A-78064, JULY 31, 1936, 16 COMP. GEN. 101

A-78064: Jul 31, 1936

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ARE CHARGEABLE TO THE APPROPRIATION UNDER WHICH THEY ARE OFFICIALLY OPERATING AND NOT TO THE JUDICIARY APPROPRIATION "FEES OF WITNESSES. FROM WHICH THE FOLLOWING IS QUOTED FROM THE SYLLABUS THEREOF: "IF AN OFFICER OF THE GOVERNMENT ATTENDS UPON THE UNITED STATES COURTS OR BEFORE UNITED STATES COMMISSIONERS IN HIS OFFICIAL CAPACITY IN CONNECTION WITH THE EXAMINATION OR TRIAL OF PERSONS CHARGED WITH VIOLATIONS OF CERTAIN LAWS RELATING TO THE WORK OF HIS DEPARTMENT AND IT IS HIS DUTY UNDER THE LAWS OR REGULATIONS GOVERNING HIS APPOINTMENT TO AID IN THE PREVENTION. ARE PROPERLY CHARGEABLE TO THE APPROPRIATION OUT OF WHICH HIS ORDINARY TRAVELING EXPENSES ARE USUALLY PAID. WHEN A SALARIED GOVERNMENT EMPLOYEE IS SUBPOENAED AS A WITNESS.

A-78064, JULY 31, 1936, 16 COMP. GEN. 101

EXPENSES OF INDIAN POLICE ATTENDING COURT THE EXPENSES INCURRED BY INDIAN POLICE IN ATTENDANCE UPON FEDERAL COURTS, IN THEIR OFFICIAL CAPACITY AND IN CONNECTION WITH MATTERS RELATING TO THEIR OFFICIAL DUTIES, FOR THE PURPOSE OF AIDING THE PROSECUTION OR TESTIFYING AS WITNESSES, ARE CHARGEABLE TO THE APPROPRIATION UNDER WHICH THEY ARE OFFICIALLY OPERATING AND NOT TO THE JUDICIARY APPROPRIATION "FEES OF WITNESSES, UNITED STATES COURTS," NOTWITHSTANDING THE DEPARTMENT OF THE INTERIOR HAS NO CONTROL OVER THE FIXING OF TRIAL DATES, THE NUMBER OF POLICE REQUIRED TO ATTEND, OR, THAT THE APPROPRIATIONS FOR THE INDIAN SERVICE FOR THE EXPENSES OF SUCH POLICE MAY NOT BE SUFFICIENT IN AMOUNT TO MEET THE REQUIREMENTS OF SUCH SERVICE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, JULY 31, 1936:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 6, 1936, AS FOLLOWS:

THE INDIAN SERVICE HAS RECEIVED REPORTS FROM VARIOUS SUPERINTENDENTS OF INDIAN RESERVATIONS RELATIVE TO DIFFICULTIES BEING EXPERIENCED NEAR THE END OF EVERY FISCAL YEAR IN THE MATTER OF THE PAYMENT OF EXPENSES OF INDIAN POLICE AT THEIR JURISDICTIONS ATTENDING FEDERAL COURT IN RESPONSE TO SUBPOENAS ISSUED FROM SAID COURT.

UNDER DATE OF NOVEMBER 7, 1908, THE COMPTROLLER OF THE TREASURY RENDERED A DECISION (15 COMP. DEC. 300), FROM WHICH THE FOLLOWING IS QUOTED FROM THE SYLLABUS THEREOF:

"IF AN OFFICER OF THE GOVERNMENT ATTENDS UPON THE UNITED STATES COURTS OR BEFORE UNITED STATES COMMISSIONERS IN HIS OFFICIAL CAPACITY IN CONNECTION WITH THE EXAMINATION OR TRIAL OF PERSONS CHARGED WITH VIOLATIONS OF CERTAIN LAWS RELATING TO THE WORK OF HIS DEPARTMENT AND IT IS HIS DUTY UNDER THE LAWS OR REGULATIONS GOVERNING HIS APPOINTMENT TO AID IN THE PREVENTION, DETECTION, SUPPRESSION, PUNISHMENT, OR PROSECUTION OF SAID VIOLATIONS OR OFFENSES, THEN HIS PROPER ACTUAL TRAVELING EXPENSES, INCURRED BY REASON OF HIS ATTENDANCE UPON SUCH EXAMINATION OR TRIAL, ARE PROPERLY CHARGEABLE TO THE APPROPRIATION OUT OF WHICH HIS ORDINARY TRAVELING EXPENSES ARE USUALLY PAID, NOTWITHSTANDING THE FACT THAT HE MAY BE CALLED AND TESTIFY IN THE CASE AS A WITNESS; BUT WHEN A SALARIED GOVERNMENT EMPLOYEE IS SUBPOENAED AS A WITNESS, AND HE SO ATTENDS, OTHERWISE THAN AS ABOVE STATED, HE IS ENTITLED TO REIMBURSEMENT OF HIS ACTUAL EXPENSES (SECTION 850 OF THE REVISED STATUTES) BY THE MARSHAL FROM THE APPROPRIATION "FEES OF WITNESSES, UNITED STATES COURTS.'

UNDER THIS DECISION, THE EXPENSES OF INDIAN POLICE OFFICERS ARE REQUIRED TO BE MET BY THE INDIAN SERVICE. MANY CASES HAVE ARISEN WHERE THE AVAILABLE BALANCE IN THE APPROPRIATION "PAY OF INDIAN POLICE" IS INSUFFICIENT TO MEET THE EXPENSES INCURRED BY THE POLICEMEN ATTENDING FEDERAL COURT. AS THIS FUND CANNOT BE SUPPLEMENTED BY OTHER GOVERNMENT APPROPRIATIONS, THE SUPERINTENDENTS ARE AT A LOSS AS TO HOW TO MEET THIS EXPENSE. NEITHER THE INDIAN SERVICE NOR THE SUPERINTENDENT IN CHARGE OF THE PARTICULAR AGENCY HAS ANY CONTROL OVER THE TIME OF HOLDING THE PARTICULAR TRIAL, AND IT IS EMBARRASSING TO THE SUPERINTENDENT TO BE CALLED UPON TO PAY THE EXPENSES OF EMPLOYEES IN SUCH CASES WHEN THEY HAVE NO APPLICABLE FUNDS AVAILABLE, AND TO MAKE PAYMENT WOULD CAUSE A DEFICIT. USUALLY THESE INDIAN POLICE ARE NOT IN A POSITION TO PAY THEIR OWN EXPENSES AND WAIT FOR POSSIBLE REIMBURSEMENT THROUGH A DEFICIENCY APPROPRIATION. THE SAME MAY BE TRUE AT TIMES OF OTHER CLASSES OF EMPLOYEES.

IN SUCH CASES, WHERE THE AGENCY HAS NO APPLICABLE FUNDS TO MEET THE EXPENSE, IT SEEMS THAT SOME PROVISION SHOULD BE MADE WHEREBY THE BRANCH OF GOVERNMENT REQUIRING THE EXPENDITURE OF FUNDS AT THAT PARTICULAR TIME WOULD PAY THE NECESSARY EXPENSES.

YOUR ADVISE IS DESIRED, THEREFORE, AS TO WHETHER IT WOULD BE POSSIBLE, WHEN SUBPOENAS ARE ISSUED FOR THE ATTENDANCE OF INDIAN POLICE OR OTHER EMPLOYEES AT FEDERAL COURT AND INDIAN SERVICE FUNDS FOR THE PAYMENT OF THEIR EXPENSES ARE EXHAUSTED, FOR THE SUPERINTENDENT OF THE PARTICULAR RESERVATION TO CERTIFY TO THE FACT THAT NO FUNDS ARE AVAILABLE FOR THE PAYMENT OF THEIR EXPENSES, AND TO HAVE SUCH EXPENSES MET FROM THE APPROPRIATION,"FEES OF WITNESSES, UNITED STATES COURTS" OR OTHER APPROPRIATION APPLICABLE TO THE EXPENSES OF THE COURTS.

THE ESTABLISHED RULE GOVERNING PAYMENT OF EXPENSES OF ATTENDANCE UPON COURTS OF OFFICERS WHOSE OFFICIAL DUTY IT IS TO AID IN THE INVESTIGATION AND PROSECUTION OF VIOLATIONS OF LAW IS THAT IF THEY SO ATTEND FOR THE PURPOSE OF AIDING THE PROSECUTION OR TESTIFYING AS A WITNESS TO THE FACTS WHICH THEY HAVE OFFICIALLY INVESTIGATED THEIR EXPENSES SO INCURRED ARE CHARGEABLE TO THE APPROPRIATION UNDER WHICH THEY ARE OFFICIALLY OPERATING AND NOT TO THE JUDICIARY PROPRIATION,"FEES OF WITNESSES, UNITED STATES COURTS" (IN THIS CONNECTION, SEE 14 COMP. DEC. 80, 516; 15 ID. 154, 298, 594, 757; 16 ID. 411, 838; 20 ID. 195; 27 ID. 199, 1039; 2 COMP. GEN. 629; 5 ID. 677; AND 15 ID. 785.)

SECTION 3678, REVISED STATUTES, REQUIRES THAT THE SUMS APPROPRIATED FOR THE VARIOUS BRANCHES OF EXPENDITURE IN THE PUBLIC SERVICE SHALL BE APPLIED SOLELY TO THE OBJECTS FOR WHICH THEY ARE RESPECTIVELY MADE, AND FOR NO OTHERS.

THE FACT THAT THE APPROPRIATIONS MADE TO THE INDIAN SERVICE FOR THE EXPENSES OF THE INDIAN POLICE OFFICERS MAY NOT BE SUFFICIENT IN AMOUNT TO MEET THE REQUIREMENTS OF SUCH SERVICE CANNOT OPERATE TO AUTHORIZE THE USE OF ANOTHER APPROPRIATION MADE TO THE DEPARTMENT OF JUSTICE, FOR EXPENSES OF "FEES OF WITNESSES, UNITED STATES COURTS," IN ORDER TO SUPPLEMENT THE INDIAN SERVICE APPROPRIATION. THE SPECIFIC AMOUNT APPROPRIATED FOR THE INDIAN SERVICE MUST BE TAKEN AND CONSIDERED AS A LEGISLATIVE LIMITATION OF THE AMOUNT MADE AVAILABLE FOR EXPENDITURES BY THE INDIAN SERVICE--- THE MATTER OF SUPPLEMENTING SUCH APPROPRIATION BEING ONE FOR SUBMISSION TO THE CONGRESS. WHILE YOUR DEPARTMENT MAY HAVE NO CONTROL OVER THE FIXING OF THE DATES FOR SUCH TRIAL OR OVER THE NUMBER OF INDIAN POLICE WHO MAY BE REQUIRED TO ATTEND SAME, IT DOES HAVE CONTROL OVER OTHER OBLIGATIONS UNDER THE APPROPRIATION INVOLVED AND SHOULD SO CONSERVE THE APPROPRIATION THAT THERE WOULD REMAIN A BALANCE SUFFICIENT TO TAKE CARE OF THE CONTINGENCY OF INDIAN POLICE BEING CALLED TO TRIALS DURING THE LATTER PART OF THE FISCAL YEAR.

ANSWERING YOUR QUESTION SPECIFICALLY, YOU ARE ADVISED THAT THE EXHAUSTING OF THE APPROPRIATION UNDER YOUR ADMINISTRATIVE CONTROL OTHERWISE AVAILABLE FOR THESE EXPENSES CANNOT OPERATE TO MAKE SAID EXPENSES A PROPER CHARGE UNDER THE DEPARTMENT OF JUSTICE APPROPRIATION, "FEES OF WITNESSES, UNITED STATES COURTS.'