B-71945, MARCH 4, 1948, 27 COMP. GEN. 493

B-71945: Mar 4, 1948

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IS TO BE CONSIDERED AS COMPENSATION FOR SERVICES RENDERED ON ACCOUNT OF JURY SERVICE WHICH. IS REQUIRED TO BE CREDITED AGAINST THE COMPENSATION PAYABLE BY THE UNITED STATES TO AN EMPLOYEE WHO MAY BE ABSENT ON JURY SERVICE IN THAT STATE. WARRANT WAS DEPOSITED IN THE ACCOUNTS OF PAUL D. WAS PAID FROM THE ABOVE SUSPENSE ACCOUNT ON D.O. THE REMAINING $30.00 IS HELD IN THE ACCOUNT PENDING DETERMINATION AS TO THE PROPRIETY OF THIS CLAIM. THE SALARY OF THE EMPLOYEE WAS NOT DIMINISHED DURING THE PERIOD OF JURY SERVICE. NO CHARGE WAS MADE AGAINST ANY ACCUMULATED OR ACCRUED ANNUAL LEAVE TO THE CREDIT OF THE EMPLOYEE. THAT THE ALLOWANCE OF $3.00 PER DAY FOR JURY SERVICE IS FOR EXPENSES ONLY. YOUR DECISION IS REQUESTED AS TO WHETHER THE ATTACHED VOUCHER MAY BE CERTIFIED FOR PAYMENT.

B-71945, MARCH 4, 1948, 27 COMP. GEN. 493

STATE JURY SERVICE - CREDITING OF PER DIEM PAYMENT FOR JURY SERVICE TO COMPENSATION THE PER DIEM PAYMENT FOR JURORS PROVIDED BY NEW MEXICO LAW MAY NOT BE REGARDED AS AN ALLOWANCE FOR EXPENSES INCIDENT TO JURY SERVICE, BUT IS TO BE CONSIDERED AS COMPENSATION FOR SERVICES RENDERED ON ACCOUNT OF JURY SERVICE WHICH, UNDER SECTION 3 OF THE ACT OF JUNE 29, 1940, IS REQUIRED TO BE CREDITED AGAINST THE COMPENSATION PAYABLE BY THE UNITED STATES TO AN EMPLOYEE WHO MAY BE ABSENT ON JURY SERVICE IN THAT STATE.

COMPTROLLER GENERAL WARREN TO H. H. BARNES, DEPARTMENT OF AGRICULTURE, MARCH 4, 1948:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF DECEMBER 1, 1947, AS FOLLOWS:

THERE HAS BEEN PRESENTED TO ME FOR CERTIFICATION AND PAYMENT, THE ATTACHED BUREAU VOUCHER NO. 7941, IN THE AMOUNT OF $30.00, SUPPORTED BY THE ORIGINAL CLAIM LETTER FROM THE CLAIMANT, DANIEL A. GILES, A PERMANENT EMPLOYEE OF THE SOIL CONSERVATION SERVICE HEADQUARTERS AT CAPITAN, NEW MEXICO.

THE VOUCHER COVERS REFUND OF $30.00 FOR TEN DAYS SERVICE AT $3.00 PER DAY, SUCH JURY SERVICE PERFORMED IN THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT OF THE STATE OF NEW MEXICO, WITHIN AND FOR THE COUNTY OF LINCOLN AT CARRIZOZO, NEW MEXICO, ON SEPTEMBER 3, 8, 9, 10, 11, 15, 18, 22 AND NOVEMBER 3 AND 5, 1947.

THE EMPLOYEE HAS ENDORSED AND RELINQUISHED STATE OF NEW MEXICO, THIRD JUDICIAL COURT, LINCOLN COUNTY JUROR WARRANT NO. 776, IN THE AMOUNT OF $53.80, COVERING THE TEN DAYS JURY PAY AT $3.00 PER DAY, AND AN ALLOWANCE OF 476 MILES AT $0.05 PER MILE, OR $23.80, COVERING TEN ROUND-TRIPS FROM CAPITAN, NEW MEXICO TO CARRIZOZO, NEW MEXICO; AND WARRANT WAS DEPOSITED IN THE ACCOUNTS OF PAUL D. BANNING, C.D.O., ALBUQUERQUE, NEW MEXICO, TO ACCOUNT 12F5875.100 " SPECIAL DEPOSITS, SUSPENSE," ( DEPT. OF AGR., SCS), ON SCHEDULE OF COLLECTION NO. 188, DATED NOVEMBER 13, 1947, C.D. NO. 19- 522 DATED NOVEMBER 14, 1947. BUREAU VOUCHER NO. 7551, IN FAVOR OF THE CLAIMANT, DANIEL A. GILES, FOR THE MILEAGE ALLOWANCE OF $23.80, WAS PAID FROM THE ABOVE SUSPENSE ACCOUNT ON D.O. VOUCHER 19-58701 ON NOVEMBER 26, 1947, AND THE REMAINING $30.00 IS HELD IN THE ACCOUNT PENDING DETERMINATION AS TO THE PROPRIETY OF THIS CLAIM.

THE SALARY OF THE EMPLOYEE WAS NOT DIMINISHED DURING THE PERIOD OF JURY SERVICE, AND NO CHARGE WAS MADE AGAINST ANY ACCUMULATED OR ACCRUED ANNUAL LEAVE TO THE CREDIT OF THE EMPLOYEE. OUR PROCEDURE HAS BEEN TO SECURE THE JURY PAY FROM THE EMPLOYEE AND DEPOSIT SAME TO THE CREDIT OF " MISCELLANEOUS RECEIPTS.'

SECTION 30-137 OF THE STATE OF NEW MEXICO STATUTES--- ANNOTATED, READS AS FOLLOWS:

"PER DIEM AND MILEAGE ALLOWANCE OF GRAND AND PETIT JURORS.--- HEREAFTER THE RATE OF PAY FOR ALL MEMBERS OF PETIT AND GRAND JURIES IN DISTRICT COURTS WITHIN THE STATE OF NEW MEXICO SHALL BE THREE DOLLARS ($3.00), PER DIEM AND MILEAGE NECESSARILY TRAVELED FROM THEIR HOMES TO THE PLACE OF HOLDING COURT AND RETURN AT THE RATE OF 5 CENTS PER MILE.'

THE JUDGE OF THE DISTRICT COURT OF LINCOLN COUNTY HAS INTERPRETED, AS OUTLINED IN THE ORIGINAL SIGNED LETTER ATTACHED, THAT THE ALLOWANCE OF $3.00 PER DAY FOR JURY SERVICE IS FOR EXPENSES ONLY, AND NOT TO BE CONSIDERED AS SALARY OR PAY, AND ON THE BASIS OF THIS INTERPRETATION, MR. GILES HAS PRESENTED HIS CLAIM.

IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3 OF THE ACT OF DECEMBER 29, 1941, YOUR DECISION IS REQUESTED AS TO WHETHER THE ATTACHED VOUCHER MAY BE CERTIFIED FOR PAYMENT.

THE ACT OF JUNE 29, 1940, 54 STAT. 689, PROVIDES:

THAT THE COMPENSATION OF ANY EMPLOYEE OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA WHO MAY BE CALLED UPON FOR JURY SERVICE IN ANY STATE COURT OR COURT OF THE UNITED STATES SHALL NOT BE DIMINISHED DURING THE TERM OF SUCH JURY SERVICE BY REASON OF SUCH ABSENCE, EXCEPT AS PROVIDED IN SECTION 3, NOR SHALL SUCH PERIOD OF SERVICE BE DEDUCTED FROM THE TIME ALLOWED FOR ANY LEAVE OF ABSENCE AUTHORIZED BY LAW.

SEC. 2. ANY EMPLOYEE SPECIFIED IN SECTION 1 WHO MAY BE CALLED UPON FOR JURY SERVICE IN ANY COURT OF THE UNITED STATES SHALL NOT RECEIVE ANY COMPENSATION FOR SUCH SERVICE.

SEC. 3. THERE SHALL BE CREDITED AGAINST THE AMOUNT OF COMPENSATION PAYABLE BY THE UNITED STATES TO ANY EMPLOYEE SPECIFIED IN SECTION 1 FOR SUCH PERIOD AS SUCH EMPLOYEE MAY BE ABSENT ON ACCOUNT OF JURY SERVICE IN THE COURT OF ANY STATE ANY AMOUNTS WHICH SUCH EMPLOYEE MAY RECEIVE FROM SUCH STATE ON ACCOUNT OF SUCH JURY SERVICE.

WHILE IN A PROPER CASE AN ALLOWANCE ON ACCOUNT OF JURY SERVICE IN A STATE COURT WHICH CLEARLY IS SHOWN TO BE ONLY FOR EXPENSES MIGHT NOT BE REQUIRED TO BE CREDITED AGAINST THE COMPENSATION PAYABLE BY THE UNITED STATES IN ACCORDANCE WITH SECTION 3 OF THE ACT, SUPRA, I AM NOT CONVINCED THAT THE PER DIEM PAYMENT FOR JURORS PROVIDED BY SECTION 30 137 OF THE NEW MEXICO STATUTES, 1941, ANNOTATED, IS SUCH AN ALLOWANCE. IN THAT CONNECTION IT IS NOTED THAT SAID SECTION IS BASED UPON CHAPTER 24 OF THE 1915 SESSION LAWS OF THE STATE OF NEW MEXICO PASSED AT THE SECOND STATE LEGISLATURE OF NEW MEXICO. THAT CHAPTER OF THE 1915 SESSION LAWS IS ENTITLED " AN ACT TO PROVIDE PAY FOR JURORS IN THE DISTRICT COURT" ( ITALICS SUPPLIED.) BOTH THAT CHAPTER AND THE CODE PROVISION REFER TO THE ,RATE OF PAY" AND NEITHER CONTAINS ANY INDICATION THAT THE AMOUNT PAYABLE IS NOT COMPENSATION FOR THE SERVICE RENDERED BUT MERELY IS AN ALLOWANCE FOR EXPENSES.

ALSO, IF THE PER DIEM PAYMENT FOR JURORS WERE PROVIDED FOR THE PURPOSE OF COVERING EXPENSES AND NOT AS COMPENSATION, IT WOULD SEEM THAT WHEN A JURY IS KEPT TOGETHER DURING A TRIAL THAT THE RESULTING EXPENSES WOULD BE FOR PAYING FROM THE PER DIEM PAYMENT. HOWEVER, IT IS NOTED THAT SECTION 16- 324 OF THE NEW MEXICO STATUTES, 1941, ANNOTATED, PROVIDES THAT WHEN JURORS ARE KEPT TOGETHER DURING A TRIAL THE SHERIFF SHALL PROVIDE SUITABLE MEALS AND ACCOMMODATIONS FOR THEM AND THERE IS NO INDICATION THAT MEMBERS OF JURIES ARE REQUIRED TO REIMBURSE THE SHERIFF OR ANY OTHER OFFICER ON ACCOUNT OF SUCH EXPENSES.

IN VIEW OF THE FOREGOING AND NOTWITHSTANDING THE INTERPRETATION OF THE JUDGE OF THE DISTRICT COURT OF LINCOLN COUNTY, NEW MEXICO, I AM COMPELLED TO HOLD THAT THE PER DIEM PAYMENT FOR JURORS PROVIDED BY SECTION 30-137 OF THE NEW MEXICO STATUTES, 1941, ANNOTATED, IS AN AMOUNT RECEIVED FROM A COURT OF THE STATE ON ACCOUNT OF JURY SERVICE WHICH IS REQUIRED TO BE CREDITED AGAINST THE COMPENSATION PAYABLE BY THE UNITED STATES IN ACCORDANCE WITH SECTION 3 OF THE ACT OF JUNE 29, 1940, 54 STAT. 689.

ACCORDINGLY, THE VOUCHER MAY NOT BE CERTIFIED FOR PAYMENT.