A-41900, A-42952, SEPTEMBER 1, 1932, 12 COMP. GEN. 315

A-41900,A-42952: Sep 1, 1932

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PAYMENT OF FEES FOR SUCH PREMATURE HEARINGS IS NOT AUTHORIZED. HAVE REQUESTED REVIEW OF DISALLOWANCES OF FEES CLAIMED IN THEIR ACCOUNTS FOR THE DISCHARGE OF POOR CONVICTS PRIOR TO THE EXPIRATION OF 30 DAYS REQUIRED TO BE SERVED SOLELY FOR THE NONPAYMENT OF FINES. THAT THE HEARING WAS HELD AND THE PRISONER DISCHARGED BY UNITED STATES COMMISSIONER PATTERSON ON JULY 2. IT IS URGED THAT THIS ACTION WAS TAKEN PURSUANT TO AN UNSIGNED FORM OF APPLICATION FURNISHED THE PRISONER BY THE BUREAU OF PRISONS. I WILL HAVE SERVED THE THIRTY (30) DAYS ADDITIONAL AS REQUIRED BY SECTION 1042. " AND IT IS SUGGESTED THAT IN COMPUTING THE TIME THE LAST DAY OF THE SENTENCE WAS CONSIDERED THE FIRST DAY OF THE 30-DAY TERM REQUIRED TO BE SERVED BY A POOR CONVICT FOR NONPAYMENT OF HIS FINE.

A-41900, A-42952, SEPTEMBER 1, 1932, 12 COMP. GEN. 315

UNITED STATES COMMISSIONERS - FEES - HEARINGS - DISCHARGE OF POOR CONVICTS IN VIEW OF THE PROVISIONS OF SECTION 1042, REVISED STATUTES, THAT WHEN A POOR CONVICT SENTENCED TO PAY A FINE HAS BEEN CONFINED IN PRISON 30 DAYS "SOLELY" FOR THE NONPAYMENT OF SUCH FINE HE MAY MAKE APPLICATION TO A UNITED STATES COMMISSIONER FOR HEARING AND DISCHARGE, THE LAST DAY OF A SENTENCE OF CONFINEMENT MAY NOT BE CONSIDERED THE FIRST OF THE 30 DAYS SERVED "SOLELY" FOR NONPAYMENT OF THE FINE, AND AS THE STATUTE DOES NOT REQUIRE THAT THE HEARING BE HELD AND THE PRISONER DISCHARGED ON THE THIRTIETH DAY, BUT REQUIRES THAT THE 30 DAYS BE SERVED BEFORE THERE MAY BE A HEARING AND DISCHARGE, THE CIRCUMSTANCE THAT THE THIRTIETH DAY FALLS ON SUNDAY PROVIDES NO LEGAL BASIS FOR HOLDING A HEARING AND DISCHARGING THE PRISONER ON THE TWENTY-NINTH DAY. PAYMENT OF FEES FOR SUCH PREMATURE HEARINGS IS NOT AUTHORIZED.

DECISION BY COMPTROLLER GENERAL MCCARL, SEPTEMBER 1, 1932:

EARL V. PATTERSON, UNITED STATES COMMISSIONER, GREENSBORO, N.C., AND FLOYD E. JENKINS, UNITED STATES COMMISSIONER, MILWAUKEE, WIS., HAVE REQUESTED REVIEW OF DISALLOWANCES OF FEES CLAIMED IN THEIR ACCOUNTS FOR THE DISCHARGE OF POOR CONVICTS PRIOR TO THE EXPIRATION OF 30 DAYS REQUIRED TO BE SERVED SOLELY FOR THE NONPAYMENT OF FINES.

IN THE FIRST CASE IT APPEARS THE SENTENCE OF BANKS BASS AS REDUCED FOR GOOD BEHAVIOR EXPIRED ON JUNE 3, 1931, AND THAT THE HEARING WAS HELD AND THE PRISONER DISCHARGED BY UNITED STATES COMMISSIONER PATTERSON ON JULY 2, 1931. IT IS URGED THAT THIS ACTION WAS TAKEN PURSUANT TO AN UNSIGNED FORM OF APPLICATION FURNISHED THE PRISONER BY THE BUREAU OF PRISONS, DEPARTMENT OF JUSTICE, STATING "MY TERM OF IMPRISONMENT EXPIRES ON JUNE 3, 1931, AND ON JULY 2, 1931, I WILL HAVE SERVED THE THIRTY (30) DAYS ADDITIONAL AS REQUIRED BY SECTION 1042, REVISED STATUTES OF THE UNITED STATES," AND IT IS SUGGESTED THAT IN COMPUTING THE TIME THE LAST DAY OF THE SENTENCE WAS CONSIDERED THE FIRST DAY OF THE 30-DAY TERM REQUIRED TO BE SERVED BY A POOR CONVICT FOR NONPAYMENT OF HIS FINE.

IN THE SECOND CASE IT APPEARS THE SENTENCE OF JOHN J. LOBERG WITH TIME OFF FOR GOOD BEHAVIOR EXPIRED JANUARY 29, 1932, AND THAT HE WAS DISCHARGED AS A POOR CONVICT ON SATURDAY, FEBRUARY 27, 1932, OR 29 DAYS LATER, BY UNITED STATES COMMISSIONER JENKINS. THE COMMISSIONER ARGUES THAT SECTION 1042, REVISED STATUTES, ENTITLES A POOR PRISONER TO BE DISCHARGED AT THE EXPIRATION OF 30 DAYS AND, CONSEQUENTLY, THAT, WHERE THE THIRTIETH DAY FALLS ON SUNDAY, HE SHOULD BE DISCHARGED ON THE PRECEDING DAY BECAUSE A HEARING CAN NOT BE HELD ON SUNDAY AND IF THE MATTER GOES OVER UNTIL MONDAY THE PRISONER WILL BE HELD 31 DAYS.

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, HASBEEN 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 * * *. AND THEREUPON SUCH CONVICT SHALL BE DISCHARGED, THE COMMISSIONER GIVING TO THE JAILER OR KEEPER OF THE JAIL A CERTIFICATE SETTING FORTH THE FACTS.

CLEARLY, UNDER THE TERMS OF THE STATUTE, A POOR CONVICT IS NOT ENTITLED TO A HEARING AND DISCHARGE UNTIL HE HAS BEEN CONFINED 30 DAYS "SOLELY" FOR THE NONPAYMENT OF HIS FINE. AS TIME SERVED ON THE LAST DAY OF THE REGULAR SENTENCE IS SERVED UNDER SUCH SENTENCE THAT DAY MAY NOT BE CONSIDERED AS ONE SERVED "SOLELY" FOR NONPAYMENT OF FINE AND, CONSEQUENTLY, THE LAST DAY OF THE REGULAR SENTENCE MAY NOT BE TREATED AS THE FIRST OF THE 30 DAYS' ADDITIONAL CONFINEMENT. SO, ALSO, THE STATUTE DOES NOT REQUIRE THAT THE HEARING NECESSARILY BE HELD AND THE PRISONER DISCHARGED ON THE THIRTIETH DAY BUT CONTEMPLATES PROCEEDINGS, WITH NOTICE TO THE DISTRICT ATTORNEY, ETC., WHICH, OBVIOUSLY, IN SOME CASES, MAY REQUIRE SEVERAL DAYS THEREAFTER. IN FACT, THE LAW CONTEMPLATES THAT THE CONVICT SHALL NOT EVEN APPLY FOR THE HEARING AND DISCHARGE UNTIL AFTER THE EXPIRATION OF THE 30 DAYS' CONFINEMENT, AND WHILE IT HAS BEEN HELD THAT THE FILING OF AN APPLICATION FOR RELEASE AND NOTICE TO THE DISTRICT ATTORNEY BEFORE THE 30 DAYS HAVE BEEN SERVED DO NOT INVALIDATE THE PROCEEDINGS IF THE HEARING IS NOT HELD OR THE PRISONER RELEASED BEFORE THE 30 DAYS HAVE EXPIRED, 3 COMP. GEN. 835; 8 ID. 167, THERE IS NO LEGAL BASIS WHATEVER FOR HOLDING THAT THE PRISONER IS ENTITLED AS A MATTER OF RIGHT TO A HEARING AND DISCHARGE ON THE THIRTIETH DAY. CLEARLY THE PRISONER CAN AND SHOULD BE HELD FOR SUCH PERIOD BEYOND THE EXPIRATION OF THE 30 DAYS AS MAY BE NECESSARY FOR THE COMMISSIONER, THEREAFTER, IN THE REGULAR COURSE OF THE DUTIES OF HIS OFFICE, TO CONDUCT THE HEARING AND DETERMINE THE MATTER.

IT FOLLOWS THAT THE HEARINGS AND DISCHARGE OF THE PRISONERS IN BOTH CASES HERE INVOLVED WERE PREMATURE, AND, ACCORDINGLY, UPON REVIEW, THE DISALLOWANCES OF THE FEES CLAIMED THEREFOR MUST BE AND ARE SUSTAINED.

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