A-29945, JANUARY 17, 1930, 9 COMP. GEN. 296

A-29945: Jan 17, 1930

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THE ADDITIONAL PER DIEM AUTHORIZED BY STATUTE IN SUCH CASES MAY BE ALLOWED FOR THE DAY THE CASE IS FINALLY DECIDED. THEN FOR ANY INTERVENING HEARING DAY ON WHICH A MOTION FOR A CONTINUANCE WAS GRANTED. PROVIDED A PER DIEM IS NOT ALLOWED FOR SUCH INTERVENING DAY IN SOME OTHER CASE. SUCH SECOND PER DIEM MAY NOT BE CLAIMED IN ANY CASE UNTIL THE CASE IS FINALLY DECIDED. THE FIRST PER DIEM IS TO BE CHARGED ONLY FOR THE DAY OF ARRAIGNMENT. NOT MORE THAN ONE PER DIEM MAY BE ALLOWED IN ANY CASE IF FOR THE DAY OF ARRAIGNMENT IN SAID CASE A PER DIEM IS ALLOWED IN SOME OTHER CASE. TO THE DAY WHEN FINAL DISPOSITION IS MADE OF A CASE. IS 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.

A-29945, JANUARY 17, 1930, 9 COMP. GEN. 296

UNITED STATES COMMISSIONERS - FEES - PER DIEMS WHERE THE ACCOUNT OF A UNITED STATES COMMISSIONER SHOWS THE HEARING ON CRIMINAL CHARGES COULD NOT BE COMPLETED IN ONE DAY, THE ADDITIONAL PER DIEM AUTHORIZED BY STATUTE IN SUCH CASES MAY BE ALLOWED FOR THE DAY THE CASE IS FINALLY DECIDED, OR IF A PER DIEM BE ALLOWED IN SOME OTHER CASE FOR SAID DAY, THEN FOR ANY INTERVENING HEARING DAY ON WHICH A MOTION FOR A CONTINUANCE WAS GRANTED, PROVIDED A PER DIEM IS NOT ALLOWED FOR SUCH INTERVENING DAY IN SOME OTHER CASE. SUCH SECOND PER DIEM MAY NOT BE CLAIMED IN ANY CASE UNTIL THE CASE IS FINALLY DECIDED. THE FIRST PER DIEM IS TO BE CHARGED ONLY FOR THE DAY OF ARRAIGNMENT, AS HERETOFORE, AND NOT MORE THAN ONE PER DIEM MAY BE ALLOWED IN ANY CASE IF FOR THE DAY OF ARRAIGNMENT IN SAID CASE A PER DIEM IS ALLOWED IN SOME OTHER CASE. PREVIOUS DECISIONS MODIFIED, EFFECTIVE FEBRUARY 1, 1930

DECISION BY COMPTROLLER GENERAL MCCARL, JANUARY 17, 1930:

UNITED STATES COMMISSIONER FREDERICK W. GAINES, TOLEDO, OHIO, IN CONNECTION WITH THE SETTLEMENT OF HIS FEE ACCOUNTS, HAS OBJECTED TO THE RULE RESTRICTING THE ALLOWANCE OF A SECOND PER DIEM OF $5, FOR HEARING AND DECIDING ON CRIMINAL CHARGES, TO THE DAY WHEN FINAL DISPOSITION IS MADE OF A CASE.

SECTION 21 OF THE ACT OF MAY 28, 1896, 29 STAT. 184, FIXING THE FEES TO BE ALLOWED UNITED STATES COMMISSIONERS, IS 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 SPECIALLY APPROVED AND ALLOWED BY THE COURT: PROVIDED FURTHER, THAT NOT MORE THAN ONE PER DIEM SHALL BE ALLOWED FOR ANY ONE DAY: * * *

THIS PROVISION HAS BEEN INTERPRETED AND THE RULE ESTABLISHED FOR YEARS THAT A COMMISSIONER IS ENTITLED TO ONE PER DIEM OF $5 IN A CASE FOR THE FIRST DAY A PRISONER IS BROUGHT BEFORE HIM FOR A HEARING ON CRIMINAL CHARGES, THAT IS, FOR THE DAY OF ARRAIGNMENT, IF A PER DIEM IS NOT CHARGED IN SOME OTHER CASE FOR THAT DAY, AND, IF THE ACCOUNT SHOWS THAT THE HEARING COULD NOT BE COMPLETED ON THAT DAY, TO A SECOND PER DIEM OF $5 FOR THE DAY WHEN HE FINALLY DISPOSES OF THE CASE, IF A PER DIEM IS NOT CHARGED IN SOME OTHER CASE FOR THAT DAY, BUT THAT A PER DIEM IS NOT ALLOWABLE UNDER ANY CIRCUMSTANCES FOR ANY INTERVENING HEARINGS HAD ON THE CASE. COMP. GEN. 831, 953, 971, 991; 4 COMP. GEN. 1; PAR. 1622, INSTRUCTIONS TO UNITED STATES COMMISSIONERS, OCTOBER 1, 1929.

COMMISSIONER GAINES OBJECTS THAT THE STATUTE DOES NOT RESTRICT ALLOWANCE OF THE SECOND PER DIEM TO THE DAY OF FINAL DISPOSITION OF THE CASE AND CONTENDS THAT WHERE A CASE IS CONTINUED SEVERAL TIMES THE PER DIEMS SHOULD BE ALLOWED FOR THE FIRST AND SECOND DAYS OR THE FIRST AND THIRD DAYS OR THE FIRST AND FOURTH DAYS, ETC., WHERE MOTIONS FOR CONTINUANCE ARE ALLOWED ON SUCH INTERVENING DAYS, INSTEAD OF NECESSARILY FOR THE FIRST AND LAST DAYS, CITING IN THIS CONNECTION UNITED STATES V. JONES. 134 U.S. 483, WHERE IT WAS HELD THAT IN DECIDING MOTIONS FOR CONTINUANCE A UNITED STATES COMMISSIONER EXERCISED A JUDICIAL AND NOT MERELY A MINISTERIAL FUNCTION, AND THAT HE WAS ENTITLED TO PER DIEM FEES FOR THE DAYS ON WHICH SUCH MOTIONS WERE DECIDED. THIS OBJECTION, WITHOUT MORE, DOES NOT APPEAR VALID, FOR THE REASON THAT THE STATUTE, SUPRA, NOW IN EFFECT, WAS ENACTED AFTER THE DECISION CITED, AND RESTRICTED THE ALLOWANCE OF PER DIEMS TO ONE AND, UNDER CERTAIN CONDITIONS, TWO IN A CASE WHEREAS THE STATUTE CONSIDERED IN SAID DECISION, SECTION 847, REVISED STATUTES, AUTHORIZED PER DIEMS "FOR THE TIME NECESSARILY EMPLOYED," WITHOUT RESTRICTION AS TO THE NUMBER WHICH MIGHT BE ALLOWED IN ONE CASE. THE DECISION IS AUTHORITY FOR THE PROPOSITION THAT PASSING ON A MOTION FOR CONTINUANCE BY A COMMISSIONER IS A JUDICIAL FUNCTION BUT NOT THAT HE IS ENTITLED TO A PER DIEM THEREFOR UNDER A SUBSEQUENTLY ENACTED STATUTE RESTRICTING THE ALLOWANCE OF PER DIEMS IN SUCH CASES.

THE RULE THAT THE SECOND PER DIEM IS ALLOWABLE ONLY FOR THE DAY OF FINAL DISPOSITION OF THE CASE WAS BASED ON THE FACT THAT UNDER THE PROVISIONS OF THE STATUTE THE PER DIEM IS FOR "HEARING AND DECIDING" THE CRIMINAL CHARGES, ETC., SO THAT THE RIGHT TO THE FEE DOES NOT ATTACH UNTIL THE CASE IS DECIDED; THAT IS, UNTIL THE DAY OF FINAL DISPOSITION.

BUT A MORE SERIOUS OBJECTION TO THE RULE IS ADVANCED BY COMMISSIONER GAINES. HE SAYS:

* * * IT ALSO FREQUENTLY OCCURS THAT A CASE WOULD BE SET FOR HEARING ON A CERTAIN DATE AND THE COMMISSIONER WOULD KEEP THE DATE OPEN FOR SUCH HEARING AND WOULD BE ADVISED AT THE HOUR OF HEARING THAT THE UNITED STATES WITNESSES HAD BEEN SENT SOMEWHERE ELSE ON A RAID OR HAD FOR SOME OTHER CAUSE FAILED TO APPEAR AND A MOTION WOULD BE INTERPOSED FOR FURTHER TIME TO OBTAIN WITNESSES. IF THE COMMISSIONER PROCEEDS TO DO JUSTICE AND GRANT THE MOTION, IN THE COMPTROLLER'S RULING HE IS NOT ENTITLED TO FEES. IF HE REFUSES THE MOTION AND DISCHARGES THE DEFENDANT, ACCORDING TO THE COMPTROLLER'S RULING HE WOULD BE ENTITLED TO A PER DIEM. * * *

IT COULD HAVE BEEN ADDED THAT A PRISONER'S MOTION FOR CONTINUANCE MIGHT BE UNJUSTLY DENIED AND THE PRISONER HELD FOR COURT IN ORDER FOR THE COMMISSIONER TO SECURE THE $5 PER DIEM FOR A DISPOSITION OF THE CASE ON THAT DAY. THIS IS A MOST SERIOUS AND FUNDAMENTAL OBJECTION TO THE RULE. FOR A JUDICIAL OFFICER TO HAVE A DIRECT SUBSTANTIAL PECUNIARY INTEREST IN DECIDING EITHER ONE WAY OR ANOTHER A MATTER INVOLVING HIS JUDGMENT AND DISCRETION IS A DENIAL OF DUE PROCESS OF LAW. TUMEY V. OHIO, 273 U.S. 510. THE SUPREME COURT SAID IN UNITED STATES V. JONES,134 U.S. 483, 487, RELATIVE TO HEARINGS BEFORE A UNITED STATES COMMISSIONER:

* * * WITH RESPECT TO MOTIONS FOR CONTINUANCE, THE GRANTING OR REFUSAL OF THEM IS UNQUESTIONABLY A NECESSARY INCIDENT TO, AND A PART OF, THE HEARING AND DETERMINING OF CRIMINAL CHARGES; AND THE EXERCISE OF THAT POWER IN SUCH CRIMINAL PROCEEDINGS IS INDISPENSABLE TO THE RIGHT OF THE ACCUSED TO HAVE A FAIR AND FULL INVESTIGATION OF THE OFFENSE CHARGED AGAINST HIM AND TO A SUFFICIENT TIME FOR THE SUMMONING OF HIS WITNESSES AS WELL AS FOR EMPLOYING AND CONSULTING WITH COUNSEL TO AID HIM IN HIS DEFENSE.

IT IS EVIDENT THAT WHERE THE ALLOWANCE OF A SUBSTANTIAL FEE MAY DEPEND ON WHETHER A MOTION FOR CONTINUANCE IS ALLOWED OR DENIED, THE COMMISSIONER HAS A PECUNIARY INTEREST AND THE ACCUSED MAY THEREBY BE DEPRIVED OF HIS RIGHT TO HAVE A FAIR AND FULL INVESTIGATION OF THE OFFENSE CHARGED AGAINST HIM. CLEARLY THE STATUTE DOES NOT CONTEMPLATE SUCH A SITUATION AND, IF POSSIBLE, SHOULD BE SO INTERPRETED AS TO OBVIATE SUCH A RESULT, AND, AS FAR AS POSSIBLE, TO OPERATE SO THAT THE ALLOWANCE OF PER DIEMS WILL BE DIVORCED FROM POSSIBLE EFFECT ON THE JUDICIAL FUNCTIONS OF COMMISSIONERS.

PRIMARILY THE STATUTE RESTRICTS THE ALLOWANCE TO ONE PER DIEM IN A CASE "FOR HEARING AND DECIDING ON CRIMINAL CHARGES AND REDUCING THE TESTIMONY TO WRITING WHEN REQUIRED BY LAW OR ORDER OF THE COURT," WITH A PROVISO THAT WHEN THE ACCOUNT SHALL SHOW THAT THE HEARING COULD NOT BE COMPLETED IN ONE DAY,"ONE ADDITIONAL PER DIEM MAY BE SPECIALLY APPROVED AND ALLOWED BY THE COURT," WITH AN ADDITIONAL PROVISO THAT NOT MORE THAN ONE PER DIEM SHALL BE ALLOWED FOR ANY ONE DAY. READING THESE PROVISIONS IN THE LIGHT OF THE DECISIONS CITED, AND IN VIEW OF THE SITUATION WHICH RESULTS WHERE THE COMMISSIONER EXERCISES ANY CONTROL AS TO THE DAYS FOR WHICH PER DIEMS ARE ALLOWABLE, IT IS CONCLUDED, FIRST, THAT THE STATUTE AUTHORIZES AN ALLOWANCE OF ONE PER DIEM AS FOR THE DAY THE ACCUSED IS FIRST BROUGHT BEFORE THE COMMISSIONER, IF A PER DIEM BE NOT CHARGED FOR THAT DAY IN SOME OTHER CASES; AND, SECOND, THAT WHERE THE ACCOUNT SHOWS THE HEARING COULD NOT BE COMPLETED IN ONE DAY, THE STATUTE AUTHORIZES THE ALLOWANCE OF ONE ADDITIONAL PER DIEM FOR THE DAY THE CASE IF FINALLY DECIDED, OR IF A PER DIEM BE CHARGED IN SOME OTHER CASE FOR SAID DAY, FOR ANY INTERVENING HEARING DAY ON WHICH A MOTION FOR A CONTINUANCE HAS BEEN GRANTED, PROVIDED A PER DIEM IS NOT CHARGED FOR SUCH INTERVENING DAY IN SOME OTHER CASE.

IN FURTHER EXPLANATION OF THESE CONCLUSIONS, IT MAY BE STATED THAT THE ALLOWANCE OF THE FIRST PER DIEM AS FOR THE DAY OF ARRAIGNMENT FOLLOWS THE LONG-ESTABLISHED RULE AND IS NOT OBJECTIONABLE AS IN ANY WAY INTERFERING WITH THE IMPARTIAL EXERCISE OF HIS JUDICIAL FUNCTIONS BY A COMMISSIONER. AS TO THE SECOND CONCLUSION, IT IS TO BE NOTED THAT THE ACT OF MAY 29, 1928, 45 STAT. 998, DISCONTINUED THE REQUIREMENT THAT COMMISSIONERS' ACCOUNTS BE APPROVED BY THE COURT, AND IT HAS BEEN HELD, IN VIEW OF THE HISTORY OF SUCH LEGISLATION, THAT ADDITIONAL PER DIEMS NO LONGER NEED BE SPECIALLY APPROVED AND ALLOWED BY THE COURT UNDER THE PROVISIONS OF THE ACT OF MAY 28, 1896, BUT COMMISSIONERS ARE REQUIRED TO SUBMIT IN EACH CASE WHERE AN ADDITIONAL PER DIEM IS CLAIMED A DETAILED STATEMENT OF THE REASONS WHY THE HEARING COULD NOT BE COMPLETED IN ONE DAY. SEE 8 COMP. GEN. 12; A-24294, SEPTEMBER 21, 1928. WHERE THE ADDITIONAL PER DIEM IS ALLOWABLE FOR AN INTERVENING HEARING DAY AS SET FORTH ABOVE, INSTEAD OF BEING RESTRICTED TO THE DAY OF FINAL DISPOSITION, THERE WILL BE OBVIATED THE OBJECTIONABLE SITUATION OF THE COMMISSIONER HAVING A DIRECT PECUNIARY INTEREST IN REFUSING A MOTION FOR CONTINUANCE IN ORDER TO SECURE AN ADDITIONAL PER DIEM FOR DISPOSITION OF THE CASE ON THAT DAY.

THE CONCLUSIONS ANNOUNCED HEREIN WILL BE APPLIED IN THE SETTLEMENT OF UNITED STATES COMMISSIONERS' ACCOUNTS TO ALL PER DIEM FEES CLAIMED FOR PERIODS AFTER JANUARY 31, 1930. DECISIONS NOW IN EFFECT WILL BE APPLIED TO CLAIMS FOR SUCH FEES TO AND INCLUDING THAT DATE, WHEN SUCH DECISIONS WILL STAND MODIFIED TO THE EXTENT HEREIN INDICATED.

UNDER THE RULE AS HEREIN ADOPTED THE SECOND PER DIEM IS NOT TO BE CLAIMED IN ANY CASE UNTIL SAID CASE IS FINALLY DISPOSED OF, BUT WHEN SAID CASE IS FINALLY DISPOSED OF THE PER DIEM MAY BE CLAIMED FOR SUCH DAY OF FINAL DISPOSITION OR FOR ANY DAY, SUBSEQUENT TO DAY OF ARRAIGNMENT, ON WHICH A MOTION TO CONTINUE WAS ALLOWED, PROVIDED A PER DIEM WAS NOT ALLOWED IN ANY OTHER CASE FOR THE SAME DAY. NOT MORE THAN ONE PER DIEM MAY BE ALLOWED IN ANY CASE IF FOR THE DAY OF ARRAIGNMENT IN SAID CASE A PER DIEM IS ALLOWED IN SOME OTHER CASE.