A-37564, OCTOBER 20, 1931, 11 COMP. GEN. 139

A-37564: Oct 20, 1931

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UNITED STATES COMMISSIONERS - FEES - HEARINGS WHEN A DEFENDANT IS BROUGHT BEFORE A UNITED STATES COMMISSIONER UPON A COMPLAINT AND THE SAID DEFENDANT IS RELEASED UPON THE TEMPORARY BOND. THERE IS NECESSARILY REQUIRED THE DETERMINATION OF CERTAIN QUESTIONS INVOLVED WHICH CONSTITUTES A HEARING ON THAT DATE. AS A RESULT THE COMMISSIONER IS ENTITLED TO A PER DIEM. 1931: REFERENCE IS MADE TO YOUR LETTER OF JUNE 22. WHICH WAS DISALLOWED IN SETTLEMENT NO. 0253783. THE DEFENDANT IN THE ABOVE ENTITLED MATTER WAS BROUGHT BEFORE YOU. A COMPLAINT WAS DRAWN AND SHE WAS RELEASED ON TEMPORARY BOND. FOR BOTH OF WHICH SERVICES YOU CLAIMED AND WERE PAID THE CUSTOMARY FEES. THE DEFENDANT WAS BEFORE YOU AGAIN BOTH ON OCTOBER 8 AND 9.

A-37564, OCTOBER 20, 1931, 11 COMP. GEN. 139

UNITED STATES COMMISSIONERS - FEES - HEARINGS WHEN A DEFENDANT IS BROUGHT BEFORE A UNITED STATES COMMISSIONER UPON A COMPLAINT AND THE SAID DEFENDANT IS RELEASED UPON THE TEMPORARY BOND, THERE IS NECESSARILY REQUIRED THE DETERMINATION OF CERTAIN QUESTIONS INVOLVED WHICH CONSTITUTES A HEARING ON THAT DATE, AND AS A RESULT THE COMMISSIONER IS ENTITLED TO A PER DIEM, IF HE DID NOT CLAIM AND RECEIVE A PER DIEM FOR ANOTHER CASE HEARD ON THE SAME DATE.

COMPTROLLER GENERAL MCCARL TO J. F. MORENO, UNITED STATES COMMISSIONER, OCTOBER 20, 1931:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 22, 1931, RELATIVE TO YOUR CLAIM FOR A $5 PER DIEM FEE FOR A HEARING IN THE CASE OF UNITED STATES V. BESSIE NIGHTINGALE, ON OCTOBER 8, 1930, WHICH WAS DISALLOWED IN SETTLEMENT NO. 0253783, DATED MAY 20, 1931.

IT APPEARS THAT ON OCTOBER 7, 1930, THE DEFENDANT IN THE ABOVE ENTITLED MATTER WAS BROUGHT BEFORE YOU, A COMPLAINT WAS DRAWN AND SHE WAS RELEASED ON TEMPORARY BOND, FOR BOTH OF WHICH SERVICES YOU CLAIMED AND WERE PAID THE CUSTOMARY FEES. THE DEFENDANT WAS BEFORE YOU AGAIN BOTH ON OCTOBER 8 AND 9, 1930, AND YOU CLAIMED PER DIEM FEES FOR HEARINGS IN THE CASE OF THESE TWO DAYS. THE FEE OF $5 CLAIMED FOR OCTOBER 8, 1930, WAS DISALLOWED, IT APPEARING THAT THE DEFENDANT HAVING BEEN BROUGHT BEFORE YOU AND HAVING BEEN ADMITTED TO BOND ON OCTOBER 7, 1930, THERE WAS NECESSARILY REQUIRED THE DETERMINATION OF CERTAIN QUESTIONS INVOLVED WHICH CONSTITUTED A HEARING IN THE MATTER ON THAT DAY, AND, CONSEQUENTLY, THAT YOU WERE ENTITLED TO A PER DIEM IN THIS CASE FOR ONLY ONE SUBSEQUENT HEARING DAY, WHICH WAS ALLOWED FOR OCTOBER 9, 1930. NO PER DIEM FEE WAS CLAIMED OR ALLOWED IN THIS CASE FOR OCTOBER 7, FOR THE REASON THAT A PER DIEM FEE HAD BEEN CHARGED FOR A HEARING IN ANOTHER CASE ON THAT DATE.

UNDER THE FEE BILL STATUTE, ACT OF MAY 28, 1896, 29 STAT. 184, AND THE DECISIONS THEREON, A UNITED STATES COMMISSIONER IS ENTITLED TO ONLY ONE PER DIEM FEE OF $5 ON ANY ONE DAY FOR HEARING AND DECIDING ON CRIMINAL CHARGES AND IS ENTITLED TO ONLY ONE SUCH FEE IN ANY ONE CASE EXCEPT THAT UNDER CERTAIN CONDITIONS ONE ADDITIONAL FEE MAY BE CHARGED. THE FIRST OR BASIC FEE IS CHARGEABLE FOR THE FIRST HEARING DAY IF A FEE IS NOT CHARGED IN ANOTHER CASE ON THAT DAY, AND IF THE ONE ADDITIONAL PER DIEM FEE IS ALLOWABLE IN THE CASE IT MAY BE CHARGED FOR ANY SUBSEQUENT HEARING DAY ON WHICH A PER DIEM FEE IS NOT CHARGED IN ANOTHER CASE. (9 COMP. GEN. 296.) YOUR RIGHT TO A FEE FOR OCTOBER 8, THEREFORE, DEPENDS ON WHETHER THAT WAS THE FIRST HEARING DAY IN THE CASE OR WHETHER THE ACTION TAKEN IN THE CASE ON OCTOBER 7 CONSTITUTED A HEARING WITHIN THE CONTEMPLATION OF THE STATUTE.

ON OCTOBER 7, YOU HAD THE DEFENDANT BEFORE YOU UNDER ARREST, FORMALLY CHARGED WITH A CRIMINAL OFFENSE AND ENTITLED TO A HEARING. SOME ACTION THEN AND THERE WAS REQUIRED. YOU DETERMINED TO LET THE MATTER GO OVER UNTIL THE NEXT DAY AND RELEASED THE PRISONER ON TEMPORARY BOND. THIS TO ALL EFFECTS AND PURPOSES WAS A CONTINUANCE AND REQUIRED A DETERMINATION BY YOU OF WHETHER TO THEN PROCEED OR TO LET THE CASE GO OVER, AND A DETERMINATION, UNDER THE ATTENDANT CIRCUMSTANCES, OF THE AMOUNT OF BAIL--- DISCRETIONARY MATTERS INVOLVING YOUR JUDICIAL FUNCTION---WHICH UNDER THE PRINCIPLES STATED BY THE SUPREME COURT OF THE UNITED STATES IN UNITED STATES V. JONES, 134 U.S. 483, AND BY THE COURT OF CLAIMS IN HARPER V. UNITED STATES, 21 CT.CLS. 56, AND STAFFORD V. UNITED STATES, 25 CT.CLS. 280, AND RECOGNIZED AND FOLLOWED BY THE ACCOUNTING OFFICERS, 3 COMP. GEN. 452, 9 COMP. GEN. 296, WOULD APPEAR TO HAVE CONSTITUTED A HEARING WITHIN THE CONTEMPLATION OF THE FEE BILL STATUTE, FOR WHICH YOU WOULD HAVE BEEN ENTITLED TO A PER DIEM FEE OF $5, EXCEPT THAT SUCH A PER DIEM FEE WAS CHARGED BY YOU FOR THAT DAY IN ANOTHER CASE. SEE ALSO THE CASE OF MCGOURIN V. UNITED STATES, 102 FED.REP. 553, 556, WHEREIN THE COURT SAID:

* * * PARAGRAPH 3, SEC. 847, REV.ST., PROVIDES "FOR HEARING AND DECIDING ON CRIMINAL CHARGE, FIVE DOLLARS A DAY FOR THE TIME NECESSARILY EMPLOYED.' THE STATUTE DOES NOT PROVIDE ANY DESCRIPTION OF CRIMINAL CHARGES SUCH AS ARE PROPERLY BROUGHT BEFORE A COURT, LEAVING THE QUESTION FOR JUDICIAL INTERPRETATION. IT IS MY OPINION THAT WHEN A PRISONER IS BROUGHT BEFORE A COMMISSIONER IN ACCORDANCE WITH LAW WHO STANDS CHARGED WITH THE COMMISSION OF A CRIMINAL OFFENCE AGAINST THE UNITED STATES, AND THE COMMISSIONER IS THEREBY CALLED UPON TO EXERCISE A JUDICIAL FUNCTION OF HIS OFFICE, IN WHATEVER MANNER THIS MAY BE, WHETHER TO DETERMINE PROBABLE CAUSE FOR BINDING HIM OVER, TO ADMIT HIM TO BAIL, TO DISCHARGE HIM ON BOND, OR TO COMMIT HIM TEMPORARILY PENDING FURTHER INVESTIGATION, HE HAS THEREBY COMPLIED WITH THE ABOVE PROVISION, AND IS ENTITLED TO HIS PER DIEM. * * *

THE CIRCUMSTANCE THAT YOU WERE PRECLUDED BY THE TERMS OF THE STATUTE FROM CHARGING A FEE IN THIS CASE FOR THE FIRST DAY THE PRISONER WAS BROUGHT BEFORE YOU BECAUSE A FEE WAS CHARGED IN ANOTHER CASE THAT DAY IN NO WAY ENTITLES YOU TO CHARGE IN LIEU THEREOF A $5 PER DIEM FEE FOR A SUBSEQUENT HEARING A DAY IN THIS CASE AS THOUGH IT WERE THE FIRST HEARING DAY. RECOGNIZE SUCH A CONSTRUCTION OF THE STATUTE WOULD HAVE COMMISSIONERS A PECUNIARY INTEREST IN REFUSING IMMEDIATE HEARINGS TO PERSONS BROUGHT BEFORE THEM, IRRESPECTIVE OF THE MERITS OF THE COMPLAINT OR THE EXISTENCE OF PROBABLY CAUSE, SO THAT A HEARING MIGHT BE HELD AND A FEE SECURED ON SOME SUBSEQUENT DAY WHEN THERE HAPPENED TO BE NO OTHER HEARING FOR WHICH A FEE COULD BE CHARGED, AND, CONSEQUENTLY, PERSONS MIGHT BE HELD IN CONFINEMENT WITHOUT A PRELIMINARY EXAMINATION, AWAITING A DAY WHEN THE COMMISSIONER MIGHT MAKE AN EXTRA $5 BY GIVING THE HEARING. IT IS SETTLED THAT FOR A JUDICIAL OFFICER TO HAVE A DIRECT SUBSTANTIAL PECUNIARY INTEREST IN DECIDING 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 CIRCUMSTANCE THAT IN THIS CASE THERE WAS ONLY ONE DAY'S DELAY DOES NOT ALTER THE PRINCIPLE INVOLVED. THE ACCUSED WAS BEFORE YOU AND ENTITLED TO A HEARING AND WHILE THERE IS NOT QUESTIONED THE EXISTENCE OF DISCRETION NOT TO COMPLETE AND MAKE FINAL DISPOSITION OF THE CASE THAT DAY, THE FEE BILL STATUTE CAN NOT BE CONSTRUED AS PERMITTING THE EXERCISE OF THAT DISCRETION TO BE AFFECTED BY THE DIRECT PECUNIARY CONSIDERATION OF PERSONALLY SECURING A FEE BY POSTPONING THE HEARING. SEE 9 COMP. GEN. 296, WHERE FOR THE SAME REASONS THE PRIOR RULE WAS LIBERALIZED TO PERMIT THE PAYMENT OF THE ONE ADDITIONAL PER DIEM FEE TO A COMMISSIONER FOR AN INTERVENING HEARING DAY WHEN THE HEARING COULD NOT BE COMPLETED THE FIRST DAY AND A FEE IS CHARGED IN ANOTHER CASE ON THE FINAL HEARING DAY. THIS RULE IS PREDICATED IN PART ON THE PROPOSITION THAT THE BASIC OR FIRST FEE IS CHARGEABLE ONLY FOR THE FIRST DAY A PRISONER IS BROUGHT BEFORE THE COMMISSIONER, A MATTER NOT WITHIN HIS CONTROL OR DISCRETION, AND IF IT SHOULD BE DETERMINED THAT A COMMISSIONER HAS THE DISCRETION TO FIX THIS FIRST HEARING DAY TO SUIT HIS CONVENIENCE AND TO INCREASE HIS FEES, THERE WOULD APPEAR TO BE NO BASIS OR REASON TO FOLLOW THEREAFTER THE MORE LIBERAL RULE ANNOUNCED IN 9 COMP. GEN. 296, SUPRA, AS TO ADDITIONAL FEES.

FOR THE REASONS HEREIN STATED, IT MUST BE HELD THAT OCTOBER 7 WAS THE FIRST HEARING DAY IN THE CASE, WITHIN THE CONTEMPLATION OF THE FEE BILL STATUTE, AND, ACCORDINGLY, THE SETTLEMENT DISALLOWING YOUR CLAIM FOR A PER DIEM FEE FOR OCTOBER 8, AS THE FIRST HEARING DAY MUST BE AND IS SUSTAINED.