A-43105, MARCH 1, 1933, 12 COMP. GEN. 537

A-43105: Mar 1, 1933

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COMPENSATION - BAILIFFS THE PAYMENT OF PER DIEM COMPENSATION TO BAILIFFS FOR DAYS WHEN THE COURT IS NOT ACTUALLY IN SESSION AND THE JUDGE PRESENT AND PRESIDING. SUCH PAYMENTS ARE NOT "EXTRAORDINARY EXPENSES" "THE PAYMENT OF WHICH IS NOT SPECIFICALLY PROVIDED FOR" WITHIN THE PURVIEW OF SECTION 846. CREDIT FOR WHICH WAS DISALLOWED IN THE ACCOUNTS OF UNITED STATES MARSHAL PAUL H. WHICH SETTLEMENT WAS SUSTAINED BY DECISION OF THIS OFFICE SEPTEMBER 3. WHEN THE COURT WAS NOT ACTUALLY IN SESSION. 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. PROVIDES: * * * THAT WHERE THE MINISTERIAL OFFICERS OF THE UNITED STATES HAVE OR SHALL INCUR EXTRAORDINARY EXPENSE IN EXECUTING THE LAWS THEREOF.

A-43105, MARCH 1, 1933, 12 COMP. GEN. 537

COMPENSATION - BAILIFFS THE PAYMENT OF PER DIEM COMPENSATION TO BAILIFFS FOR DAYS WHEN THE COURT IS NOT ACTUALLY IN SESSION AND THE JUDGE PRESENT AND PRESIDING, OR PRESENT IN CHAMBERS, BEING SPECIFICALLY PROHIBITED BY STATUTE, SUCH PAYMENTS ARE NOT "EXTRAORDINARY EXPENSES" "THE PAYMENT OF WHICH IS NOT SPECIFICALLY PROVIDED FOR" WITHIN THE PURVIEW OF SECTION 846, REVISED STATUTES, AND ACCORDINGLY SUCH PAYMENTS MAY NOT BE LEGALIZED BY SPECIAL TAXATION AND APPROVAL BY THE PRESIDENT OF THE UNITED STATES UNDER SAID SECTION.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, MARCH 1, 1933:

THERE HAS BEEN RECEIVED, BY REFERENCE FROM YOUR OFFICE OF SEPTEMBER 16, 1932, WHAT PURPORTS TO BE A SPECIAL TAXATION BY THE COURT AND THE APPROVAL BY THE PRESIDENT OF THE UNITED STATES UNDER SECTION 846, REVISED STATUTES OF EXPENDITURES AGGREGATING $50, CREDIT FOR WHICH WAS DISALLOWED IN THE ACCOUNTS OF UNITED STATES MARSHAL PAUL H. CRESWELL BY SETTLEMENT OF MAY 26, 1932, WHICH SETTLEMENT WAS SUSTAINED BY DECISION OF THIS OFFICE SEPTEMBER 3, 1932.

THE EXPENDITURES CONSISTED OF COMPENSATION PAID TO THREE BAILIFFS IN CHARGE OF SEQUESTERED JURY FOR SATURDAYS AND SUNDAYS IN MARCH, 1931, WHEN THE COURT WAS NOT ACTUALLY IN SESSION, IN DIRECT CONTRAVENTION OF THE PROVISION IN THE APPROPRIATION FOR PAY OF BAILIFFS AND CRIERS FOR THE FISCAL YEAR 1931, ACT OF APRIL 18, 1930, 46 STAT. 190, WHICH READS:

* * * 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.

SECTION 846, REVISED STATUTES, PROVIDES:

* * * THAT WHERE THE MINISTERIAL OFFICERS OF THE UNITED STATES HAVE OR SHALL INCUR EXTRAORDINARY EXPENSE IN EXECUTING THE LAWS THEREOF, THE PAYMENT OF WHICH IS NOT SPECIFICALLY PROVIDED FOR, THE PRESIDENT OF THE UNITED STATES IS AUTHORIZED TO ALLOW THE PAYMENT THEREOF UNDER THE SPECIAL TAXATION OF THE DISTRICT OR CIRCUIT COURT OF THE DISTRICT IN WHICH THE SAID SERVICES HAVE BEEN OR SHALL BE RENDERED, TO BE PAID FROM THE APPROPRIATION FOR DEFRAYING THE EXPENSES OF THE JUDICIARY.

IT IS BELIEVED THE APPLICATION OF THE STATUTES ABOVE QUOTED TO THE FACTS IN THE INSTANT CASE COULD NOT HAVE BEEN BROUGHT TO YOUR ATTENTION AND THE ATTENTION OF THE PRESIDENT IN CONNECTION WITH HIS ACTION OF SEPTEMBER 15, 1932, AS IT IS TO BE NOTED THE AUTHORIZATION FOR SPECIAL TAXATION BY THE COURT AND ALLOWANCE BY THE PRESIDENT RELATE ONLY TO "EXTRAORDINARY EXPENSES" INCURRED IN EXECUTING THE LAWS,"THE PAYMENT OF WHICH IS NOT SPECIFICALLY PROVIDED FOR.' EMPLOYMENT OF BAILIFFS OR OTHERS TO TAKE CHARGE OF A SEQUESTERED JURY IS NOT "EXTRAORDINARY EXPENSE"--- AND SUCH EMPLOYMENT IS SPECIFICALLY PROVIDED FOR, BUT CLEARLY PROHIBITED BY THE ACT OF APRIL 18, 1930, SUPRA, "* * * UNLESS THE COURT IS ACTUALLY IN SESSION AND THE JUDGE PRESENT AND PRESIDING OR PRESENT IN CHAMBERS.' THE AUTHORITY FOR SPECIAL TAXATION UNDER SECTION 846, REVISED STATUTES, WAS NOT INTENDED, OF COURSE, FOR USE TO OVERCOME A SPECIFIC PROHIBITION BY THE CONGRESS SUCH AS APPEARS IN THE ACT OF APRIL 18, 1930, SUPRA. SEE 3 COMP. GEN. 443.

IN SPECIFICALLY PROHIBITING THE PAYMENT OF PER DIEM TO BAILIFFS OR CRIERS WHEN THE COURT IS NOT ACTUALLY IN SESSION AND THE JUDGE PRESENT AND PRESIDING OR PRESENT IN CHAMBERS, THE CONGRESS DOUBTLESS INTENDED THAT AT SUCH TIMES THE MARSHAL OR DEPUTY MARSHALL SHOULD PERFORM ANY NECESSARY SERVICE IN CONNECTION WITH A SEQUESTERED JURY.

THE MISUNDERSTANDING IS TO BE REGRETTED BUT IN VIEW OF THE FACTS APPEARING AND THE CLEAR PROVISIONS OF THE ACT OF APRIL 18, 1930, SUPRA, THE DECISION OF SEPTEMBER 3, 1932, MUST BE ADHERED TO. THE APPROPRIATION EMPLOYED WAS NOT AVAILABLE FOR THE PAYMENTS MADE AND THE MARSHAL SHOULD PROMPTLY DEPOSIT THE AMOUNT THEREOF.