B-3385, MAY 15, 1939, 18 COMP. GEN. 860

B-3385, MAY 15, 1939, 18 COMP. GEN. 860

FEES AND MILEAGE - WITNESSES - LAND CASES BEFORE UNITED STATES COMMISSIONERS IN ALASKA WITNESSES APPEARING BEFORE UNITED STATES COMMISSIONERS IN ALASKA IN LAND CASES UNDER THE ACT OF JANUARY 31, 1903, 32 STAT. 790, ARE ENTITLED TO THE FEES AND MILEAGE FIXED IN THE DEPARTMENT OF JUSTICE SCHEDULE FOR WITNESSES BEFORE DISTRICT COURTS, NOTWITHSTANDING THAT WITNESSES BEFORE SUCH COMMISSIONERS IN OTHER THAN LAND CASES MAY BE PAID AT DIFFERENT RATES.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF THE INTERIOR, MAY 15, 1939:

I HAVE YOUR LETTER OF APRIL 26, 1939, AS FOLLOWS:

THE ACT OF JANUARY 30, 1903 (32 STAT. 790) PROVIDES---

"THAT REGISTERS AND RECEIVERS OF THE LAND OFFICE, OR EITHER OF THEM, IN ALL MATTERS REQUIRING A HEARING BEFORE THEM, ARE AUTHORIZED AND EMPOWERED TO ISSUE SUBPOENAS DIRECTING THE ATTENDANCE OF WITNESSES.'

SECTION 2 OF THE ACT PROVIDES THAT---

"THE FEES AND MILEAGE OF WITNESSES SHALL BE THE SAME AS THAT PROVIDED BY LAW IN THE DISTRICT COURTS OF THE UNITED STATES IN THE DISTRICT IN WHICH SUCH LAND OFFICES ARE SITUATED.'

SECTION 4 OF THE ACT PROVIDES---

"THAT WHENEVER THE WITNESS RESIDES OUTSIDE THE COUNTY IN WHICH THE HEARING OCCURS ANY PARTY TO THE PROCEEDING MAY TAKE THE TESTIMONY OF SUCH WITNESS IN THE COUNTY OF SUCH WITNESS'S RESIDENCE IN THE FORM OF DEPOSITIONS * * *. THE DEPOSITIONS MAY BE TAKEN BEFORE ANY UNITED STATES COMMISSIONER, NOTARY PUBLIC, JUDGE OR CLERK OF A COURT OF RECORD. * * * AND THE WITNESS SHALL RECEIVE THE SAME FEES AND MILEAGE AND BE SUBJECT TO THE SAME PENALTIES IN ALL RESPECTS AS IN CASE OF VIOLATION OF A SUBPOENA TO APPEAR BEFORE THE REGISTER OR RECEIVER, AND SUBJECT TO THE SAME LIMITATIONS.'

BY LETTER DATED MARCH 24, 1939, THE ADMINISTRATIVE ASSISTANT TO THE ATTORNEY GENERAL ADVISES THAT THE FEES AND MILEAGE OF WITNESSES IN ALASKA AS FIXED BY THE ATTORNEY GENERAL, AND AT PRESENT IN EFFECT IN THE FOUR JUDICIAL DIVISIONS OF THE DISTRICT OF ALASKA, ARE AS FOLLOWS:

TABLE

FIRST SECOND,

DIVISION THIRD,

AND

FOURTH

DIVISIONS FOR ATTENDANCE BEFORE A COMMISSIONER ACTING IN ANY

CAPACITY AUTHORIZED BY LAW, PER DAY ---------------- $2.00 $2.00 FOR THE DISTANCE ACTUALLY AND NECESSARILY TRAVELED

IN GOING TO AND RETURNING FROM THE PLACE OF SUCH

ATTENDANCE, PER MILE ------------------------------- .06 .12

PROVIDED, THAT FOR ALL TRAVEL BY SEA AND FOR ALL

TRAVEL IN OTHER JUDICIAL DISTRICTS, WITNESSES SHALL BE

ENTITLED TO ONLY 5 CENTS PER MILE FOR GOING AND

RETURNING: PROVIDED FURTHER, THAT A WITNESS

SUBPOENAED FROM A POINT 100 MILES OR OVER FROM THE

PLACE OF HIS ATTENDANCE BEFORE A COMMISSIONER

ACTING IN ANY CAPACITY AUTHORIZED BY LAW MAY ELECT

TO RECEIVE HIS ACTUAL NECESSARY EXPENSES OF TRAVEL

(AND) OF SUBSISTENCE IN LIEU OF MILEAGE HEREINBEFORE

PROVIDED. FOR ATTENDANCE ON THE DISTRICT COURT OR BEFORE ANY

OFFICER OTHER THAN A COMMISSIONER PURSUANT TO LAW,

AND FOR THE TIME NECESSARILY OCCUPIED IN GOING TO

AND RETURNING FROM THE SAME, PER DAY --------------- 3.00 3.00 FOR THE DISTANCE ACTUALLY AND NECESSARILY TRAVELED IN

GOING AND RETURNING FROM THE PLACE OF SUCH

ATTENDANCE, PER MILE ------------------------------- .10 .15

PROVIDED, THAT FOR ALL TRAVEL IN OTHER JUDICIAL

DISTRICTS AND FOR ALL TRAVEL BY SEA, EXCEPT FROM

ONE POINT TO ANOTHER IN ALASKA AND WITHIN ALASKAN

WATERS, WITNESSES SHALL BE ENTITLED TO ONLY 5 CENTS

PER MILE FOR GOING AND RETURNING: PROVIDED

FURTHER, THAT A WITNESS SUBPOENAED FROM A POINT

100 MILES OR OVER FROM THE PLACE OF HOLDING COURT

MAY ELECT TO RECEIVE HIS ACTUAL NECESSARY

EXPENSES OF TRAVEL AND SUBSISTENCE IN LIEU OF

MILEAGE HEREINBEFORE PROVIDED. WHEN A WITNESS IS DETAINED IN PRISON FOR WANT OF

SECURITY FOR HIS APPEARANCE, HE SHALL BE

ENTITLED TO RECEIVE, IN ADDITION TO HIS

SUBSISTENCE, A COMPENSATION, FOR EACH DAY, OF ------ 1.00 1.00

IT APPEARS THEREFORE THAT THERE IS CONFLICT BETWEEN THE FEES AND MILEAGE OF WITNESSES APPEARING BEFORE THE UNITED STATES COMMISSIONER IN ALASKA AS AUTHORIZED BY THE ACT OF JANUARY 31, 1903, SUPRA, AND AS FIXED BY THE ATTORNEY GENERAL.

SECTION 4 OF THE ACT PROVIDES THAT WITNESSES APPEARING BEFORE A UNITED STATES COMMISSIONER SHALL RECEIVE THE SAME FEES AND MILEAGE AS IF THEY APPEARED BEFORE THE REGISTER OR RECEIVER, AND SECTION 2 OF THE ACT PROVIDES THAT THE FEES AND MILEAGE OF WITNESSES APPEARING BEFORE THE REGISTER AND RECEIVER SHALL BE THE SAME AS THAT PROVIDED BY LAW IN THE DISTRICT COURTS OF THE UNITED STATES IN THE DISTRICT IN WHICH SUCH LAND OFFICES ARE SITUATED.

THE FEES AND MILEAGE OF WITNESSES IN ALASKA AS FIXED BY THE ATTORNEY GENERAL ARE DIFFERENT FOR ATTENDANCE BEFORE A COMMISSIONER ACTING IN ANY CAPACITY AUTHORIZED BY LAW THAN FOR ATTENDANCE ON THE DISTRICT COURT OR BEFORE ANY OFFICER OTHER THAN A COMMISSIONER PURSUANT TO LAW.

YOUR DECISION IS REQUESTED AS TO THE FEES AND MILEAGE THAT MAY BE PAID TO WITNESSES APPEARING BEFORE UNITED STATES COMMISSIONERS IN ALASKA UNDER THE PROVISIONS OF THE ACT OF JANUARY 30, 1903, SUPRA.

THE SCHEDULE OF FEES AND MILEAGE PRESCRIBED BY THE ATTORNEY GENERAL FOR WITNESSES BEFORE UNITED STATES COMMISSIONERS IN ALASKA AND THE DISTRICT COURTS IN THAT TERRITORY IS APPARENTLY BASED UPON SECTION 30 OF THE ACT OF JUNE 6, 1900, 31 STAT. 332, WHICH PROVIDES:

IN CASE THE LAW REQUIRES OR AUTHORIZES ANY SERVICES TO BE PERFORMED OR ANY ACT TO BE DONE BY ANY OFFICIAL OR PERSON WITHIN THE DISTRICT OF ALASKA, AND PROVIDES NO COMPENSATION THEREFOR, THE ATTORNEY GENERAL MAY PRESCRIBE AND PROMULGATE A SCHEDULE OF SUCH FEES, MILEAGE, OR OTHER COMPENSATION AS SHALL BE BY HIM DEEMED PROPER FOR EACH DIVISION OF THE COURT, AND SUCH SCHEDULE SHALL HAVE THE FORCE AND EFFECT OF LAW; AND THE ATTORNEY-GENERAL MAY FROM TIME TO TIME AMEND SUCH SCHEDULE AND PROMULGATE THE SAME AS AMENDED, AND THE SCHEDULE AS AMENDED AND PROMULGATED SHALL ALSO HAVE THE FORCE AND EFFECT OF LAW.

WHILE IT IS PERMISSIBLE UNDER THE FOREGOING STATUTE FOR THE ATTORNEY GENERAL TO PRESCRIBE DIFFERENT RATES OF FEES FOR WITNESSES BEFORE UNITED STATES COMMISSIONERS AND BEFORE THE DISTRICT COURTS IN MATTERS WITHIN HIS JURISDICTION, THE PROMULGATION OF SUCH SCHEDULE DOES NOT AFFECT THE PROVISIONS OF THE ACT OF JANUARY 31, 1903, QUOTED IN YOUR SUBMISSION. ACCORDINGLY, AS THE WITNESSES BEFORE A UNITED STATES COMMISSIONER IN ALASKA IN LAND CASES ARE REQUIRED BY LAW TO BE PAID THE SAME FEES AND MILEAGE AS ARE AUTHORIZED TO BE PAID TO WITNESSES APPEARING BEFORE THE REGISTER OR RECEIVER OF THE LOCAL LAND OFFICE AND WITNESSES APPEARING BEFORE THE REGISTER OR RECEIVER OF THE LOCAL LAND OFFICE ARE ENTITLED TO THE SAME FEES AND MILEAGE AS WITNESSES BEFORE THE DISTRICT COURTS, IT FOLLOWS THAT WITNESSES BEFORE A UNITED STATES COMMISSIONER IN LAND CASES ARE ENTITLED TO THE FEES AND MILEAGE FIXED IN THE DEPARTMENT OF JUSTICE SCHEDULE FOR WITNESSES BEFORE DISTRICT COURTS, NOTWITHSTANDING THAT WITNESSES BEFORE SUCH COMMISSIONERS IN OTHER THAN LAND CASES MAY BE PAID AT DIFFERENT RATES.