A-23607, JULY 12, 1928, 8 COMP. GEN. 12

A-23607: Jul 12, 1928

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IT WAS SUGGESTED. THAT THE MATTER OF APPROVAL OF COMMISSIONERS' ACCOUNTS BY THE COURT BE ELIMINATED FOR THE REASON THAT THE COMMISSIONER IS AN OFFICER OF THE COURT AND THAT THE PRACTICE AND PROCEDURE OF HIS OFFICE UPON WHICH THE RIGHT TO FEES DEPEND ARE. CONSEQUENTLY THE COURT'S KNOWLEDGE OF WHETHER THE COMMISSIONER HAS PROPERLY PERFORMED THE SERVICE SO AS TO ENTITLE TO THE FEE IS. IS: * * * THAT NOT MORE THAN ONE PER DIEM SHALL BE ALLOWED IN A CASE. WHEN ONE ADDITIONAL PER DIEM MAY BE SPECIALLY APPROVED AND ALLOWED BY THE COURT. * * * IT IS REPORTED THAT MANY OF THE ACCOUNTS OF COMMISSIONERS CONTAIN CASES IN WHICH MORE THAN ONE PER DIEM IS CHARGED AND IT IS SUGGESTED THAT IF IT BE HELD THE ACT OF MAY 29.

A-23607, JULY 12, 1928, 8 COMP. GEN. 12

COMMISSIONERS, UNITED STATES - FEES - SECOND PER DIEMS FOR HEARINGS THE ACT OF MAY 29, 1928, 45 STAT. 998, HAS THE EFFECT OF REPEALING THE REQUIREMENT IN THE ACT OF MAY 28, 1896, 29 STAT. 185, THAT SECOND PER DIEMS CLAIMED BY A UNITED STATES COMMISSIONER SHOULD BE SPECIALLY APPROVED AND ALLOWED BY THE COURT. HEREAFTER, SUCH SECOND PER DIEM CLAIMS SHOULD BE SUPPORTED BY STATEMENTS FROM THE COMMISSIONER AND THE UNITED STATES ATTORNEY AS TO WHY THE HEARINGS COULD NOT BE COMPLETED IN ONE DAY AND SHOULD BEAR THE ADMINISTRATIVE APPROVAL OF THE DEPARTMENT OF JUSTICE WHEN TRANSMITTED TO THE GENERAL ACCOUNTING OFFICE FOR SETTLEMENT.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, JULY 12, 1928:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 3, 1928, IN REFERENCE TO THE ACT OF MAY 28, 1896, 29 STAT. 185, AND TO THE ACT OF MAY 29, 1928, 45 STAT. 998, WHEREIN YOU REQUEST DECISION WHETHER MORE THAN ONE PER DIEM CLAIMED IN ACCOUNTS OF COMMISSIONERS SHOULD BE SUBMITTED TO THE COURT FOR SPECIAL APPROVAL AND ALLOWANCE.

IT APPEARS THAT BY LETTER DATED APRIL 30, 1927 (A-17824), THIS OFFICE INVITED YOUR ATTENTION TO THE PRACTICE OF UNITED STATES MARSHALS OF REQUIRING PAYEES OF PUBLIC VOUCHER TO RECEIPT A DUPLICATE AS WELL AS THE ORIGINAL VOUCHER, AND OF THE PRACTICE OF MARSHALS TO SWEAR TO THE CORRECTNESS OF THE ACCOUNTS IN OPEN COURT, AND THE RETENTION OF DUPLICATES OF ACCOUNTS AND VOUCHERS BY THE CLERK OF THE COURT. IT WAS SUGGESTED, FOR YOUR CONSIDERATION, THE QUESTION OF SECURING REMEDIAL LEGISLATION IN THE MATTER, AND BY LETTER DATED OCTOBER 7, 1927, YOU SUBMITTED A DRAFT OF THE BILL. BY LETTER OF DECEMBER 7, 1927, YOU SUBMITTED A DRAFT OF THE BILL. BY LETTER OF DECEMBER 7, 1927, ADDRESSED TO THE CHAIRMAN OF THE COMMITTEE ON THE JUDICIARY, HOUSE OF REPRESENTATIVES, YOU FORWARDED A DRAFT OF THE BILL RECOMMENDING ITS ENACTMENT, AND THIS DRAFT CONTAINED A PROVISION FOR THE ELIMINATION OF APPROVAL OF THE ACCOUNTS OF MARSHALS AND OF UNITED STATES COMMISSIONERS BY THE APPROPRIATE COURTS. SEE H.R. 272, 70TH CONG., 1ST SESS. AS FINALLY ENACTED, THE BILL AMENDED SECTION 1 OF THE ACT OF FEBRUARY 22, 1875, 18 STAT. 333, TO PROVIDE:

THAT THE ACCOUNT OF UNITED STATES MARSHALS, EXCEPT THE MARSHALS OF THE UNITED STATES COURTS IN CHINA AND THE CANAL ZONE, SHALL BE RENDERED QUARTERLY, UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE ATTORNEY GENERAL, AND TRANSMITTED TO THE ATTORNEY GENERAL WITHIN TWENTY DAYS AFTER THE CLOSE OF EACH QUARTER. THE SAID ACCOUNTS SHALL BE RENDERED IN DUPLICATE, BUT NO SIGNATURE SHALL BE REQUIRED ON THE DUPLICATE VOUCHERS. IT SHALL BE THE DUTY OF THE MARSHALL TO RETAIN IN HIS OFFICE THE DUPLICATE ACCOUNTS, WHERE THEY SHALL BE OPEN TO PUBLIC INSPECTION AT ALL TIMES. THE ACCOUNTS OF UNITED STATES COMMISSIONERS SHALL BE RENDERED QUARTERLY, IN DUPLICATE, UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE ATTORNEY GENERAL, AND TRANSMITTED TO THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT IN WHICH THE COMMISSIONER RESIDES, WHO SHALL FILE THE DUPLICATE IN HIS OFFICE AND TRANSMIT THE ORIGINAL TO THE ATTORNEY GENERAL. THE APPROVAL OF THE COURT AS TO THE ACCOUNTS OF MARSHALS AND COMMISSIONERS SHALL NOT BE REQUIRED.

THIS OFFICE DID NOT RECOMMEND IN ITS LETTER OF APRIL 30, 1927, THAT THE MATTER OF APPROVAL OF COMMISSIONERS' ACCOUNTS BY THE COURT BE ELIMINATED FOR THE REASON THAT THE COMMISSIONER IS AN OFFICER OF THE COURT AND THAT THE PRACTICE AND PROCEDURE OF HIS OFFICE UPON WHICH THE RIGHT TO FEES DEPEND ARE, TO A GREAT EXTENT, UNDER THE JURISDICTION AND DIRECTION OF THE COURT; CONSEQUENTLY THE COURT'S KNOWLEDGE OF WHETHER THE COMMISSIONER HAS PROPERLY PERFORMED THE SERVICE SO AS TO ENTITLE TO THE FEE IS, WHEN EXPRESSED BY THE COURT'S APPROVAL, THE BEST EVIDENCE OF THE RIGHT TO THE FEE.

THE PROVISO IN THE ACT OF MAY 28, 1896, 29 STAT. 185, IS:

* * * THAT NOT MORE THAN ONE PER DIEM SHALL BE ALLOWED IN A CASE, UNLESS THE ACCOUNT SHALL SHOW THAT THE HEARING COULD NOT BE COMPLETED IN ONE DAY, WHEN ONE ADDITIONAL PER DIEM MAY BE SPECIALLY APPROVED AND ALLOWED BY THE COURT. * * *

IT IS REPORTED THAT MANY OF THE ACCOUNTS OF COMMISSIONERS CONTAIN CASES IN WHICH MORE THAN ONE PER DIEM IS CHARGED AND IT IS SUGGESTED THAT IF IT BE HELD THE ACT OF MAY 29, 1928, HAD THE EFFECT OF IMPLIEDLY REPEALING THE REQUIREMENT IN THE ACT OF MAY 28, 1896, FOR THE ACCOUNT OF THE COMMISSIONER CLAIMING MORE THAN ONE PER DIEM TO BE SPECIALLY APPROVED AND ALLOWED BY THE COURT, INSTRUCTION WOULD BE ISSUED TO REQUIRE THE COMMISSIONER TO SHOW, WHERE MORE THAN ONE PER DIEM IS CHARGED, WHY THE HEARING COULD NOT BE COMPLETED IN ONE DAY, AND THAT THE ACCOUNT WILL BE EXAMINED AND APPROVED BY THE DEPARTMENT OF JUSTICE, AS HERETOFORE.

THERE IS A DOUBT WHETHER THE ACT OF MAY 29, 1928, WAS INTENDED TO REPEAL THE PROVISION IN THE ACT OF MAY 28, 1896, REQUIRING MORE THAN ONE PER DIEM CLAIMED IN A CASE BY A COMMISSIONER TO BE SPECIALLY APPROVED AND ALLOWED BY THE COURT. SEE LOISEL V. MORTIMER, 277 FED. REP. 882. HOWEVER, IN VIEW OF THE HISTORY OF THE LEGISLATION AND THE REMEDIAL PURPOSE TO BE SERVED THEREBY IN RELIEVING THE JUDGES OF THE FEDERAL COURTS OF THE DUTY OF EXAMINING AND APPROVING THESE ACCOUNTS, I FEEL JUSTIFIED IN CONCLUDING THAT A SECOND PER DIEM CLAIMED BY A COMMISSIONER NEED NOT BE APPROVED AND ALLOWED BY THE COURT, PROVIDED THE CLAIM OF THE COMMISSIONER FOR THE SECOND PER DIEM IS SUPPORTED BY A DETAILED STATEMENT AS TO THE REASONS WHY THE HEARING COULD NOT BE COMPLETED IN ONE DAY AND WHEN SUCH STATEMENT IS SUPPORTED BY A SIMILAR STATEMENT FROM THE UNITED STATES ATTORNEY, AND SUPPLEMENTED BY THE ADMINISTRATIVE APPROVAL OF THE DEPARTMENT OF JUSTICE.