A-24228, AUGUST 24, 1928, 8 COMP. GEN. 91

A-24228: Aug 24, 1928

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UNITED STATES - FEES - PAUPER OATHS UNITED STATES COMMISSIONERS ARE ENTITLED TO THE PRESCRIBED FEES FOR CONDUCTING EXAMINATIONS AND ADMINISTERING OATHS UNDER SECTION 1042. WHERE THE PRISONER HAS SERVED ALL OR A PART OF THE PRESCRIBED 30 DAYS UNDER PAROLE THE SAME AS WHERE THE ENTIRE 30 DAYS WAS SERVED IN ACTUAL CONFINEMENT. WHEREIN WERE SUSPENDED TWO ITEMS OF $3 EACH. THE QUESTION INVOLVED IS WHETHER THE FACTS IN THE TWO CASES WERE SUCH AS TO GIVE THE COMMISSIONER JURISDICTION TO CONDUCT THE HEARINGS AND ADMINISTER THE OATHS FOR WHICH THE FEES WERE CLAIMED. IT APPEARS THAT GROSS WAS SENTENCED TO BE IMPRISONED FOR A PERIOD OF TWO YEARS AND TO PAY A FINE OF $10. HE WAS COMMITTED ON NOVEMBER 4.

A-24228, AUGUST 24, 1928, 8 COMP. GEN. 91

COMMISSIONERS, UNITED STATES - FEES - PAUPER OATHS UNITED STATES COMMISSIONERS ARE ENTITLED TO THE PRESCRIBED FEES FOR CONDUCTING EXAMINATIONS AND ADMINISTERING OATHS UNDER SECTION 1042, REVISED STATUTES, WHERE THE PRISONER HAS SERVED ALL OR A PART OF THE PRESCRIBED 30 DAYS UNDER PAROLE THE SAME AS WHERE THE ENTIRE 30 DAYS WAS SERVED IN ACTUAL CONFINEMENT.

DECISION BY COMPTROLLER GENERAL MCCARL, AUGUST 24, 1928:

REVIEW HAS BEEN REQUESTED OF SETTLEMENT NO. 0144922, DATED FEBRUARY 10, 1927, WHEREIN WERE SUSPENDED TWO ITEMS OF $3 EACH, AS FEES CLAIMED BY GARRETT W. COTTER, UNITED STATES COMMISSIONER FOR THE SOUTHERN DISTRICT OF NEW YORK, FOR THE SEPTEMBER QUARTER 1926, AS FEES FOR CONDUCTING HEARINGS AND ADMINISTERING OATHS TO GROSS AND AHEARN, POOR CONVICTS. THE QUESTION INVOLVED IS WHETHER THE FACTS IN THE TWO CASES WERE SUCH AS TO GIVE THE COMMISSIONER JURISDICTION TO CONDUCT THE HEARINGS AND ADMINISTER THE OATHS FOR WHICH THE FEES WERE CLAIMED.

IT APPEARS THAT GROSS WAS SENTENCED TO BE IMPRISONED FOR A PERIOD OF TWO YEARS AND TO PAY A FINE OF $10,000. HE WAS COMMITTED ON NOVEMBER 4, 1924. AHEARN WAS SENTENCED TO BE IMPRISONED FOR ONE YEAR AND SIX MONTHS ON APRIL 3, 1925, AND TO PAY A FINE OF $2,000. EACH OF THESE MEN WAS PAROLED UNDER THE ACT OF JUNE 25, 1910, 36 STAT. 819, AS AMENDED BY THE ACT OF JANUARY 23, 1913, 3 STAT. 650, WHICH PROVIDES THAT IF, IN THE OPINION OF THE BOARD OF PAROLE, THE RELEASE OF A PRISONER FROM CONFINEMENT IS NOT INCOMPATIBLE WITH THE WELFARE OF SOCIETY---

* * * THEN SAID BOARD OF PAROLE MAY IN ITS DISCRETION AUTHORIZE THE RELEASE OF SUCH APPLICANT ON PAROLE, AND HE SHALL BE ALLOWED TO GO ON PAROLE OUTSIDE OF SAID PRISON, AND, IN THE DISCRETION OF THE BOARD, TO RETURN TO HIS HOME, UPON SUCH TERMS AND CONDITIONS, INCLUDING PERSONAL REPORTS FROM SUCH PAROLED PERSON, AS SAID BOARD OF PAROLE SHALL PRESCRIBE, AND TO REMAIN, WHILE ON PAROLE, IN THE LEGAL CUSTODY AND UNDER THE CONTROL OF THE WARDEN OF SUCH PRISON FROM WHICH PAROLED, AND UNTIL THE EXPIRATION OF THE TERM OR TERMS SPECIFIED IN HIS SENTENCE, LESS SUCH GOOD TIME ALLOWANCE AS IS OR MAY HEREAFTER BE PROVIDED FOR BY ACT OF CONGRESS; AND THE SAID BOARD SHALL, IN EVERY PAROLE, FIX THE LIMITS OF THE RESIDENCE OF THE PERSON PAROLED, WHICH LIMITS MAY THEREAFTER BE CHANGED IN THE DISCRETION OF THE BOARD: PROVIDED, THAT NO RELEASE ON PAROLE SHALL BECOME OPERATIVE UNTIL THE FINDINGS OF THE BOARD OF PAROLE UNDER THE TERMS HEREOF SHALL HAVE BEEN APPROVED BY THE ATTORNEY GENERAL OF THE UNITED STATES.

THESE TWO MEN WERE ON PAROLE WHEN THEIR PERIOD OF CONFINEMENT EXPIRED AND THERE REMAINED THE QUESTION OF THE PAYMENT OF THEIR FINES. THEY ALLEGED THAT THEY WERE UNABLE TO PAY THE FINE AND APPEARED BEFORE COMMISSIONER COTTER, WHERE THEY WERE EXAMINED AND THE PAUPERS' OATH ADMINISTERED TO EACH OF THEM IN ACCORDANCE WITH THE TERMS OF SECTION 1042, REVISED STATUTES, AS FOLLOWS:

WHEN A POOR CONVICT, SENTENCED BY ANY COURT OF THE UNITED STATES TO PAY A FINE, OR FINE AND COST, WHETHER WITH OR WITHOUT IMPRISONMENT, HAS BEEN CONFINED IN PRISON THIRTY DAYS, SOLELY FOR THE NONPAYMENT OF SUCH FINE OR FINE AND COST, HE MAY MAKE APPLICATION IN WRITING TO ANY COMMISSIONER OF THE UNITED STATES COURT IN THE DISTRICT WHERE HE IS IMPRISONED, SETTING FORTH HIS INABILITY TO PAY SUCH FINE, OR FINE AND COST, AND AFTER NOTICE TO THE DISTRICT ATTORNEY OF THE UNITED STATES, WHO MAY APPEAR, OFFER EVIDENCE, AND BE HEARD, THE COMMISSIONER SHALL PROCEED TO HEAR AND DETERMINE THE MATTER; AND IF ON EXAMINATION IT SHALL APPEAR TO HIM THAT SUCH CONVICT IS UNABLE TO PAY SUCH FINE, OR FINE AND COST, AND THAT HE HAS NOT ANY PROPERTY EXCEEDING TWENTY DOLLARS IN VALUE, EXCEPT SUCH AS IS BY LAW EXEMPT FROM BEING TAKEN ON EXECUTION FOR DEBT, THE COMMISSIONER SHALL ADMINISTER TO HIM THE FOLLOWING OATH * * *. AND THEREUPON SUCH CONVICT SHALL BE DISCHARGED, THE COMMISSIONER GIVING TO THE JAILER OR KEEPER OF THE JAIL A CERTIFICATE SETTING FORTH THE FACTS.

IT IS STATED THAT THE PAUPERS' OATH WAS ADMINISTERED TO EACH OF THESE MEN 30 DAYS AFTER THE PERIOD OF THEIR IMPRISONMENT HAD EXPIRED; THAT IS TO SAY, THEY CONTINUED ON PAROLE FOR 30 DAYS LONGER THAN THEIR TERMS OF CONFINEMENT AND THEN APPEARED BEFORE THE COMMISSIONER FOR EXAMINATION AND TAKING OF THE OATH IN ACCORDANCE WITH SECTION 1042, REVISED STATUTES.

THE APPLICATION OF THE PAROLE SYSTEM IN FEDERAL CRIMINAL JURISPRUDENCE IS OF COMPARATIVELY RECENT ORIGIN AND SUBSEQUENT TO SECTION 1042, REVISED STATUTES. SAID STATUTE, IN TERMS, CONTEMPLATES THAT A PRISONER IN CONFINEMENT SHALL CONTINUE TO SERVE FOR 30 DAYS AFTER THE TERMINATION OF THE PERIOD FIXED IN THE SENTENCE WHERE THERE IS A FINE AND INABILITY TO PAY SAME. AT THE EXPIRATION OF SAID ADDITIONAL 30 DAYS THE PRISONER MAY THEN APPEAR FOR HEARING BEFORE A COMMISSIONER, AND UPON IT BEING SHOWN THAT HE IS NOT POSSESSED OF PROPERTY IN EXCESS OF $20 IN VALUE, THE COMMISSIONER IS REQUIRED TO ADMINISTER THE OATH STATED IN THE STATUTE AND THE PRISONER IS THEREUPON DISCHARGED FROM THE CONFINEMENT. WHILE UNDER THE PAROLE ACT OF JUNE 25, 1901, AS AMENDED BY THE ACT OF JANUARY 23, 1913, THE PRISONER IS NOT IN ACTUAL CONFINEMENT WHILE ON PAROLE, HE IS NEVERTHELESS IN THE LEGAL CUSTODY AND UNDER THE CONTROL OF THE WARDEN OF THE PRISON FROM WHICH PAROLED UNTIL THE EXPIRATION OF THE TERM FIXED IN THE SENTENCE. IF THERE IS A FINE OR UNPAID COSTS AND THE PRISONER IS UNABLE TO PAY SUCH FINE OR COSTS, HE MUST REMAIN IN THE LEGAL CUSTODY AND UNDER THE CONTROL OF THE WARDEN FOR AN EXTRA 30 DAYS, AND, AT THE EXPIRATION OF SAID PERIOD, MAY APPEAR BEFORE THE COMMISSIONER FOR EXAMINATION AND THE TAKING OF THE PAUPERS' OATH.

IT IS CLEAR THAT THE COMMISSIONER IS ENTITLED TO THE PRESCRIBED FEE FOR THE HEARING AND ADMINISTERING OF AN OATH TO A PRISONER WHO HAS REMAINED IN CONFINEMENT FOR A PERIOD OF 30 DAYS AFTER THE EXPIRATION OF A SENTENCE AND WHO IS UNABLE TO PAY SUCH FINE AND/OR COST AS MAY BE A PART OF THE SENTENCE. IT IS NOW DISCLOSED THAT IT HAS BEEN THE PRACTICE AND PROCEDURE OF THE DEPARTMENT OF JUSTICE TO MAKE NO DISTINCTION, IN SO FAR AS THE APPLICATION OF THE PROVISIONS OF SECTION 1042, REVISED STATUTES, IS CONCERNED, BETWEEN PRISONERS IN ACTUAL CONFINEMENT AND PRISONERS ON PAROLE, AND I FEEL JUSTIFIED IN ACCEPTING AND CONCURRING IN THAT VIEW.

ACCORDINGLY, THE FEES CLAIMED IN THIS INSTANCE FOR SUCH HEARINGS AND ADMINISTERING OF OATHS WILL BE ALLOWED.