A-24549, OCTOBER 9, 1928, 8 COMP. GEN. 167

A-24549: Oct 9, 1928

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BEFORE 30 DAYS HAVE BEEN SERVED BY A POOR CONVICT FOR THE NONPAYMENT OF A FINE. IF THE HEARING IS NOT HELD OR THE PRISONER RELEASED BEFORE THE 30 DAYS HAVE EXPIRED. IN CASES IN WHICH APPLICATIONS WERE MADE AND THE DISTRICT ATTORNEY NOTIFIED BEFORE THE FULL 30 DAYS HAD BEEN SERVED BY THE PRISONERS FOR NONPAYMENT OF FINES. BEFORE 30 DAYS HAVE BEEN SERVED BY A POOR CONVICT DOES NOT INVALIDATE THE PROCEEDINGS UNDER SECTION 1042. IF THE HEARING IS NOT HELD OR THE PRISONER RELEASED BEFORE THE 30 DAYS HAVE EXPIRED.'. HERETOFORE THE DISTRICT ATTORNEY HAS BEEN NOTIFIED BEFORE THE 30 DAYS WERE UP AND PRISONERS RELEASED AT THAT TIME AND THE COMMISSIONERS HAVE ALWAYS BEEN PAID WITHOUT ANY QUESTION BEING RAISED.

A-24549, OCTOBER 9, 1928, 8 COMP. GEN. 167

UNITED STATES COMMISSIONERS - FEES FOR HEARINGS UNDER SECTION 1042, REVISED STATUTES THE FILING OF AN APPLICATION FOR RELEASE AND NOTICE TO THE DISTRICT ATTORNEY, BEFORE 30 DAYS HAVE BEEN SERVED BY A POOR CONVICT FOR THE NONPAYMENT OF A FINE, DO NOT INVALIDATE THE PROCEEDINGS UNDER SECTION 1042, REVISED STATUTES, IF THE HEARING IS NOT HELD OR THE PRISONER RELEASED BEFORE THE 30 DAYS HAVE EXPIRED.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 9, 1928:

JOHN E. MCCALL, UNITED STATES COMMISSIONER, HAS REQUESTED REVIEW OF SETTLEMENT OF JULY 23, 1928, IN SO FAR AS IT DISALLOWED HIS CLAIM FOR FEES FOR 71 HEARINGS CONDUCTED UNDER SECTION 1042, REVISED STATUTES, IN CASES IN WHICH APPLICATIONS WERE MADE AND THE DISTRICT ATTORNEY NOTIFIED BEFORE THE FULL 30 DAYS HAD BEEN SERVED BY THE PRISONERS FOR NONPAYMENT OF FINES.

IN SUPPORT OF THE REQUEST FOR REVIEW, THE COMMISSIONER STATES:

IN INSTRUCTIONS TO UNITED STATES COMMISSIONERS IT SAYS THAT THE "FILING OF AN APPLICATION FOR RELEASE AND NOTICE TO THE DISTRICT ATTORNEY, BEFORE 30 DAYS HAVE BEEN SERVED BY A POOR CONVICT DOES NOT INVALIDATE THE PROCEEDINGS UNDER SECTION 1042, REVISED STATUTES, IF THE HEARING IS NOT HELD OR THE PRISONER RELEASED BEFORE THE 30 DAYS HAVE EXPIRED.'

HERETOFORE THE DISTRICT ATTORNEY HAS BEEN NOTIFIED BEFORE THE 30 DAYS WERE UP AND PRISONERS RELEASED AT THAT TIME AND THE COMMISSIONERS HAVE ALWAYS BEEN PAID WITHOUT ANY QUESTION BEING RAISED.

IT WOULD BE UNFAIR TO PRISONERS AT A DISTANCE FROM THE OFFICE OF THE DISTRICT ATTORNEY TO BE HELD MORE THAN 30 DAYS SO THAT HE COULD BE NOTIFIED WHILE PRISONERS IN JAIL IN THE SAME TOWN WHERE THE DISTRICT ATTORNEY HAS HIS OFFICE COULD BE RELEASED PROMPTLY AT THE EXPIRATION OF 30 DAYS. FOR INSTANCE, A PRISONER IN THE PIKE COUNTY JAIL WOULD HAVE TO STAY IN JAIL ABOUT 5 DAYS OVER THE 30 DAYS SO THAT THE DISTRICT ATTORNEY COULD BE NOTIFIED AND AT THE EXPENSE OF 75 CENTS PER DAY TO THE GOVERNMENT WHILE A PRISONER IN COVINGTON, KY. WOULD BE TURNED OUT IN 30 BECAUSE THE U.S. COMMISSIONER'S OFFICE IS IN THE SAME BUILDING AS THE U.S. ATTORNEY.

SECTION 1042, REVISED STATUTES, PROVIDES:

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: "I DO SOLEMNLY SWEAR THAT I HAVE NOT ANY PROPERTY, REAL OR PERSONAL, TO THE AMOUNT OF TWENTY DOLLARS, EXCEPT SUCH AS IS BY LAW EXEMPT FROM BEING TAKEN ON CIVIL PRECEPT FOR DEBT BY THE LAWS OF (STATE WHERE OATH IS ADMINISTERED); AND THAT I HAVE NO PROPERTY IN ANY WAY CONVEYED OR CONCEALED, OR IN ANY WAY DISPOSED OF, FOR MY FUTURE USE OR BENEFIT. SO HELP ME GOD.' AND THEREUPON SUCH CONVICT SHALL BE DISCHARGED, THE COMMISSIONER GIVING TO THE JAILER OR KEEPER OF THE JAIL A CERTIFICATE SETTING FORTH THE FACTS.

WHILE THIS SECTION APPEARS TO CONTEMPLATE THAT THE PRISONER SHALL HAVE SERVED THE FULL PERIOD OF 30 DAYS FOR NONPAYMENT OF FINE BEFORE HE SHALL BE PERMITTED TO MAKE APPLICATION FOR HIS RELEASE, SUCH A PROCEDURE, IF STRICTLY ENFORCED, WOULD UNDOUBTEDLY RESULT IN SOME PRISONERS SERVING MUCH LONGER PERIODS THAN OTHERS. THIS INEQUALITY IS OBVIATED, AND THE STATUTE SUBSTANTIALLY COMPLIED WITH, IF THE HEARINGS ARE NOT HELD OR THE PRISONER RELEASED BEFORE THE FULL 30 DAYS HAVE BEEN SERVED FOR NONPAYMENT OF FINE, NOTWITHSTANDING THAT THE APPLICATION AND NOTICE TO THE DISTRICT ATTORNEY WERE FILED BEFORE THE EXPIRATION OF THE THIRTY-DAY PERIOD. UNDER THE CIRCUMSTANCES, THIS OFFICE WILL NOT DISALLOW THE AUTHORIZED FEE FOR HEARINGS IN SUCH CASES MERELY BECAUSE THE APPLICATION AND THE NOTICE TO THE DISTRICT ATTORNEY WERE NOT WITHHELD UNTIL THE FULL 30 DAYS HAD EXPIRED. 3 COMP. GEN. 835; A-581, JULY 29, 1924; A-3900, AUGUST 12, 1924.

IT APPEARS THAT ALL OF THE PRISONERS INVOLVED IN THIS SETTLEMENT HAD SERVED THE FULL 30 DAYS BEFORE THE FINAL HEARING AND BEFORE THEIR RELEASE.