A-67968, DECEMBER 23, 1935, 15 COMP. GEN. 550

A-67968: Dec 23, 1935

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THAT SAID FEE IN CASES WHERE THERE IS ONLY ONE DEFENDANT IS TO BE ALLOWED FOR THE DAY THE ACCUSED IS FIRST BROUGHT BEFORE THE COMMISSIONER FOR ARRAIGNMENT IF A PER DIEM FEE IS NOT CHARGED FOR THAT DAY IN ANOTHER CASE. IS NOT APPLICABLE TO CASES WHERE THERE ARE JOINT OFFENDERS. IN SUCH CASES THE FEE IS ALLOWABLE FOR THE DAY ON WHICH ANY ONE OF SAID JOINT OFFENDERS IS ARRAIGNED IF THE FEE IS NOT CHARGED FOR THAT DAY IN SOME OTHER CASE. FEES FOR SERVICES INCIDENT TO THE ISSUING OF WARRANTS AGAINST OFFENDERS VIOLATING UNITED STATES STATUTES MAY NOT BE ALLOWED UNITED STATES COMMISSIONERS IN CASES WHERE THE OFFENDERS ARE ALREADY BEFORE THE COMMISSIONER OR ARE IN THE CUSTODY OF AN OFFICER HAVING AUTHORITY TO PRODUCE THEM BEFORE THE COMMISSIONER.

A-67968, DECEMBER 23, 1935, 15 COMP. GEN. 550

FEES - UNITED STATES COMMISSIONERS THE RULE REGARDING PER DIEM FEES PAYABLE TO UNITED STATES COMMISSIONERS UNDER THE ACT OF MAY 28, 1896, 29 STAT. 185,"FOR HEARING AND DECIDING ON CRIMINAL CHARGES," ETC., THAT SAID FEE IN CASES WHERE THERE IS ONLY ONE DEFENDANT IS TO BE ALLOWED FOR THE DAY THE ACCUSED IS FIRST BROUGHT BEFORE THE COMMISSIONER FOR ARRAIGNMENT IF A PER DIEM FEE IS NOT CHARGED FOR THAT DAY IN ANOTHER CASE, IS NOT APPLICABLE TO CASES WHERE THERE ARE JOINT OFFENDERS, BUT IN SUCH CASES THE FEE IS ALLOWABLE FOR THE DAY ON WHICH ANY ONE OF SAID JOINT OFFENDERS IS ARRAIGNED IF THE FEE IS NOT CHARGED FOR THAT DAY IN SOME OTHER CASE. FEES FOR SERVICES INCIDENT TO THE ISSUING OF WARRANTS AGAINST OFFENDERS VIOLATING UNITED STATES STATUTES MAY NOT BE ALLOWED UNITED STATES COMMISSIONERS IN CASES WHERE THE OFFENDERS ARE ALREADY BEFORE THE COMMISSIONER OR ARE IN THE CUSTODY OF AN OFFICER HAVING AUTHORITY TO PRODUCE THEM BEFORE THE COMMISSIONER, IN THE ABSENCE OF A STATE STATUTE REQUIRING THE ISSUANCE OF WARRANTS IN SUCH CASES.

COMPTROLLER GENERAL MCCARL TO THE UNITED STATES COMMISSIONER, SOUTHERN DIVISION OF THE NORTHERN DISTRICT OF ALABAMA, DECEMBER 23, 1935:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTERS OF OCTOBER 15 AND NOVEMBER 1, 1935, RELATIVE TO CERTAIN QUESTIONED ITEMS OF YOUR CLAIM FOR COMMISSIONER'S FEES FOR THE QUARTER ENDING JULY 31, 1935.

IN VIEW OF THE ADDITIONAL INFORMATION AND FACTS FURNISHED THE FEES OF $5.35 CLAIMED, AS SHOWN IN DISALLOWANCE ITEMS 1 AND 3, WILL BE ALLOWED. THE CLAIMED FEES OF $82.80 AND $44.40, AS SHOWN IN DISALLOWANCE ITEMS 2 AND 4, PROPERLY ARE FOR DISALLOWANCE UNDER THE FACTS SHOWN IN THE PRESENT RECORD.

RELATIVE TO THE DISALLOWANCE ITEM 1 OF THE CLAIMED $5 STATUTORY FEE FOR "HEARING AND DECIDING," ETC., ON JUNE 6, 1935, IN CASE NO. 5246 (DOCKET NO. 36), UNITED STATES V. CURTIS HATHCOCK, THOMAS W. RUTLEDGE, AND WILLIE BEASON SMITH, SECTION 21 OF THE ACT OF MAY 28, 1896, PRESCRIBING THE FEES TO BE ALLOWED TO UNITED STATES COMMISSIONERS PROVIDES:

* * * FOR HEARING AND DECIDING ON CRIMINAL CHARGES AND REDUCING THE TESTIMONY TO WRITING WHEN REQUIRED BY LAW OR ORDER OF COURT, FIVE DOLLARS A DAY FOR THE TIME NECESSARILY EMPLOYED: PROVIDED, THAT NOT MORE THAN ONE PER DIEM SHALL BE ALLOWED IN A CASE, UNLESS THE ACCOUNT SHALL SHOW THAT THE HEARING COULD NOT BE COMPLETED IN ONE DAY, WHEN ONE ADDITIONAL PER DIEM MAY BE SPECIALLY APPROVED AND ALLOWED BY THE COURT: PROVIDED FURTHER, THAT NOT MORE THAN ONE PER DIEM SHALL BE ALLOWED FOR ANY ONE DAY: * * *

WITH REFERENCE TO SAID STATUTE AND ITS APPLICATION THIS OFFICE IN DECISION OF JANUARY 17, 1930, A-29945, 9 COMP. GEN. 296-299, STATED:

PRIMARILY THE STATUTE RESTRICTS THE ALLOWANCE TO ONE PER DIEM IN A CASE "FOR HEARING AND DECIDING ON CRIMINAL CHARGES AND REDUCING THE TESTIMONY TO WRITING WHEN REQUIRED BY LAW OR ORDER OF COURT," WITH A PROVISO THAT WHEN THE ACCOUNT SHALL SHOW THAT THE HEARING COULD NOT BE COMPLETED IN ONE DAY,"ONE ADDITIONAL PER DIEM MAY BE SPECIALLY APPROVED AND ALLOWED BY THE COURT," WITH AN ADDITIONAL PROVISO THAT NOT MORE THAN ONE PER DIEM SHALL BE ALLOWED FOR ANY ONE DAY. READING THESE PROVISIONS IN THE LIGHT OF THE DECISIONS CITED, AND IN VIEW OF THE SITUATION WHICH RESULTS WHERE THE COMMISSIONER EXERCISES ANY CONTROL AS TO THE DAYS FOR WHICH PER DIEMS ARE ALLOWABLE, IT IS CONCLUDED, FIRST THAT THE STATUTE AUTHORIZES AN ALLOWANCE OF ONE PER DIEM AS FOR THE DAY THE ACCUSED IS FIRST BROUGHT BEFORE THE COMMISSIONER, IF A PER DIEM BE NOT CHARGED FOR THAT DAY IN SOME OTHER CASE; AND, SECOND, THAT WHERE THE ACCOUNT SHOWS THE HEARING COULD NOT BE COMPLETED IN ONE DAY, THE STATUTE AUTHORIZES THE ALLOWANCE OF ONE ADDITIONAL PER DIEM FOR THE DAY THE CASE IS FINALLY DECIDED, OR IF A PER DIEM BE CHARGED IN SOME OTHER CASE FOR SAID DAY, FOR ANY INTERVENING HEARING DAY ON WHICH A MOTION FOR A CONTINUANCE HAS BEEN GRANTED, PROVIDED A PER DIEM IS NOT CHARGED FOR SUCH INTERVENING DAY IN SOME OTHER CASE.

IN THE INSTANT CASE, PAGE 34 OF THE ACCOUNT, SUPRA, IT APPEARS THAT THE THREE OFFENDERS WERE JOINTLY CHARGED IN COMPLAINT FILED MAY 15, 1935, WITH VIOLATING THE UNITED STATES CRIMINAL STATUTES, BY CONSPIRING TO OPERATE A LIQUOR STILL, AND A WARRANT FOR THEIR ARREST WAS THAT DATE ISSUED TO THE UNITED STATES MARSHAL. THE DEFENDANT, RUTLEDGE, WAS ARRESTED ON JUNE 5, 1935, AND BROUGHT BEFORE THE COMMISSIONER AND ARRAIGNED, AND HE ENTERED A PLEA OF NOT GUILTY, AND THE HEARING OF THE CHARGE AGAINST HIM WAS SET FOR JUNE 6, 1935--- HE BEING COMMITTED TO JAIL IN DEFAULT OF BAIL. ON JUNE 6, 1935, THE DEFENDANT, SMITH, WAS ARRESTED AND BROUGHT BEFORE THE COMMISSIONER AND ARRAIGNED, AND HE ENTERED A PLEA OF NOT GUILTY. THE HEARING OF THE CHARGE AGAINST THE SAID TWO DEFENDANTS, RUTLEDGE AND SMITH, WAS CONTINUED FROM JUNE 6 TO 8, 1935, FOR THE PURPOSE OF SECURING ATTENDANCE AT SAID HEARING OF NECESSARY GOVERNMENT WITNESSES AND IN ORDER TO ALLOW THE UNITED STATES MARSHAL ADDITIONAL TIME TO ARREST THE DEFENDANT, HATHCOCK. THE DEFENDANTS, RUTLEDGE AND SMITH, ON JUNE 6, 1935, FURNISHED APPROVED BOND FOR THEIR APPEARANCE AT SUCH HEARING ON JUNE 8, 1935. THE DEFENDANT, HATHCOCK, WAS ARRESTED JUNE 8, 1935, AND BROUGHT BEFORE THE COMMISSIONER AND ARRAIGNED, AND HE ENTERED A PLEA OF NOT GUILTY TO THE CHARGE. THE HEARING OF THE CHARGE AGAINST SAID THREE DEFENDANTS WAS HELD BY THE COMMISSIONER ON JUNE 8, 1935, AND THE DEFENDANT, SMITH, WAS FOUND NOT GUILTY AND HE WAS DISCHARGED BY THE COMMISSIONER; AND THE DEFENDANTS, RUTLEDGE AND HATHCOCK, WERE EACH FOUND TO BE GUILTY, AND THEY WERE HELD FOR SUBSEQUENT ACTION IN THE UNITED STATES DISTRICT COURT, AND ONE TRANSCRIPT OF PROCEEDINGS IN THE CASE, WITH RELATED PAPERS, WAS TRANSMITTED BY THE COMMISSIONER TO SAID COURT ON JUNE 8, 1935; AND THE SAID TWO DEFENDANTS, RUTLEDGE AND HATHCOCK, WERE RELEASED ON APPROVED BONDS FOR THEIR SUBSEQUENT APPEARANCE IN SUCH COURT.

UNDER THE CIRCUMSTANCES SHOWN, THE CASE AS TO THE THREE DEFENDANTS MUST BE CONSIDERED AS A SINGLE CASE, IN WHICH EVENT THE ABOVE MENTIONED STATUTE LIMITS THE COMMISSIONER'S FEES "FOR HEARING AND DECIDING," ETC., TO 2 DAYS, AMOUNTING TO $10, WHICH SAID FEES THE COMMISSIONER IS CLAIMING FOR THE 2 DAYS, JUNE 6 AND 8, 1935.

UNDER THE FACTS AND CIRCUMSTANCES SHOWN, THE CLAIMED $10 PER DIEM FEES FOR "HEARING AND DECIDING," ETC., IN SAID CASE AGAINST THE THREE JOINT OFFENDERS, ON JUNE 6 AND 8, 1935, PROPERLY ARE FOR ALLOWANCE, IT APPEARING THAT THERE WERE THREE ARRAIGNMENT DAYS, EACH OF THE THREE DEFENDANTS BEING SEPARATELY ARRAIGNED ON SEPARATE DAYS, WHEN APPREHENDED. WHILE IN CASES WHERE THERE IS ONLY ONE DEFENDANT CHARGED WITH AN OFFENSE THE RULE IS GENERALLY THAT THE STATUTORY PER DIEM FEE OF $5 FOR "HEARING AND DECIDING," ETC., IS TO BE ALLOWED FOR THE DAY THE ACCUSED IS FIRST BROUGHT BEFORE THE COMMISSIONER, IF A PER DIEM BE NOT CHARGED FOR THAT DAY IN SOME OTHER CASE, HOWEVER, IN THE INSTANT CASE AND OTHER SIMILAR CASES WHERE THERE ARE JOINT OFFENDERS THE SAID $5 PER DIEM FEE FOR "HEARING AND DECIDING," ETC., PROPERLY IS FOR ALLOWANCE FOR THE DAY ON WHICH ANY ONE OF THE SAID JOINT OFFENDERS IS BROUGHT BEFORE THE COMMISSIONER FOR ARRAIGNMENT IF A PER DIEM BE NOT CHARGED FOR THAT DAY IN SOME OTHER CASE.

ACCORDINGLY THE $5 FOR "HEARING AND DECIDING," ETC., ON JUNE 6, 1935, UPON REVIEW, IS NOW ALLOWED.

RELATIVE TO THE DISALLOWANCE ITEM 3 OF THE CLAIMED 35-CENT FEES FOR SERVICES ON JULY 17, 1935, AS FOLLOWS: $0.05 FOR ONE OATH TO U.S. WITNESS AND $0.30 FOR THE ORDER ISSUED IN DUPLICATE TO PAY THE WITNESS FEES, IN CASE NO. 5346 (DOCKET NO. 57) UNITED STATES V. HILL AND WOODLEY, PAGE 30 OF THE ACCOUNT FOR JULY 1935, IT IS NOTED THAT YOU NOW REPORT THAT---

THE SAID WITNESS WAS NOT SUBPOENAED, AS HE APPEARED VOLUNTARILY ON ARRAIGNMENT, WAS SWORN AND PAID FOR HIS ATTENDANCE.

IN VIEW OF THE ADDITIONAL INFORMATION FURNISHED IT NOW APPEARS THAT THE COMMISSIONER IS ENTITLED TO THE $0.35 FEE CLAIMED FOR INVOLVED SERVICES AND SAID AMOUNT, UPON REVIEW, IS NOW ALLOWED.

RELATIVE TO THE DISALLOWANCE ITEMS 2 AND 4 OF THE CLAIMED FEES, IN THE RESPECTIVE SUMS OF $82.80 AND $44.40, REPRESENTING THE STATUTORY FEES ALLOWABLE FOR COMMISSIONER'S SERVICES INCIDENT TO THE ISSUING OF WARRANTS AGAINST OFFENDERS VIOLATING UNITED STATES STATUTES, TO WIT: COPY OF COMPLAINT, WITH CERTIFICATE TO SAME, $0.30; ISSUING WARRANT OF ARREST, $0.75; ENTERING MARSHAL'S RETURN, WARRANT OF ARREST, $0.15; OR A TOTAL OF $1.20 IN SUCH CASE, IN THE 106 CASES THEREIN REFERRED TO, IT APPEARS THAT DISALLOWANCE OF SUCH CLAIMED $127.20 FEES WERE MADE IN THE INVOLVED SETTLEMENT BECAUSE THE RECORDS DISCLOSE THAT IN EACH CASE THE OFFENDERS ALREADY WERE IN LAWFUL CUSTODY OF THE FEDERAL OFFICERS AT THE TIME THE WARRANTS FOR THEIR ARREST WERE ISSUED BY THE COMMISSIONER.

THE DECISIONS OF THIS OFFICE UNIFORMLY HAVE HELD THAT COMMISSIONERS ARE NOT ENTITLED TO FEES INCIDENT TO THE ISSUANCE OF A WARRANT OF ARREST WHERE THE ISSUANCE OF SUCH WARRANT WAS UNNECESSARY, AND THAT THE ISSUANCE OF A WARRANT FOR THE ARREST OF A PERSON ALREADY BEFORE THE COMMISSIONER OR IN THE CUSTODY OF AN OFFICER HAVING AUTHORITY TO PRODUCE HIM BEFORE THE COMMISSIONER IS UNNECESSARY UNLESS SPECIFICALLY REQUIRED BY STATE STATUTE. 3 COMP. GEN. 13, 835, AND 898; AND 9 ID. 352. THE COPY OF THE OPINION OF THE ATTORNEY GENERAL OF ALABAMA, DATED JUNE 3, 1935, WHICH YOU SUBMITTED WITH YOUR LETTER OF OCTOBER 15, 1935, REQUESTING REVIEW OF THIS MATTER, DOES NOT ESTABLISH THE NECESSITY FOR THE ISSUANCE OF THE WARRANTS IN SUCH CASES. INASMUCH AS THE STATUTES OF THE STATE OF ALABAMA DO NOT REQUIRE THE ISSUANCE OF A WARRANT WHERE THE OFFENDER ALREADY IS IN LAWFUL CUSTODY, THERE WOULD APPEAR TO BE NO AUTHORITY TO ALLOW THE FEES CLAIMED BY YOU, AGGREGATING $127.20, IN SAID 106 CASES FOR SERVICES INCIDENT TO THE ISSUANCE OF WARRANTS FOR THE ARREST OF THE OFFENDERS WHO WERE ALREADY IN CUSTODY.

ACCORDINGLY THE DISALLOWANCE, ITEMS 2 AND 4 FOR CLAIMED FEES, AGGREGATING $127.20, MUST BE AND IS SUSTAINED.