A-17969, JUNE 29, 1927, 6 COMP. GEN. 850

A-17969: Jun 29, 1927

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IS PRIMARILY FOR PERFORMANCE BY A REGULAR EMPLOYEE OF THE PROHIBITION SERVICE OR. IF NONE ARE AVAILABLE. THE EMPLOYMENT OF A COURT REPORTER UNDER SUCH CIRCUMSTANCES IS UNAUTHORIZED. THE NATURE OF THE HEARING AND THE CIRCUMSTANCES UNDER WHICH IT WAS HELD ARE REPORTED BY THE FEDERAL PROHIBITION ADMINISTRATOR. THIS CASE WAS CONSIDERED OF EXCEPTIONAL IMPORTANCE. IT WAS BELIEVED THAT A HUGE CONSPIRACY CASE WOULD BE UNCOVERED. IT WAS DEEMED BOTH EXPEDIENT AND WISE TO HAVE A TRAINED REPORTER TAKE DOWN THE TESTIMONY. SO THAT IF IMPORTANT TESTIMONY WAS DEVELOPED. THIS WAS NOT A REVOCATION. WAS THE TESTIMONY IN THE COMMISSIONER'S HEARING. NO OTHER REPORTER WAS AVAILABLE AND ONE SEEMED ABSOLUTELY URGENT.

A-17969, JUNE 29, 1927, 6 COMP. GEN. 850

PERSONAL SERVICES - STENOGRAPHIC REPORTING THE STENOGRAPHIC REPORTING OF A HEARING BEFORE A UNITED STATES COMMISSIONER IN CONNECTION WITH AN ARREST ON A WARRANT, SUCH REPORT BEING DESIRED AND REQUESTED BY A PROHIBITION ADMINISTRATOR AND NOT REQUIRED FOR THE PURPOSES OF THE COMMISSIONER, IS PRIMARILY FOR PERFORMANCE BY A REGULAR EMPLOYEE OF THE PROHIBITION SERVICE OR, IF NONE ARE AVAILABLE, BY THE TEMPORARY HIRE OF A STENOGRAPHER AT RATES PRESCRIBED BY THE CLASSIFICATION ACT. THE EMPLOYMENT OF A COURT REPORTER UNDER SUCH CIRCUMSTANCES IS UNAUTHORIZED.

DECISION BY COMPTROLLER GENERAL MCCARL, JUNE 29, 1927:

LEON F. MILLER REQUESTED, MARCH 21, 1927, REVIEW OF SETTLEMENT DATED MARCH 18, 1927, DISALLOWING HIS CLAIM NO. 0164831 FOR $152.25 AS PAYMENT FOR SERVICES IN REPORTING A HEARING IN JUNE, 1926, IN THE CASE OF THE UNITED STATES V. KNOUSE AND KNOUSE. THE NATURE OF THE HEARING AND THE CIRCUMSTANCES UNDER WHICH IT WAS HELD ARE REPORTED BY THE FEDERAL PROHIBITION ADMINISTRATOR, IN A LETTER DATED MAY 6, 1927, AS FOLLOWS:

AT THE TIME OF THE HEARING IN THE KNOUSE AND KNOUSE CASE, THIS CASE WAS CONSIDERED OF EXCEPTIONAL IMPORTANCE. IN FACT, IT WAS BELIEVED THAT A HUGE CONSPIRACY CASE WOULD BE UNCOVERED, INCLUDING A GREAT MANY DOCTORS IN THAT PART OF THE COUNTRY. IN VIEW OF THAT, IT WAS DEEMED BOTH EXPEDIENT AND WISE TO HAVE A TRAINED REPORTER TAKE DOWN THE TESTIMONY, SO THAT IF IMPORTANT TESTIMONY WAS DEVELOPED, THERE WOULD BE NO LIKELIHOOD OF A SLIP- UP. THIS WAS NOT A REVOCATION, BUT WAS THE TESTIMONY IN THE COMMISSIONER'S HEARING. NO OTHER REPORTER WAS AVAILABLE AND ONE SEEMED ABSOLUTELY URGENT. THE REPORTER WAS EMPLOYED, SO I UNDERSTAND, AT THE DIRECTION OF W. H. MCNAUGHTER, LEGAL ADVISER, OF THE FOURTH DISTRICT, PITTSBURGH, PA., AT THAT TIME. THE HEARING WAS HELD BEFORE UNITED STATES COMMISSIONER LEVIN, AFTER JACOB KNOUSE OTHERS HAD BEEN ARRESTED ON WARRANTS CHARGING A CONSPIRACY TO VIOLATE THE NATIONAL PROHIBITION ACT.

UNDER SECTION 21 OF THE ACT OF MAY 28, 1896, 29 STAT. 184, THE UNITED STATES COMMISSIONER IS ENTITLED TO A FEE OF $5 FOR HEARING AND DECIDING UPON CRIMINAL CHARGES WHICH FEE COVERS THE COST OF REDUCING THE TESTIMONY TO WRITING "WHEN REQUIRED BY LAW OR ORDER OF THE COURT.' IF THE COMMISSIONER FINDS A STENOGRAPHER NECESSARY OR DESIRABLE IN CONNECTION WITH THE REDUCTION OF THE TESTIMONY TO WRITING IT MUST BE AT HIS OWN EXPENSE. SEE PARAGRAPHS 1541 AND 1543 OF THE INSTRUCTIONS TO UNITED STATES MARSHALS, ATTORNEYS, CLERKS, AND COMMISSIONERS, JULY 1, 1925. SEE ALSO 4 COMP. DEC. 239.

IN THE PRESENT CASE, HOWEVER, IT APPEARS THAT THE EMPLOYMENT OF THE COURT REPORTER WAS NOT FOR THE PURPOSE OF REDUCING THE TESTIMONY TO WRITING FOR USE BY THE UNITED STATES COMMISSIONER BUT WAS SOLELY FOR PURPOSES OF THE PROHIBITION FORCES IN AN ENDEAVOR TO DEVELOP EVIDENCE OF A SUSPECTED CONSPIRACY INVOLVING OTHERS IN ADDITION TO THE DEFENDANT UNDER ARREST. THE UNITED STATES COMMISSIONER IS NOT AUTHORIZED TO HIRE A COURT REPORTER AND MUST PAY ANY STENOGRAPHER OUT OF HIS OWN POCKET, EVEN IF THE COURT OR SOME LAW REQUIRES THE TESTIMONY REDUCED TO WRITING, THE NEED FOR THE PROHIBITION SERVICE TO HIRE A COURT REPORTER TO TAKE THE TESTIMONY UNDER SUCH CONDITIONS IS NOT APPARENT. SO FAR AS THE NEEDS OF THAT SERVICE ARE CONCERNED THE PROCEEDINGS WERE IN THE NATURE OF AN ADMINISTRATIVE HEARING, THE REPORTING OF WHICH, IF CONSIDERED NECESSARY, WAS FOR PERFORMANCE BY A REGULAR EMPLOYEE OR, IF NONE WERE AVAILABLE, BY THE TEMPORARY HIRE OF A STENOGRAPHER AT RATES PRESCRIBED BY THE CLASSIFICATION ACT OF 1923, AS EXTENDED TO THE FIELD BY THE ACT OF DECEMBER 6, 1924, 43 STAT. 704. SEE 4 COMP. GEN. 908; 5 ID. 968; 6 ID. 439, 699, AND 756.