A-61231, AUGUST 1, 1935, 15 COMP. GEN. 95

A-61231: Aug 1, 1935

Additional Materials:

Contact:

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

 

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

UNITED STATES COMMISSIONERS - NOTARIES PUBLIC - FEES A PERSON WHO IS BOTH A UNITED STATES COMMISSIONER AND A NOTARY PUBLIC AND IS DESIGNATED TO TAKE A DEPOSITION IN A FEDERAL PROCEEDING IS LIMITED TO THE FEES FIXED BY SECTION 21 OF THE ACT OF MAY 28. FOR UNITED STATES COMMISSIONERS AND IS NOT ENTITLED TO ANY ADDITIONAL COMPENSATION BY REASON OF THE FACT THAT HE WAS DESIGNATED AS A NOTARY PUBLIC IN THE ORDER AUTHORIZING THE DEPOSITION. 1935: REFERENCE IS HAD TO YOUR LETTER OF MARCH 28. IT IS STATED: IT MAY BE STATED THAT THESE DEPOSITIONS ARE TAKEN BY MR. OR CAPACITY IN WHICH HE IS ENGAGED BY THE LOCAL UNITED STATES ATTORNEY'S OFFICE. IT IS NOT A CASE OF HIS ELECTING TO RENDER SERVICE IN ANOTHER CAPACITY ON THE GROUND THAT THE FEES ARE HIGHER.

A-61231, AUGUST 1, 1935, 15 COMP. GEN. 95

UNITED STATES COMMISSIONERS - NOTARIES PUBLIC - FEES A PERSON WHO IS BOTH A UNITED STATES COMMISSIONER AND A NOTARY PUBLIC AND IS DESIGNATED TO TAKE A DEPOSITION IN A FEDERAL PROCEEDING IS LIMITED TO THE FEES FIXED BY SECTION 21 OF THE ACT OF MAY 28, 1896, FOR UNITED STATES COMMISSIONERS AND IS NOT ENTITLED TO ANY ADDITIONAL COMPENSATION BY REASON OF THE FACT THAT HE WAS DESIGNATED AS A NOTARY PUBLIC IN THE ORDER AUTHORIZING THE DEPOSITION.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, AUGUST 1, 1935:

REFERENCE IS HAD TO YOUR LETTER OF MARCH 28, 1935, REQUESTING REVIEW OF THE ACTION TAKEN BY THIS OFFICE IN DISALLOWING CREDIT IN THE ACCOUNTS OF C. A. PATTON, UNITED STATES MARSHAL, DENVER, COLO., FOR NOTARY FEES PAID ON VOUCHERS NOS. 1690 AND 2117 TO NEEDHAM C. TURNAGE, OF WASHINGTON, D.C., FOR TAKING DEPOSITIONS OF DRS. GEORGE J. ALLEN AND S. R. COLEMAN IN WAR- RISK INSURANCE CASES, INSOFAR AS THE FEES PAID EXCEEDED THOSE ALLOWABLE TO A UNITED STATES COMMISSIONER; ALSO, FOR COMPENSATION PAID ON VOUCHERS NOS. 1691 AND 2118 TO TWO STENOGRAPHERS FOR TAKING AND TRANSCRIBING THE DEPOSITIONS INVOLVED.

IN SUPPORT OF THE REQUEST FOR REVIEW, IT IS STATED:

IT MAY BE STATED THAT THESE DEPOSITIONS ARE TAKEN BY MR. TURNAGE IN WHATEVER CAPACITY THE NOTICE STIPULATES, OR CAPACITY IN WHICH HE IS ENGAGED BY THE LOCAL UNITED STATES ATTORNEY'S OFFICE. IT IS NOT A CASE OF HIS ELECTING TO RENDER SERVICE IN ANOTHER CAPACITY ON THE GROUND THAT THE FEES ARE HIGHER. WHERE DEPOSITIONS ARE NOTICED IN A SPECIFIC CAPACITY BY A UNITED STATES ATTORNEY WHO HAS NO MEANS OF KNOWING THAT THE OFFICIAL BEFORE WHOM THE TESTIMONY IS TO BE TAKEN ALSO IS EMPOWERED TO PERFORM THE SERVICES IN ANOTHER CAPACITY, IT WOULD SEEM REASONABLE THAT THE FEES PRESCRIBED FOR THE OFFICE UNDER THE AUTHORITY OF WHICH THE DEPOSITION IS TAKEN SHOULD CONTROL.

IN DECISION TO YOU OF APRIL 4, 1935, 14 COMP. GEN. 731, IT WAS STATED:

WITH RESPECT TO TAKING DEPOSITIONS BEFORE UNITED STATES COMMISSIONERS, THE ACT OF MAY 28, 1896, 29 STAT. 184, PRESCRIBES THE FEES ALLOWABLE FOR EACH SERVICE RENDERED BY A UNITED STATES COMMISSIONER, INCLUDING 10 CENTS FOR EACH OATH ADMINISTERED, AND 10 CENTS PER FOLIO FOR TAKING AND CERTIFYING DEPOSITIONS TO BE FILED IN CIVIL CASES, AND FURTHER PROVIDES "THAT EACH UNITED STATES COMMISSIONER SHALL BE ENTITLED TO THE NAMED FEES AND NONE OTHER.' IN VIEW OF THIS POSITIVE PROHIBITION IT WILL NOT BE POSSIBLE TO ALLOW THE UNITED STATES COMMISSIONER REIMBURSEMENT FOR STENOGRAPHIC SERVICE IN ADDITION TO THE STATUTORY FEE.

IN DECISION OF APRIL 30, 1935, A-60548, INVOLVING AN IDENTICAL SITUATION, IT WAS STATED:

SECTION 21 OF THE ACT OF MAY 28, 1896, 29 STAT. 184, PROVIDES:

"SEC. 21. THAT EACH UNITED STATES COMMISSIONER SHALL BE ENTITLED TO THE FOLLOWING-NAMED FEES, AND NONE OTHER: * * * FOR ADMINISTERING AN OATH (EXCEPT TO WITNESS AS TO ATTENDANCE AND TRAVEL), TEN CENTS; * * * FOR TAKING AND CERTIFYING DEPOSITIONS TO FILE IN CIVIL CASES, TEN CENTS FOR EACH FOLIO; FOR EACH COPY OF SAME FURNISHED TO A PARTY ON REQUEST, TEN CENTS FOR EACH FOLIO; * * *.'

UNITED STATES COMMISSIONERS BEING QUALIFIED TO TAKE DEPOSITIONS AND THE STATUTE PRESCRIBING THE FEES WHICH MAY BE CHARGED THEREFOR, WITH THE EXPRESS LIMITATION THAT "NONE OTHER" SHALL BE PAID, IT FOLLOWS THAT A COMMISSIONER TAKING DEPOSITIONS MAY NOT BE PAID MORE THAN THE STATUTE AUTHORIZES, IRRESPECTIVE OF WHETHER HE MAY CLAIM, OR MAY HAVE BEEN DESIGNATED, TO ACT IN HIS CAPACITY AS NOTARY PUBLIC RATHER THAN AS A UNITED STATES COMMISSIONER. IT IS ALSO WELL ESTABLISHED THAT A UNITED STATES COMMISSIONER MAKING USE OF A STENOGRAPHER MUST COMPENSATE THE STENOGRAPHER FROM SUCH FEES AS HE MAY RECEIVE. A-53796, APRIL 4, 1935. SEE, ALSO, SECTION 1778, REVISED STATUTES, AND WHITNEY V. HUNTT, 29 FED. CASES NO. 17589.'

WHERE A PERSON DESIGNATED TO TAKE A DEPOSITION IS BOTH A UNITED STATES COMMISSIONER AND A NOTARY PUBLIC, IT IS IMMATERIAL IN WHICH CAPACITY HE IS AUTHORIZED TO TAKE THE DEPOSITION AS THERE APPEARS TO BE NO DIFFERENCE IN THE LEGAL EFFECT OF A DEPOSITION WHETHER TAKEN BEFORE A UNITED STATES COMMISSIONER OR A NOTARY PUBLIC. ACCORDINGLY, AS SECTION 21 OF THE ACT OF MAY 28, 1896, 29 STAT. 184, AUTHORIZES A UNITED STATES COMMISSIONER TO CHARGE THE FEES THEREIN PRESCRIBED "AND NONE OTHER" IT FOLLOWS THAT THE RESTRICTIONS OF THE STATUTE MAY NOT BE VOIDED BY AUTHORIZING A UNITED STATES COMMISSIONER TO TAKE THE DEPOSITIONS AS A NOTARY PUBLIC OR BY HAVING THE STENOGRAPHERS DESIGNATED OR HIRED BY THE DISTRICT ATTORNEY OR SOMEONE OTHER THAN THE COMMISSIONER. HE STILL REMAINS A UNITED STATES COMMISSIONER AND MUST CONFINE HIS FEES TO THOSE PRESCRIBED BY THE STATUTE. ACCORDINGLY, SO LONG AS THE LAW REMAINS AS IT IS AT PRESENT THERE IS NO AUTHORITY FOR THE ALLOWANCE TO A UNITED STATES COMMISSIONER FOR ANY SUM IN EXCESS OF THE FEES PRESCRIBED BY THE 1896 STATUTE, NOR MAY CREDIT BE ALLOWED IN A UNITED STATES MARSHAL'S ACCOUNTS FOR PAYMENT OF STENOGRAPHIC SERVICES TO TAKE AND TRANSCRIBE A DEPOSITION BEFORE A UNITED STATES COMMISSIONER.