A-45775, MARCH 17, 1933, 12 COMP. GEN. 549

A-45775: Mar 17, 1933

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

" IS NOT ALLOWABLE IN PROCEEDINGS FOR THE ARREST AND REMOVAL OF AN OFFENDER TO ANOTHER DISTRICT WHEN MADE FOR AND TRANSMITTED TO THE COURT OF THE DISTRICT IN WHICH THE ARREST IS MADE. UNLESS SUCH SERVICES ARE SPECIFICALLY REQUIRED BY A RULE OR ORDER OF THE COURT. BY WHICH WAS DISALLOWED THE STATUTORY FEE OF 60 CENTS ALLEGED TO BE DUE FOR PREPARING A TRANSCRIPT OF PROCEEDINGS IN THE CASE OF UNITED STATES V. WAS DELIVERED FOR SERVICE TO THE UNITED STATES MARSHAL. THAT SAID DEFENDANT WAS ARRESTED JANUARY 13. THAT AT SUCH COMMISSIONER'S HEARING THE DEFENDANT WAS BOUND OVER TO THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA FOR AN ORDER OF REMOVAL OF THE DEFENDANT TO THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA.

A-45775, MARCH 17, 1933, 12 COMP. GEN. 549

COMMISSIONERS - FEES - TRANSCRIPTS IN REMOVAL CASES THE UNITED STATES COMMISSIONER'S FEE OF 60 CENTS PROVIDED BY THE ACT OF MAY 28, 1896, 29 STAT. 184, FOR "TRANSCRIPT OF PROCEEDINGS, WHEN REQUIRED BY ORDER OF COURT AND TRANSMISSION OF ORIGINAL PAPERS TO COURT," IS NOT ALLOWABLE IN PROCEEDINGS FOR THE ARREST AND REMOVAL OF AN OFFENDER TO ANOTHER DISTRICT WHEN MADE FOR AND TRANSMITTED TO THE COURT OF THE DISTRICT IN WHICH THE ARREST IS MADE, UNLESS SUCH SERVICES ARE SPECIFICALLY REQUIRED BY A RULE OR ORDER OF THE COURT.

DECISION BY COMPTROLLER GENERAL MCCARL, MARCH 17, 1933:

C. F. O-NEAL, UNITED STATES COMMISSIONER FOR THE WESTERN DISTRICT OF OKLAHOMA, AT LAWTON, KLA., HAS REQUESTED REVIEW OF SETTLEMENT NO. 0281736, DATED JULY 13, 1932, BY WHICH WAS DISALLOWED THE STATUTORY FEE OF 60 CENTS ALLEGED TO BE DUE FOR PREPARING A TRANSCRIPT OF PROCEEDINGS IN THE CASE OF UNITED STATES V. H. C. COTTON (DOCKET NO. 3, P. 15, CASE NO. 242--- P. 8 OF SUPPLEMENTAL ACCOUNT FOR QUARTER ENDING FEBRUARY 29, 1932), AND TRANSMITTING SAME WITH THE ORIGINAL PAPERS IN THE CASE TO THE COURT IN THAT DISTRICT.

THE RECORD DISCLOSES THAT ON COMPLAINT FILED JANUARY 7, 1932, BY AN ASSISTANT UNITED STATES ATTORNEY BEFORE ANOTHER COMMISSIONER, A WARRANT OF ARREST FOR H. C. COTTON, DEFENDANT, WAS DELIVERED FOR SERVICE TO THE UNITED STATES MARSHAL, WESTERN DISTRICT OF OKLAHOMA; THAT SAID DEFENDANT WAS ARRESTED JANUARY 13, 1932, AT FORT SILL, OKLA., AND ON THAT DATE BROUGHT BEFORE UNITED STATES COMMISSIONER O-NEAL AT LAWTON, OKLA., FOR HEARING ON THE CHARGE OF HAVING COMMITTED AN OFFENSE AGAINST THE UNITED STATES ON SEPTEMBER 10, 1931, AT FROGVILLE, EASTERN DISTRICT OF OKLAHOMA; AND THAT AT SUCH COMMISSIONER'S HEARING THE DEFENDANT WAS BOUND OVER TO THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA FOR AN ORDER OF REMOVAL OF THE DEFENDANT TO THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA, IN WHICH DISTRICT THE ALLEGED OFFENSE WAS COMMITTED.

AMONG THE FEES CLAIMED BY THE COMMISSIONER FOR SERVICES IN CONNECTION WITH SUCH REMOVAL CASE IS THE STATUTORY FEE OF 60 CENTS FOR A TRANSCRIPT OF PROCEEDINGS AND FOR TRANSMISSION OF SAME AND THE PAPERS TO THE DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA. CLAIMANT INSISTS THAT HE IS ENTITLED TO THE STATUTORY FEE UNDER RULE 19 OF THE DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA, WHICH PROVIDES THAT---

EACH UNITED STATES COMMISSIONER SHALL KEEP A FULL RECORD OF ALL PROCEEDINGS BEFORE HIM, AND IN ALL CASES PROMPTLY TRANSMIT TO THE CLERK A COMPLETE TRANSCRIPT THEREOF, TOGETHER WITH ALL THE PAPERS, A LIST OF THE WITNESSES, AND A STATEMENT OF ALL THE COSTS OF THE COMMISSIONER, MARSHAL, AND THE WITNESSES.

THE FEES OF A UNITED STATES COMMISSIONER ARE LIMITED TO THOSE SPECIFIC SERVICES FOR WHICH THE CONGRESS HAS PROVIDED COMPENSATION. UNITED STATES V. PATTERSON, 150 U.S. 65, 69; AND DAVIES V. UNITED STATES, 23 CT.CLS. 468.THE FEES TO WHICH UNITED STATES COMMISSIONERS ARE ENTITLED ON ACCOUNT OF SERVICES PERFORMED FOR THE GOVERNMENT ARE NOW PROVIDED FOR BY THE ACT OF MAY 28, 1896, 29 STAT. 184, INCLUDING A 60-CENT FEE FOR A "TRANSCRIPT OF PROCEEDINGS, WHEN REQUIRED BY ORDER OF COURT AND TRANSMISSION OF ORIGINAL PAPERS TO COURT.'

THE COMMISSIONER HERE CONTENDS THAT WHILE THE CITED RULE OF COURT IN HIS DISTRICT REQUIRING THE TRANSMISSION OF TRANSCRIPTS AND PAPERS TO COURT DOES NOT IN TERMS SPECIFICALLY MENTION REMOVAL CASES IT DOES SPECIFY "ALL CASES" AND THAT THE TERM "ALL CASES" NECESSARILY INCLUDES REMOVAL CASES. A SIMILAR CONTENTION INVOLVING A RULE OF COURT REQUIRING COMMISSIONERS TO SEND A TRANSCRIPT TO COURT "IN EVERY CASE" WAS ANSWERED BY THE COMPTROLLER OF THE TREASURY IN DECISION OF MARCH 30, 1915, 21 COMP. DEC. 685, 688, AS FOLLOWS:

IT WOULD SEEM THAT WHERE AN OFFENDER IS ARRESTED IN ONE DISTRICT FOR THE SOLE PURPOSE OF REMOVAL TO ANOTHER DISTRICT IN WHICH CHARGE IS PENDING AGAINST HIM THERE IS NO OCCASION FOR THE TRANSMISSIONS OF TRANSCRIPT AND PAPERS TO THE COURT IN THE DISTRICT IN WHICH THE ARREST IS MADE, SAID COURT HAVING NO CONNECTION WHATEVER WITH THE CASE. THIS IS ESPECIALLY TRUE WHERE BOND IS GIVEN AND NO ORDER OF REMOVAL IS NECESSARY. EVEN WHERE AN ORDER OF REMOVAL IS REQUIRED IT IS UNNECESSARY TO DOCKET THE REMOVAL PROCEEDING OR TO FILE ANY PAPERS IN COURT. (UNITED STATES V. KING, 147 U.S. 676, 682.) IF THE COMMISSIONER'S PAPERS AND TRANSCRIPT ARE NEEDED BY THE JUDGE WHO HEARS THE APPLICATION FOR ORDER OF REMOVAL THEY WILL HAVE SERVED THEIR FINAL PURPOSE IN HIS DISTRICT WHEN HE SHALL HAVE TAKEN ACTION ON THE APPLICATION.

RULES OF COURT WILL NOT BE CONSTRUED AS REQUIRING THIS APPARENTLY UNNECESSARY SERVICE UNLESS THE INTENT TO DO SO IS CLEAR AND CERTAIN.

THE RULE IN THE SOUTHERN DISTRICT OF OHIO, AS STATED BY THIS COMMISSIONER, IS THAT HE SHALL SEND A TRANSCRIPT TO THE CLERK OF THE COURT IN HIS DISTRICT "IN EVERY CASE.' UNLESS AND UNTIL OTHERWISE JUDICIALLY DECIDED, THIS RULE WILL BE CONSTRUED BY THIS OFFICE TO APPLY TO CASES PENDING OR ARISING IN THE SOUTHERN DISTRICT OF OHIO ONLY, AND NOT TO CASES PENDING OR ARISING IN OTHER DISTRICTS.

IT HAS BEEN HELD BY THIS OFFICE THAT WHERE TRANSCRIPT AND PAPERS ARE IN FACT SENT INTO THE DISTRICT TO WHICH THE OFFENDER IS REMOVED, PRESUMABLY UNDER RULE OF COURT, FEE FOR TRANSCRIPT AND TRANSMISSION IS ALLOWABLE. (20 COMP. DEC. 654.) IT APPEARS AS A FACT IN THIS CASE THAT THE TRANSCRIPTS AND PAPERS WERE SENT TO THE COURT IN THE COMMISSIONER'S OWN DISTRICT AND NOT INTO THE OTHER DISTRICT. SUCH TRANSMISSION IS APPARENTLY NOT REQUIRED BY RULE AND IS UNNECESSARY.

THE AUDITOR'S ACTION IN DISALLOWING THE ITEMS IS AFFIRMED.

IN THIS CONNECTION SEE, ALSO, 20 COMP. DEC. 24. THIS CONSTRUCTION OF THE LAW HAS BEEN SINCE FOLLOWED BY THE ACCOUNTING AND ADMINISTRATIVE OFFICERS. SEE DECISION OF MAY 2, 1924, A-1227, AND PARAGRAPH 1654, INSTRUCTIONS TO COMMISSIONERS, 1929. SUCH DECISIONS WOULD APPEAR TO BE CONTROLLING IN THE INSTANT CASE, AND INASMUCH AS A TRANSCRIPT IN REMOVAL CASES DOES NOT APPEAR TO HAVE BEEN SPECIFICALLY REQUIRED BY A RULE OR ORDER OF THE COURT, THE NECESSITY FOR THE PREPARATION THEREOF FOR SAID COURT IS NOT ESTABLISHED. UNDER SUCH CIRCUMSTANCES THE COMMISSIONER IS NOT ENTITLED TO THE STATUTORY FEE OF 60 CENTS CLAIMED FOR THE SERVICE IN QUESTION.