A-80203, SEPTEMBER 11, 1936, 16 COMP. GEN. 230

A-80203: Sep 11, 1936

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IS AVAILABLE FOR PAYMENT OF FEES AND EXPENSES OF WITNESSES SUBPOENAED PURSUANT TO AUTHORITY CONFERRED THROUGH SECTION 2 (G) OF THE FEDERAL ALCOHOL ADMINISTRATION ACT OF 1935. SUCH COMPENSATION IS SUBJECT TO THE LIMITATIONS IMPOSED FOR THE FISCAL YEAR 1937 BY THE DEPARTMENT OF JUSTICE APPROPRIATION ACT. 1936: THIS OFFICE IS IN RECEIPT OF A LETTER DATED AUGUST 19. AS FOLLOWS: AN OPINION IS RESPECTFULLY REQUESTED WHETHER OR NOT THE APPROPRIATION "FOR THE PURPOSE OF ADMINISTERING THE PROVISIONS OF THE FEDERAL ALCOHOL ADMINISTRATION ACT. 1937" IS AVAILABLE TO PAY SUBPOENA FEES. SEC. 49) THE COMMISSION IS GIVEN THE POWER "TO REQUIRE BY SUBPOENA THE ATTENDANCE AND TESTIMONY OF WITNESSES AND THE PRODUCTION OF ALL SUCH DOCUMENTARY EVIDENCE RELATING TO ANY MATTER UNDER INVESTIGATION.'.

A-80203, SEPTEMBER 11, 1936, 16 COMP. GEN. 230

WITNESSES - FEES AND EXPENSES - LIMITATIONS AND AVAILABILITY OF FEDERAL ALCOHOL ADMINISTRATION APPROPRIATION THE APPROPRIATION FOR THE FEDERAL ALCOHOL ADMINISTRATION FOR THE FISCAL YEAR 1937, 49 STAT. 1834, IS AVAILABLE FOR PAYMENT OF FEES AND EXPENSES OF WITNESSES SUBPOENAED PURSUANT TO AUTHORITY CONFERRED THROUGH SECTION 2 (G) OF THE FEDERAL ALCOHOL ADMINISTRATION ACT OF 1935, 49 STAT. 978, BUT SUCH COMPENSATION IS SUBJECT TO THE LIMITATIONS IMPOSED FOR THE FISCAL YEAR 1937 BY THE DEPARTMENT OF JUSTICE APPROPRIATION ACT, 49 STAT. 1331.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE TREASURY, SEPTEMBER 11, 1936:

THIS OFFICE IS IN RECEIPT OF A LETTER DATED AUGUST 19, 1936, FROM THE ADMINISTRATOR OF THE FEDERAL ALCOHOL ADMINISTRATION DIVISION, TREASURY DEPARTMENT, REQUESTING DECISION ON A QUESTION THEREIN PRESENTED, AS FOLLOWS:

AN OPINION IS RESPECTFULLY REQUESTED WHETHER OR NOT THE APPROPRIATION "FOR THE PURPOSE OF ADMINISTERING THE PROVISIONS OF THE FEDERAL ALCOHOL ADMINISTRATION ACT, 1937" IS AVAILABLE TO PAY SUBPOENA FEES, TRAVELING EXPENSES AND SUBSISTENCE ALLOWANCES OF WITNESSES SUMMONED BY ME TO TESTIFY AT HEARINGS HELD IN CONNECTION WITH CONTEMPLATED DENIALS OF APPLICATIONS FOR BASIC PERMITS TO ENGAGE IN THE ALCOHOLIC BEVERAGE INDUSTRIES AND HEARINGS UPON PROCEEDINGS FOR THE SUSPENSION, REVOCATION, OR ANNULMENT OF SUCH BASIC PERMITS.

SECTION 4 (B) OF THE FEDERAL ALCOHOL ADMINISTRATION ACT (49 STAT. 977) PROVIDES FOR THE HOLDING OF HEARINGS IN CONNECTION WITH APPLICATIONS FOR BASIC PERMITS, AND SECTION 4 (E) OF SAID ACT PROVIDES FOR HEARINGS IN CONNECTION WITH SUSPENSION, REVOCATION, OR ANNULMENT OF BASIC PERMITS. SECTION 2 (G) OF THE FEDERAL ALCOHOL ADMINISTRATION ACT PROVIDES AS FOLLOWS:

"/G) THE PROVISIONS, INCLUDING PENALTIES, OF SECTIONS 9 AND 10 OF THE FEDERAL TRADE COMMISSION ACT, AS NOW OR HEREAFTER AMENDED, SHALL BE APPLICABLE TO THE JURISDICTION, POWERS, AND DUTIES OF THE ADMINISTRATOR, AND TO ANY PERSON (WHETHER OR NOT A CORPORATION) SUBJECT TO THE PROVISIONS OF LAWS ADMINISTERED BY THE ADMINISTRATOR.'

BY SECTION 9 OF THE FEDERAL TRADE COMMISSION ACT (38 STAT. 722; 15U.S.C.A., SEC. 49) THE COMMISSION IS GIVEN THE POWER "TO REQUIRE BY SUBPOENA THE ATTENDANCE AND TESTIMONY OF WITNESSES AND THE PRODUCTION OF ALL SUCH DOCUMENTARY EVIDENCE RELATING TO ANY MATTER UNDER INVESTIGATION.' THIS SECTION FURTHER PROVIDES THAT "WITNESSES SUMMONED BEFORE THE COMMISSION SHALL BE PAID THE SAME FEES AND MILEAGE THAT ARE PAID WITNESSES IN THE COURTS OF THE UNITED STATES.'

THE FEDERAL ALCOHOL ADMINISTRATION APPROPRIATION (PUBLIC, NO. 761, 74TH CONGRESS) IS AS OLLOWS:

"SALARIES AND EXPENSES.--- FOR THE PURPOSE OF ADMINISTERING THE PROVISIONS OF THE "FEDERAL ALCOHOL ADMINISTRATION ACT," APPROVED AUGUST 29, 1935 (49 STAT. 977), INCLUDING PERSONAL AND OTHER SERVICES AND RENT IN THE DISTRICT OF COLUMBIA AND ELSEWHERE; SUPPLIES AND MATERIALS; EQUIPMENT; COMMUNICATION SERVICE; STATIONERY; TRAVEL AND SUBSISTENCE EXPENSES AS AUTHORIZED BY LAW; MAINTENANCE, REPAIR, AND OPERATION OF AUTOMOBILES; LAW BOOKS, BOOKS OF REFERENCE, MAGAZINES, PERIODICALS, AND NEWSPAPERS; CONTRACT STENOGRAPHIC REPORTING SERVICE; THE SECURING OF EVIDENCE OF VIOLATIONS OF THE ACT; AND MISCELLANEOUS AND CONTINGENT EXPENSES; $475,000.'

IT APPEARS TO ME THAT THE AUTHORIZATION FOR EXPENDITURES FOR "THE SECURING OF EVIDENCE OF VIOLATIONS OF THE ACT" IS A SUFFICIENT AUTHORIZATION FOR PAYMENT OF SUBPOENA FEES, TRAVELING EXPENSES AND SUBSISTENCE ALLOWANCES OF WITNESSES OUT OF THE APPROPRIATION.

IN THIS CONNECTION YOUR ATTENTION IS RESPECTFULLY DIRECTED TO COMPTROLLER GENERAL MCCARL'S DECISION OF DECEMBER 29, 1922 (2 C.G. 414), WHEREIN IT WAS HELD THAT THE APPROPRIATION ,ENFORCEMENT OF NARCOTIC AND PROHIBITION ACTS, INTERNAL REVENUE, 1923" WAS AVAILABLE TO PAY THE REASONABLE AND NECESSARY TRAVELING EXPENSES, INCLUDING SUBSISTENCE, OF WITNESSES NECESSARY TO ESTABLISH THE ILLEGAL MANUFACTURE OR SALE OF INTOXICATING LIQUORS ON WHICH THE TAXES AND PENALTIES ASSESSED OR IMPOSED UNDER SECTION 35 OF THE NATIONAL PROHIBITION ACT (41 STAT. 317) MIGHT BE COLLECTED. POINTED OUT BY COMPTROLLER GENERAL MCCARL, THE MANUFACTURER OR SELLER PROCEEDED AGAINST FOR THE COLLECTION OF THE TAXES AND PENALTIES WAS ENTITLED TO A HEARING BEFORE THE TAXES OR PENALTIES WERE COLLECTED. SIMILARLY, UNDER THE FEDERAL ALCOHOL ADMINISTRATION ACT APPLICANTS FOR BASIC PERMITS ARE ENTITLED TO HEARINGS BEFORE THE APPLICATIONS ARE DENIED. LIKEWISE, PERMITTEES ARE ENTITLED TO HEARINGS BEFORE THEIR BASIC PERMITS MAY BE SUSPENDED, REVOKED, OR ANNULLED. THE APPROPRIATION WHICH WAS THE SUBJECT OF COMPTROLLER GENERAL MCCARL'S DECISION ABOVE CITED IS FOUND IN 42 STAT. 366, AT PAGE 376, AND PROVIDED IN PART AS FOLLOWS:

"FOR EXPENSES TO ENFORCE THE PROVISIONS OF THE "NATIONAL PROHIBITION ACT" AND * * * INCLUDING * * * THE SECURING OF EVIDENCE OF VIOLATIONS OF THE ACTS * * *.'

IT WILL BE NOTED THAT THE LANGUAGE "THE SECURING OF EVIDENCE OF VIOLATIONS OF THE ACTS" USED IN THAT APPROPRIATION IS IDENTICAL WITH THE LANGUAGE USED IN THE CURRENT APPROPRIATION FOR THIS ADMINISTRATION, EXCEPT INSOFAR AS THE WORD "ACT" APPEARS IN OUR APPROPRIATION IN PLACE OF THE WORD "ACTS.'

WE ARE AT THE PRESENT TIME HOLDING A NUMBER OF HEARINGS IN CONNECTION WITH CONTEMPLATED DENIALS OF APPLICATIONS FOR BASIC PERMITS AT WHICH THE TESTIMONY OF WITNESSES IS FREQUENTLY ESSENTIAL IN ORDER TO ADEQUATELY DEVELOP THE GROUNDS FOR DENYING THE PERMITS SOUGHT, AND WE SHALL, IN THE NEAR FUTURE, COMMENCE TO HOLD HEARINGS IN CONNECTION WITH PROCEEDINGS TO SUSPEND, REVOKE, OR ANNUL BASIC PERMITS, AT WHICH TIME THE TESTIMONY OF WITNESSES WILL UNDOUBTEDLY BE EVEN MORE ESSENTIAL. THE SUBPOENA POWER GRANTED TO US BY THE PROVISIONS OF THE FEDERAL ALCOHOL ADMINISTRATION ACT IS, THEREFORE, OF GREAT VALUE. SHOULD IT BE HELD THAT THE ADMINISTRATION'S APPROPRIATION IS NOT AVAILABLE TO PAY SUBPOENA FEES, TRAVELING EXPENSES AND SUBSISTENCE ALLOWANCES OF WITNESSES, IT IS POSSIBLE THAT THE POWER TO PUNISH WITNESSES FOR CONTEMPT OF THE ADMINISTRATION'S SUBPOENAS WOULD BE LOST. IF THIS SHOULD RESULT, WE WILL BE PRACTICALLY PARALYZED IN OUR EFFORTS TO ENFORCE THE PROVISIONS OF THE FEDERAL ALCOHOL ADMINISTRATION ACT.

WHILE THE 1937 APPROPRIATION FOR THE FEDERAL ALCOHOL ADMINISTRATION, ACT OF JUNE 23, 1936, 49 STAT. 1834, DOES NOT SPECIFICALLY PROVIDE FOR THE PAYMENT OF WITNESS FEES, SUCH APPROPRIATION IS STATED TO BE "FOR THE PURPOSE OF ADMINISTERING THE PROVISIONS OF THE "FEDERAL ALCOHOL ADMINISTRATION ACT," APPROVED AUGUST 29, 1935," AND AS SECTION 2 (G) OF THAT ACT, 49 STAT. 978, BY EXPRESS REFERENCE MAKES APPLICABLE TO THE FEDERAL ALCOHOL ADMINISTRATION THE PROVISIONS OF SECTION 9 OF THE FEDERAL TRADE COMMISSION ACT, 38 STAT. 722, CONFERRING THE POWER TO REQUIRE BY SUBPOENA THE ATTENDANCE AND TESTIMONY OF WITNESSES AND PROVIDING THAT WITNESSES SUMMONED SHALL BE PAID THE SAME FEES AND MILEAGE THAT ARE PAID WITNESSES IN THE COURTS OF THE UNITED STATES, YOU ARE ADVISED THAT THIS OFFICE IS NOT REQUIRED TO OBJECT TO THE USE OF THE SAID APPROPRIATION FOR THE COMPENSATION OF WITNESSES PURSUANT TO SUCH STATUTORY PROVISIONS. 73262, APRIL 18, 1936.

THE COMPENSATION OF WITNESSES IN UNITED STATES COURTS IS GOVERNED BY SECTION 3 OF THE ACT OF APRIL 26, 1926, 44 STAT. 324, AS TEMPORARILY AMENDED BY SECTION 323 OF THE ACT OF JUNE 30, 1932, 47 STAT. 413, PARTIALLY CONTINUED IN EFFECT DURING THE FISCAL YEAR 1937 BY A PROVISION IN THE DEPARTMENT OF JUSTICE APPROPRIATION ACT OF MAY 15, 1936, 49 STAT. 1309 AT PAGE 1331, AND PAYMENTS TO WITNESSES SUMMONED BEFORE THE FEDERAL ALCOHOL ADMINISTRATION SHOULD BE IN ACCORDANCE THEREWITH.