B-15758, APRIL 11, 1941, 20 COMP. GEN. 624

B-15758, APRIL 11, 1941, 20 COMP. GEN. 624

FEES - PASSPORTS - REFUNDS THE WIFE OF A GOVERNMENT OFFICER WHO PAID A PASSPORT FEE IN CONNECTION WITH A JOURNEY TO JOIN HER HUSBAND IS ENTITLED TO A REFUND OF THE AMOUNT PAID EVEN THOUGH SHE DID NOT STATE THAT SHE WAS RELATED TO A GOVERNMENT OFFICER IN HER APPLICATION FOR PASSPORT AS PROVIDED BY THE STATUTE UNDER WHICH SHE IS EXEMPTED FROM THE PAYMENT OF THE FEE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF STATE, APRIL 11, 1941:

I HAVE YOUR LETTER OF MARCH 24, 1941 (130-1ALGER, NANCY HOOPER), AS FOLLOWS:

THIS DEPARTMENT HAS BEEN CONSULTED BY MR. RICHARD W. ALGER CONCERNING THE POSSIBILITY OF A REFUND OF THE PASSPORT FEE OF NINE DOLLARS PAID BY HIS WIFE, NANCY HOOPER ALGER, IN CONNECTION WITH THE ISSUE TO HER OF PASSPORT NO. 672059 ON SEPTEMBER 26, 1940, INASMUCH AS MRS. ALGER APPEARS TO HAVE BEEN ENTITLED TO A PASSPORT WITHOUT THE PAYMENT OF PASSPORT FEE UNDER THE PROVISIONS OF SECTION 214 OF TITLE 22 OF THE U.S.C. SINCE SHE WAS PROCEEDING TO PANAMA TO JOIN HER HUSBAND, AN EMPLOYEE OF THIS DEPARTMENT ASSIGNED TO PANAMA AS SUPERVISOR OF CONSTRUCTION.

IT APPEARS THAT THERE WAS REFERRED TO YOUR OFFICE A SIMILAR CLAIM ON BEHALF OF MRS. LOUISE PATRICK ROBINSON, HER CLAIM NUMBER BEING 10826973. THIS DEPARTMENT IS IN POSSESSION OF A COPY OF A LETTER DATED JUNE 28, 1939, ADDRESSED TO MRS. ROBINSON, IN WHICH IT IS STATED THAT HER CLAIM WAS DISALLOWED SINCE SHE DID NOT PRESENT EVIDENCE TO THE ISSUING OFFICER TO SHOW THAT SHE WAS ENTITLED TO A PASSPORT WITHOUT CHARGE. IT WAS STATED IN THAT LETTER THAT REFUND OF FEES SUCH AS HERE INVOLVED IS AUTHORIZED ONLY IF IMPROPERLY COLLECTED AS A RESULT OF THE FAULT OR NEGLIGENCE OF OFFICERS OR EMPLOYEES OF THE UNITED STATES.

THE DEPARTMENT IS OF THE OPINION THAT SECTION 1 OF THE ACT OF JUNE 4, 1920, WHILE IT MAY STATE THAT THE FACT OF EMPLOYMENT BY THE GOVERNMENT OR RELATIONSHIP TO A GOVERNMENT OFFICER OR EMPLOYEE SHOULD BE STATED IN THE APPLICATION FOR A PASSPORT, DOES NOT PRECLUDE THE RETURN OF THE PASSPORT FEE. SECTION 3 OF THE ACT OF JULY 3, 1926, HAS RELATION TO THE RETURN OF A FEE ERRONEOUSLY COLLECTED. IT DOES NOT GO INTO THE QUESTION OF WHO MADE THE ERROR, BUT PROVIDES THAT WHENEVER A FEE IS ERRONEOUSLY CHARGED AND PAID FOR THE ISSUE OF A PASSPORT TO A PERSON WHO IS EXEMPTED FROM THE PAYMENT OF THE PASSPORT FEE, THE DEPARTMENT OF STATE IS AUTHORIZED TO REFUND SUCH FEE.

THE DEPARTMENT WOULD APPRECIATE BEING ADVISED WHETHER YOU CONSIDER THAT THE REFUND OF FEES COLLECTED FROM PERSONS ENTITLED TO RECEIVE PASSPORTS WITHOUT FEE IS TO BE RESTRICTED TO THOSE CASES IN WHICH THE APPLICANT STATED IN HIS APPLICATION OR AS A PART OF SUCH APPLICATION FACTS WHICH WOULD ENABLE THE ISSUING OFFICER TO PERCEIVE HIM TO BE ENTITLED TO A PASSPORT WITHOUT FEE. THE DEPARTMENT IS OF THE OPINION THAT THE INTERPRETATION OF THE LAW IN THIS MANNER WOULD OPERATE HARSHLY AGAINST MANY PERSONS WHO ARE ENTITLED TO RECEIVE PASSPORTS WITHOUT FEE BUT WHO ARE NOT FAMILIAR WITH THE LAW IN THE MATTER AND CONSEQUENTLY DO NOT STATE FACTS IN THEIR APPLICATIONS WHICH WOULD ENABLE THE DEPARTMENT TO KNOW OF THEIR OFFICIAL STATUS.

WITH REGARD TO THE CASE OF MRS. ALGER IT MAY BE STATED THAT IN HER PASSPORT APPLICATION OF SEPTEMBER 23, 1940, SHE STATED THAT SHE DESIRED A PASSPORT TO ENABLE HER TO JOIN HER HUSBAND. THE LATTER WAS THEN AND IS NOW AN EMPLOYEE OF THIS DEPARTMENT ASSIGNED TO PANAMA AND HAD BEEN ISSUED A PASSPORT ON AUGUST 30, 1940. IN THE LIGHT OF THESE FACTS AND IF YOU CONSIDER THAT MRS. ALGER IS NOT ENTITLED TO A REFUND OF THE PASSPORT FEE MERELY ON THE GROUND THAT IT WAS ERRONEOUSLY CHARGED AND PAID THE DEPARTMENT WOULD BE PLEASED TO BE ADVISED WHETHER IT SHOULD NOT BE CHARGED WITH KNOWLEDGE OF THE FACT THAT SHE WAS THE WIFE OF AN OFFICER OF THE UNITED STATES ASSIGNED ABROAD ON OFFICIAL BUSINESS AND DESIRED TO USE THE PASSPORT IN JOINING HER HUSBAND AT THE PLACE OF HIS OFFICIAL ASSIGNMENT.

SECTION 1 OF THE ACT OF JUNE 4, 1920, 41 STAT. 750, PROVIDES:

FROM AND AFTER THE ST DAY OF JULY 1920, THERE SHALL BE COLLECTED AND PAID INTO THE TREASURY OF THE UNITED STATES QUARTERLY A FEE OF $1 FOR EXECUTING EACH APPLICATION FOR A PASSPORT AND $9 FOR EACH PASSPORT ISSUED TO A CITIZEN OR PERSON OWING ALLEGIANCE TO OR ENTITLED TO THE PROTECTION OF THE UNITED STATES: PROVIDED, THAT NOTHING HEREIN CONTAINED SHALL BE CONSTRUED TO LIMIT THE RIGHT OF THE SECRETARY OF STATE BY REGULATION TO AUTHORIZE THE RETENTION BY STATE OFFICIALS OF THE FEE OF $1 FOR EXECUTING AN APPLICATION FOR A PASSPORT: AND PROVIDED FURTHER, THAT NO FEE SHALL BE COLLECTED FOR PASSPORTS ISSUED TO OFFICERS OR EMPLOYEES OF THE UNITED STATES PROCEEDING ABROAD IN THE DISCHARGE OF THEIR OFFICIAL DUTIES, OR TO MEMBERS OF THEIR IMMEDIATE FAMILIES, OR TO SEAMEN, OR TO WIDOWS, CHILDREN, PARENTS, BROTHERS, AND SISTERS OF AMERICAN SOLDIERS, SAILORS, OR MARINES, BURIED ABROAD WHOSE JOURNEY IS UNDERTAKEN FOR THE PURPOSE AND WITH THE INTENT OF VISITING THE GRAVES OF SUCH SOLDIERS, SAILORS, OR MARINES, WHICH FACTS SHALL BE MADE A PART OF THE APPLICATION FOR THE PASSPORT.

SECTION 3 OF THE ACT OF JULY 3, 1926, 44 STAT. 887, PROVIDES:

THAT WHENEVER A FEE IS ERRONEOUSLY CHARGED AND PAID FOR THE ISSUE OF A PASSPORT TO A PERSON WHO IS EXEMPTED FROM THE PAYMENT OF SUCH A FEE BY SECTION 1 OF " AN ACT MAKING APPROPRIATIONS FOR THE DIPLOMATIC AND CONSULAR SERVICE FOR THE FISCAL YEAR ENDING JUNE 30, 1921," APPROVED JUNE 4, 1920 ( FORTY-FIRST STATUTES, PAGE 750), THE DEPARTMENT OF STATE IS HEREBY AUTHORIZED TO REFUND TO THE PERSON WHO PAID SUCH FEE THE AMOUNT THEREOF, AND THE MONEY FOR THAT PURPOSE IS HEREBY AUTHORIZED TO BE APPROPRIATED.

THE GENERAL RULE RELATING TO REFUND OF FEES COLLECTED FOR VISAS IS THAT A REFUND IS AUTHORIZED ONLY IF IMPROPERLY COLLECTED AS THE RESULT OF THE FAULT OR NEGLIGENCE OF THE OFFICER OR EMPLOYEE OF THE GOVERNMENT. SEE 19 COMP. GEN. 590, AND CASES THEREIN CITED.

IN THE TWO CASES CITED IN YOUR SUBMISSION IT APPEARS THAT IRRESPECTIVE OF WHETHER THE COLLECTION OF UNAUTHORIZED FEES MAY OR MAY NOT HAVE BEEN THE FAULT OF THE OFFICER, THE SERVICE RENDERED WOULD HAVE BEEN THE SAME IN ANY EVENT, THE ONLY DIFFERENCE BEING THE COLLECTION OF THE FEE WHICH WOULD NOT OTHERWISE HAVE BEEN REQUIRED IN SUCH CIRCUMSTANCES. ACCORDINGLY, I HAVE TO ADVISE THAT THE GENERAL RULE ABOVE CITED IS NOT FOR APPLICATION IN THESE TWO CASES AND THAT THE FEE PAID MAY BE REFUNDED IN THE ALGER CASE UPON EVIDENCE THAT THE PASSPORT SHOULD HAVE BEEN ISSUED WITHOUT THE COLLECTION OF THE FEE. 16 COMP. GEN. 363. THE ROBINSON CASE WILL BE GIVEN FURTHER CONSIDERATION BY THIS OFFICE UPON SUBMISSION BY THE CLAIMANT OF A REQUEST FOR REVIEW.