A-14727, JUNE 21, 1926, 5 COMP. GEN. 1003

A-14727: Jun 21, 1926

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PER DIEM IN LIEU OF - WITNESSES ATTENDING LAND OFFICE HEARINGS WITNESSES DULY SUBPOENAED TO ATTEND LAND HEARING CASES BEFORE THE LOCAL LAND OFFICERS MAY BE PAID THE PER DIEM FOR EXPENSES OF SUBSISTENCE UNDER THE SAME CIRCUMSTANCES AND CONDITIONS AS ARE PRESCRIBED BY THE ACT OF APRIL 26. PROVIDES IN PART AS FOLLOWS: * * * THE FEES AND MILEAGE OF WITNESSES SHALL BE THE SAME AS THAT PROVIDED BY LAW IN THE DISTRICT COURTS OF THE UNITED STATES IN THE DISTRICT IN WHICH SUCH LAND OFFICES ARE SITUATED. THAT WITNESSES (OTHER THAN WITNESSES WHO ARE SALARIED EMPLOYEES OF THE GOVERNMENT AND DETAINED WITNESSES) IN THE UNITED STATES COURTS. WHEN THIS FACT IS CERTIFIED TO IN THE ORDER OF THE COURT OR THE COMMISSIONER FOR PAYMENT.

A-14727, JUNE 21, 1926, 5 COMP. GEN. 1003

SUBSISTENCE, PER DIEM IN LIEU OF - WITNESSES ATTENDING LAND OFFICE HEARINGS WITNESSES DULY SUBPOENAED TO ATTEND LAND HEARING CASES BEFORE THE LOCAL LAND OFFICERS MAY BE PAID THE PER DIEM FOR EXPENSES OF SUBSISTENCE UNDER THE SAME CIRCUMSTANCES AND CONDITIONS AS ARE PRESCRIBED BY THE ACT OF APRIL 26, 1926, 44 STAT. 323, WITH RESPECT TO WITNESSES ATTENDING UNITED STATES COURTS AND HEARINGS BEFORE UNITED STATES COMMISSIONERS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, JUNE 21, 1926:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 9, 1926, REQUESTING DECISION WHETHER WITNESSES IN LAND-HEARING CASES MAY BE PAID THE PER DIEM OF $3 FOR EXPENSES OF SUBSISTENCE AS PROVIDED BY THE ACT OF APRIL 26, 1926, 44 STAT. 323, WHEN ATTENDING HEARINGS AT PLACES SO FAR REMOVED FROM THEIR RESIDENCE AS TO PROHIBIT RETURN THERETO FROM DAY TO DAY.

SECTION 2 OF THE ACT APPROVED JANUARY 31, 1903, 32 STAT. 790, PROVIDING FOR COMPULSORY ATTENDANCE OF WITNESSES BEFORE REGISTERS AND RECEIVERS OF THE LAND OFFICES, PROVIDES IN PART AS FOLLOWS:

* * * THE FEES AND MILEAGE OF WITNESSES SHALL BE THE SAME AS THAT PROVIDED BY LAW IN THE DISTRICT COURTS OF THE UNITED STATES IN THE DISTRICT IN WHICH SUCH LAND OFFICES ARE SITUATED; AND THE WITNESS SHALL BE ENTITLED TO RECEIVE HIS FEE FOR ATTENDANCE IN ADVANCE FROM DAY TO DAY DURING THE HEARING.

SECTION 848, REVISED STATUTES, PROVIDED IN PART AS FOLLOWS:

FOR EACH DAY'S ATTENDANCE IN COURT, OR BEFORE ANY OFFICER PURSUANT TO LAW, ONE DOLLAR AND FIFTY CENTS, AND FIVE CENTS A MILE FOR GOING FROM HIS PLACE OF RESIDENCE TO THE PLACE OF TRIAL OR HEARING, AND FIVE CENTS A MILE FOR RETURNING. * * *

THE ACT OF MAY 27, 1908, 35 STAT. 317, MAKING APPROPRIATIONS FOR SUNDRY CIVIL EXPENSES OF THE GOVERNMENT FOR THE FISCAL YEAR ENDING JUNE 30, 1909, AND FOR OTHER PURPOSES, PROVIDED THAT:

JURORS AND WITNESSES IN THE UNITED STATES COURTS IN THE STATES OF WYOMING, MONTANA, WASHINGTON, OREGON, CALIFORNIA, NEVADA, IDAHO, COLORADO, AND UTAH, AND IN THE TERRITORIES OF NEW MEXICO AND ARIZONA SHALL BE ENTITLED TO RECEIVE FOR ACTUAL ATTENDANCE AT ANY COURT OR COURTS AND FOR THE TIME NECESSARILY OCCUPIED IN GOING TO AND RETURNING FROM THE SAME, THREE DOLLARS A DAY, AND FIFTEEN CENTS FOR EACH MILE NECESSARILY TRAVELED OVER ANY STAGE LINE, OR BY PRIVATE CONVEYANCE, AND FIVE CENTS FOR EACH MILE BY ANY RAILWAY OR STEAMSHIP IN GOING TO AND RETURNING FROM SAID COURTS: * * *.

SECTION 3 OF THE ACT OF APRIL 26, 1926, 44 STAT. 323, FIXING THE FEES OF JURORS AND WITNESSES IN THE UNITED STATES COURTS, INCLUDING THE DISTRICT COURT OF HAWAII, THE DISTRICT COURT OF PORTO RICO, AND THE SUPREME COURT OF THE DISTRICT OF COLUMBIA, PROVIDES AS FOLLOWS:

WITNESSES ATTENDING IN SUCH COURTS, OR BEFORE SUCH COMMISSIONERS, SHALL RECEIVE FOR EACH DAY'S ATTENDANCE AND FOR THE TIME NECESSARILY OCCUPIED IN GOING TO AND RETURNING FROM THE SAME $2, AND 5 CENTS PER MILE FOR GOING FROM HIS OR HER PLACE OF RESIDENCE TO THE PLACE OF TRIAL OR HEARING AND 5 CENTS PER MILE FOR RETURNING: AND PROVIDED FURTHER, THAT WITNESSES (OTHER THAN WITNESSES WHO ARE SALARIED EMPLOYEES OF THE GOVERNMENT AND DETAINED WITNESSES) IN THE UNITED STATES COURTS, INCLUDING THE DISTRICT COURT OF HAWAII, THE DISTRICT COURT OF PORTO RICO, AND THE SUPREME COURT OF THE DISTRICT OF COLUMBIA, WHO ATTEND COURT OR ATTEND BEFORE UNITED STATES COMMISSIONERS, AT POINTS SO FAR REMOVED FROM THEIR RESPECTIVE RESIDENCES AS TO PROHIBIT RETURN THERETO FROM DAY TO DAY, SHALL, WHEN THIS FACT IS CERTIFIED TO IN THE ORDER OF THE COURT OR THE COMMISSIONER FOR PAYMENT, BE ENTITLED, IN ADDITION TO THE COMPENSATION PROVIDED BY EXISTING LAW, AS MODIFIED BY THIS ACT, TO A PER DIEM OF $3 FOR EXPENSES OF SUBSISTENCE FOR EACH DAY OF ACTUAL ATTENDANCE AND FOR EACH DAY NECESSARILY OCCUPIED IN TRAVELING TO ATTEND COURT AND RETURN HOME.

SECTION 4 OF SAID ACT, SUPRA, PROVIDES THAT:

JURORS AND WITNESSES IN THE UNITED STATES COURTS, OR BEFORE A UNITED STATES COMMISSIONER, IN THE STATES OF ARIZONA, CALIFORNIA, COLORADO, IDAHO, MONTANA, NEVADA, NEW MEXICO, OREGON, UTAH, WASHINGTON, AND WYOMING SHALL RECEIVE FOR EACH DAY'S ATTENDANCE AND FOR MILEAGE THE SAME AS JURORS AND WITNESSES AS HEREIN PROVIDED.

THE APPARENT PURPOSE OF THE PROVISION IN THE ACT OF JANUARY 31, 1903, SUPRA, WAS TO PLACE WITNESSES ATTENDING BEFORE REGISTERS AND RECEIVERS OF LAND OFFICES IN THE SAME STATUS AS TO COMPENSATION AS WITNESSES ATTENDING DISTRICT COURTS OF THE UNITED STATES. ACCORDINGLY, THE PER DIEM FOR EXPENSES OF SUBSISTENCE PROVIDED FOR IN THE ACT OF APRIL 26, 1926, MAY BE REGARDED AS COMING WITHIN THE TERM "FEES" AS USED IN THE ACT OF 1903. IS TO BE NOTED IN THIS CONNECTION THAT WHILE THE ACT OF APRIL 26, 1926, IS ENTITLED "AN ACT FIXING THE FEES * * *," THE TERM "FEES" IS NOT USED IN EITHER SECTION 1, 2, OR 3, PROVIDING FOR THE COMPENSATION OR ALLOWANCES, BUT THE TERM "FEES" IS USED IN SECTION 4 IN SUCH CONNECTION THAT THERE WOULD APPEAR TO BE NO ROOM FOR REASONABLE DOUBT THAT IT WAS INTENDED TO INCLUDE THE PER DIEM FOR EXPENSES OF SUBSISTENCE AS WELL AS THE OTHER PER DIEMS PROVIDED FOR IN THE PRECEDING SECTIONS. SEE DECISION OF MAY 25, 1926, A-14323.

SPECIFICALLY ANSWERING YOUR QUESTION, YOU ARE ADVISED THAT WITNESSES IN LAND HEARING CASES MAY BE PAID THE PER DIEM FOR EXPENSES OF SUBSISTENCE UNDER THE SAME CIRCUMSTANCES AND CONDITIONS AS ARE PRESCRIBED IN THE STATUTE WITH RESPECT TO WITNESSES ATTENDING UNITED STATES COURTS OR BEFORE COMMISSIONERS, THE CERTIFICATION AS TO THE EXISTENCE OF SUCH CIRCUMSTANCES AND CONDITIONS TO BE BY THE OFFICER IN CHARGE OF THE HEARING.