B-122100, JANUARY 12, 1955, 34 COMP. GEN. 331

B-122100, JANUARY 12, 1955, 34 COMP. GEN. 331

OFFICERS AND EMPLOYEES - ACCEPTANCE OF ANNUITY FROM FOREIGN GOVERNMENT - CONSTITUTIONAL PROHIBITION ACCEPTANCE OF ANNUITY PAYMENTS MADE BY THE GERMAN GOVERNMENT TO A UNITED STATES EMPLOYEE AS DAMAGES FOR INJURIES INFLICTED BY THE NAZI REGIME WHILE HE WAS A FORMER CITIZEN AND PUBLIC OFFICIAL OF GERMANY DOES NOT VIOLATE ARTICLE I, SECTION 9, CLAUSE 8, OF THE UNITED STATES CONSTITUTION PROHIBITING THE ACCEPTANCE BY GOVERNMENT EMPLOYEES OF ANY PRESENT, EMOLUMENT, ETC., FROM A FOREIGN STATE.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE ATTORNEY GENERAL, JANUARY 12, 1955:

REFERENCE IS MADE TO LETTER OF NOVEMBER 10, 1954, FILE REFERENCE A3, FROM THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL, REQUESTING MY ADVICE WHETHER MR. RICHARD E. NEWKIRK, AN EMPLOYEE OF THE OFFICE OF ALIEN PROPERTY, DEPARTMENT OF JUSTICE, WHO PRESENTLY IS CARRIED IN A LEAVE- WITHOUT-PAY STATUS, LAWFULLY MAY BE PAID THE COMPENSATION OF HIS POSITION CONCURRENTLY WITH THE RECEIPT OF CERTAIN PAYMENTS--- HEREINAFTER DESCRIBED --- FROM THE GOVERNMENT OF GERMANY.

THE PERTINENT FACTS IN MR. NEWKIRK'S CASE, AS DISCLOSED BY THE DEPARTMENT'S LETTER OF NOVEMBER 10, AND THE SUPPLEMENTAL INFORMATION TRANSMITTED HERE INFORMALLY IN CONNECTION WITH THE CASE, ARE AS FOLLOWS: MR. NEWKIRK WAS SERVING AS A JUDGE IN THE COURT OF COMMON PLEAS, KASSEL, GERMANY, WHEN HE WAS INVOLUNTARILY RETIRED FROM THAT OFFICE EFFECTIVE OCTOBER 1, 1933, BY THE NATIONAL-1SOCIALIST GOVERNMENT FOR RACIAL REASONS. INCIDENT TO THAT RETIREMENT HE WAS PAID A SMALL PENSION UNTIL SUCH TIME AS HE EMIGRATED TO THE UNITED STATES IN 1936. IN NOVEMBER 1941 BY NAZI DECREE HE, TOGETHER WITH ALL GERMANS OF JEWISH DESCENT WHO RESIDED ABROAD, WAS DEPRIVED OF HIS GERMAN CITIZENSHIP. IN THAT SAME YEAR MR. NEWKIRK BECAME A NATURALIZED CITIZEN OF THE UNITED STATES. FURTHER, IT APPEARS THAT IN 1954 THE GOVERNMENT OF GERMANY, ACTING UPON THE APPLICATION OF MR. NEWKIRK, AWARDED HIM A LUMP-SUM PAYMENT UNDER THE " FEDERAL SUPPLEMENTARY LAW FOR THE COMPENSATION OF VICTIMS OF NATIONAL SOCIALIST PERSECUTION" (DATED SEPTEMBER 18, 1953) AND AN ANNUITY FOR LIFE UNDER GERMAN POSTWAR LEGISLATION DATED MARCH 18, 1952, ENTITLED " LAW FOR THE REDRESS OF NATIONAL SOCIALIST WRONGS INFLICTED ON MEMBERS OF THE CIVIL SERVICE LIVING ABROAD.'

IN THE INFORMAL SUPPLEMENTAL REPORT RECEIVED FROM THE DEPARTMENT OF JUSTICE IT IS STATED AT LENGTH THAT THE LAWS UNDER WHICH MR. NEWKIRK RECEIVED PAYMENTS FROM THE GERMAN GOVERNMENT ARE LAWS OF INDEMNIFICATION TO REDRESS WRONGS COMMITTED BY THE NATIONAL-1SOCIALIST GOVERNMENT; THAT BOTH THE LUMP-SUM PAYMENTS AND ANNUITY PAYMENTS MADE PURSUANT TO THOSE LAWS REPRESENT DAMAGES FOR INJURIES INFLICTED UPON CERTAIN CIVIL SERVANTS BECAUSE OF THEIR POLITICAL CONVICTION, RACE, CREED OR IDEOLOGY; THAT THOSE LAWS ARE GENERAL IN NATURE APPLYING TO LARGE CLASSES OF INDIVIDUALS, AND THAT THE ENACTMENT OF SAID LAWS WAS ATTRIBUTABLE IN A LARGE MEASURE TO THE MILITARILY ENFORCED POLICY OF THE VICTORIOUS ALLIES, AND FINALLY TO THE BONN CONVENTION, A TREATY RESTORING GERMAN SOVEREIGNTY. IT IS STATED THAT IN ESTABLISHING DAMAGES FOR THE TORTIOUS ACTS COMMITTED, IT WAS ONLY LOGICAL FOR THE GERMAN LEGISLATURE TO APPLY THE GERMAN CONCEPT OF INDEMNIFICATION FOR WRONGS COMMITTED WITH ITS EMPHASIS UPON RESTITUTION IN KIND AND UPON PAYMENT OF ANNUITIES IN SATISFACTION OF TORT JUDGMENTS. THE LANGUAGE OF THE TRANSLATED GERMAN LAWS TRANSMITTED HERE SUPPORTS THE VIEW THAT THE PAYMENTS INVOLVED REPRESENT DAMAGES OR REPARATIONS FOR WRONGFUL ACTS COMMITTED UNDER THE NAZI REGIME.

THE SOLE QUESTION INVOLVED IS WHETHER ACCEPTANCE OF THE PAYMENTS SO PROVIDED BY THE GERMAN LAWS BY MR. NEWKIRK, WHO, IT IS STATED, CONCEDEDLY "OCCUPIES A POSITION OF PROFIT OR TRUST UNDER THE UNITED STATES," CONSTITUTES A VIOLATION OF CLAUSE 8, SECTION 9, ARTICLE I, OF THE CONSTITUTION OF THE UNITED STATES, READING IN PERTINENT PART AS FOLLOWS:

* * * AND NO PERSON HOLDING ANY OFFICE OF PROFIT OR TRUST UNDER THEM (THE UNITED STATES), SHALL, WITHOUT THE CONSENT OF THE CONGRESS, ACCEPT OF ANY PRESENT, EMOLUMENT, OFFICE, OR TITLE, OF ANY KIND WHATEVER, FROM ANY KING, PRINCE, OR FOREIGN STATE. (PARENTHETICAL PORTION ADDED.)

WHILE THE THINGS FORBIDDEN IN THAT PART OF THE CONSTITUTION JUST QUOTED ARE "PRESENT, EMOLUMENT, OFFICE, OR TITLE, OF ANY KIND WHATEVER," AND WHILE THE ONLY ONE HERE PROPERLY IN QUESTION WOULD APPEAR TO BE " EMOLUMENT," A FEW COMMENTS UPON THE OTHER FORBIDDEN THINGS NAMED ARE NOT CONSIDERED AMISS SO FAR AS THEY APPEAR TO BEAR SOME RELATIONSHIP TO IT, HOWEVER REMOTELY.

CLEARLY, THERE IS NOT INVOLVED IN THE INSTANT CASE ANY QUESTION OF ACCEPTANCE OF " TITLE * * * FROM ANY KING, PRINCE, OR FOREIGN STATE," AND NO FURTHER COMMENT WILL BE MADE WITH RESPECT THERETO.

NEITHER IS IT CONSIDERED THAT MR. NEWKIRK HOLDS AN " OFFICE" UNDER THE GERMAN GOVERNMENT. HE WRONGFULLY WAS REMOVED FROM THE JUDGESHIP BY THE NATIONAL-1SOCIALIST GOVERNMENT; WAS SUBSEQUENTLY DIVESTED OF GERMAN CITIZENSHIP AND THEREAFTER BECAME A CITIZEN OF THE UNITED STATES. IT IS CLEAR AT THIS POINT THAT MR. NEWKIRK DID NOT HOLD ANY OFFICE UNDER THE GERMAN GOVERNMENT. DID THEN ACCEPTANCE OF INDEMNIFICATION PAYMENTS AUTOMATICALLY CONFER UPON MR. NEWKIRK AN OFFICE UNDER THE GOVERNMENT? MY OPINION, IT DID NOT. THE LAW PROVIDING RESTITUTION TO INJURED CIVIL SERVICE WORKERS OF GERMANY WHO HAD EMIGRATED TO OTHER COUNTRIES GRANTED THEM AN OPTION EITHER TO RETURN TO GERMANY AND BE REINSTATED IN POSITIONS CORRESPONDING TO THOSE WHICH THEY WOULD HAVE ATTAINED HAD THEIR CAREERS NOT BEEN INTERRUPTED BY THE NAZI REGIME OR TO RECEIVE COMPENSATORY MONEY DAMAGES. MR. NEWKIRK, AN AMERICAN CITIZEN, DID NOT WISH TO RESUME HIS STATUS IN GERMAN SOCIETY AND DID NOT WISH TO HAVE GERMAN CITIZENSHIP REINSTATED. IN LIEU THEREOF HE ELECTED TO RECEIVE MONEY DAMAGES. ACCEPTANCE OF SUCH INDEMNIFICATION FROM THE GERMAN GOVERNMENT DID NOT OBLIGATE HIM OR RENDER HIM RESPONSIBLE TO THAT GOVERNMENT, NOR DID IT VEST IN THE GERMAN GOVERNMENT ANY MEASURE OF CONTROL OR SUPERVISION OVER MR. NEWKIRK. WHILE FOR ECONOMIC OR BUDGETARY REASONS INDEMNIFICATION IS BEING EFFECTED BY THE GERMAN GOVERNMENT UNDER A DEFERRED PAYMENT PLAN IN THE FORM OF ANNUITY PAYMENTS, NEVERTHELESS SUCH PAYMENTS ARE REGARDED AS NOTHING MORE THAN MONEY DAMAGES FOR THE INJURIES SUFFERED BY MR. NEWKIRK AT THE HANDS OF THE NATIONAL-1SOCIALIST GOVERNMENT, AND ACCEPTANCE OF SUCH PAYMENTS IS NOT REGARDED BY ME AS ACCEPTANCE OF AN OFFICE UNDER THE GERMAN GOVERNMENT.

THE PRINCIPAL QUESTION WHICH CONCERNS US HERE IS WHETHER SUCH PAYMENTS CONSTITUTE AN " MOLUMENT" AS THAT TERM IS USED IN THE ABOVE QUOTED CONSTITUTIONAL PROVISION. THE TERM,"EMOLUMENT" IS DEFINED IN BLACK'S LAW DICTIONARY, THIRD EDITION, AS " THE PROFIT ARISING FROM OFFICE OR EMPLOYMENT; THAT WHICH IS RECEIVED AS A COMPENSATION FOR SERVICES, OR WHICH IS ANNEXED TO THE POSSESSION OF AN OFFICE AS SALARY, FEES, AND PERQUISITES; ADVANTAGE; GAIN, PUBLIC OR PRIVATE. WEBSTER. ANY PERQUISITE, ADVANTAGE, PROFIT OR GAIN ARISING FROM THE POSSESSION OF AN OFFICE.' THE AMOUNTS RECEIVED BY MR. NEWKIRK AS INDEMNIFICATION ARE NOT PAID AS PROFIT, GAIN, COMPENSATION, PERQUISITE, OR ADVANTAGE FLOWING TO HIM AS AN INCIDENT TO POSSESSION OF AN OFFICE OR AS COMPENSATION FOR SERVICES RENDERED. SUCH PAYMENTS DO NOT STEM DIRECTLY FROM HIS PRIOR POSSESSION OF AN OFFICE UNDER THE GERMAN GOVERNMENT NOR FROM SERVICES RENDERED THE GERMAN GOVERNMENT. RATHER, SUCH AMOUNTS REPRESENT DAMAGES PAYABLE AS A DIRECT RESULT OF A MORAL AND LEGAL WRONG INFLICTED UPON MR. NEWKIRK AT THE HANDS OF THE NATIONAL-1SOCIALIST GOVERNMENT. THE PAYMENTS ARE MADE TO LIQUIDATE A RECOGNIZED LEGAL LIABILITY ARISING FROM THE TORTIOUS ACTS OF THE NAZI REGIME, AND THE FACT THAT SUCH LIABILITY IS LIQUIDATED IN INSTALLMENTS IN THE FORM OF ANNUITY PAYMENTS FOR THE CONVENIENCE OF THE GERMAN GOVERNMENT OR FOR ECONOMIC AND BUDGETARY REASONS DOES NOT OPERATE TO CHANGE THE BASIC CHARACTER OF SUCH PAYMENTS. I CONCLUDE, THEREFORE, THAT SUCH PAYMENTS DO NOT CONSTITUTE AN EMOLUMENT WITHIN THE PURVIEW OF THE CONSTITUTIONAL PROVISIONS UNDER CONSIDERATION HERE.

FINALLY, IT IS MY OPINION THAT THE PAYMENTS IN QUESTION DO NOT CONSTITUTE A "PRESENT.' THE M,"PRESENT," IS DEFINED IN BLACK'S LAW DICTIONARY, THIRD EDITION, AS "A GRATUITY; ANYTHING PRESENTED OR GIVEN.' THE TERM,"PRESENT," IS GENERALLY REGARDED AS SYNONYMOUS WITH THE TERM,"GIFT," AND DENOTES SOMETHING VOLUNTARILY GIVEN, FREE FROM LEGAL COMPULSION OR OBLIGATION. THE PAYMENTS MADE IN THE INSTANT CASE WERE MADE IN LIQUIDATION OF A RECOGNIZED LEGAL OBLIGATION AND NOT AS GIFTS. SUCH PAYMENTS WERE IN LIQUIDATION OF THE LEGALLY ACKNOWLEDGED LIABILITY OF THE GERMAN GOVERNMENT FOR THE TORTIOUS ACTS INFLICTED UPON MR. NEWKIRK BY THE NATIONAL-1SOCIALIST GOVERNMENT. COMPARE THE CASE OF EVANS V. BERRY, 186 N.E. 203, HOLDING IN PART THAT ASSUMPTION OF LIABILITY BY CITY FOR TORT COMMITTED BY A POLICE OFFICER DOES NOT CONSTITUTE A "GIFT" OR "GRATUITY" TO INJURED PERSON IF A LEGITIMATE RECOGNITION OF AN EQUITABLE CLAIM. THE CASE OF BOWMAN'S ADM-NS V. BOWMAN'S EX-R AND ADM-R, 192 S.W.2D 955, IT WAS STATED THAT THE TERM "GIFT" IN ITS ORDINARY MEANING DENOTES NOTHING OTHER THAN "A VOLUNTARY AND GRATUITOUS GIVING OF SOMETHING BY ONE WITHOUT COMPENSATION TO ANOTHER WHO TAKES IT WITHOUT VALUABLE CONSIDERATION.'

FOR THE REASONS ENUMERATED ABOVE, I DO NOT CONSIDER THAT THE ACCEPTANCE OF THE PAYMENTS FROM THE GERMAN GOVERNMENT BY MR. NEWKIRK WHILE HOLDING A POSITION IN THE OFFICE OF ALIEN PROPERTY IN ANY WISE CONTRAVENES THE LETTER OF THE CONSTITUTION OF THE UNITED STATES.

AS A FINAL POINT, I DEEM IT APPROPRIATE TO CONSIDER HERE WHETHER ACCEPTANCE OF SUCH PAYMENTS WOULD CONTRAVENE THE SPIRIT OF THE CONSTITUTIONAL PROVISION INVOLVED. IN REFERRING TO THE EVILS SOUGHT TO BE AVOIDED BY SUCH PROVISION, IT IS STATED IN 24 OP. A.G. 117 THAT " IT IS EVIDENT FROM THE BRIEF COMMENTS ON THIS PROVISION AND THE ESTABLISHED PRACTICE IN OUR DIPLOMATIC INTERCOURSE (2 STORY ON THE CONSTITUTION, 4TH EDITION, 216, 217; 1 WHARTON'S INT. LAW DIG., SEC. 110, P. 575) THAT ITS LANGUAGE HAS BEEN VIEWED AS PARTICULARLY DIRECTED AGAINST EVERY KIND OF INFLUENCE BY FOREIGN GOVERNMENTS UPON OFFICERS OF THE UNITED STATES BASED ON OUR HISTORIC POLICIES AS A NATION.' THE INDEMNITY PAYMENTS MADE TO MR. NEWKIRK OBVIOUSLY WERE NOT INTENDED TO INFLUENCE HIM AS AN OFFICER OF THE UNITED STATES. THE LAWS UNDER WHICH SUCH PAYMENTS ARE MADE ARE GENERAL IN NATURE APPLYING TO ALL PERSECUTEES SIMILARLY SITUATED REGARDLESS OF WHETHER THEY BE HOLDERS OF OFFICERS UNDER THE UNITED STATES. MOREOVER, SUCH INDEMNIFICATION WAS NOT PROVIDED VOLUNTARILY AS AN ACT OF GRADE BY THE GERMAN GOVERNMENT, BUT RATHER WAS REQUIRED LARGELY AS A RESULT OF THE POLICY IMPOSED BY THE UNITED STATES AND ITS ALLIES AND FINALLY BY THE TERMS OF THE BONN CONVENTION. ACCEPTANCE OF A PAYMENT REQUIRED TO BE MADE BY THE GERMANY GOVERNMENT TO COMPLY WITH THE TERMS OF SUCH A TREATY HARDLY CAN BE SAID TO BE A PAYMENT DESIGNED TO INFLUENCE AN OFFICER OF THE UNITED STATES SUCH AS IS PROHIBITED BY THE CONSTITUTIONAL PROVISION INVOLVED. MOREOVER, UNDER THE CIRCUMSTANCES, WHATEVER FEELING OF GRATITUDE MR. NEWKIRK MIGHT HAVE FOR THE PAYMENTS IN QUESTION PROBABLY WOULD FLOW TO THE UNITED STATES.

IN MY JUDGMENT, ACCEPTANCE OF THE PAYMENTS INVOLVED VIOLATES NEITHER THE LETTER NOR THE SPIRIT OF THE CONSTITUTIONAL PROVISION AND, AS THE MATTER NOW STANDS, WOULD AFFORD NO BASIS FOR THIS OFFICE TO QUESTION OTHERWISE PROPER PAYMENTS OF COMPENSATION TO MR. NEWKIRK UNDER HIS PRESENT EMPLOYMENT BY YOUR DEPARTMENT.