A-43038, AUGUST 23, 1932, 12 COMP. GEN. 267

A-43038: Aug 23, 1932

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COURT BAILIFFS - PER DIEMS - CUSTODY OF PETIT JURIES OVER SUNDAYS COURT BAILIFFS ARE NOT ENTITLED TO PAYMENT OF PER DIEM FEES FOR SERVICES IN CONNECTION WITH THE CUSTODY OF PETIT JURIES OVER SUNDAYS WHEN THE COURT IS NOT ACTUALLY IN SESSION. THE DISALLOWANCES IN QUESTION RESULTED FROM THE FAILURE OF THE EVIDENCE PRESENTED WITH THE ACCOUNT TO SHOW THAT THE COURT WAS ACTUALLY IN SESSION. IN WHICH IT WAS PROVIDED: * * * THAT NO PER DIEM SHALL BE PAID TO ANY BAILIFF OR CRIER UNLESS THE COURT IS ACTUALLY IN SESSION AND THE JUDGE PRESENT AND PRESIDING OR PRESENT IN CHAMBERS. IN HIS REQUEST FOR REVIEW OF THE DISALLOWANCES THE CLAIMANT STATED: * * * THAT IN EACH AND EVERY INSTANCE THE BAILIFFS WERE IN CHARGE OF THE PETIT JURY AND IN EACH AND EVERY INSTANCE.

A-43038, AUGUST 23, 1932, 12 COMP. GEN. 267

COURT BAILIFFS - PER DIEMS - CUSTODY OF PETIT JURIES OVER SUNDAYS COURT BAILIFFS ARE NOT ENTITLED TO PAYMENT OF PER DIEM FEES FOR SERVICES IN CONNECTION WITH THE CUSTODY OF PETIT JURIES OVER SUNDAYS WHEN THE COURT IS NOT ACTUALLY IN SESSION, WITH THE JUDGE PRESENT IN COURT OR IN CHAMBERS.

DECISION BY COMPTROLLER GENERAL MCCARL, AUGUST 23, 1932:

J. A. STAFFORD, UNITED STATES MARSHAL FOR THE SOUTHERN DISTRICT OF ALABAMA, ON JUNE 6, 1932, REQUESTED REVIEW OF CERTAIN DISALLOWANCES IN HIS JUNE, 1931, ACCOUNTS FOR PER DIEM FEES AMOUNTING TO $30 PAID BY HIM ON VOUCHERS NOS. 2107, 2108, AND 2109 TO A. H. GOUBIL, P. W. TOMPKINS, AND C. E. HOUSTEIN FOR TWO DAYS' SERVICES EACH ON SUNDAYS, MAY 24, 31, AND JULY 26, 1931, AS COURT BAILIFFS IN ATTENDANCE UPON THE UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF ALABAMA, MOBILE, ALA.

THE DISALLOWANCES IN QUESTION RESULTED FROM THE FAILURE OF THE EVIDENCE PRESENTED WITH THE ACCOUNT TO SHOW THAT THE COURT WAS ACTUALLY IN SESSION, WITHIN THE MEANING OF THE APPROPRIATION ACT INVOLVED, TO WIT, THE ACT OF APRIL 18, 1930, 46 STAT, 190, FOR THE DEPARTMENT OF JUSTICE AND THE JUDICIARY, FOR THE FISCAL YEAR ENDING JUNE 30, 1931, IN WHICH IT WAS PROVIDED:

* * * THAT NO PER DIEM SHALL BE PAID TO ANY BAILIFF OR CRIER UNLESS THE COURT IS ACTUALLY IN SESSION AND THE JUDGE PRESENT AND PRESIDING OR PRESENT IN CHAMBERS.

IN HIS REQUEST FOR REVIEW OF THE DISALLOWANCES THE CLAIMANT STATED:

* * * THAT IN EACH AND EVERY INSTANCE THE BAILIFFS WERE IN CHARGE OF THE PETIT JURY AND IN EACH AND EVERY INSTANCE, TO WIT, SUNDAYS, MAY 24THAND 31ST, JULY 26TH, SEPTEMBER 27, 1931, THE JUDGE, WHILE NOT ACTUALLY IN THE FEDERAL BUILDING, WAS IN TOUCH WITH THE JURY AND HAD ORDERED THE BAILIFFS THAT SHOULD THE JURY REACH A VERDICT AT ANY TIME HE WOULD COME DOWN AND RECEIVE A VERDICT. THAT APPLIES TO EVERY CASE EXCEPT MAY 24TH, ON WHICH DATE THE JURY HAD NOT YET BEEN CHARGED.

FURTHER, ON MAY 31ST, THE JURY HAD REACHED A VERDICT AND THE JUDGE INSTRUCTED THE CLERK TO HAVE THEM RENDER A SEALED VERDICT AND ORDERED THE CLERK TO DISCHARGE THE JURORS AND PAY THEM OFF, WHICH WAS DONE.

ON JULY 26TH THE JUDGE ACTUALLY CAME TO THE FEDERAL BUILDING AND TALKED TO THE FOREMAN OF THE JURY AND MISTRIAL WAS ORDERED IN THIS CASE ON MONDAY AND THE JURY WAS DISCHARGED.

THE STATUTORY RESTRICTION UPON THE PAYMENT OF PER DIEM FEES TO COURT BAILIFFS AND CRIERS UNLESS THE COURT WAS ACTUALLY IN SESSION AND THE JUDGE THEREOF PRESENT AND PRESIDING OR PRESENT IN CHAMBERS WAS FIRST IMPOSED BY THE ANNUAL APPROPRIATION ACT FOR THE DEPARTMENT OF JUSTICE AND THE JUDICIARY APPROVED FEBRUARY 27, 1925, 43 STAT. 1030, AND SAID RESTRICTION HAS BEEN IMPOSED SUBSEQUENTLY IN EACH OF THE SEVERAL ANNUAL APPROPRIATION ACTS FOR SAID DEPARTMENT.

THE INVOLVED STATUTE CLEARLY REQUIRES AS A CONDITION PRECEDENT TO PAYMENT OF PER DIEM FEES TO COURT BAILIFFS AND CRIERS THAT THE COURT ACTUALLY MUST HAVE BEEN IN SESSION, WITH THE JUDGE PRESENT AND PRESIDING OR PRESENT IN CHAMBERS.

SINCE SUCH STATUTORY RESTRICTION UPON THE PAYMENT OF PER DIEM FEES TO COURT BAILIFFS AND CRIERS, THIS OFFICE HAS HELD CONSISTENTLY THAT THE FACT THAT A BAILIFF IS ACTUALLY ON DUTY IN CHARGE OF A JURY IS NOT SUFFICIENT TO MEET THE REQUIREMENTS OF THE STATUTE THAT THE COURT BE IN SESSION WITH THE JUDGE PRESENT AND PRESIDING OR PRESENT IN CHAMBERS. SEE 7 COMP. GEN. 633; AND DECISIONS OF JUNE 7, 1928, A-19840; OCTOBER 29, 1930, A-25450; AND MARCH 11, 1932, A-40652. ALSO, SEE SECTIONS 892 AND 895 OF INSTRUCTIONS TO COURT OFFICIALS, OCTOBER, 1929.

IN THE INSTANT MATTER IT APPEARING THAT THE SAID COURT WAS NOT ACTUALLY IN SESSION, WITH THE JUDGE THEREOF PRESENT AND PRESIDING OR PRESENT IN CHAMBERS, ON SUNDAYS MAY 24, 31, AND JULY 26, 1931, THERE WAS NO LEGAL AUTHORITY TO PAY SAID THREE COURT BAILIFFS THE $30 PER DIEM FEES FOR THEIR SERVICES WHILE IN CHARGE OF PETIT JURIES ON SUCH DATES.