A-45434, NOVEMBER 1, 1932, 12 COMP. GEN. 427

A-45434: Nov 1, 1932

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THE TRANSPORTATION EXPENSES OF FEDERAL PRISONERS WHO VIOLATE THEIR PAROLE ARE CHARGEABLE TO THE APPROPRIATION "SALARIES. FOR THE REASON THAT SUCH EXPENSES WERE NOT CHARGEABLE UNDER THE APPROPRIATION FROM WHICH PAID. SHOULD BE PAID OUT OF THE APPROPRIATION FOR THE PRISON IN CONNECTION WITH WHICH SUCH EXPENSE WAS INCURRED. PAROLE BOARDS AT THE VARIOUS FEDERAL PENAL AND CORRECTIONAL INSTITUTIONS WERE AUTHORIZED TO ACT IN THE PAROLING AND RETAKING OF UNITED STATES PRISONERS. ONE SINGLE BOARD OF PAROLE WAS CREATED. IN SECTION 3 OF THE ACT IT WAS PROVIDED THAT SAID BOARD. THEREAFTER SHOULD HAVE "THE EXCLUSIVE AUTHORITY TO ISSUE WARRANTS FOR THE RETAKING OF ANY UNITED STATES PRISONER WHO HAS VIOLATED HIS PAROLE.'.

A-45434, NOVEMBER 1, 1932, 12 COMP. GEN. 427

APPROPRIATIONS - DEPARTMENT OF JUSTICE - TRANSPORTATION OF FEDERAL PRISONERS UNDER THE PROVISIONS OF SECTION 8 OF THE ACT OF MAY 14, 1930, 46 STAT. 325, RELATING TO THE TRANSPORTATION OF FEDERAL PRISONERS, AND THE REGULATIONS OF THE ATTORNEY GENERAL MADE IN PURSUANCE OF SUCH ACT, THE TRANSPORTATION EXPENSES OF FEDERAL PRISONERS WHO VIOLATE THEIR PAROLE ARE CHARGEABLE TO THE APPROPRIATION "SALARIES, FEES AND EXPENSES OF MARSHALS, UNITED STATES COURTS," DESIGNATED FOR THE PURPOSE OF PAYING THE TRANSPORTATION EXPENSES OF FEDERAL PRISONERS BY THE ATTORNEY GENERAL UNDER CIRCULAR NO. 2103 OF JUNE 13, 1930.

COMPTROLLER GENERAL MCCARL TO S. L. GROSS, UNITED STATES MARSHAL, NOVEMBER 1, 1932:

THERE HAS BEEN RECEIVED YOUR LETTER OF OCTOBER 19, 1932, RELATIVE TO THE EXCEPTION BY THIS OFFICE TO CERTAIN ITEMS OF YOUR ACCOUNT FOR THE DECEMBER QUARTER, 1931, VOUCHER NO. 16, AND THE SUSPENSION OF CREDIT THEREIN FOR PAYMENTS AMOUNTING TO $77.05 TO DEPUTY MARSHAL WHEELER SMITH,AS REIMBURSEMENT OF EXPENSES INCIDENT TO THE RETURNING OF A PAROLE VIOLATOR FROM FORT WORTH, TEXAS, TO THE UNITED STATES PENITENTIARY, LEAVENWORTH, KANSAS, FOR THE REASON THAT SUCH EXPENSES WERE NOT CHARGEABLE UNDER THE APPROPRIATION FROM WHICH PAID, TO WIT,"SALARIES, FEES AND EXPENSES OF MARSHAL, UNITED STATES COURTS.'

THE MATTER AS PRESENTED RAISES THE QUESTION WHETHER THAT PART OF SECTION 5 OF THE "PAROLE ACT" OF JUNE 25, 1910, 36 STAT. 820, PROVIDING THAT ALL NECESSARY EXPENSES INCURRED IN THE ADMINISTRATION OF THE ACT, INCLUDING THE TRANSPORTATION OF PRISONERS WHO VIOLATE THEIR PAROLE, SHOULD BE PAID OUT OF THE APPROPRIATION FOR THE PRISON IN CONNECTION WITH WHICH SUCH EXPENSE WAS INCURRED, HAS BEEN REPEALED OR SUPERSEDED BY SUBSEQUENT LEGISLATION.

UNDER THE PAROLE ACT OF 1910, PAROLE BOARDS AT THE VARIOUS FEDERAL PENAL AND CORRECTIONAL INSTITUTIONS WERE AUTHORIZED TO ACT IN THE PAROLING AND RETAKING OF UNITED STATES PRISONERS, BUT BY THE ACT OF MAY 13, 1930, 46 STAT. 272, ONE SINGLE BOARD OF PAROLE WAS CREATED, THE MEMBERS THEREOF TO BE APPOINTED BY THE ATTORNEY GENERAL, TO ACT IN LIEU OF THE FORMER BOARDS, AND IN SECTION 3 OF THE ACT IT WAS PROVIDED THAT SAID BOARD, OR ANY MEMBER THEREOF, THEREAFTER SHOULD HAVE "THE EXCLUSIVE AUTHORITY TO ISSUE WARRANTS FOR THE RETAKING OF ANY UNITED STATES PRISONER WHO HAS VIOLATED HIS PAROLE.' THIS PAROLE BOARD HAS BEEN PLACED UNDER THE GENERAL JURISDICTION OF THE BUREAU OF PRISONS, DEPARTMENT OF JUSTICE. IT WOULD THUS APPEAR THAT BY THE ACT OF MAY 13, 1930, MATTERS OF PAROLING AND REVOKING PAROLES HAVE BEEN CHANGED FROM INSTITUTIONAL TO DEPARTMENTAL MATTERS.

CHANGES WERE MADE, ALSO, IN THE ORGANIZATION OF PENAL AND CORRECTIONAL INSTITUTIONS BY THE PRISON REORGANIZATION ACT OF MAY 14, 1930, 46 STAT. 325, AND IN SECTION 13 OF THE SAID ACT IT WAS PROVIDED THAT ALL ACTS AND PARTS OF ACTS IN CONFLICT WITH SAID ACT WERE REPEALED. THIS ACT PROVIDED, ALSO, IN SECTION 8, THAT:

ALL TRANSPORTATION OF PRISONERS SHALL BE BY SUCH AGENT OR AGENTS OF THE DEPARTMENT OF JUSTICE AS THE ATTORNEY GENERAL OR HIS AUTHORIZED REPRESENTATIVE SHALL FROM TIME TO TIME NOMINATE, THE REASONABLE EXPENSE OF TRANSPORTATION, NECESSARY SUBSISTENCE, AND HIRE AND TRANSPORTATION OF GUARDS AND AGENT OR AGENTS TO BE PAID BY THE ATTORNEY GENERAL FROM ANY APPROPRIATION TO THE DEPARTMENT OF JUSTICE AS HE MAY DIRECT: * * *

THE PROVISIONS OF THIS SECTION, AS QUOTED, ARE NOT NECESSARILY IN CONFLICT WITH THE PROVISIONS OF SECTION 5 OF THE ACT OF 1910 RELATING TO CHARGING THE APPROPRIATION OF THE INSTITUTIONS FOR THE TRANSPORTATION OF UNITED STATES PRISONERS VIOLATING THEIR PAROLE, BUT THERE IS GIVEN THE ATTORNEY GENERAL AUTHORITY TO DESIGNATE AN APPROPRIATION FOR THE PAYMENT OF SUCH EXPENSES OTHER THAN THAT SPECIFIED IN THE ACT OF 1910 AND, TO THAT EXTENT, THE PROVISIONS IN THAT CONNECTION IN THE ACT OF 1910 MUST BE CONSIDERED MODIFIED, DEPENDING UPON THE ACTION TO BE TAKEN BY THE ATTORNEY GENERAL.

IT APPEARS THAT PURSUANT TO THE PROVISIONS OF THE ACT OF MAY 14, 1930, SUPRA, THE ATTORNEY GENERAL, UNDER DATE OF JUNE 13, 1930, ISSUED CIRCULAR NO. 2103 TO ALL WARDENS, SUPERINTENDENTS, MARSHALS, AND SHERIFFS, IN WHICH WERE SET OUT SECTIONS 7, 8, 9, 10, AND 11 OF THE PRISON REORGANIZATION ACT AND CERTAIN INSTRUCTIONS TO SUCH OFFICERS RELATIVE TO THE MANNER IN WHICH THE PROVISIONS OF SAID ACT SHOULD BE CARRIED OUT. PARAGRAPH 3 OF SAID CIRCULAR PROVIDED:

PURSUANT TO THE PROVISIONS OF SECTION 8 OF THE ABOVE ACT, UNITED STATES MARSHALS AND THEIR DEPUTIES ARE HEREBY FORMALLY NOMINATED AS OF MAY 14, 1930, FOR THE TRANSPORTATION OF UNITED STATES PRISONERS, THE COST OF SUCH TRANSPORTATION TO BE PAID, AS HERETOFORE, FROM APPROPRIATIONS ENTITLED "SALARIES, FEES, AND EXPENSES OF MARSHALS, UNITED STATES COURTS.'

THE WORDS "AS HERETOFORE" MAKE THE MATTER NOT FREE FROM DOUBT SINCE THE APPROPRIATION DESIGNATED PRIOR TO THAT TIME HAD NOT BEEN USED TO PAY FOR THE TRANSPORTATION EXPENSES OF UNITED STATES PRISONERS WHO HAD VIOLATED THEIR PAROLE, BUT IF IT BE CONSIDERED THAT ABOUT THE SAME TIME THE AUTHORITY OF DIRECTING THE EXPENDITURES HAD BEEN CHANGED FROM AN INSTITUTIONAL TO A DEPARTMENTAL MATTER AND SINCE THE APPROPRIATION IN QUESTION IS THE ONLY ONE DESIGNATED UNDER SECTION 8 OF THE ACT OF 1930, SUPRA, FOR THE TRANSPORTATION OF ALL FEDERAL PRISONERS WHICH, OF NECESSITY, MUST INCLUDE UNITED STATES PRISONERS WHO HAVE VIOLATED THEIR PAROLE, THAT APPROPRIATION APPEARS TO BE THE PROPER ONE TO BE CHARGED FOR EXPENSES SUCH AS INVOLVED IN THE PRESENT CASE.

UNDER THE CIRCUMSTANCES, IT WOULD APPEAR THAT THE APPROPRIATION "SALARIES, FEES AND EXPENSES OF MARSHALS, UNITED STATES COURTS," WAS PROPERLY CHARGED WITH THE TRANSPORTATION EXPENSES IN THIS CASE AND, ACCORDINGLY, I HAVE TO ADVISE THAT, IF OTHERWISE CORRECT AND PROPER, CREDIT WILL BE ALLOWED IN YOUR ACCOUNTS FOR THE PAYMENT AS MADE.