B-4956, JULY 19, 1939, 19 COMP. GEN. 75

B-4956, JULY 19, 1939, 19 COMP. GEN. 75

WITNESSES - FEES - IMMIGRATION AND NATURALIZATION SERVICE THE GENERALLY ACCEPTED USE OF THE TERM "FEES" AS APPLIED TO WITNESSES IS THAT IT COVERS ALL COMMUTED AMOUNTS PAYABLE WHETHER IN THE FORM OF PER DIEM FOR ATTENDANCE, OR PER DIEM FOR EXPENSES OF SUBSISTENCE. THE APPROPRIATION " GENERAL EXPENSES, IMMIGRATION AND NATURALIZATION SERVICE" FOR THE FISCAL YEAR 1940, 53 STAT. 923, MADE AVAILABLE BY THE LABOR DEPARTMENT APPROPRIATION ACT OF JUNE 29, 1939, PUBLIC, NO. 157, FOR "MILEAGE AND FEES TO WITNESSES SUBPOENAED ON BEHALF OF THE UNITED STATES, AND FOR ALL OTHER EXPENSES NECESSARY TO ENFORCE SAID LAWS," MAY BE CONSIDERED AVAILABLE FOR PER DIEMS IN LIEU OF SUBSISTENCE TO WITNESSES SUBPOENAED FROM A DISTANCE TO ATTEND HEARINGS BEFORE THE IMMIGRATION AUTHORITIES.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF LABOR, JULY 19, 1939:

I HAVE YOUR LETTER OF JULY 17, 1939, AS FOLLOWS:

THE ACT MAKING APPROPRIATIONS FOR THE DEPARTMENT OF LABOR FOR THE FISCAL YEAR ENDING JUNE 30, 1940, AND FOR OTHER PURPOSES, INCLUDES APPROPRIATIONS FOR THE IMMIGRATION AND NATURALIZATION SERVICE. UNDER THE HEAD OF " GENERAL EXPENSES (OTHER THAN SALARIES)" THE ACT PROVIDES "FOR ALL EXPENSES OF THE IMMIGRATION AND NATURALIZATION SERVICE, INCLUDING THE IMMIGRATION BORDER PATROL, INCURRED IN THE ENFORCEMENT OF THE LAWS REGULATING THE IMMIGRATION TO, THE RESIDENCE IN, AND THE EXCLUSION AND DEPORTATION FROM THE UNITED STATES OF ALIENS AND PERSONS SUBJECT TO THE CHINESE EXCLUSION LAWS.'

IN CONNECTION WITH THE EXCLUSION AND DEPORTATION OF ALIENS FROM THE UNITED STATES, IT BECOMES NECESSARY FROM TIME TO TIME, PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 16 OF THE IMMIGRATION ACT OF FEBRUARY 5, 1917 (39 STAT. 874), TO SUBPOENA THE ATTENDANCE AND TESTIMONY OF WITNESSES BEFORE A COMMISSION OF IMMIGRATION AND NATURALIZATION, OR AN IMMIGRANT INSPECTOR.

RULE 24 OF THE IMMIGRATION LAWS AND REGULATIONS OF JANUARY 1, 1930, PROVIDES THAT "IF A SUBPOENA IS ISSUED UNDER AUTHORITY OF SECTION 16 OF THE ACT OF FEBRUARY 5, 1917, AT THE REQUEST OF AN INSPECTOR OR THE CHAIRMAN OF A BOARD, MILEAGE AND FEES MAY BE PAID AT RATES NOT TO EXCEED THOSE USUALLY ALLOWED BY THE UNITED STATES DISTRICT COURT FOR THE DISTRICT IN WHICH THE TESTIMONY IS TAKEN.'

THAT PART OF THE APPROPRIATION ACT APPROVED JUNE 29, 1939 ( PUB. 157) ( H.R. 5427), WHICH MAKES FUNDS AVAILABLE FOR THE IMMIGRATION AND NATURALIZATION SERVICE, PROVIDES, AMONG OTHER ITEMS, FOR ,MILEAGE AND FEES TO WITNESSES SUBPOENAED ON BEHALF OF THE UNITED STATES, AND FOR ALL OTHER EXPENSES NECESSARY TO ENFORCE SAID LAWS.'

WHILE IT APPEARS THAT "MILEAGE AND FEES" ARE SPECIFICALLY ENUMERATED IN THE ACT, IT WOULD SEEM THAT THE WORDS "AND FOR ALL OTHER EXPENSES NECESSARY TO ENFORCE SAID LAWS" ARE SUFFICIENTLY BROAD TO EMBRACE THE COST OF SUBSISTENCE FOR WITNESSES WHEN SUBPOENAED ON BEHALF OF THE UNITED STATES. THIS WOULD MAKE THE PROCEDURE IN THESE CASES CONSISTENT WITH THAT OUTLINED IN SECTION 600C, TITLE 28, JUDICIAL CODE AND JUDICIARY (PAGE 1294), WHICH READS AS FOLLOWS:

"AMOUNT OF PER DIEM AND MILEAGE FOR WITNESSES; SUBSISTENCE. WITNESSES ATTENDING IN SUCH COURTS, OR BEFORE SUCH COMMISSIONERS, SHALL RECEIVE FOR EACH DAY'S ATTENDANCE AND FOR THE TIME NECESSARILY OCCUPIED IN GOING TO AND RETURNING FROM SAME $2, AND 5 CENTS PER MILE FOR GOING FROM HIS OR HER PLACE OF RESIDENCE TO THE PLACE OF TRIAL OR HEARING AND 5 CENTS PER MILE FOR RETURN: AND PROVIDED FURTHER, THAT WITNESSES (OTHER THAN WITNESSES WHO ARE SALARIED EMPLOYEES OF THE GOVERNMENT AND DETAINED WITNESSES) IN THE UNITED STATES COURTS, INCLUDING THE DISTRICT COURT OF HAWAII, THE DISTRICT COURT OF PUERTO RICO, AND THE SUPREME COURT OF THE DISTRICT OF COLUMBIA, WHO ATTEND COURT OR ATTEND BEFORE UNITED STATES COMMISSIONERS, AT POINTS SO FAR REMOVED FROM THEIR RESPECTIVE RESIDENCES AS TO PROHIBIT RETURN THERETO FROM DAY TO DAY,SHALL, WHEN THIS FACT IS CERTIFIED TO IN THE ORDER OF THE COURT OR THE COMMISSIONER FOR PAYMENT, BE ENTITLED IN ADDITION TO THE COMPENSATION PROVIDED BY EXISTING LAW, AS MODIFIED BY SECTIONS 600A TO 600D OF THIS TITLE, TO A PER DIEM OF $3.00 FOR EXPENSES OF SUBSISTENCE FOR EACH DAY OF ACTUAL ATTENDANCE AND FOR EACH DAY NECESSARILY OCCUPIED IN TRAVELING TO ATTEND COURT AND RETURN HOME. ( APR. 26, 1926, C. 183, SEC. 3, 44 STAT. 324; MAY 17, 1932, C. 190, 47 STAT. 158).'

THE SITUATION IS ESPECIALLY ACUTE AT THIS TIME AS A RESULT OF DEPORTATION PROCEEDINGS IN THE CASE OF HARRY BRIDGES, WHO IS BEING ACCORDED A HEARING AT ANGEL ISLAND, CALIFORNIA, UNDER A WARRANT OF ARREST ISSUED BY THE SECRETARY OF LABOR, AS A NUMBER OF WITNESSES HAVE BEEN SUBPOENAED FROM SEATTLE, WASHINGTON, AND OTHER DISTANT POINTS. MANY OF THESE WITNESSES ARE PRACTICALLY INDIGENT AND WILL BE REQUIRED TO STAND A FINANCIAL LOSS IF THE PAYMENT OF SUBSISTENCE MONEY IS WITHHELD.

IN VIEW OF THE DOUBT WHICH EXISTS AS TO WHETHER THE APPROPRIATION " GENERAL EXPENSES, IMMIGRATION AND NATURALIZATION SERVICE" IS AVAILABLE FOR THE PAYMENT OF A PER DIEM OF $3.00 FOR EXPENSES OF SUBSISTENCE OF WITNESSES SUBPOENAED ON BEHALF OF THE UNITED STATES, AS ABOVE SET FORTH, YOUR DECISION IN THE MATTER IS RESPECTFULLY REQUESTED.

THE TERM "FEES" AS APPLIED TO WITNESSES IS OFTEN USED BROADLY TO COVER ALL COMMUTED AMOUNTS PAYABLE TO WITNESSES WHETHER IN THE FORM OF PER DIEM FOR ATTENDANCE OR AN AUTHORIZED PER DIEM FOR EXPENSES OF SUBSISTENCE. SEE, FOR EXAMPLE, THE APPROPRIATION IN THE DEPARTMENT OF JUSTICE APPROPRIATION ACT FOR 1940 APPROVED JUNE 29, 1939, PUBLIC NO. 156, 53 STAT. 896, ENTITLED " FEES OF JURORS AND WITNESSES" UNDER WHICH SPECIFIC PROVISION IS MADE FOR MILEAGE AND PER DIEMS OF WITNESSES AND FOR PER DIEMS IN LIEU OF SUBSISTENCE. IT IS NOTED, ALSO, THAT THE ACT OF APRIL 24, 1926, 44 STAT. 323, IS ENTITLED "AN ACT FIXING THE FEES OF JURORS AND WITNESSES IN THE UNITED STATES COURTS * * *," WHEREAS IN THE BODY OF SAID ACT THE ALLOWANCES ARE REFERRED TO AS "PER DIEM FOR EACH DAY OF ACTUAL ATTENDANCE" AND PER DIEM "FOR EXPENSES OF SUBSISTENCE.' WHETHER THE TERM "FEES" AS USED IN THE APPROPRIATION FOR GENERAL EXPENSES OF THE IMMIGRATION AND NATURALIZATION SERVICE, WAS INTENDED TO BE SO BROADLY USED IS NOT FREE FROM DOUBT BUT IN VIEW OF THE GENERALLY ACCEPTED USE OF THAT WORD AS APPLIED TO WITNESSES AND THE PROVISION IN THE APPROPRIATION FOR "ALL OTHER EXPENSES NECESSARY TO ENFORCE SAID LAWS," THE APPROPRIATION MAY BE CONSIDERED AVAILABLE FOR PER DIEMS IN LIEU OF SUBSISTENCE TO WITNESSES SUBPOENAED FROM A DISTANCE TO ATTEND HEARINGS BEFORE THE IMMIGRATION AUTHORITIES.