A-23579, JULY 16, 1928, 8 COMP. GEN. 18

A-23579: Jul 16, 1928

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A WITNESS WHO ATTENDS FROM OUT OF THE DISTRICT ON THE SUBPOENA OF THE COMMISSIONER IS ENTITLED TO A FEE AND MILEAGE FROM HIS HOME TO THE OFFICE OF THE COMMISSIONER AND RETURN WHEN THE COURT. 1928: THERE IS BEFORE THIS OFFICE FOR CONSIDERATION THE CLAIM OF W. BORGAARD WAS A RESIDENT OF CHICAGO. THE QUESTION FOR DECISION IS WHETHER HE MAY BE PAID MILEAGE AND WITNESS FEE WHEN THE COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS HAS ENTERED AN ORDER APPROVING SAME. THERE WERE BEFORE FORMER COMPTROLLERS OF THE TREASURY IN 9 COMP. INSTANCES WHERE WITNESSES RESIDING OUTSIDE OF THE JUDICIAL DISTRICT HAD ATTENDED BEFORE A COMMISSIONER AND IT WAS THERE HELD THAT THE WITNESSES COULD BE PAID MILEAGE FOR THE DISTANCE TRAVELED WITHIN THE COMMISSIONER'S DISTRICT ONLY.

A-23579, JULY 16, 1928, 8 COMP. GEN. 18

WITNESSES - MILEAGE - FEES - ATTENDANCE BEFORE UNITED STATES COMMISSIONERS FROM OUT OF THE JUDICIAL DISTRICT WHILE A UNITED STATES COMMISSIONER HAS NO AUTHORITY UNDER SECTION 1014, REVISED STATUTES, TO ISSUE A SUBPOENA TO A PERSON RESIDING OUT OF THE DISTRICT, AND SUCH SUBPOENA SHOULD BE ISSUED BY THE COURT UNDER SECTION 876, REVISED STATUTES, A WITNESS WHO ATTENDS FROM OUT OF THE DISTRICT ON THE SUBPOENA OF THE COMMISSIONER IS ENTITLED TO A FEE AND MILEAGE FROM HIS HOME TO THE OFFICE OF THE COMMISSIONER AND RETURN WHEN THE COURT, BEING DULY ADVISED OF ALL THE FACTS IN THE MATTER, ENTERS AN ORDER APPROVING THE SUBPOENA ISSUED BY THE COMMISSIONER.

DECISION BY COMPTROLLER GENERAL MCCARL, JULY 16, 1928:

THERE IS BEFORE THIS OFFICE FOR CONSIDERATION THE CLAIM OF W. M. BORGAARD FOR $20 AS WITNESS FEE AND MILEAGE FOR ATTENDANCE BEFORE THE UNITED STATES COMMISSIONER FOR THE SOUTHERN DISTRICT OF ILLINOIS, AT SPRINGFIELD, ILL., IN UNITED STATES V. J. H. ANDERSON ET AL., RELATIVE TO A CHARGE OF ALLEGED VIOLATION OF THE NATIONAL PROHIBITION ACT. MR. BORGAARD WAS A RESIDENT OF CHICAGO, L., AND OUTSIDE OF THE DISTRICT OF THE COMMISSIONER, AND THE QUESTION FOR DECISION IS WHETHER HE MAY BE PAID MILEAGE AND WITNESS FEE WHEN THE COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS HAS ENTERED AN ORDER APPROVING SAME.

THERE WERE BEFORE FORMER COMPTROLLERS OF THE TREASURY IN 9 COMP. DEC. 121 AND 23 ID. 707, INSTANCES WHERE WITNESSES RESIDING OUTSIDE OF THE JUDICIAL DISTRICT HAD ATTENDED BEFORE A COMMISSIONER AND IT WAS THERE HELD THAT THE WITNESSES COULD BE PAID MILEAGE FOR THE DISTANCE TRAVELED WITHIN THE COMMISSIONER'S DISTRICT ONLY. SUCH CONCLUSIONS WERE BASED ON THE FACT THAT UNDER SECTION 1014, REVISED STATUTES, THE COMMISSIONER HAD NO AUTHORITY TO SUBPOENA A WITNESS RESIDING WITHOUT THE JUDICIAL DISTRICT FOR WHICH THE COMMISSIONER WAS APPOINTED. SEE UNITED STATES V. STERN, 177 FED.REP. 479. SAID DECISIONS ARE IN ACCORDANCE WITH THE LAW, BUT THEY DO NOT APPLY IN THIS CASE FOR THE REASON THAT THE ACTION TAKEN BY THE COMMISSIONER IN ISSUING THE SUBPOENA WAS SUBSEQUENTLY APPROVED BY AN ORDER ENTERED MAY 4, 1928, BY THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS; THAT IS, BY THE COURT OF WHICH THE COMMISSIONER WAS AN OFFICER.

UNDER SECTION 876, REVISED STATUTES, A SUBPOENA ISSUED BY A COURT IN ONE DISTRICT RUNS INTO ANY OTHER DISTRICT, AND WHILE THE PROPER PROCEDURE IN THIS CASE WOULD HAVE BEEN AN APPLICATION TO THE COURT FOR A SUBPOENA INSTEAD OF THE COMMISSIONER ATTEMPTING TO ISSUE ONE FOR THE ATTENDANCE OF A WITNESS OUTSIDE OF THE JUDICIAL DISTRICT, THE MATTER HAS BEEN PRESENTED TO THE COURT BY THE UNITED STATES ATTORNEY AND THE COURT HAS ENTERED AN APPROPRIATE ORDER AFFIRMING THE ACTION TAKEN AND APPROVING THE ALLOWANCE OF THE WITNESS FEE AND MILEAGE CLAIMED; SUCH ORDER IS EQUIVALENT TO A NUNC PRO TUNC APPROVAL OF THE SUBPOENA.

ACCORDINGLY THE CLAIMED ITEM OF $18.50 MILEAGE FROM THE HOME OF MR. BORGAARD TO THE OFFICE OF THE COMMISSIONER AND RETURN AND THE WITNESS FEE OF $1.50, OR $20, WILL BE ALLOWED.