A-21804, APRIL 6, 1928, 7 COMP. GEN. 633

A-21804: Apr 6, 1928

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PER DIEMS - BAILIFFS - SUNDAYS COURT BAILIFFS ARE NOT ENTITLED TO PAYMENT OF PER DIEMS FOR MAINTAINING CUSTODY OF PETIT JURIES OVER SUNDAYS WHEN THE COURT IS NOT ACTUALLY IN SESSION ON SUCH DAYS. WHICH PROHIBIT PAYMENT OF PER DIEM TO A BAILIFF UNLESS THE COURT IS ACTUALLY IN SESSION WITH THE JUDGE PRESENT AND PRESIDING OR PRESENT IN CHAMBERS. WHEREIN CREDIT WAS DISALLOWED FOR AMOUNTS CHARGED ON VOUCHERS 479. IT WAS HELD THAT BAILIFFS ACTING UNDER AND PURSUANT TO THE ORDER OF THE COURT IN ATTENDING UPON GRAND OR PETIT JURIES DURING THEIR DELIBERATIONS WERE ENTITLED TO PAY FOR SUCH SERVICES. 4 COMP. PROVIDING THAT "NO PER DIEM SHALL BE PAID TO ANY BAILIFF OR CRIER UNLESS THE COURT IS ACTUALLY IN SESSION AND THE JUDGE PRESENT AND PRESIDING OR PRESENT IN CHAMBERS.'.

A-21804, APRIL 6, 1928, 7 COMP. GEN. 633

PER DIEMS - BAILIFFS - SUNDAYS COURT BAILIFFS ARE NOT ENTITLED TO PAYMENT OF PER DIEMS FOR MAINTAINING CUSTODY OF PETIT JURIES OVER SUNDAYS WHEN THE COURT IS NOT ACTUALLY IN SESSION ON SUCH DAYS, IN VIEW OF THE ACTS OF FEBRUARY 27, 1925, 43 STAT. 1030, AND APRIL 29, 1926, 44 STAT. 347, WHICH PROHIBIT PAYMENT OF PER DIEM TO A BAILIFF UNLESS THE COURT IS ACTUALLY IN SESSION WITH THE JUDGE PRESENT AND PRESIDING OR PRESENT IN CHAMBERS.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 6, 1928:

RICHARD B. QUINN, UNITED STATES MARSHAL, OKLAHOMA CITY, OKLA., APPLIED DECEMBER 10, 1927, FOR REVIEW OF SETTLEMENT K-19576-J, DATED DECEMBER 30, 1927, WHEREIN CREDIT WAS DISALLOWED FOR AMOUNTS CHARGED ON VOUCHERS 479, 768, AND 518 OF HIS ACCOUNT FOR THE QUARTER ENDED DECEMBER 30, 1926, REPRESENTING PER DIEMS PAID TO BAILIFFS T. A. WILES AND J. W. HICKMAN FOR SERVICES RENDERED ON SUNDAY, OCTOBER 24, 1926, WHILE IN CHARGE OF A JURY HELD TOGETHER UNDER COURT ORDER DURING THE PERIOD FROM OCTOBER 20 TO 29, 1926, AND TO BAILIFF T. A. WILES FOR SERVICES RENDERED ON SUNDAY, DECEMBER 19, 1926, WHILE IN CUSTODY OF A JURY CONFINED BY ORDER OF COURT FROM DECEMBER 16 TO 22, 1926.

PRIOR TO THE ENACTMENT OF THE ACT OF FEBRUARY 27, 1925, 43 STAT. 1030, ANNUAL APPROPRIATION ACTS PROVIDING FOR THE PAY OF BAILIFFS AND CRIERS CARRIED THE PROVISION THAT "ALL PERSONS EMPLOYED UNDER SECTION 715 OF THE REVISED STATUTES SHALL BE DEEMED TO BE IN ACTUAL ATTENDANCE WHEN THEY ATTEND UPON THE ORDER OF THE COURTS," AND, ACCORDINGLY, IT WAS HELD THAT BAILIFFS ACTING UNDER AND PURSUANT TO THE ORDER OF THE COURT IN ATTENDING UPON GRAND OR PETIT JURIES DURING THEIR DELIBERATIONS WERE ENTITLED TO PAY FOR SUCH SERVICES. 4 COMP. DEC. 113.

HOWEVER, LATER APPROPRIATION ACTS IMPOSE A CLEAR RESTRICTION UPON THE PAYMENT OF PER DIEMS TO BAILIFFS AND CRIERS, THE ACT OF FEBRUARY 27, 1925, 43 STAT. 1030, AND OF APRIL 29, 1926, 44 STAT. 347, PROVIDING THAT "NO PER DIEM SHALL BE PAID TO ANY BAILIFF OR CRIER UNLESS THE COURT IS ACTUALLY IN SESSION AND THE JUDGE PRESENT AND PRESIDING OR PRESENT IN CHAMBERS.'

IT BEING APPARENTLY CONCEDED THAT THE COURT WAS NOT ACTUALLY IN SESSION ON SUNDAYS, OCTOBER 24, AND DECEMBER 19, 1926, AND THAT THE JUDGE WAS NOT "PRESENT AND PRESIDING OR PRESENT IN CHAMBERS," THE PAYMENTS OF PER DIEM TO BAILIFFS FOR SERVICES RENDERED ON SUCH DATES CONTRAVENED THE PLAIN PROVISIONS OF THE APPROPRIATION ACT OF APRIL 29, 1926, SUPRA, WHICH PROHIBITS PAYMENT OF PER DIEM TO A BAILIFF UNLESS THE COURT IS ACTUALLY IN SESSION WITH THE JUDGE PRESENT AND PRESIDING OR PRESENT IN CHAMBERS. SEE A-16888, FEBRUARY 23, 1927; A-19840, SEPTEMBER 30, 1927; SECTION 830, INSTRUCTIONS TO COURT OFFICIALS, JULY, 1925.