A-290, JULY 1, 1924, 4 COMP. GEN. 1

A-290: Jul 1, 1924

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UNITED STATES COMMISSIONERS - PER DIEM FEES FOR HEARING AND DECIDING SUBSEQUENT TO INDICTMENTS WHERE A PRISONER IS ARRAIGNED BEFORE A UNITED STATES COMMISSIONER AND HIS CASE CONTINUED UNTIL A SUBSEQUENT DATE. PRIOR TO WHICH DATE AN INDICTMENT IS RETURNED BY THE GRAND JURY. OR AN INFORMATION IS FILED IN THE DISTRICT COURT AND THE DEFENDANT ARRAIGNED BEFORE SAID COURT. THE COMMISSIONER'S JURISDICTION IS TERMINATED IN SO FAR AS SUBSEQUENT HEARINGS THAT WOULD ENTITLE HIM TO A PER DIEM FEE ARE CONCERNED. 1924: THERE HAVE BEEN RECEIVED YOUR LETTERS OF DECEMBER 10. DISALLOWING THE PER DIEM FEES CHARGED FOR HEARING AND DECIDING ON CRIMINAL CHARGES ON DATES SUBSEQUENT TO DATES INDICTMENTS WERE RETURNED BY THE GRAND JURY OR INFORMATION FILED IN THE CASES OF UNITED STATES V.

A-290, JULY 1, 1924, 4 COMP. GEN. 1

UNITED STATES COMMISSIONERS - PER DIEM FEES FOR HEARING AND DECIDING SUBSEQUENT TO INDICTMENTS WHERE A PRISONER IS ARRAIGNED BEFORE A UNITED STATES COMMISSIONER AND HIS CASE CONTINUED UNTIL A SUBSEQUENT DATE, PRIOR TO WHICH DATE AN INDICTMENT IS RETURNED BY THE GRAND JURY, OR AN INFORMATION IS FILED IN THE DISTRICT COURT AND THE DEFENDANT ARRAIGNED BEFORE SAID COURT, THE COMMISSIONER'S JURISDICTION IS TERMINATED IN SO FAR AS SUBSEQUENT HEARINGS THAT WOULD ENTITLE HIM TO A PER DIEM FEE ARE CONCERNED, AND ANY PER DIEM FEES CHARGED IN SUCH CASES AFTER THE RETURN OF THE INDICTMENT OR FILING OF INFORMATION MUST BE DISALLOWED.

COMPTROLLER GENERAL MCCARL TO J. B. WATERWORTH, UNITED STATES COMMISSIONER, JULY 1, 1924:

THERE HAVE BEEN RECEIVED YOUR LETTERS OF DECEMBER 10, 1923, AND JANUARY 26, 1924, REQUESTING REVIEW OF SETTLEMENTS NOS. 14232 AND 14233, DATED OCTOBER 2, 1923, DISALLOWING THE PER DIEM FEES CHARGED FOR HEARING AND DECIDING ON CRIMINAL CHARGES ON DATES SUBSEQUENT TO DATES INDICTMENTS WERE RETURNED BY THE GRAND JURY OR INFORMATION FILED IN THE CASES OF UNITED STATES V. WEIR, DECEMBER QUARTER, 1919; UNITED STATES V. PETRUS, MARCH QUARTER, 1920; AND UNITED STATES V. BARKER, SEPTEMBER QUARTER, 1920.

DECEMBER QUARTER, 1919

ITEM 1. PAGE 18. U.S. V. KENNETH D. WEIR, CHARGE FOR HEARING AND DECIDING ON CRIMINAL CHARGES DECEMBER 20, 1919 ---------------- $ 5.00

THE ITEM WAS DISALLOWED FOR THE REASON DEFENDANT WAS INDICTED BY THE GRAND JURY DECEMBER 5, 1919, AND CITING 24 COMP. DEC. 647.

AN EXAMINATION OF THE VOUCHER SHOWS THAT DEFENDANT WAS ARRAIGNED BEFORE YOU DECEMBER 1, 1919, AND THE HEARING CONTINUED UNTIL DECEMBER 20, 1919, UPON REQUEST OF THE UNITED STATES ATTORNEY TO ENABLE HIM TO OBTAIN EVIDENCE, AND A PER DIEM WAS CHARGED FOR EACH OF SAID DAYS.

IN YOUR LETTER OF DECEMBER 10, 1923, IT IS EXPLAINED THAT WHEN THE DEFENDANT APPEARED BEFORE YOU ON DECEMBER 20, 1919, INSTEAD OF DISCHARGING HIM YOU CONTINUED THE CASE UNTIL FEBRUARY 2, 1920, UPON REQUEST OF THE UNITED STATES DISTRICT ATTORNEY AND IN ACCORDANCE WITH THE ORDER OF THE DISTRICT COURT, AS SHOWN BY THE DOCKET IN SAID COURT IN CRIMINAL CASE NO. 4445. UNDER DATE OF APRIL 10, 1924, YOU WERE REQUESTED BY LETTER TO FURNISH COPY OF THE COURT'S ORDER IN EACH CASE WHICH DIRECTED YOU TO CONTINUE THE CASES AND TO PERFORM FURTHER SERVICE AFTER AN INDICTMENT HAD BEEN RETURNED BY THE GRAND JURY, AND FURTHER TO STATE IN DETAIL WHAT SERVICE YOU PERFORMED IN EACH CASE, AND TO FURNISH ANY OTHER INSTRUCTIONS YOU MAY HAVE RECEIVED FROM THE COURT OR DISTRICT ATTORNEY CONCERNING THE MATTER. TO DATE, NO RESPONSE HAS BEEN RECEIVED FROM YOU REGARDING THE MATTER AND THE CASE WILL BE CONSIDERED UPON THE EVIDENCE NOW APPEARING.

PARAGRAPH 1029 OF CURRENT INSTRUCTIONS PROVIDES AS FOLLOWS:

A COMMISSIONER IS NOT ENTITLED TO A PER DIEM FEE FOR HEARING AND DECIDING ON CRIMINAL CHARGES IN THE FOLLOWING INSTANCES:

(A) WHEN THE ONLY ACTION TAKEN IS TO ADMIT THE DEFENDANT TO BAIL FOR APPEARANCE BEFORE ANOTHER COMMISSIONER FOR HEARING. (SEE 2 COMP. (DEC.) 281.)

(B) MERELY FOR SERVICES RENDERED UNDER SECTION 1019, R.S.U.S., PRELIMINARY TO TAKING NEW BONDS OF DEFENDANTS WHO HAD PREVIOUSLY GIVEN BONDS FOR APPEARANCE IN COURT. (SEE 4 COMP. (DEC.) 465.)

(C) FOR DECIDING ONLY, ON THE SECOND DAY, A CASE IN WHICH THE HEARING HAD BEEN FULLY COMPLETED ON THE FIRST DAY. (SEE 4 COMP. (DEC.) 472.)

(D) MERELY FOR TAKING BONDS OF DEFENDANTS UNDER INDICTMENT. (SEE 18 COMP. (DEC.) 444.)

(E) WHEN THE ONLY SERVICE WAS THE TAKING AND CERTIFYING OF DEPOSITIONS.

SECTION 21 OF THE ACT APPROVED MAY 28, 1896, 29 STAT. 184, PROVIDES IN PART AS FOLLOWS:

FOR HEARING AND DECIDING ON CRIMINAL CHARGES AND REDUCING THE TESTIMONY TO WRITING WHEN REQUIRED BY LAW OR ORDER OF COURT, FIVE DOLLARS A DAY FOR THE TIME NECESSARILY EMPLOYED: PROVIDED, 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 SPECIFICALLY APPROVED AND ALLOWED BY THE COURT: PROVIDED FURTHER, THAT NOT MORE THAN ONE PER DIEM SHALL BE ALLOWED FOR ANY ONE DAY: * * *.

THIS SECTION HAS BEEN CONSTRUED IN A DECISION BY THIS OFFICE UNDER DATE OF MAY 5, 1924, 3 COMP. GEN. 831, AS FOLLOWS:

THE ALLOWANCE OF THE SECOND PER DIEM IN ANY CASE MAY BE MADE ONLY AFTER FINAL HEARING AND DECIDING. WHERE A CASE IS CONTINUED SEVERAL TIMES AND THE FACTS ESTABLISHED JUSTIFY THE ALLOWANCE OF TWO PER DIEMS UNDER THE LAW, THE PER DIEM SHOULD BE CHARGED ONLY FOR THE DAY OF ARRAIGNMENT AND FOR THE DAY THE CASE IS FINALLY DISPOSED OF. NO PER DIEM IS ALLOWABLE FOR INTERVENING DAYS. IN CASES WHERE THE COURT ASSUMES JURISDICTION OF THE CASE PRIOR TO THE DATE SET FOR THE FINAL HEARING BEFORE THE COMMISSIONER, NO SECOND PER DIEM IS ALLOWABLE. TO ENTITLE A COMMISSIONER TO A PER DIEM FOR A SECOND HEARING, THERE MUST BE A FINAL HEARING AND DECIDING ON CRIMINAL CHARGES, AND THE TESTIMONY REDUCED TO WRITING WHEN REQUIRED BY LAW OR ORDER OF COURT.

THE FACTS APPEARING ARE THAT ON DECEMBER 1 DEFENDANT WAS ARRAIGNED BEFORE YOU FOR A HEARING, AND THE CASE CONTINUED TO DECEMBER 20, 1919. DECEMBER 5, 1919, AN INDICTMENT WAS RETURNED BY THE GRAND JURY HOLDING THE DEFENDANT TO ANSWER TO THE COURT AND THEREBY TERMINATING YOUR JURISDICTION IN SO FAR AS SUBSEQUENT HEARINGS SUCH AS WOULD ENTITLE YOU TO FEES THEREFOR WERE CONCERNED. ALL THAT REMAINED FOR YOU TO DO AT THE POSTPONED DATE WAS TO FORMALLY CLOSE YOUR DOCKET, NOTING THE FACT THEREON THAT AN INDICTMENT HAD BEEN RETURNED BY THE GRAND JURY DECEMBER 5, 1919, FOR WHICH SERVICE YOU WERE NOT ENTITLED TO THE PER DIEM FEE. THE DISALLOWANCE IS SUSTAINED.

MARCH QUARTER, 1920

ITEM 2. PAGE 2. UNITED STATES V. PRANK PETRUS. CHARGE FOR A PER

DIEM FOR HEARING AND DECIDING ON CRIMINAL CHARGES FEBRUARY 12,

1920 ----------------------------------------------------- $ 5.00

THE ITEM WAS DISALLOWED FOR THE REASON DEFENDANT WAS INDICTED BY THE GRAND JURY JANUARY 20, 1920.

AN EXAMINATION OF THE VOUCHER SHOWS DEFENDANT ARRESTED AND ARRAIGNED BEFORE YOU JANUARY 12. NO PER DIEM CHARGED IN THIS CASE FOR SAID DAY FOR THE REASON A PER DIEM FOR JANUARY 12 WAS CHARGED ON PAGE 1 OF YOUR ACCOUNT IN THE CASE OF UNITED STATES V. STEVE SKERDA. THE CASE WAS CONTINUED TO FEBRUARY 12, BUT AS AN INDICTMENT HAD BEEN RETURNED BY THE GRAND JURY JANUARY 20, ALL THAT REMAINED TO BE DONE ON FEBRUARY 12 WAS TO FORMALLY CLOSE YOUR DOCKET, FOR WHICH SERVICE NO PER DIEM IS ALLOWABLE. THE DISALLOWANCE IS SUSTAINED.

SEPTEMBER QUARTER, 1920

ITEM 3. PAGE 3. UNITED STATES V. PAUL BARBER. CHARGE FOR PER DIEM

FOR HEARING AND DECIDING ON CRIMINAL CHARGES SEPTEMBER 3,

1920 ------------------------------------------------------ $ 5.00

THE ITEM WAS DISALLOWED FOR THE REASON INFORMATION FILED IN THE DISTRICT COURT AND DEFENDANT ARRAIGNED IN COURT AND PLEADED GUILTY AUGUST 28, 1920.

THE VOUCHER SHOWS THAT THE DEFENDANT WAS ARRESTED AND ARRAIGNED BEFORE YOU AUGUST 3. NO PER DIEM WAS CHARGED IN THIS CASE FOR THAT DATE FOR THE REASON A PER DIEM WAS CHARGED ON PAGE 2 OF YOUR ACCOUNT FOR SAID DATE IN THE CASE OF UNITED STATES V. SAMUEL BERGER. THE CASE WAS CONTINUED TO SEPTEMBER 3, 1920, BUT AS AN INFORMATION HAD BEEN FILED IN THE DISTRICT COURT AUGUST 28, AND THE DEFENDANT APPEARED IN SAID COURT AND PLEADED GUILTY TO THE CHARGE AND WAS HELD TO ANSWER TO THE COURT, THERE COULD HAVE BEEN NO "HEARING AND DECIDING" BY YOU ON SEPTEMBER 3, 1920. THE DISALLOWANCE IS SUSTAINED.