A-32918, A-43052, NOVEMBER 23, 1932, 12 COMP. GEN. 449

A-32918,A-43052: Nov 23, 1932

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NOTES YOUR STATEMENT THAT NO FURTHER REQUISITIONS WILL BE APPROVED UNTIL THE MARSHAL'S INDEBTEDNESS TO THE UNITED STATES HAS BEEN ADJUSTED TO YOUR SATISFACTION. IT IS NOW IN PRACTICALLY THE SAME STATUS THAT IT WAS AT THE BEGINNING OF THE FISCAL YEAR 1933. IT SEEMS TO THE DEPARTMENT THAT THE DISCUSSION HAS ASSUMED A DEGREE OF IMPORTANCE WHICH IS NOT JUSTIFIED BY THE FACTS. YOU STATE THAT THE MARSHAL IS GUILTY OF REPEATED AND DIRECT VIOLATIONS OF A CLEAR AND SPECIFIC LAW. THE LAW TO WHICH YOU REFER IS FOUND IN SECTION 13 OF THE ACT OF MAY 28. COMMISSIONERS WERE COMPENSATED FOR THEIR SERVICES. PRIOR TO THE ENACTMENT OF THESE SECTIONS ALL MARSHALS AND THEIR DEPUTIES WERE PAID BY FEES. IT APPEARS TO HAVE BEEN THE PRACTICE FOR DEPUTY MARSHALS TO PERFORM THE DUTIES OF BAILIFFS AND RECEIVE COMPENSATION FOR SUCH SERVICES IN ADDITION TO FEES AS DEPUTY MARSHALS.

A-32918, A-43052, NOVEMBER 23, 1932, 12 COMP. GEN. 449

COMPENSATION, DOUBLE - BAILIFFS AND DEPUTY MARSHALS THE APPOINTMENT OF A BAILIFF AS SPECIAL DEPUTY MARSHAL WITHOUT COMPENSATION FOR THE SOLE PURPOSE OF CONFERRING UPON HIM AUTHORITY FOR THE SERVICE OF PROCESS DOES NOT CONSTITUTE HIM EITHER AN OFFICE DEPUTY OR A FIELD DEPUTY WITHIN THE PURVIEW OF SECTION 13 OF THE ACT OF MAY 28, 1896, 29 STAT. 183, PROHIBITING AN OFFICE OR FIELD DEPUTY FROM RECEIVING COMPENSATION AS BAILIFF.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, NOVEMBER 23, 1932:

THERE HAS BEEN RECEIVED YOUR LETTER OF NOVEMBER 10, 1932, AS FOLLOWS:

THE DEPARTMENT HAS RECEIVED YOUR LETTER OF OCTOBER 27TH (A-32918; A 43052) IN REFERENCE TO THE CONDITION OF THE ACCOUNTS OF LOUIS H. CRAWFORD, UNITED STATES MARSHAL FOR THE NORTHERN DISTRICT OF GEORGIA, AND NOTES YOUR STATEMENT THAT NO FURTHER REQUISITIONS WILL BE APPROVED UNTIL THE MARSHAL'S INDEBTEDNESS TO THE UNITED STATES HAS BEEN ADJUSTED TO YOUR SATISFACTION.

THIS MATTER HAS BEEN THE SUBJECT OF CONSIDERABLE CORRESPONDENCE, BUT IT IS NOW IN PRACTICALLY THE SAME STATUS THAT IT WAS AT THE BEGINNING OF THE FISCAL YEAR 1933, AND IT SEEMS TO THE DEPARTMENT THAT THE DISCUSSION HAS ASSUMED A DEGREE OF IMPORTANCE WHICH IS NOT JUSTIFIED BY THE FACTS. THEREFORE FEEL IT MY DUTY TO REVIEW THE WHOLE MATTER AND RESUBMIT IT FOR YOUR CONSIDERATION.

YOU STATE THAT THE MARSHAL IS GUILTY OF REPEATED AND DIRECT VIOLATIONS OF A CLEAR AND SPECIFIC LAW, WHICH HAS BEEN OBEYED BY OTHER MARSHALS, AND THAT YOU CAN NOT UNDERSTAND WHY MARSHAL CRAWFORD SHOULD BE PERMITTED TO DISREGARD IT WITH IMPUNITY.

THE LAW TO WHICH YOU REFER IS FOUND IN SECTION 13 OF THE ACT OF MAY 28, 1896 (29 STAT. 183), AND READS AS FOLLOWS:

"PROVIDED, THAT NO OFFICE OR FIELD DEPUTY SHALL RECEIVE COMPENSATION AS BAILIFF, AND NO FIELD DEPUTY SHALL RECEIVE FEES FOR REPRESENTING THE MARSHAL IN COURT.'

THE ACT OF MAY 28, 1896, REORGANIZED THE SYSTEM UNDER WHICH UNITED STATES MARSHALS, DISTRICT ATTORNEYS, AND COMMISSIONERS WERE COMPENSATED FOR THEIR SERVICES. SECTION 10 OF SAID ACT PROVIDED FOR THE EMPLOYMENT (BY MARSHALS) OF OFFICE DEPUTIES UPON SALARIES FIXED BY THE ATTORNEY GENERAL, AND SECTION 11 OF SAID ACT PROVIDED FOR THE APPOINTMENT OF FIELD DEPUTIES, TO BE COMPENSATED BY ,THREE-FOURTHS OF THE GROSS FEES, INCLUDING MILEAGE" EARNED BY EACH DEPUTY. PRIOR TO THE ENACTMENT OF THESE SECTIONS ALL MARSHALS AND THEIR DEPUTIES WERE PAID BY FEES, AND IT APPEARS TO HAVE BEEN THE PRACTICE FOR DEPUTY MARSHALS TO PERFORM THE DUTIES OF BAILIFFS AND RECEIVE COMPENSATION FOR SUCH SERVICES IN ADDITION TO FEES AS DEPUTY MARSHALS.

I FIND IN 2 COMP. DEC. 438, A DECISION BY COMPTROLLER BOWLER DATED MARCH 6, 1896, IN WHICH HE HELD THAT A DEPUTY MARSHAL WHO ATTENDED COURT AS A REPRESENTATIVE OF THE MARSHAL (FOR WHICH A FEE OF $5 WAS PROVIDED) COULD NOT ALSO ACT AS BAILIFF AND RECEIVE THE COMPENSATION OF $2 A DAY PROVIDED FOR A BAILIFF UNDER SECTION 715, R.S. THE COMPTROLLER STATED IN THIS DECISION, HOWEVER, THAT A DEPUTY MARSHAL WHILE NOT REPRESENTING THE MARSHAL IN COURT MAY NO DOUBT BE DESIGNATED BY THE MARSHAL TO ACT AS BAILIFF AND RECEIVE THE COMPENSATION PROVIDED BY SECTION 715 FOR THAT POSITION, NOTWITHSTANDING THE FACT THAT HE IS ALSO A DEPUTY MARSHAL AND MIGHT PERFORM THE SAME DUTIES IN THAT CAPACITY.

AT THE TIME THIS DECISION WAS RENDERED THE BILL REORGANIZING THE MARSHALS' OFFICES WAS UNDER CONSIDERATION BY CONGRESS, AND WE FIND THAT THE BILL, AS FINALLY ENACTED, PROVIDED THAT NO OFFICE OR FIELD DEPUTY SHALL RECEIVE COMPENSATION AS BAILIFF. I HAVE HAD THE REPORTS AND DEBATES ON THE BILL (1ST SESSION, 54TH CONGRESS) EXAMINED, AND I HAVE ALSO HAD A SEARCH MADE OF THE DEPARTMENT FILES, BUT I AM UNABLE TO FIND ANY DISCUSSION OF THE PROVISO TO SECTION 13. OBVIOUSLY, HOWEVER, IT WAS INSERTED IN ORDER TO PREVENT DEPUTY MARSHALS FROM RECEIVING ADDITIONAL COMPENSATION FOR SERVICES RENDERED AS BAILIFF. WHAT OTHER REASON COULD THERE HAVE BEEN FOR THE ENACTMENT OF THIS PROVISO? IN THIS CONNECTION IT MAY BE OF INTEREST TO NOTE THAT THE HEADING TO SECTION 13 OF THE ACT OF MAY 28, 1896, IN THE U.S. COMPILED STATUTES OF 1916 (VOL. 2, SEC. 1425) READS IN RT,"DOUBLE COMPENSATION OF DEPUTY MARSHALS FORBIDDEN.'

NOW, LET US CONSIDER WHAT WAS DONE IN THE NORTHERN DISTRICT OF GEORGIA TO CAUSE THE DISALLOWANCE IN MARSHAL CRAWFORD'S ACCOUNTS. I FIND THAT ON JANUARY 19, 1925, MR. WALTER AKERMAN, WHO WAS THEN MARSHAL FOR SAID DISTRICT, WROTE THE ATTORNEY GENERAL REQUESTING AUTHORITY TO APPOINT W. F. HANEY, THEN EMPLOYED AS A BAILIFF, AS A DEPUTY MARSHAL WITHOUT ADDITIONAL COMPENSATION,"IN ORDER THAT HE MAY BE USED FOR THE SERVICE OF PROCESS BEFORE AND AFTER SESSIONS OF THE COURT.' THE DEPARTMENT GRANTED THE MARSHAL'S REQUEST BY LETTER DATED FEBRUARY 17, 1925, AND ON FEBRUARY 24, 1925, MARSHAL AKERMAN TRANSMITTED MR. HANEY'S OATH OF OFFICE, STATING THAT HE HAD APPOINTED HIM AS A "SPECIAL DEPUTY UNITED STATES MARSHALL WITHOUT COMPENSATION.'

THE LAW TO WHICH YOU REFER PROVIDES THAT NO OFFICE OR FIELD DEPUTY SHALL RECEIVE COMPENSATION AS BAILIFF. MR. HANEY WAS NEITHER AN OFFICE DEPUTY NOR A FIELD DEPUTY; HE WAS A SPECIAL DEPUTY WITHOUT COMPENSATION AND WAS PAID FOR SERVICES RENDERED AS BAILIFF. IF THIS WAS A VIOLATION OF LAW (WHICH WE DO NOT CONCEDE) IT WAS A VERY TECHNICAL VIOLATION. AT ANY RATE, I DO NOT FIND THAT THE PAYMENTS WERE DISALLOWED BY THE GENERAL ACCOUNTING OFFICE IN THE SETTLEMENT OF MARSHAL AKERMAN'S ACCOUNTS.

MARSHAL AKERMAN WAS SUCCEEDED BY MARSHAL CRAWFORD ON MARCH 11, 1926, AND MR. HANEY WAS REAPPOINTED ON THAT DAY AS A DEPUTY MARSHAL (W.O.P.) WITHOUT PAY, BUT HE CONTINUED TO ACT AS BAILIFF AND WAS PAID AS A BAILIFF. HOWEVER, THE PAYMENTS DO NOT APPEAR TO HAVE BEEN QUESTIONED BY YOUR OFFICE UNTIL DECEMBER 19, 1929, WHEN THE SUM OF $340 WAS DISALLOWED BY CERTIFICATE OF SETTLEMENT K-52997-J, COVERING THE ACCOUNT FOR THE QUARTER ENDING DECEMBER 31, 1928. ARE WE TO ASSUME THAT NO QUESTION IS RAISED AS TO THE LEGALITY OF PAYMENTS MADE TO HANEY PRIOR TO OCTOBER 1, 1928? ALSO, NO QUESTION APPEARS TO HAVE BEEN RAISED AS TO SIMILAR PAYMENTS MADE BY MARSHAL CRAWFORD DURING THE QUARTER ENDING SEPTEMBER 30, 1929. I UNDERSTAND THAT THE TOTAL COMPENSATION PAID TO MR. HANEY AS BAILIFF, FROM FEBRUARY, 1925, TO AUGUST, 1930, AMOUNTED TO SOMEWHERE AROUND FIVE OR SIX THOUSAND DOLLARS, WHEREAS THE TOTAL AMOUNT DISALLOWED, ACCORDING TO OUR RECORDS, IS ONLY $1,415.00. IF A PORTION OF THE PAYMENTS ARE ILLEGAL, THEY ARE ALL ILLEGAL.

I SEE NO REASON WHY THE DEPARTMENT SHOULD NOT RECOMMEND TO CONGRESS THE PASSAGE OF A SPECIAL BILL FOR THE RELIEF OF MARSHAL CRAWFORD. HE HAS NOT EMBEZZLED ANY MONEY. HE HAS NOT CONSPIRED TO DEFRAUD THE GOVERNMENT. HAS PAID NO MONEY TO HANEY, EXCEPT FOR SERVICES ACTUALLY AND NECESSARILY RENDERED. HE HAS MERELY FOLLOWED A PRACTICE WHICH WAS INAUGURATED BY HIS PREDECESSOR, WITH THE APPROVAL OF THE DEPARTMENT, AND, BECAUSE OF A TECHNICALITY, IS NOW CALLED UPON TO REFUND A LARGE SUM OF MONEY. I HAVE NO DOUBT CONGRESS WOULD GRANT RELIEF IN A CASE OF THIS KIND. SEVERAL SENATORS AND REPRESENTATIVES HAVE ALREADY ASSURED THE MARSHAL THAT THEY WILL EARNESTLY SUPPORT THE BILL AND ENDEAVOR TO SECURE ITS PASSAGE BEFORE JANUARY 1, 1933.

IN YOUR LETTER OF OCTOBER 27, 1932, YOU STATE THAT THE DEPARTMENT HAS HAD SUFFICIENT TIME IN WHICH TO MAKE OTHER ARRANGEMENTS FOR THE PAYMENT OF COURT EXPENSES--- EITHER BY ANOTHER MARSHAL, OR OTHER DISBURSING OFFICER OF THIS DEPARTMENT, OR BY DIRECT SETTLEMENT THROUGH THE GENERAL ACCOUNTING OFFICE.

THE DEPARTMENT CONSIDERS IT IMPRACTICABLE, AND TO SOME EXTENT ILLEGAL, TO MAKE "OTHER ARRANGEMENTS" FOR THESE PAYMENTS.

IN THE FIRST PLACE, EACH MARSHAL IS APPOINTED FOR A PARTICULAR DISTRICT, AND GIVES BOND FOR THE FAITHFUL PERFORMANCE OF HIS DUTIES AS MARSHAL FOR SAID DISTRICT. IF THE DEPARTMENT SHOULD ATTEMPT TO IMPOSE UPON THE MARSHAL FOR THE MIDDLE DISTRICT OF GEORGIA THE DUTY OF DISBURSING FUNDS FOR SALARIES AND EXPENSES OF THE COURT IN THE NORTHERN DISTRICT, THE SURETY ON HIS BOND COULD NOT BE REQUIRED TO ASSUME THE ADDITIONAL LIABILITY UNLESS AND UNTIL AN ADDITIONAL BOND, COVERING THE NEW AND ADDITIONAL DUTIES, WAS EXECUTED.

TITLE 28, SECTION 374, U.S. CODE, PROVIDES THAT THE EXPENSES OF JUDGES SHALL BE PAID BY THE MARSHAL OF THE DISTRICT IN WHICH COURT IS HELD. WOULD NOT BE PROPER TO REQUIRE ANY OTHER MARSHAL TO MAKE SUCH PAYMENTS.

SECTION 505 OF TITLE 28, PROVIDES FOR THE PAYMENT OF CERTAIN SALARIES BY MARSHALS, AND IT WOULD NOT BE PROPER TO HAVE THE DISBURSING CLERK OF THIS DEPARTMENT PAY SAME.

THERE ARE SO MANY DUTIES IMPOSED BY LAW UPON MARSHALS, PRESUMABLY TO BE PERFORMED WITHIN THEIR OWN DISTRICTS, THAT THE DEPARTMENT DOES NOT FEEL AT LIBERTY, IN THE ABSENCE OF SPECIFIC LEGISLATION, TO TAKE ADMINISTRATIVE ACTION WHICH WOULD, IN EFFECT, IMPOSE IMPORTANT DUTIES UPON ONE MARSHAL WHICH SHOULD BE PERFORMED BY ANOTHER. I DO NOT THINK THE PROPOSED PLAN OF HAVING ALL PAYMENTS MADE THROUGH YOUR OFFICE, ON DIRECT SETTLEMENT, WOULD BE SATISFACTORY TO THE COURT. SUCH A PLAN WOULD CERTAINLY BE VERY UNSATISFACTORY TO WITNESSES AND JURORS, WHO EXPECT PAYMENT AS SOON AS THEIR SERVICES ARE RENDERED, AND WOULD BE CONTRARY TO THE PROVISIONS OF SECTION 855, REVISED STATUTES.

IF THE DEPARTMENT ERRED IN APPROVING THE PAYMENTS MADE TO W. F. HANEY AND IF MARSHAL CRAWFORD SHOULD CONCEDE THE PROPRIETY OF THE DISALLOWANCES, AND IF HE SHOULD SUCCEED (WHICH HE CAN NOT) IN COLLECTING THE AMOUNT FROM MR. HANEY, AND IF HE SHOULD PAY THE SAID SUM OF $1,415.00 (OR SUCH FURTHER AMOUNT AS YOU MAY FINALLY DISALLOW) INTO THE TREASURY--- HOW IS MR. HANEY TO BE COMPENSATED FOR THE SERVICES WHICH HE RENDERED FROM 1925 TO 1930? HE RENDERED THE SERVICES IN GOOD FAITH AND HE HAS CERTAINLY NOT BEEN OVERPAID, IN VIEW OF THE ADDITIONAL DUTIES PERFORMED AS A SPECIAL DEPUTY MARSHAL, FOR WHICH HE RECEIVED NO COMPENSATION.

YOUR FURTHER CONSIDERATION OF THIS MATTER IS REQUESTED. IT ALL SEEMS SO SIMPLE TO THE DEPARTMENT THAT IT IS HOPED SOME WAY OUT OF THE DIFFICULTY CAN BE FOUND. MARSHAL CRAWFORD WILL BE IN NEED OF ADDITIONAL FUNDS ABOUT DECEMBER 1, 1932.

WITH ONE EXCEPTION YOUR PRESENT SUBMISSION REPEATS ARGUMENTS AND FACTS PREVIOUSLY CONSIDERED AND HELD BY THIS OFFICE TO BE INSUFFICIENT TO WARRANT FAVORABLE ACTION IN THIS CASE. YOUR PRESENT SUBMISSION, HOWEVER, DOES PRESENT FOR CONSIDERATION ONE NEW FACT THAT APPEARS TO HAVE A MATERIAL BEARING UPON THE CASE, THAT IS, THAT THE APPOINTMENT OF THE BAILIFF AS DEPUTY MARSHAL WITHOUT COMPENSATION DID NOT CONSTITUTE HIM EITHER AN OFFICE DEPUTY OR FIELD DEPUTY, BUT A SPECIAL DEPUTY WITHOUT COMPENSATION.

SECTION 10 OF THE ACT OF MAY 28, 1896, 29 STAT. 182, PROVIDES FOR THE APPOINTMENT OF OFFICE DEPUTIES WITH SALARIES TO BE FIXED BY THE ATTORNEY GENERAL. SECTION 11 OF THE SAME ACT PROVIDES FOR THE APPOINTMENT OF FIELD DEPUTIES WHO ARE TO RECEIVE UP TO A PRESCRIBED MAXIMUM THE FEES EARNED BY THEM. I FIND NO SPECIFIC STATUTORY AUTHORITY FOR THE APPOINTMENT OF ANY OTHER KIND OF DEPUTIES BUT THE COURTS HAVE RECOGNIZED GENERALLY AN INHERENT POWER IN THE MARSHAL TO APPOINT SPECIAL DEPUTIES FOR THE SERVICE OF PROCESS. IN THE CASE IN RE CREITTENDEN, 6 FED. CASES NO. 3393, IT WAS STATED BY THE COURT THAT A MARSHAL MAY APPOINT A BAILIFF AND AUTHORIZE HIM TO PERFORM A PARTICULAR ACT OR DUTY AND THAT HE THEREUPON BECOMES A SPECIAL DEPUTY. SEE, ALSO, UNITED STATES V. JAILOR, 26 FED. CASES NO. 15463, AND JEWETT V. GARRETT ET AL., 47 FED.REP. 625. SINCE IT NOW APPEARS THAT THE GIVING TO THE BAILIFF IN THE PRESENT CASE OF AN APPOINTMENT AS SPECIAL DEPUTY MARSHAL WITHOUT COMPENSATION WAS FOR THE SOLE PURPOSE OF CONFERRING UPON HIM CERTAIN OFFICIAL AUTHORITY IN THE MATTER OF THE SERVING OF PROCESSES AND DID NOT CONSTITUTE HIM EITHER AN OFFICE DEPUTY OR FIELD DEPUTY WITHIN THE PURVIEW OF THE PROVISION IN SECTION 13 OF THE ACT OF MAY 28, 1896, 29 STAT. 183,"THAT NO OFFICE OR FIELD DEPUTY SHALL RECEIVE COMPENSATION AS BAILIFF," CREDIT WILL BE ALLOWED IN THE ACCOUNTS OF MARSHAL CRAWFORD FOR THE COMPENSATION PAID TO BAILIFF HANEY, IF OTHERWISE LEGAL AND CORRECT.