN WAS TAKEN FROM THE MAIL OF PERSONS WHOSE IDENTITIES ARE KNOWN. THE QUESTION THEREFORE ARISES AS TO WHETHER THESE PERSONS MAY BE REIMBURSED FOR THEIR LOSS ($160.06) FROM THE AMOUNT RECOVERED IN THE CRIMINAL ACTION AND COLLECTED BY THE POST OFFICE DEPARTMENT.

YOUR LETTER OF AUGUST 3 STATES THAT THE COURT IN IMPOSING THE FINE APPARENTLY DID NOT INTEND THAT IT BE PUNISHMENT FOR THE CRIME BUT RATHER AS FULL RESTITUTION TO THE UNITED STATES FOR THE LOSS SUSTAINED; THAT SINCE THE DEPREDATIONS WERE COMMITTED UPON ORDINARY MAIL, THE UNITED STATES IS UNDER NO LEGAL OBLIGATION TO REIMBURSE THE PATRONS ON ACCOUNT OF ANY LOSSES; AND, THEREFORE, IT CANNOT BE SHOWN THAT THE UNITED STATES SUFFERED ANY LOSS. ALSO, IT WAS POINTED OUT THAT THIS ,FINE" WAS INTENDED TO PRECLUDE THE UNITED STATES FROM SUING ON ACCOUNT OF ANY FURTHER CIVIL CLAIM IT MIGHT HAVE AGAINST THE CLERK. IT IS URGED THAT THE RECOVERY MADE BY THE UNITED STATES IN THE INSTANT CASE IS SIMILAR TO ONE MADE AS A BAILEE, IN WHICH CAPACITY THE GOVERNMENT WOULD HOLD THE FUNDS AS A TRUSTEE FOR THE USE AND BENEFIT OF THE USERS OF THE ORDINARY MAIL. FOR THIS REASON THE VIEW IS EXPRESSED THAT THE PERSONS WHOSE IDENTITIES ARE KNOWN SHOULD BE PAID THE AMOUNT OF THE LOSSES SUSTAINED BY THEM, $160.06, FROM THE AMOUNTS RECOVERED, AND THAT SUCH REIMBURSEMENT WOULD BE CONSONANT WITH THE CONGRESSIONAL INTENT MANIFESTED IN SECTION 790, TITLE 39 U.S.C. WHICH PROVIDES AS FOLLOWS:

"WHENEVER THE POSTMASTER GENERAL IS SATISFIED THAT MONEY OR PROPERTY STOLEN FROM THE MAIL, OR THE PROCEEDS THEREOF, HAS BEEN RECEIVED AT THE DEPARTMENT, HE MAY, UPON SATISFACTORY EVIDENCE AS TO THE OWNER, DELIVER THE SAME TO HIM.'

HOWEVER, SINCE THE COURT SENTENCE USED THE WORD "FINE," DOUBT IS EXPRESSED AS TO WHETHER SUCH A PAYMENT MAY BE MADE TO THE MAIL PATRONS IN VIEW OF THE PROVISIONS CONTAINED IN SECTIONS 782 AND 791, TITLE 39 U.S. CODE, REQUIRING THAT ALL THE FINES IMPOSED FOR THE VIOLATION OF THE POSTAL LAWS BE COVERED INTO THE TREASURY AS PART OF THE POSTAL REVENUES FOR THE USE OF THE POST OFFICE DEPARTMENT.

IT BECOMES NECESSARY THEREFORE TO CONSIDER WHETHER, UNDER THE CIRCUMSTANCES, THE AMOUNT RECOVERED UNDER THE LANGUAGE OF THE AMENDED SENTENCE "$400 FINE IN LIEU OF RESTITUTION" NEED BE VIEWED AS A "FINE" REQUIRED TO BE DEPOSITED INTO THE POSTAL REVENUES OR WHETHER IT MAY BE VIEWED AS AN AMOUNT FOR MAKING RESTITUTION TO THE PARTIES AGGRIEVED.

THE WORD "FINE" HAS BEEN VARIOUSLY DESCRIBED BUT IN ESSENCE IT IS A PECUNIARY PUNISHMENT IMPOSED BY A LAWFUL TRIBUNAL UPON A PERSON CONVICTED OF A CRIME OR MISDEMEANOR. UNITED STATES V. SAFEWAY STORES, 140 F.2D 834, 839; 36 C.J.S. FINES SEC. 1. THE ADDITION OF THE QUALIFYING WORDS ,IN LIEU OF RESTITUTION," WHEN VIEWED WITH THE REASONS FOR THEIR ADDITION CONTAINED IN THE PETITION OF THE PROBATION OFFICER, CLEARLY EVINCES AN INTENTION THAT THE AMOUNT COLLECTED FROM THE CONVICTED POST OFFICE CLERK AND DENOMINATED AS A "FINE" WAS NOT INTENDED AS PUNISHMENT FOR THE VIOLATING OF THE POSTAL LAWS BUT RATHER TO PROVIDE A MEANS OF RESTORING TO THE PROPER PARTIES THE LOSSES SUSTAINED THEREBY, AND PRECLUDING THE GOVERNMENT FROM RECOVERING, IN A CIVIL ACTION, THE AMOUNT OF PECULATIONS. SEE THE CASE OF PEOPLE V. LABARBERA, 201 P.2D 584, WHEREIN THE COURT RECOGNIZED THAT A SENTENCE CONTAINING THE WORD "FINE" WAS INTENDED AS RESTITUTION RATHER THAN PUNISHMENT. ALSO SEE, B-110549 DECEMBER 1, 1952, COPY ATTACHED. THE SENTENCE OF THE COURT THUS PROPERLY MAY BE CONSIDERED AS AN ORDER OF RESTITUTION TO THE PARTIES AGGRIEVED RATHER THAN AS A FINE. INASMUCH AS THE GOVERNMENT SUFFERED NO LOSS THE AMOUNT REMITTED BY THE CONVICTED POST OFFICE CLERK MAY BE REGARDED AS HAVING BEEN EXACTED FOR THE BENEFIT OF THE PATRONS OF THE POSTAL SERVICE WHO SUFFERED THE ACTUAL LOSS FROM THE MAIL THEFT. SEE 5 OP.ATTY.GEN. 557; 9 ID. 70; 23 ID. 476. ACCORDINGLY, AND IN VIEW OF THE PROVISIONS OF 39 U.S.C. 790 QUOTED ABOVE, WE WOULD HAVE NO OBJECTIONS TO THE PAYMENT BY YOUR DEPARTMENT FROM THE RECOVERED AMOUNT TO THE PATRONS WHOSE IDENTITIES ARE KNOWN OF THE AMOUNT OF THE LOSSES THEY SUSTAINED.