A-18772, JUNE 20, 1927, 6 COMP. GEN. 835

A-18772: Jun 20, 1927

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IS PAYABLE ONLY WHEN THE PLACE OF HOLDING COURT IS SO FAR REMOVED FROM THE PLACE OF RESIDENCE AS TO PROHIBIT THE RETURN OF THE WITNESS THERETO FROM DAY TO DAY AND SUCH FACT IS CERTIFIED TO BY THE JUDGE OR THE UNITED STATES COMMISSIONER. HE IS NOT ENTITLED TO THE $3 SUBSISTENCE PER DIEM. A CERTIFICATE OF THE COURT OR THE COMMISSIONER THAT THE RESIDENCE OF THE WITNESS WAS SO FAR REMOVED FROM THE PLACE OF HOLDING COURT AS TO PROHIBIT THE RETURN THREROF THERETO FROM DAY TO DAY. IN NO CASE DOES THE STATUTE AUTHORIZE THE $3 SUBSISTENCE ALLOWANCE WHEN THE ABSENCE FROM THE RESIDENCE OF THE WITNESS IS CONFINED TO ONE CALENDAR DAY. 1927: THERE IS FOR CONSIDERATION BY THIS OFFICE THE QUESTION WHETHER CREDIT MAY BE ALLOWED IN THE ACCOUNTS OF THE UNITED STATES MARSHAL F.

A-18772, JUNE 20, 1927, 6 COMP. GEN. 835

SUBSISTENCE, PER DIEM IN LIEU OF - WITNESSES THE PER DIEM FOR SUBSISTENCE AUTHORIZED BY SECTION 3 OF THE ACT OF APRIL 26, 1926, 44 STAT. 323, FOR WITNESSES, IS PAYABLE ONLY WHEN THE PLACE OF HOLDING COURT IS SO FAR REMOVED FROM THE PLACE OF RESIDENCE AS TO PROHIBIT THE RETURN OF THE WITNESS THERETO FROM DAY TO DAY AND SUCH FACT IS CERTIFIED TO BY THE JUDGE OR THE UNITED STATES COMMISSIONER. WHEN THE WITNESS DOES IN FACT RETURN TO HIS RESIDENCE THE SAME DAY, HE IS NOT ENTITLED TO THE $3 SUBSISTENCE PER DIEM, AND A CERTIFICATE OF THE COURT OR THE COMMISSIONER THAT THE RESIDENCE OF THE WITNESS WAS SO FAR REMOVED FROM THE PLACE OF HOLDING COURT AS TO PROHIBIT THE RETURN THREROF THERETO FROM DAY TO DAY, BEING CONTRARY TO THE FACTS, CAN NOT OPERATE TO AUTHORIZE THE PAYMENT. IN NO CASE DOES THE STATUTE AUTHORIZE THE $3 SUBSISTENCE ALLOWANCE WHEN THE ABSENCE FROM THE RESIDENCE OF THE WITNESS IS CONFINED TO ONE CALENDAR DAY.

DECISION BY COMPTROLLER GENERAL MCCARL, JUNE 20, 1927:

THERE IS FOR CONSIDERATION BY THIS OFFICE THE QUESTION WHETHER CREDIT MAY BE ALLOWED IN THE ACCOUNTS OF THE UNITED STATES MARSHAL F. R. FITZPATRICK FOR THE DECEMBER QUARTER, 1926, FOR PAYMENTS OF PER DIEM ALLOWANCES OF $3 IN LIEU OF SUBSISTENCE UNDER SECTION 3 OF THE ACT OF APRIL 26, 1926, 44 STAT. 323, TO WITNESSES WHO WERE ABSENT FROM THEIR PLACES OF RESIDENCE FOR ONLY ONE CALENDAR DAY. SAID SECTION 3 OF THE ACT IN QUESTION PROVIDES:

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 RESIDENCE 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.

IN THE DECISION OF JANUARY 21, 1927, 6 COMP. GEN. 480, THIS OFFICE CONSTRUED THE SECTION IN QUESTION TO REFER TO CALENDAR DAYS. THE MILEAGE AND THE $2 FEE ARE PAYABLE NOTWITHSTANDING THAT THE JUROR OR WITNESS MAY BE ABSENT FOR ONLY A FRACTION OF A CALENDAR DAY. THE PER DIEM OF $3 FOR EXPENSES OF SUBSISTENCE, HOWEVER, IS ONLY PAYABLE UNDER THE STATUTE WHEN THE PLACE OF HOLDING COURT IS SO FAR REMOVED FROM THE PLACE OF RESIDENCE AS TO PROHIBIT THE RETURN THERETO FROM DAY TO DAY AND THIS FACT IS CERTIFIED TO BY THE COURT OF THE UNITED STATES COMMISSIONER. WHERE THE WITNESS IS NECESSARILY ABSENT FROM HIS RESIDENCE FOR TWO OR MORE CALENDAR DAYS THE CERTIFICATE OF THE JUDGE OR COMMISSIONER WILL NOT ORDINARILY BE QUESTIONED BY THIS OFFICE. WHERE, HOWEVER, THE WITNESS IS ABSENT FROM HIS PLACE OF RESIDENCE FOR ONLY ONE CALENDAR DAY, OR DOES IN FACT RETURN TO HIS RESIDENCE EACH DAY, SUCH ABSENCES DO NOT BRING HIM WITHIN THE PROVISO OF SECTION 3 OF THE ACT OF APRIL 26, 1926, SUPRA, AND A CERTIFICATE BY THE COURT OR THE COMMISSIONER THAT THE PLACE OF HOLDING COURT IS SO FAR REMOVED FROM THE PLACE OF THE WITNESS'S RESIDENCE AS TO PROHIBIT THE RETURN THERETO FROM DAY TO DAY, BEING CONTRARY TO THE KNOWN FACTS, CAN NOT BE ACCEPTED BY THIS OFFICE AS ENTITLING THE WITNESSES TO THE ADDITIONAL PER DIEM FOR SUBSISTENCE EXPENSES.

THE ACCOUNTS OF THE UNITED STATES MARSHAL F. R. FITZPATRICK FOR THE DECEMBER QUARTER, 1926, WILL BE ADJUSTED IN ACCORDANCE WITH THE FOREGOING.