A-7360, FEBRUARY 6, 1925, 4 COMP. GEN. 662

A-7360: Feb 6, 1925

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A UNITED STATES COMMISSIONER IS ENTITLED ONLY TO FEES FOR THE DRAWING OF ONE COPY OF COMPLAINT. A UNITED STATES COMMISSIONER IS NOT ENTITLED TO FEES FOR ISSUING WARRANTS OF ARREST. MAKING COPIES OF COMPLAINTS IN CASES WHERE THE DEFENDANTS WERE ALREADY IN THE CUSTODY OF UNITED STATES PROHIBITION OFFICERS AT THE TIME THE WARRANTS WERE ISSUED AND THE COMMISSIONER HAD KNOWLEDGE OF THAT FACT. REQUESTED REVIEW OF SO MUCH OF THE SETTLEMENT OF HIS CLAIM TO FEES AS WAS DISALLOWED ON THE ADJUSTMENT OF HIS ACCOUNTS FOR THE QUARTER ENDED MARCH 31. THE ITEMS DISALLOWED ARE STATED AND CONSIDERED AS FOLLOWS: 1. IT IS ASSUMED THAT THE ERROR IS CONCEDED. THE DISALLOWANCE AS TO THIS ITEM IS SUSTAINED. BECAUSE NO FEE IS PROVIDED FOR THIS SERVICE.

A-7360, FEBRUARY 6, 1925, 4 COMP. GEN. 662

FEES OF UNITED STATES COMMISSIONERS - WARRANTS OF ARREST IN CASES INVOLVING JOINT OFFENSES COMMITTED BY JOINT OFFENDERS UNDER THE NATIONAL PROHIBITION ACT, A UNITED STATES COMMISSIONER IS ENTITLED ONLY TO FEES FOR THE DRAWING OF ONE COPY OF COMPLAINT, ISSUING ONE WARRANT OF ARREST AND ENTERING RETURN ON SAME. A UNITED STATES COMMISSIONER IS NOT ENTITLED TO FEES FOR ISSUING WARRANTS OF ARREST, ENTERING RETURNS ON SAME, AND MAKING COPIES OF COMPLAINTS IN CASES WHERE THE DEFENDANTS WERE ALREADY IN THE CUSTODY OF UNITED STATES PROHIBITION OFFICERS AT THE TIME THE WARRANTS WERE ISSUED AND THE COMMISSIONER HAD KNOWLEDGE OF THAT FACT.

DECISION BY COMPTROLLER GENERAL MCCARL, FEBRUARY 6, 1925:

THOMAS A. JENKINS, UNITED STATES COMMISSIONER OF THE SOUTHERN DISTRICT OF OHIO, IRONTON, OHIO, BY LETTER DATED AUGUST 14, 1924, REQUESTED REVIEW OF SO MUCH OF THE SETTLEMENT OF HIS CLAIM TO FEES AS WAS DISALLOWED ON THE ADJUSTMENT OF HIS ACCOUNTS FOR THE QUARTER ENDED MARCH 31, 1924, CERTIFICATE NO. 03773R-J, DATED JULY 11, 1924.

THE ITEMS DISALLOWED ARE STATED AND CONSIDERED AS FOLLOWS:

1. CASE 58, HARVEY ABRAMS.

(A) TOTAL OF FEES LISTED, $17.80, INSTEAD OF $18.90 AS CHARGED, DIFFERENCE DISALLOWED, $1.10.

NO OBJECTION BEING MADE TO EVIDENT ERRONEOUS ADDITION, IT IS ASSUMED THAT THE ERROR IS CONCEDED, THEREFORE, THE DISALLOWANCE AS TO THIS ITEM IS SUSTAINED.

(B) CHARGES FOR FEES AND MILEAGE FOR WITNESSES, $3.50, DISALLOWED, BECAUSE NO FEE IS PROVIDED FOR THIS SERVICE, SAME BEING PAYABLE BY THE MARSHAL.

THE FACT THAT THE MARSHAL PAYS ALL SUCH FEES SEEMS TO BE WELL KNOWN, AND NO OBJECTION BEING MADE TO THE DISALLOWANCE, IT IS ASSUMED THE CORRECTNESS OF ACTION TAKEN IS CONCEDED, AND THEREFORE THE DISALLOWANCE AS TO SUCH ACTION IS SUSTAINED.

2. CASES 58, 59, 60, 61, 62, 63, 64, 65, FOUR DEFENDANTS, HARVEY ABRAMS, WILLIAM ABRAMS, ISAAC ABRAMS, AND GEORGE GATES. DUPLICATE SEPARATE CHARGES AGAINST EACH OFFENDER AS FOR TWO SEPARATE OFFENSES UNDER THE NATIONAL PROHIBITION ACT, VIZ, HAVING AND POSSESSING INTOXICATING LIQUOR, AND MANUFACTURING INTOXICATING LIQUOR. FEES CHARGED IN EACH CASE FOR DRAWING COPY OF COMPLAINT, ISSUING WARRANT OF ARREST AND ENTERING RETURN, ISSUING TEMPORARY COMMITMENT, AND ENTERING RETURN, RECOGNIZANCE OF ALL WITNESSES IN CASE, TRANSCRIPT OF PROCEEDINGS, DISALLOWED BECAUSE THEY REPRESENT AN UNNECESSARY MULTIPLICATION OF CASES, CONTRARY TO SECTION 32 OF THE NATIONAL PROHIBITION ACT OF OCTOBER 28, 1919, 41 STAT. 317.

THE EXPLANATION OF THE CIRCUMSTANCES OF THE ARREST OF THESE OFFENDERS DISCLOSES THAT THEY WERE ALL ARRESTED IN A RAID, AND FROM THE FACT THAT ALL OF THEM ARE REPRESENTED TO HAVE BEEN CONNECTED WITH THE OPERATION OF APPARENTLY THE SAME STILL, AND IN THAT THEY POSSESSED LIQUOR, IT IS EVIDENT, AND WAS SO KNOWN TO THE OFFICERS, THAT THEY WERE GUILTY OF JOINT OFFENSES IN THE POSSESSING OF LIQUOR. THIS FACT IS ADMITTED IN THE STATEMENT THAT THE OFFICERS WANTED TWO DISTINCT CHARGED FOR EACH CASE.

IN THE LETTER REQUESTING A REVIEW IT IS STATED THAT THOSE REPRESENTING THE GOVERNMENT IN SUCH CASES DECIDED THAT THEY WISHED PROSECUTION CONDUCTED IN A CERTAIN WAY, AFFIDAVITS FILED IN A CERTAIN WAY, AND SEPARATE CASES MADE, WITH AN INTIMATION THAT THE WISDOM OF SUCH PROCEEDINGS WAS A QUESTION OF JUDICIAL DETERMINATION ALONE, AND THAT, BY REASON OF THE ACTION THUS TAKEN, THE FEES SO CHARGED BECAME PROPERLY DUE. HOWEVER, NO EVIDENCE HAS BEEN PRESENTED TO SHOW THAT THE DISTRICT ATTORNEY OR ANY OFFICER HAVING AUTHORITY TO DIRECT THE COMMISSIONER IN THE MATTER REQUIRED THAT EIGHT SEPARATE CASES BE MADE OUT OF THE CHARGES AGAINST THESE FOUR MEN. NEITHER HAS IT BEEN ESTABLISHED THAT THERE WAS ANY NECESSITY FOR SUCH PROCEDURE.

THE NATIONAL PROHIBITION ACT, UNDER WHICH ALL PROCEEDINGS WERE CONDUCTED, PROVIDES, SECTION 32, TITLE II, 41 STAT. 317:

IN ANY AFFIDAVIT, INFORMATION, OR INDICTMENT FOR THE VIOLATION OF THIS ACT, SEPARATE OFFENSES MAY BE UNITED IN SEPARATE COUNTS AND THE DEFENDANT MAY BE TRIED ON ALL AT ONE TRIAL AND THE PENALTY FOR ALL OFFENSES MAY BE IMPOSED. IT SHALL NOT BE NECESSARY IN ANY AFFIDAVIT, INFORMATION, OR INDICTMENT TO GIVE THE NAME OF THE PURCHASER OR TO INCLUDE ANY DEFENSIVE NEGATIVE AVERMENTS, BUT IT SHALL SUFFICIENT TO STATE THAT THE ACT COMPLAINED OF WAS THEN AND THERE PROHIBITED AND UNLAWFUL, BUT THIS PROVISION SHALL NOT BE CONSTRUED TO PRECLUDE THE TRIAL COURT FROM DIRECTING THE FURNISHING OF THE DEFENDANT A BILL OF PARTICULARS WHEN IT DEEMS IT PROPER TO DO SO.

THE TWO CHARGES FILED WERE MERELY DISTINCT OFFENSES COVERED BY THE SAME STATUTE, AND UNDER THE PROVISIONS OF THE ACT WHICH THOSE ENFORCING IT WERE PRESUMED TO KNOW, THE MATTER COULD HAVE BEEN THE SUBJECT OF ONE CHARGE OR COMPLAINT WITH TWO OR MORE COUNTS, THUS COMPOSING A JOINT OFFENSE.

SIMILARLY, UNDER THE CONDITIONS OF THEIR APPREHENSION IT IS CLEAR THAT THESE OFFENDERS WERE JOINTLY GUILTY OF THE SAME OFFENSE, AND AS IT DOES NOT APPEAR THAT SEPARATE HEARINGS BEFORE THE COMMISSIONER WERE DEMANDED BY THE ACCUSED, THERE APPEARS TO HAVE BEEN NO GOOD REASON WHY THEY SHOULD NOT HAVE BEEN CONSIDERED BY THE COMMISSIONER AS JOINT OFFENDERS, THUS REQUIRING BUT ONE COMPLAINT, ETC. IT APPEARS THAT ALL WERE HEARD AND THE CASES PRACTICALLY DISPOSED OF ON FEBRUARY 23, EXCEPT HARVEY ABRAMS, WHOSE FINAL HEARING WAS CONTINUED UNTIL THE 25TH. THE WITNESSES, WITH ONE EXCEPTION, APPEAR TO HAVE BEEN THE OFFICERS WHO APPREHENDED ALL THE PRISONERS JOINTLY, AND THERE IS DISCLOSED NO SPECIAL CONDITION TO REQUIRE EITHER SEPARATE CHARGES OR SEPARATE CASES AGAINST WHAT WERE CLEARLY JOINT OFFENSES OF JOINT OFFENDERS.

COMMISSIONER'S LEGAL RIGHTS TO FEES UNDER SUCH CIRCUMSTANCES HAVE BEEN THE SUBJECT OF RULINGS BY FORMER COMPTROLLERS OF THE TREASURY, AND THE DECISIONS ARE TO THE EFFECT THAT FEES FOR THE UNNECESSARY SERVICES ARE NOT AUTHORIZED.

IN 5 COMP. DEC. 570 IT WAS SAID, QUOTING FROM THE SYLLABUS:

UNDER THE RULE IN 5 COMP. DEC. 320, A UNITED STATES COMMISSIONER WHO, IN A CASE AGAINST ELEVEN JOINT OFFENDERS, MADE TEN SEPARATE CASES, IS ENTITLED TO SUCH FEES ONLY AS HE WOULD HAVE BEEN ENTITLED TO IN ONE CASE. (SEE ALSO 5 COMP. DEC. 717; 6 COMP. DEC. 285; 10 COMP. DEC. 340.)

A CASE BEFORE A COMMISSIONER IS NOT A CASE TO THE EXTENT COMPREHENDED BY A COURT ACTION INVOLVING THE PRACTICAL QUESTIONS OF PROCEDURE OF BOTH PROSECUTION AND DEFENSE, AND THE DISTINCTION IN SUCH PROCEEDINGS HAS PREVIOUSLY BEEN SO RECOGNIZED, IT BEING STATED IN 7 COMP. DEC. 480 THAT:

THE TERM "CASE" AS USED IN THE FIRST PROVISO (TO SECTION 21) OF THE ACT OF MAY 28, 1896 (29 STAT. 185), RELATES TO THE PROCEEDINGS BEFORE THE UNITED STATES COMMISSIONER, AND IT DOES NOT MEAN A CASE IN ITS BROAD LEGAL SENSE * * *

A CASE, THEREFORE, BEFORE A COMMISSIONER IS MERELY A PRELIMINARY HEARING FOR THE PURPOSE OF ESTABLISHING A PROBABLE CAUSE, AND WHERE THERE IS AVAILABLE THE NECESSARY WITNESSES OR EVIDENCE, THERE IS NO JUSTIFIABLE REASON WHY THERE MAY NOT USUALLY BE HEARD ALL THE DEFENDANTS JOINTLY CHARGED WITH THE SAME OFFENSE. ONLY WHERE, FOR INSTANCE, IN A CASE AGAINST SEVERAL JOINT OFFENDERS IT IS IMPOSSIBLE FOR A COMMISSIONER TO HEAR AND DECIDE AS TO ALL OF THEM AT THE SAME TIME, OR WHERE IT IS IMPOSSIBLE TO COMMENCE PROCEEDINGS AGAINST TWO JOINT OFFENDERS AT THE SAME TIME, THAT THERE DEVELOPS A SEPARATE "CASE" WITH THE RIGHT TO THE ATTENDANT FEES. 7 COMP. DEC. 480; 8 ID.

IN VIEW OF THE CIRCUMSTANCES DISCLOSED AS TO THESE OFFENDERS IT MUST BE HELD THAT THE PROCEEDINGS CONCERNING THEM ARE TO BE REGARDED AND CONSIDERED AS ONE CASE, SO FAR AS THE RIGHT TO FEES IS CONCERNED.

OTHER MATTERS FOR CONSIDERATION ARE THE CHARGES FOR ISSUING WARRANTS FOR THESE DEFENDERS. IT IS STATED THAT THEY WERE APPREHENDED BY PROHIBITION OFFICERS UNDER INCRIMINATING CIRCUMSTANCES, LODGED IN JAIL, AND THEN COMPLAINTS SWORN TO AND WARRANTS ISSUED NEXT DAY FOR A DEPUTY MARSHAL TO PRODUCE THEM FOR HEARING. THIS PROCEDURE APPEARS UNNECESSARY AND IMPROPER. THE PROHIBITION AGENTS HAVE AUTHORITY TO ARREST OFFENDERS CAUGHT VIOLATING THE PROHIBITION ACT, AND WHERE OFFENDERS ARE SO APPREHENDED IT IS THE DUTY OF SUCH OFFICERS TO CARRY THEIR PRISONERS FORTHWITH TO THE COMMISSIONER, FILE THEIR COMPLAINT, AND RELEASE THEM TO SUCH JURISDICTION. IF OFFENDERS THUS APPREHENDED ARE COMMITTED TO JAIL, IT IS ONLY FOR THE CONVENIENCE, AND ON THE RESPONSIBILITY, OF THE ARRESTING OFFICERS, AND THE DUTY REMAINS UNFULFILLED AND THEIR PERSONAL LIABILITY CONTINUES UNTIL THE OFFENDERS ARE CARRIED BEFORE THE PROPER MAGISTRATE. THE COMMISSIONER IS PRESUMED TO KNOW THE PROCEDURE TO BE FOLLOWED BY ARRESTING AND COMPLAINING OFFICERS IN SUCH CASES.

IN THE EXPLANATION OF THE COMMISSIONER TO THE DEPARTMENT OF JUSTICE, DATED MAY 23, 1924, IT IS STATED RELATIVE TO THE CICUMSTANCES OF THE ISSUING OF THESE WARRANTS, AS FOLLOWS:

ITEM 7. ALL OF THESE DEFENDANTS THAT WERE BEFORE ME WERE IN CUSTODY BEFORE WARRANTS WERE ISSUED AND BEFORE I KNEW ANYTHING ABOUT ANYONE INTENDING TO MAKE THESE RAIDS. I KNEW THAT SOME OF THESE PARTIES HAS BEEN SUSPECTED OF HANDLING LIQUOR FOR SOME TIME. THESE FEDERAL OFFICERS TOOK THESE DEFENDANTS TO THE LAWRENCE COUNTY JAIL IMMEDIATELY AFTER THEY CAUGHT THEM IN THEIR TRAP. THEY APPEARED BEFORE ME THE NEXT DAY AND SOUGHT WARRANTS TO HAVE THEM ARRESTED. I CALLED THE U.S. DISTRICT ATTORNEY AT CINCINNATI ON LONG DISTANCE TELEPHONE AT THE EXPENSE OF ABOUT $1.00 (I CALLED HIM SEVERAL TIMES AT ABOUT THE SAME EXPENSE WHICH WAS PAID OUT OF MY OWN POCKET). THE DISTRICT ATTORNEY AUTHORIZED THE ISSUANCE OF THE WARRANTS BUT THEY COULD NOT BE SERVED EXCEPT THAT DEPUTY MARSHAL CAME FROM CINCINNATI TO SERVE THEM. WHILE THIS IS NO DOUBT THE USUAL METHOD, IT WOULD SEEM THAT SOME INVESTIGATION OUGHT TO BE MADE OF THIS SURPLUS EXPENSE INVOLVED IN A CASE OF THIS KIND. WE HAD THREE OR FOUR BIG FEDERAL OFFICERS HANGING AROUND HERE WITH THE MEN ARRESTED IN JAIL WAITING FOR ANOTHER MAN TO COME FROM CINCINNATI TO TAKE THE WARRANTS FROM MY OFFICE TO THE COUNTY JAIL AND SERVE THEM ON THESE DEFENDANTS. I HAD NO KNOWLEDGE THAT THESE DEFENDANTS WERE ARRESTED AND IN JAIL EXCEPT WHATI GOT FROM THE OFFICERS WHO CAME TO ME TO HAVE THE WARRANTS ISSUED.

FROM THE RECORD IT APPEARS QUITE CLEAR THAT THE COMMISSIONER WAS AWARE THAT THESE OFFENDERS WERE IN JAIL AT THE TIME COMPLAINT WAS FILED, AND HE SEEMS TO HAVE BEEN ACQUAINTED WITH THE CIRCUMSTANCES OF THE ARRESTS, AND THOSE ACCOMPLISHING THEM; CONSEQUENTLY IT WAS PLAINLY HIS DUTY TO HAVE REQUIRED THE ARRESTING OFFICERS TO BRING THE PRISONERS BEFORE HIM. ACCORDINGLY NO FEES ARE AUTHORIZED FOR THE ISSUING OF WHAT UNDER THE CIRCUMSTANCES WERE IN THEIR ENTIRETY UNNECESSARY WARRANTS. 3 COMP. GEN. 13; ID. 898.

ALSO THERE IS A CHARGE OF $1.15 FOR TEMPORARY COMMITMENTS, AND ENTERING RETURN OF SAME AS FOR EIGHT DEFENDANTS. CONSIDERING THAT ONLY ONE FINAL COMMITMENT WAS NECESSARY TO COMMIT THESE DEFENDANTS FOR COURT, AS INDICATED BY BUT ONE SUCH CHARGE, THE ASSUMPTION IS JUSTIFIED THAT ONLY ONE TEMPORARY COMMITMENT WAS NECESSARY FOR ALL, AND THE CHARGE AS FOR EIGHT WAS THEREFORE UNWARRANTED.

CONSIDERING ALL THE CIRCUMSTANCES INVOLVED IN THE APPREHENSION AND COMMITMENT OF THESE FOUR DEFENDANTS, IT MUST BE HELD THAT THERE ARE DISCLOSED NO VALID GROUNDS FOR THE ALLOWANCE OF FEES FOR MORE THAN FOR ONE CASE. ACCORDINGLY, THE FEES PROPERLY CHARGEABLE IN THIS CASE ARE AS FOLLOWS:

TABLE DRAWING COMPLAINT, WITH OATH AND JURAT TO SAME -------------- ----- $0.50

(FEES CHARGED FOR ISSUING SUBPOENAS FOR FIVE WITNESSES--- $0.45 AND

ENTERING RETURN OF SUBPOENAS, $0.15, NOT ALLOWED AS THESE WITNESSES

BEING THE PROSECUTING OFFICERS FOR THE GOVERNMENT HAVE NO AUTHORITY

TO REQUIRE SUBPOENAS FOR THEMSELVES.) ISSUING TEMPORARY COMMITMENT AND COPY OF SAME AND ENTERING RETURN -- 1.15 ADMINISTERING OATHS TO FIVE U.S. WITNESSES AT TRIAL AT $0.10 EACH -- .50 HEARING AND DECIDING ------------- ---------------------------------- 5.00 HEARING, ONE ADDITIONAL DAY ------ ---------------------------------- 5.00 ISSUING FINAL COMMITMENT AND MAKING COPY OF SAME ------------------- 1.00 ENTERING RETURN OF FINAL COMMITMENT -------------------------------- .15 RECOGNIZANCE OF ALL WITNESSES IN CASE ---------------------------- - .50 OATH TO ONE U.S. WITNESS AS TO ATTENDANCE AND TRAVEL --------- ----- .05

(ORDER IN DUPLICATE TO PAY FIRST U.S. WITNESS NOT ALLOWED AS

COMMISSIONER HAVING PAID SAME NO ORDER WAS NECESSARY.) TRANSCRIPT OF PROCEEDINGS ------------------------------------------ .60

TOTAL ALLOWANCE -------------------------------------------------- 14.45 TOTAL FEES CLAIMED --------------------------------------------- --- 54.15

------ DISALLOWED -------------------- ---------------------------------- -- 39.70

3. ITEMS 67 TO 77, INCLUSIVE, FEES IN THE AMOUNT OF $1.40 EACH FOR ISSUING SEARCH WARRANTS. FINAL ACTION ON THESE ITEMS WAS SUSPENDED FOR ADDITIONAL INFORMATION, DESCRIPTION AND LOCATION OF PREMISES TO BE SEARCHED, AND NATURE OF PROPERTY TO BE SEIZED IN EACH CASE.

THE COMMISSIONER HAS SUBMITTED STATEMENT THAT THE WARRANTS WERE MADE OUT TO SEARCH THE PREMISES OF EACH DEFENDANT NAMED, AND THAT THE PROPERTY TO BE SEIZED WAS INTOXICATING LIQUOR OR IMPLEMENTS USED FOR THE MANUFACTURE OF THE SAME. THE ADDITIONAL INFORMATION APPEARS SUFFICIENT TO REMOVE THE OBJECTIONS AS TO THESE ITEMS, ACCORDINGLY, THERE IS NOW ALLOWED THE SUM OF $15.40, REPRESENTING THE ISSUING OF 11 SEARCH WARRANTS AT $1.40 EACH. UPON REVIEW A DIFFERENCE OF $11.25 IS CERTIFIED DUE CLAIMANT IN ADDITION TO THE AMOUNT OF $18.60 HERETOFORE ALLOWED, AND FOR THE REASONS HEREINBEFORE STATED, THE DISALLOWANCE AS TO $39.70 IS SUSTAINED.