A-2337, JULY 17, 1924, 4 COMP. GEN. 67

A-2337: Jul 17, 1924

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AFTER A DEFENDANT HAS SUBMITTED TO THE JURISDICTION OF THE COMMISSIONER BY VOLUNTARILY APPEARING BEFORE HIM ARE UNNECESSARY AND DO NOT ENTITLE THE COMMISSIONER TO FEES THEREFOR. IT IS EXPLAINED BY THE EXAMINER THAT IT IS THE PRACTICE OF THE PROHIBITION OFFICERS WHERE SEARCHES ARE MADE AND VIOLATIONS FOUND AND WHERE THE OFFENDERS ARE RESIDING ON THE PREMISES. COPY OF THE LIST OF SUCH CASES AS LISTED BY THE EXAMINER WAS SUBMITTED TO THE COMMISSIONER FOR HIS APPROVAL. HE AGREED THAT THE FACTS AS SET FORTH IN THE STATEMENT WERE CORRECT BUT TOOK ISSUE WITH THE EXAMINER AS TO SUCH CHARGES BEING SUBJECT TO DISALLOWANCE. ADDRESSED A LETTER TO THE EXAMINER WHICH READS IN PART AS FOLLOWS: IT IS HEREBY ADMITTED THAT ITEMS LISTED BY YOU IN REFERENCE TO WHAT YOU CONSIDER ITEMS SUBJECT TO RECOMMENDATION FOR DISALLOWANCE AND DESIGNATED AS EXHIBIT B IN YOUR REPORT TO THE ATTORNEY GENERAL.

A-2337, JULY 17, 1924, 4 COMP. GEN. 67

COMMISSIONER, UNITED STATES - FEES - WARRANTS OF ARREST MAKING A COPY OF COMPLAINT, ISSUING WARRANT OF ARREST, AND ENTERING RETURN ON THE WARRANT, AFTER A DEFENDANT HAS SUBMITTED TO THE JURISDICTION OF THE COMMISSIONER BY VOLUNTARILY APPEARING BEFORE HIM ARE UNNECESSARY AND DO NOT ENTITLE THE COMMISSIONER TO FEES THEREFOR.

ACTING COMPTROLLER GENERAL GINN TO THE ATTORNEY GENERAL, JULY 17, 1924:

THERE HAS BEEN RECEIVED YOUR LETTER OF DECEMBER 20, 1923, INCLOSING COPY OF EXHIBIT ATTACHED TO THE REPORT OF EXAMINER MARCUS, UPON THE OFFICE OF J. A. CRAFT, UNITED STATES COMMISSIONER, LOUISVILLE, KY., FOR THE PERIOD APRIL 1, 1922, TO MARCH 31, 1923, REQUESTING THAT THE ACCOUNTS BE REOPENED AND THAT CERTAIN ITEMS LISTED BY THE EXAMINER FOR DISALLOWANCE, HERETOFORE ALLOWED, IN THE AMOUNT OF $222, BE RECHARGED TO THE COMMISSIONER IF THE FACTS WARRANT SUCH ACTION.

THE ITEMS RECOMMENDED FOR DISALLOWANCE REPRESENT FEES CHARGED FOR MAKING COPY OF COMPLAINT, ISSUING WARRANT OF ARREST, AND ENTERING RETURN ON THE WARRANT, $1.20 IN EACH CASE.

IT IS EXPLAINED BY THE EXAMINER THAT IT IS THE PRACTICE OF THE PROHIBITION OFFICERS WHERE SEARCHES ARE MADE AND VIOLATIONS FOUND AND WHERE THE OFFENDERS ARE RESIDING ON THE PREMISES, NOT TO ARREST THEM AT THE TIME, BUT TO INSTRUCT THEM TO APPEAR BEFORE THE COMMISSIONER TO ANSWER TO THE CHARGE. IN SUCH CASES THE COMMISSIONER ISSUED A WARRANT AFTER THE DEFENDANT HAD APPEARED AND SUBMITTED TO HIS JURISDICTION, AND PLACED THE SAME IN THE HANDS OF THE MARSHAL, THE SERVICE OF SAME BEING MADE BY ENTERING THE RETURN OF THE ARREST IN THE OFFICE OF THE COMMISSIONER. COPY OF THE LIST OF SUCH CASES AS LISTED BY THE EXAMINER WAS SUBMITTED TO THE COMMISSIONER FOR HIS APPROVAL, AND HE AGREED THAT THE FACTS AS SET FORTH IN THE STATEMENT WERE CORRECT BUT TOOK ISSUE WITH THE EXAMINER AS TO SUCH CHARGES BEING SUBJECT TO DISALLOWANCE.

THE COMMISSIONER, UNDER DATE OF JULY 7, 1923, ADDRESSED A LETTER TO THE EXAMINER WHICH READS IN PART AS FOLLOWS:

IT IS HEREBY ADMITTED THAT ITEMS LISTED BY YOU IN REFERENCE TO WHAT YOU CONSIDER ITEMS SUBJECT TO RECOMMENDATION FOR DISALLOWANCE AND DESIGNATED AS EXHIBIT B IN YOUR REPORT TO THE ATTORNEY GENERAL, * * * IS CORRECT AS TO THE MANNER IN WHICH THEY WERE HANDLED BY ME AS COMMISSIONER, AND THE CHARGES AS SHOWN BY YOU ARE THE CORRECT AMOUNTS AS CHARGED, AND NO OBJECTION IS OFFERED AS TO THE STATEMENT OF FACTS.

THE COMMISSIONER TAKES ISSUE WITH THE EXAMINER AS TO THE ITEMS LISTED BEING SUBJECT TO DISALLOWANCE AND SUBMITS HIS REASONS FOR SUCH OBJECTIONS, CITING VARIOUS SECTIONS OF THE KENTUCKY CODE OF CRIMINAL PRACTICE, AS FOLLOWS:

SECTION 10. OFFENSES WITHIN THE JURISDICTION OF THE JUSTICE OF THE PEACE OR OF THE CITY OR POLICE COURT, THE PUNISHMENT OF WHICH IS A FINE LIMITED TO $100, MAY BE PROSECUTED BY A SUMMONS OR WARRANT OF ARREST IN WHICH SHALL BE STATED IN GENERAL TERMS THE CRIME TO HAVE BEEN COMMITTED.

SECTION 35. AN ARREST MAY BE MADE BY A PEACE OFFICER OR A PRIVATE PERSON.

SECTION 36. A PEACE OFFICER MAY MAKE AN ARREST, FIRST, IN OBEDIENCE TO WARRANT OF ARREST DELIVERED TO HIM; SECOND, WITHOUT A WARRANT WHEN PUBLIC OFFENSE IS COMMITTED IN HIS PRESENCE.

SECTION 37. THAT PRIVATE PERSONS MAY MAKE AN ARREST FOR A FELONY ALONE.

THE COMMISSIONER STATES THAT IN PRACTICALLY ALL OF THE CASES WHERE SEARCH WARRANTS ARE ISSUED THEY ARE DIRECTED TO THE PROHIBITION AGENTS, WHO HAVE NO POWER TO MAKE ARRESTS, EXCEPT WHERE THEY FIND SOME PERSON IN THE ACT OF TRANSPORTING INTOXICATING LIQUORS IN VIOLATION OF LAW.

SECTION 26, TITLE II, OF THE NATIONAL PROHIBITION ACT, OCTOBER 28, 1919, 41 STAT. 315, PROVIDES IN PART AS FOLLOWS:

WHEN THE COMMISSIONER, HIS ASSISTANTS, INSPECTORS, OR ANY OFFICER OF THE LAW SHALL DISCOVER ANY PERSON IN THE ACT OF TRANSPORTING IN VIOLATION OF THE LAW, INTOXICATING LIQUORS IN ANY WAGON, BUGGY, AUTOMOBILE, WATER OR AIR CRAFT, OR OTHER VEHICLE, IT SHALL BE HIS DUTY TO SEIZE ANY AND ALL INTOXICATING LIQUORS FOUND THEREIN BEING TRANSPORTED CONTRARY TO LAW. WHENEVER INTOXICATING LIQUORS TRANSPORTED OR POSSESSED ILLEGALLY SHALL BE SEIZED BY AN OFFICER HE SHALL TAKE POSSESSION OF THE VEHICLE AND TEAM OR AUTOMOBILE, BOAT, AIR OR WATER CRAFT, OR ANY OTHER CONVEYANCE, AND SHALL ARREST ANY PERSON IN CHARGE THEREOF. SUCH OFFICER SHALL AT ONCE PROCEED AGAINST THE PERSON ARRESTED UNDER THE PROVISIONS OF THIS TITLE IN ANY COURT HAVING COMPETENT JURISDICTION * * *.

UNDER THE PROVISIONS OF THIS TITLE THE COMMISSIONER, HIS ASSISTANT, INSPECTORS, OR ANY OTHER OFFICERS OF THE LAW ARE AUTHORIZED TO ARREST ANY OFFENDERS FOR VIOLATIONS OF THE NATIONAL PROHIBITION ACT, AND TO AT ONCE PROCEED AGAINST THEM BY TAKING THEM BEFORE ANY COURT HAVING COMPETENT JURISDICTION FOR A HEARING.

AN EXAMINATION OF THE VOUCHERS SHOWS THAT THE OFFENSE CHARGED WAS FOR VIOLATIONS OF THE NATIONAL PROHIBITION ACT. SOME OF THE DEFENDANTS WERE PLACED UNDER ARREST AT THE TIME THE SEARCH WARRANT WAS EXECUTED; OTHER VIOLATORS RESIDING ON THE PREMISES, IT IS EXPLAINED, WERE NOT ARRESTED, BUT INSTRUCTED TO APPEAR BEFORE THE COMMISSIONER TO ANSWER THE CHARGE. THOSE ARRESTED WERE TAKEN BEFORE THE COMMISSIONER, AND AFTER SUBMITTING TO HIS JURISDICTION THE COMPLAINT, COPY OF SAME, AND WARRANT OF ARREST WERE ISSUED AND SERVICE OF WARRANT MADE BY A DEPUTY MARSHAL. IN CASES WHERE NO ARRESTS WERE MADE THE DEFENDANTS VOLUNTARILY APPEARED BEFORE THE COMMISSIONER; WARRANTS WERE ISSUED AFTER THE DEFENDANTS APPEARED TO ANSWER TO THE CHARGE. THE OBJECT OF THE WARRANT IS TO PRODUCE THE DEFENDANT BEFORE THE COMMISSIONER; THEREFORE, THE ISSUANCE OF THE COPY OF COMPLAINT, WARRANT OF ARREST, AND ENTERING RETURN ON WARRANT AFTER THE DEFENDANTS AHD SUBMITTED TO THE JURISDICTION OF THE COMMISSIONER WERE UNNECESSARY, AND THE FEES CHARGED THEREFOR IN THE AMOUNT OF $222 WILL BE RECHARGED TO THE COMMISSIONER.