A-21255, FEBRUARY 2, 1928, 7 COMP. GEN. 455

A-21255: Feb 2, 1928

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WITNESSES - PER DIEM FEES FOR MORE THAN ONE APPEARANCE ON THE SAME DAY A WITNESS ATTENDING BEFORE A UNITED STATES COMMISSIONER UNDER A GENERAL SUBPOENA TO APPEAR AND TESTIFY IS ENTITLED TO ONLY ONE PER DIEM FOR EACH DAY'S ATTENDANCE. IF SEPARATE SUBPOENAS ARE ISSUED IN EACH CASE. THE WITNESS IS ENTITLED TO A PER DIEM FEE FOR EACH CASE IN WHICH HE APPEARS AND TESTIFIES. 1928: RECEIPT IS ACKNOWLEDGED OF YOUR LETTER OF JANUARY 11. WITH REQUEST TO BE ADVISED WHETHER PAYMENT THEREON IS AUTHORIZED. 19 OF WHICH ARE FOR TESTIFYING ON THE SAME DAY. WHEN A WITNESS IS SUBPOENAED IN MORE THAN ONE CAUSE BETWEEN THE SAME PARTIES. AFTER WHICH THE PER DIEM ATTENDANCE FEE ALONE SHALL BE TAXED IN THE OTHER CASES IN THE ORDER IN WHICH THEY ARE DISPOSED OF.

A-21255, FEBRUARY 2, 1928, 7 COMP. GEN. 455

WITNESSES - PER DIEM FEES FOR MORE THAN ONE APPEARANCE ON THE SAME DAY A WITNESS ATTENDING BEFORE A UNITED STATES COMMISSIONER UNDER A GENERAL SUBPOENA TO APPEAR AND TESTIFY IS ENTITLED TO ONLY ONE PER DIEM FOR EACH DAY'S ATTENDANCE, BUT IF SEPARATE SUBPOENAS ARE ISSUED IN EACH CASE, THE DEFENDANTS BEING DIFFERENT, THE WITNESS IS ENTITLED TO A PER DIEM FEE FOR EACH CASE IN WHICH HE APPEARS AND TESTIFIES.

COMPTROLLER GENERAL MCCARL TO SAMUEL PURVIS, UNITED STATES MARSHAL, FEBRUARY 2, 1928:

RECEIPT IS ACKNOWLEDGED OF YOUR LETTER OF JANUARY 11, 1928, SUBMITTING, WITH REQUEST TO BE ADVISED WHETHER PAYMENT THEREON IS AUTHORIZED, 20 VOUCHERS COVERING PER DIEM FEES TO HERMAN M. WAAR (OR WARR) AS A WITNESS BEFORE UNITED STATES COMMISSIONER W. E. MARTIN, 19 OF WHICH ARE FOR TESTIFYING ON THE SAME DAY, OCTOBER 7, 1927, AND ONE ON NOVEMBER 7, 1927.

SECTION 848, REVISED STATUTES, PROVIDES 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. WHEN A WITNESS IS SUBPOENAED IN MORE THAN ONE CAUSE BETWEEN THE SAME PARTIES, AT THE SAME COURT, ONLY ONE TRAVEL FEE AND ONE PER DIEM COMPENSATION SHALL BE ALLOWED FOR ATTENDANCE. BOTH SHALL BE TAXED IN THE CASE FIRST DISPOSED OF, AFTER WHICH THE PER DIEM ATTENDANCE FEE ALONE SHALL BE TAXED IN THE OTHER CASES IN THE ORDER IN WHICH THEY ARE DISPOSED OF.

IN THE CASE OF ARCHER V. HARTFORD INSURANCE COMPANY, 31 FED.REP. 660, THE COURT IN CONSTRUING THE ABOVE SECTION HELD THAT IF A WITNESS BE SUBPOENAED IN TWO OR MORE CASES, THE PARTIES BEING DIFFERENT, TO ATTEND THEREIN BEFORE THE COURT AND TESTIFY ORALLY OR BEFORE ANY OFFICER PURSUANT TO LAW TO GIVE HIS DEPOSITION, AND DOES SO ATTEND, HE IS ENTITLED TO THE WITNESS FEE PRESCRIBED BY SAID SECTION FOR EACH CASE IN WHICH HE APPEARED. SEE ALSO L. E. WATERMAN V. LOCKWOOD, 128 FED.REP. 174; 14 COMP. DEC. 378; 24 ID. 84; 3 COMP. GEN. 531.

THE FEES FIXED BY SECTION 848 WERE CHANGED BY THE ACT OF APRIL 26, 1926, 44 STAT. 323, WHICH PROVIDES AS FOLLOWS:

THAT JURORS AND 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, INCLUDING THOSE ATTENDING BEFORE UNITED STATES COMMISSIONERS, SHALL BE ENTITLED TO A PER DIEM FOR EACH DAY OF ACTUAL ATTENDANCE AND FOR EACH DAY NECESSARILY OCCUPIED IN TRAVELING TO ATTEND COURT, OR UPON THE COMMISSIONER, AND RETURN HOME, AND IN ADDITION MILEAGE AS HEREINAFTER PROVIDED.

SEC. 3. 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: * * *

SEC. 5. ALL LAWS OR PARTS OF LAWS IN SO FAR AS THEY ARE IN CONFLICT WITH THE PROVISIONS OF THIS ACT ARE HEREBY REPEALED. THIS ACT TO BE EFFECTIVE THIRTY DAYS AFTER ITS APPROVAL.

THIS STATUTE INCREASES THE PER DIEM FEE TO $2 PER DAY, BUT IS NOT IN CONFLICT WITH THAT PORTION OF SECTION 848, REVISED STATUTES, SUPRA, WHICH LIMITS WITNESSES TO ONE PER DIEM WHEN SUBPOENAED IN MORE THAN ONE CAUSE BETWEEN THE SAME PARTIES IN THE SAME COURT. THIS PROVISION WAS ACCORDINGLY NOT REPEALED BY THE ACT OF APRIL 26, 1926, SUPRA, AND AS IT FORMED THE BASIS FOR THE DECISIONS CITED ABOVE IT FOLLOWS THAT THESE DECISIONS ARE STILL CONTROLLING IN THE MATTER OF MULTIPLE FEES FOR WITNESSES SUBPOENAED IN MORE THAN ONE CAUSE BETWEEN DIFFERENT PARTIES.

IF THE ATTENDANCE OF THE WITNESS ON OCTOBER 7 IN THE 19 SEPARATE CASES FOR WHICH FEES ARE CLAIMED WAS PURSUANT TO 19 SEPARATE SUBPOENAS HE WOULD BE ENTITLED TO THE PRESCRIBED FEE OF $2 FOR EACH CASE IN WHICH HE TESTIFIED ON THAT DATE. NO OBJECTION APPEARS TO THE PAYMENT OF THE VOUCHER FOR ONE DAY'S PER DIEM ON NOVEMBER 7, 1927. THE 20 VOUCHERS ARE RETURNED HEREWITH AND PAYMENT THEREON IS AUTHORIZED, PROVIDED EVIDENCE IS ATTACHED THERETO TO SHOW THAT SEPARATE SUBPOENAS WERE ISSUED IN EACH CASE. IF SEPARATE SUBPOENAS WERE NOT ISSUED AND THE WITNESS ATTENDED UNDER A GENERAL SUBPOENA TO APPEAR AND TESTIFY ON BEHALF OF THE UNITED STATES, ONLY ONE PER DIEM FOR OCTOBER 7, 1927, WOULD BE PAYABLE.

IT IS NOTED THAT THE NAME OF THE WITNESS IS GIVEN IN THE BODY OF THE VOUCHERS AS WAAR, WHILE THE SIGNATURE APPEARS TO BE WARR. THIS MATTER SHOULD BE CORRECTED BEFORE PAYMENT IS MADE.