A-53796, APRIL 4, 1935, 14 COMP. GEN. 731

A-53796, APRIL 4, 1935, 14 COMP. GEN. 731

NOTARIES PUBLIC - DEPOSITIONS - STENOGRAPHIC SERVICES IN THOSE STATES AND DISTRICTS WITH RESPECT TO WHICH SATISFACTORY EVIDENCE HAS BEEN SUBMITTED THAT THE FEES FOR NOTARIES PUBLIC FIXED BY STATE STATUTES ARE NOT CONSIDERED LOCALLY AS COVERING THE REDUCTIONS OF THE DEPOSITIONS TO WRITING, AND THAT IT IS CUSTOMARY TO ALLOW IN ADDITION THERETO, THE COST OF STENOGRAPHIC SERVICES, PAYMENT FOR THE NECESSARY STENOGRAPHIC SERVICE IN ACCORDANCE WITH THE LOCALLY PREVAILING RATE MAY BE ALLOWED IN ADDITION TO THE STATUTORY NOTARY PUBLIC FEES. 14 COMP. GEN. 231, AND A-53796, NOVEMBER 27, 1934, MODIFIED.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, APRIL 4, 1935:

THERE WAS RECEIVED YOUR LETTER OF MARCH 11, 1935, AS FOLLOWS:

FOLLOWING A SUGGESTION ADVANCED BY A REPRESENTATIVE OF YOUR OFFICE AT A CONFERENCE WITH REPRESENTATIVES OF THE DEPARTMENT, THERE ARE SUBMITTED COPIES OF LETTERS FROM UNITED STATES ATTORNEYS CONCERNING THE PRACTICES PREVAILING IN THEIR DISTRICTS AND STATES IN THE TAKING OF DEPOSITIONS, PARTICULAR EMPHASIS BEING PLACED UPON THE FEES PAID. IT IS REQUESTED THAT THESE LETTERS BE CONSIDERED IN CONNECTION WITH THE DECISIONS OF SEPTEMBER 18, AND NOVEMBER 27, 1934, ON THIS SUBJECT.

A BRIEF SUMMARY OF THE SUBSTANCE OF THE LETTERS FOLLOWS:

1. ARKANSAS.--- PRACTICE IS TO DISREGARD THE STATUTE AND TO CONTRACT FOR SERVICES WITH A STENOGRAPHER WHO USUALLY IS A NOTARY. IF TWO PERSONS ARE EMPLOYED, THE NOTARY RECEIVES THE $2.00 AND THE STENOGRAPHER IS ALLOWED A REASONABLE FEE.

2.COLORADO.--- THE STRICT INTERPRETATION REQUIRING NOTARIES TO WRITE OUT THE TESTIMONY FOR THE STATUTORY FEE OF 15 CENTS PER FOLIO WILL MAKE IT VIRTUALLY IMPOSSIBLE TO TAKE DEPOSITIONS IN THE STATE.

3. DISTRICT OF COLUMBIA.--- IT HAS BEEN IN THE COMMON PRACTICE TO CONSIDER THE FOLIO FEE OF 10 CENTS IN SEC. 571, D.C. CODE AS A SEPARATE FEE FOR THE NOTARY AND NOT TO INCLUDE STENOGRAPHIC SERVICE. UNABLE TO SECURE COMPETENT PERSONS TO TAKE DEPOSITIONS SINCE ANNOUNCEMENT OF DECISIONS OF THE COMPTROLLER GENERAL.

4. GEORGIA.--- STATUTES PROVIDE NO FEES FOR NOTARIES FOR TAKING DEPOSITIONS; PREVAILING PRACTICE IS TO PAY NOTARY THE $2.00 AND OTHER FEES OF SEC. 5916 OF THE GA. CODE, PLUS STENOGRAPHIC FEES WHICH GENERALLY SEEM TO BE 25 CENTS PER FOLIO. (DISTRICT ATTORNEY DAVIS OF MACON STATED DURING A VISIT TO THE DEPARTMENT THAT HE HAD TRIED UNSUCCESSFULLY TO SECURE A NOTARY TO TAKE A DEPOSITION FOR USE IN DELAWARE, THE COST OF WHICH WOULD HAVE BEEN APPROXIMATELY $10.00 OR $15.00--- PLUS WITNESS FEES--- AS COMPARED WITH THE EXPENSES INCIDENT TO THE TRIP FROM GEORGIA TO DELAWARE, AND RETURN, INVOLVING, POSSIBLY, EXPERT FEES FOR THE PERIOD OF TRAVEL.)

5. ILLINOIS.--- WHILE IN SOUTHERN AND EASTERN ILLINOIS IT SEEMS TO BE AGREED THAT THE STATUTORY RATE OF 15 CENTS PER FOLIO IS THE NOTARY'S COMPENSATION WHETHER OR NOT HE WRITES OUT THE TESTIMONY, IN THE NORTHERN DISTRICT (CHICAGO) THE PRACTICE SEEMS TO BE TO EMPLOY A REPORTER, WHO IS A NOTARY, AT THE LOCAL REPORTING RATES. THE DISTRICT ATTORNEYS ARE IN AGREEMENT THAT THEY WILL BE UNABLE TO SECURE QUALIFIED PERSONS TO TAKE DEPOSITIONS FOR 10 CENTS AND 15 CENTS PER FOLIO (DEPENDING UPON THE COUNTY). THE SITUATION IN ILLINOIS IS REPRESENTATIVE OF THE DIFFICULTY THE DEPARTMENT IS EXPERIENCING IN STATES HAVING SIMILAR STATUTORY PROVISIONS.

6. IOWA.--- THE PRACTICE IS TO ALLOW THE NOTARY THE STATUTORY FEES, WITH ADDITIONAL COMPENSATION, AS AGREED UPON, FOR THE STENOGRAPHER, IF ANOTHER INDIVIDUAL IS EMPLOYED.

7. MINNESOTA.--- WHILE DEPOSITIONS CAN BE TAKEN IN THE LARGER CITIES FOR THE FEES APPROVED, AT OUTLYING POINTS IT WILL BE NECESSARY, UPON OCCASION, TO EXCEED THEM. (IT SHOULD BE REMEMBERED THAT THE GREAT MAJORITY OF DEPOSITIONS ARE GIVEN BY MEDICAL EXPERTS AND THAT THE USUAL PRACTICE OF REQUIRING THE WITNESS' ATTENDANCE AT A GIVEN POINT WOULD BE VERY UNECONOMICAL IF MORE THAN ONE DAY IS INVOLVED IN TRAVEL AND TESTIFYING.)

8. MISSOURI.--- THE DISTRICT ATTORNEY OF EASTERN MISSOURI SAYS THE PRACTICE DOES NOT FOLLOW THE LAW AND THAT IT IS EXTREMELY DOUBTFUL IF HE CAN SECURE NECESSARY SERVICES FOR THE STATUTORY FEES IN VIEW OF THE WELL- SETTLED PRACTICE IN THE STATE COURTS OF ALLOWING OTHER FEES. ON THE OTHER HAND, THE DISTRICT ATTORNEY FOR THE WESTERN DISTRICT SAYS HE WILL BE ABLE TO SECURE NECESSARY SERVICES FOR THE FEES ALLOWED IN YOUR DECISIONS.

9. NEBRASKA.--- WHILE IN SOME CASES THE COMPENSATION ALLOWED MAY BE ACCEPTABLE, IT WILL BE IMPOSSIBLE TO SECURE NOTARIAL AND STENOGRAPHIC ASSISTANCE UNLESS ADEQUATE COMPENSATION IS PAID. THIS IS ESPECIALLY TRUE IN THE CASE OF SHORT DEPOSITIONS, OR WHERE TAKEN AT A DISTANCE.

10. NORTH CAROLINA.--- THE STATUTE HAS NOT BEEN CONSTRUED TO APPLY TO TAKING DEPOSITIONS; IN FACT, THERE IS SOME GROUND FOR THE CONCLUSION THAT IT DOES NOT APPLY. BY PRACTICE, FEES ARE SUBJECT TO AGREEMENT.

11. NORTH DAKOTA.--- THE BAR GENERALLY HAS NEVER CONSTRUED THE STATUTE TO MEAN THAT THE NOTARY IS REQUIRED TO REDUCE THE DEPOSITION TO WRITING BEFORE HE IS ENTITLED TO THE 15 CENTS FOLIO FEE; THE NOTARIES WILL NOT ACT AS SUCH FOR THE FEE FOR ADMINISTERING OATH AND FOR CERTIFICATE AND SEAL, IF THEIR ATTENDANCE IS REQUIRED.

12. OHIO.--- THE PRACTICE IS TO PAY FOR SERVICE IN BOTH CAPACITIES, NOTARIAL AND STENOGRAPHIC, EVEN THOUGH PERFORMED BY ONE PERSON, ON A PER DIEM BASIS FOR ATTENDANCE AND ON A FOLIO BASIS FOR TRANSCRIPT. THE STATUTORY CHARGES ARE NOT FOLLOWED IN PRIVATE PRACTICE. (THE MAJORITY OF DEPOSITIONS TAKEN IN OHIO ARE TAKEN IN THE SOUTHERN DISTRICT.)

13. OKLAHOMA.--- DEPOSITIONS ARE TAKEN IN THE NORTHERN AND EASTERN DISTRICTS FOR THE STATUTORY FEES, BUT IN THE WESTERN DISTRICT IT IS CUSTOMARY TO PAY A PER DIEM OF $5.00 IN ADDITION.

14. OREGON.--- PREVAILING PRACTICE IS TO PAY THE REPORTERS STATUTORY CHARGES; IN LARGER CITIES AND WHERE NOTARIES HAVE STENOGRAPHERS IN THEIR OFFICES DIFFICULTY IS NOT ANTICIPATED. HOWEVER, IN SMALLER TOWNS, NOTARIES WHO ARE NOT STENOGRAPHERS WILL PROBABLY REFUSE TO TAKE SMALL DEPOSITIONS.

15. SOUTH CAROLINA.--- THE GOVERNMENT SHOULD PAY THE FEES AS PROVIDED FOR IN SECTION 4957 TO THE NOTARY AND ADDITIONAL COMPENSATION FOR TAKING AND TRANSCRIBING THE TESTIMONY.

16. TEXAS.--- THE STATUTORY FEES ARE ALMOST, IF NOT ENTIRELY, IGNORED. IT IS CUSTOMARY TO ALLOW FLAT FEES, OR OTHER AGREED COMPENSATION, OR EXPENSES. THE RULINGS OF THE COMPTROLLER GENERAL PRACTICALLY PROHIBIT THE TAKING OF DEPOSITIONS.

REGARDLESS OF THE CONSTRUCTION PLACED UPON THE LANGUAGE OF A STATE STATUTE FIXING FEES OF NOTARIES AND OTHER OFFICERS PERFORMING LIKE SERVICES, IT SHOULD BE BORNE IN MIND THAT THE GOVERNMENT MUST PAY THE USUAL AND CUSTOMARY FEES PREVAILING, AND FOLLOW THE PRACTICE IN A GIVEN LOCALITY OR ELSE DISPENSE WITH THEIR SERVICES. THE ACTUAL RESULTS OF A DENIAL OF THE USUAL CHARGES, OR OF EXTENDED CONTROVERSY CONCERNING FEES, ARE DESCRIBED BY SEVERAL OF THE DISTRICT ATTORNEYS IN THE LETTERS SUBMITTED HEREWITH. ADDITIONAL INSTANCES DOUBTLESS COULD BE CITED IF REQUIRED. IT SEEMS UNNECESSARY, HOWEVER, TO ELABORATE ON THIS POINT, AS THE DECISION OF MAY 12, 1932, 11 COMP. GEN. 428, AND THE MEMORANDUM DECISION OF FEBRUARY 26, 1935, A-53796 (CONCERNING FEES IN TENNESSEE) APPEAR TO RECOGNIZE THAT THE GOVERNMENT'S POSITION IN MATTERS OF THIS KIND IS THE SAME AS THAT OF A PRIVATE LITIGANT.

DURING THE CONFERENCE REFERRED TO IN THE FIRST PARAGRAPH OF THIS LETTER, SOME DISCUSSION WAS HAD CONCERNING THE MATTER OF TAKING DEPOSITIONS BEFORE UNITED STATES COMMISSIONERS. THERE APPEARS TO BE NO LEGAL BAR TO HAVING DEPOSITIONS TAKEN BEFORE THESE OFFICIALS, BUT THEY ARE RELUCTANT TO SERVE FOR THE REASON THAT THEY ARE NOT PERMITTED TO EMPLOY STENOGRAPHIC HELP AND FEEL THAT THE FEE WHICH IS ALLOWED IS INSUFFICIENT TO COMPENSATE FOR THE SERVICES RENDERED (PRESIDING AT THE TAKING OF THE DEPOSITION, SWEARING THE WITNESSES, CERTIFYING AND FORWARDING PAPERS, AND ALSO, IN SOME CASES, MAKING THE PRELIMINARY ARRANGEMENTS). IF YOUR OFFICE WOULD CONSENT TO THEIR CHARGING THE 10 CENTS PER FOLIO FEE ALLOWED IN THE COMMISSIONERS' FEE BILL (29 STAT. 184) AS A MEASURE OF VALUE OF THEIR TIME, IN ADDITION TO THE FEES FOR SWEARING WITNESSES AND ISSUING SUBPOENAS, AND ALSO TO THE EMPLOYMENT OF A STENOGRAPHER AT THE USUAL LOCAL RATES, EITHER BY THE COMMISSIONER HIMSELF WHEN AUTHORIZED IN ADVANCE BY THE UNITED STATES ATTORNEY, OR HIS REPRESENTATIVE, OR WHEN EMPLOYED BY THE GOVERNMENT DIRECT, THE SERVICES OF COMMISSIONERS COULD BE UTILIZED TO ADVANTAGE IN MANY CASES. YOUR DECISION ON THIS POINT IS REQUESTED.

THERE HAS BEEN CONSIDERED, ALSO, YOUR LETTER OF MARCH 23, 1935, WITH ENCLOSURES, RELATIVE TO THE SAME MATTER.

IT APPEARS FROM YOUR SUBMISSION THAT IN THE LARGER CITIES IN MINNESOTA, IN THE WESTERN DISTRICT OF MISSOURI, IN THE NORTHERN AND EASTERN DISTRICTS OF OKLAHOMA AND IN OREGON, WITH THE POSSIBLE EXCEPTION OF SMALLER TOWNS, DEPOSITIONS MAY BE TAKEN IN ACCORDANCE WITH THE DECISION OF THIS OFFICE, 14 COMP. GEN. 231, AS AFFIRMED NOVEMBER 27, 1934, AND AS TO THESE DISTRICTS, THEREFORE, THAT DECISION IS FOR APPLICATION.

WITH RESPECT TO THE OTHER STATES AND DISTRICTS NAMED IN YOUR SUBMISSION, THE EVIDENCE SUBMITTED IS CONSIDERED SUFFICIENT TO INDICATE THAT THE STATUTORY FEES FOR NOTARIES PUBLIC WHEN TAKING DEPOSITIONS ARE NOT CONSIDERED AS COVERING THE REDUCTION OF THE DEPOSITION TO WRITING, AND THAT IT IS CUSTOMARY IN SUCH PLACES TO PAY FOR STENOGRAPHIC SERVICE IN ADDITION TO THE NOTARY PUBLIC FEES. ACCORDINGLY, IN THOSE STATES AND DISTRICTS STENOGRAPHIC FEES IN ACCORDANCE WITH THE LOCALLY PREVAILING RATES WILL BE ALLOWED IN ADDITION TO THE STATUTORY FEES FOR THE NOTARY PUBLIC SERVICES IRRESPECTIVE OF WHETHER THE STENOGRAPHIC SERVICES ARE RENDERED BY THE NOTARY PUBLIC OR BY ANOTHER PARTY. SEE A-53796, FEBRUARY 26, 1935, 14 COMP. GEN. 642, WITH RESPECT TO DEPOSITIONS IN TENNESSEE. THE DECISIONS OF SEPTEMBER 18, 1934, 14 COMP. GEN. 231, AND NOVEMBER 27, 1934, A-53796, ARE MODIFIED IN ACCORDANCE HEREWITH.

WITH RESPECT TO TAKING DEPOSITIONS BEFORE UNITED STATES COMMISSIONERS, THE ACT OF MAY 28, 1896, 29 STAT. 184, PRESCRIBES THE FEES ALLOWABLE FOR EACH SERVICE RENDERED BY A UNITED STATES COMMISSIONER, INCLUDING 10 CENTS FOR EACH OATH ADMINISTERED, AND 10 CENTS PER FOLIO FOR TAKING AND CERTIFYING DEPOSITIONS TO BE FILED IN CIVIL CASES, AND FURTHER PROVIDES "THAT EACH UNITED STATES COMMISSIONER SHALL BE ENTITLED TO THE NAMED FEES AND NONE OTHER.' IN VIEW OF THIS POSITIVE PROHIBITION IT WILL NOT BE POSSIBLE TO ALLOW THE UNITED STATES COMMISSIONER REIMBURSEMENT FOR STENOGRAPHIC SERVICE IN ADDITION TO THE STATUTORY FEE.