A-11984, MARCH 2, 1926, 5 COMP. GEN. 677

A-11984: Mar 2, 1926

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WITNESSES - EXPENSES OF NATIONAL-BANK EXAMINERS ATTENDING COURT THE EXPENSES OF A NATIONAL-BANK EXAMINER ATTENDING COURT AS A WITNESS IN A CASE WHICH ARISES OUT OF FACTS ASCERTAINED BY HIM IN THE EXAMINATION OF A NATIONAL BANK ARE CHARGEABLE TO THE SPECIAL FUND "SALARIES AND EXPENSES. A SIMILAR QUESTION WAS DECIDED BY THIS OFFICE JULY 9. WHEREIN IT WAS HELD THAT THE EXPENSES OF A NATIONAL-BANK EXAMINER ATTENDING COURT IN CONNECTION WITH A PROSECUTION ARISING OUT OF AN EXAMINATION OF A BANK OR WITH WHICH THE EXAMINER WAS OTHERWISE OFFICIALLY CONNECTED. WERE NOT PAYABLE UNDER THE APPROPRIATION "FEES OF WITNESSES. " BUT WERE CHARGEABLE AGAINST THE SPECIAL FUND "SALARIES AND EXPENSES. IT IS STATED THAT AS THE DECISION IN THAT CASE WAS RENDERED TO THE ATTORNEY GENERAL.

A-11984, MARCH 2, 1926, 5 COMP. GEN. 677

WITNESSES - EXPENSES OF NATIONAL-BANK EXAMINERS ATTENDING COURT THE EXPENSES OF A NATIONAL-BANK EXAMINER ATTENDING COURT AS A WITNESS IN A CASE WHICH ARISES OUT OF FACTS ASCERTAINED BY HIM IN THE EXAMINATION OF A NATIONAL BANK ARE CHARGEABLE TO THE SPECIAL FUND "SALARIES AND EXPENSES, NATIONAL-BANK EXAMINERS," AND NOT TO THE JUDICIARY APPROPRIATION "FEES OF WITNESSES, U.S. COURTS.'

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, MARCH 2, 1926:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF NOVEMBER 12, 1925, TRANSMITTING THE REQUEST OF THE COMPTROLLER OF THE CURRENCY FOR A DECISION IN CONNECTION WITH TRAVEL PERFORMED BY NATIONAL-BANK EXAMINERS ATTENDING UNITED STATES COURTS. A SIMILAR QUESTION WAS DECIDED BY THIS OFFICE JULY 9, 1923, A.D.-7751, IN THE CASE OF J. B. HERNDON, WHEREIN IT WAS HELD THAT THE EXPENSES OF A NATIONAL-BANK EXAMINER ATTENDING COURT IN CONNECTION WITH A PROSECUTION ARISING OUT OF AN EXAMINATION OF A BANK OR WITH WHICH THE EXAMINER WAS OTHERWISE OFFICIALLY CONNECTED, WERE NOT PAYABLE UNDER THE APPROPRIATION "FEES OF WITNESSES, U.S. COURTS," BUT WERE CHARGEABLE AGAINST THE SPECIAL FUND "SALARIES AND EXPENSES, NATIONAL-BANK EXAMINERS.' IN THE COMMUNICATION OF THE COMPTROLLER OF THE CURRENCY, TRANSMITTED BY YOU, IT IS STATED THAT AS THE DECISION IN THAT CASE WAS RENDERED TO THE ATTORNEY GENERAL, THE COMPTROLLER OF THE CURRENCY HAD NO OPPORTUNITY TO PRESENT THE VIEWS OF THE TREASURY DEPARTMENT IN THE MATTER, ALTHOUGH THE DECISION AFFECTS APPROPRIATIONS UNDER THE CONTROL OF BOTH DEPARTMENTS AND IS THEREFORE OF IMPORTANCE TO THE TREASURY DEPARTMENT AS WELL AS TO THE DEPARTMENT OF JUSTICE.

SECTION 850, REVISED STATUTES, PROVIDES THAT:

* * * WHEN ANY CLERK OR OTHER OFFICER OF THE UNITED STATES IS SENT AWAY FROM HIS PLACE OF BUSINESS AS A WITNESS FOR THE GOVERNMENT, HIS NECESSARY EXPENSES, STATED IN ITEMS AND SWORN TO, IN GOING, RETURNING, AND ATTENDANCE ON THE COURT, SHALL BE AUDITED AND PAID; BUT NO MILEAGE, OR OTHER COMPENSATION IN ADDITION TO HIS SALARY, SHALL IN ANY CASE BE ALLOWED.

IT IS URGED BY THE COMPTROLLER OF THE CURRENCY THAT, INASMUCH AS THE FUND "SALARIES AND EXPENSES, NATIONAL-BANK EXAMINERS, SPECIAL FUND" IS DERIVED FROM ASSESSMENTS AGAINST THE NATIONAL BANKS TO PAY THE EXPENSES OF THE EXAMINATION THEREOF, THE PROCEEDS SO COLLECTED CAN NOT LEGALLY BE USED TO PAY THE EXPENSES OF EXAMINERS WHILE ATTENDING COURT PROCEEDINGS AND THAT SUCH EXPENSES SHOULD BE PAID FROM THE JUDICIARY APPROPRIATION "FEES OF WITNESSES, U.S. COURTS," AND IT IS SUBMITTED IN SUPPORT OF THIS CONTENTION THAT WHEN A NATIONAL BANK EXAMINER FINDS EVIDENCE OF A VIOLATION OF THE NATIONAL BANKING LAWS AND SUBMITS THE FACTS IN WRITING TO THE DISTRICT ATTORNEY HIS RESPONSIBILITY ENDS AND HE IS IN THE SAME POSITION AS ANY OTHER WITNESS WOULD BE WHO WAS IN THE POSSESSION OF FACTS AND EVIDENCE NEEDED BY THE GOVERNMENT IN A CRIMINAL PROSECUTION. IT IS FURTHER URGED THAT THE NATIONAL BANKS FROM WHICH THE FUND "SALARIES AND EXPENSES, NATIONAL-BANK EXAMINERS" IS DERIVED THROUGH ASSESSMENT, HAVE NO GREATER INTEREST IN THE PROSECUTION OF A VIOLATOR OF THE NATIONAL BANKING LAWS THAN HAS THE PUBLIC AT LARGE, AND THAT IT IS UNJUST TO CHARGE THE SPECIAL FUND WITH THE EXPENSES HERE IN QUESTION.

THE ESTABLISHED RULE IS THAT THE APPROPRIATION "FEES OF WITNESSES, U.S COURTS" IS NOT CHARGEABLE WITH EXPENSES OF GOVERNMENT EMPLOYEES WHO APPEAR AS WITNESSES IN UNITED STATES COURTS WHERE IT IS THE OFFICIAL DUTY OF THE OFFICER, EMPLOYEE, OR AGENT, WHO IS CALLED UPON AS A WITNESS IN A CASE BEFORE A COMMISSIONER, OR GRAND JURY, OR IN COURT, TO INVESTIGATE AND FIND OUT THE FACTS UPON WHICH THE CASE IS PREDICATED, WHERE HE APPEARS IN SUCH CASE IN HIS OFFICIAL CAPACITY TO GIVE EVIDENCE OF THE FACTS SO ACQUIRED, AND WHEN THERE IS AN APPROPRIATION UNDER THE CONTROL OF THE BUREAU OR DEPARTMENT WHERE SUCH WITNESS IS REGULARLY EMPLOYED APPLICABLE TO THE PAYMENT OF EXPENSES. SEE 15 COMP. DEC. 298; 16 COMP. DEC. 412. IN OTHER WORDS, WHERE AN EMPLOYEE APPEARS TO TESTIFY AS AN EMPLOYEE OF THE AGENCY WHICH OBTAINS THE INFORMATION, RATHER THAN AS A WITNESS WHO CASUALLY GETS INFORMATION WHICH MAKES HIM A WITNESS, HE MUST BE REGARDED AS TRAVELING AS SUCH EMPLOYEE AND UNDER THE APPROPRIATION OF THE AGENCY IN WHICH EMPLOYED. NATIONAL-BANK EXAMINERS PRESENT NO EXCEPTION TO THIS RULE. THE FACT THAT THE FUNDS UNDER WHICH THE EXAMINERS ARE COMPENSATED COME FROM ASSESSMENTS ON THE BANKS FURNISHES NO BASIS FOR EXCEPTION TO THE RULE. THE PRINCIPLE IS THE SAME IRRESPECTIVE OF WHETHER THE FUNDS COME FROM THE TREASURY OR COME FROM THE OTHER SOURCES. THE EXAMINER ATTENDS THE CRIMINAL TRIAL AS AN EMPLOYEE HAVING INFORMATION AS A PART OF HIS DUTIES AND SO TESTIFIES RATHER THAN IN THE ORDINARY WITNESS SENSE.

THE APPOINTMENTS, DUTIES, POWERS AND COMPENSATION OF NATIONAL BANK EXAMINERS ARE FIXED IN SECTION 5240, REVISED STATUTES, AS AMENDED BY THE ACT OF DECEMBER 23, 1913, 38 STAT. 271, WHEREIN IT IS PROVIDED THAT THEY SHALL BE APPOINTED BY THE COMPTROLLER OF THE CURRENCY WITH THE APPROVAL OF THE SECRETARY OF THE TREASURY; SHALL EXAMINE EVERY MEMBER BANK AT LEAST TWICE IN EACH CALENDAR YEAR AND OFTENER IF CONSIDERED NECESSARY, AND MAKE A FULL AND DETAILED REPORT OF THE CONDITION OF THE BANKS TO THE COMPTROLLER OF THE CURRENCY; SHALL HAVE POWER TO MAKE A THOROUGH EXAMINATION OF ALL AFFAIRS OF THE BANK AND IN SO DOING SHALL HAVE THE POWER TO ADMINISTER OATHS AND TO EXAMINE ANY OF THE OFFICERS AND AGENTS THEREOF UNDER OATH. THEIR SALARIES ARE FIXED BY THE FEDERAL RESERVE BOARD UPON THE RECOMMENDATION OF THE COMPTROLLER OF THE CURRENCY AND THE EXPENSES OF THE EXAMINATIONS ARE ASSESSED BY THE COMPTROLLER OF THE CURRENCY UPON THE BANKS EXAMINED IN PROPORTION TO THE ASSETS OR RESOURCES HELD BY THE BANKS UPON THE DATES OF EXAMINATION OF THE VARIOUS BANKS. THE TRAVELING EXPENSES OF THE BANK EXAMINERS, AS WELL AS THEIR SALARIES, ARE PAYABLE FROM THE FUNDS DERIVED FROM THE ASSESSMENTS UPON THE BANKS. SEE ALSO SECTION 209 OF THE ACT OF MARCH 4, 1923, 42 STAT. 1467.

IT IS STATED BY THE COMPTROLLER OF THE CURRENCY THAT THE EXAMINERS HAVE BEEN INSTRUCTED THAT IT IS THEIR DUTY TO IMMEDIATELY REPORT TO THE UNITED STATES ATTORNEY ANY EVIDENCE OF CRIMINAL VIOLATIONS OF LAW WHICH MAY COME TO THEIR ATTENTION, BUT THAT IN INSTITUTING CRIMINAL PROSECUTION THE DEPARTMENT OF JUSTICE PROCEEDS UPON ITS OWN INITIATIVE. THE LATTER ASSERTION PROBABLY COULD BE MADE WITH RESPECT TO EVERY CRIMINAL ACTION IN FEDERAL COURTS, SINCE IT IS THE EXCLUSIVE RIGHT AND DUTY OF THE DEPARTMENT OF JUSTICE TO INSTITUTE CRIMINAL PROCEEDINGS.

IT BEING THE DUTY OF A NATIONAL-BANK EXAMINER TO ASCERTAIN, IF IN HIS POWER, ANY VIOLATION OF THE NATIONAL BANKING LAWS AND TO REPORT SUCH VIOLATIONS TO THE DISTRICT ATTORNEY, IT CAN HARDLY BE SAID THAT HIS FULL DUTY ENDS THERE. IT IS VERY PROBABLE THAT HE IS THE ONLY PERSON IN FULL POSSESSION OF THE EVIDENCE NECESSARY TO HOLD THE GUILTY PERSON FOR COURT, AND THAT CONVICTION WITHOUT HIS EVIDENCE WOULD, LIKEWISE, BE IMPROBABLE, IF NOT IMPOSSIBLE. HIS PRESENCE IN COURT, THEREFORE, IS REQUIRED, NOT AS AN OUTSIDE WITNESS WHO MAY OR MAY NOT GIVE MATERIAL EVIDENCE IN THE CASE, BUT AS ONE WHO, BECAUSE OF THE NATURE OF HIS OFFICIAL DUTIES, FURNISHES THE BASIC EVIDENCE UPON WHICH THE CASE IS PREDICATED. IT IS CLEAR THAT IT IS THE OFFICIAL DUTY OF THE BANK EXAMINER IN THE COURSE OF HIS EXAMINATION OF A BANK TO INVESTIGATE AND FIND OUT ANY FACTS WHICH INDICATE A VIOLATION OF LAW BY THE OFFICERS OR EMPLOYEES OF SAID BANK, AND THAT IT IS EQUALLY HIS OFFICIAL DUTY, IF AND WHEN REQUESTED BY THE DEPARTMENT OF JUSTICE, TO GIVE TESTIMONY AS TO SUCH FACTS BEFORE A COMMISSIONER, GRAND JURY, OR COURT HAVING JURISDICTION OVER THE PARTY OR PARTIES VIOLATING THE BANKING LAWS. IT MUST ALSO BE CONCLUDED THAT SINCE THE EXPENSES INCURRED IN APPEARING BEFORE SUCH COMMISSIONER, GRAND JURY, OR COURT ARE INCURRED WHILE ENGAGED IN THE PERFORMANCE OF HIS OFFICIAL DUTY, THEY ARE CHARGEABLE TO THE SAME APPROPRIATION OR FUND AS ARE OTHER EXPENSES INCURRED BY HIM WHILE ON OTHER OFFICIAL DUTY.