A-98715, APRIL 5, 1939, 18 COMP. GEN. 765

A-98715, APRIL 5, 1939, 18 COMP. GEN. 765

WITNESSES - FEES - STATE PRISONERS - PAYMENTS MADE UNDER COURT ORDER - MARSHAL'S LIABILITY WITNESS FEES PAID TO PERSONS SERVING SENTENCE IN A STATE PRISON WHO ARE PRODUCED IN THE FEDERAL COURTS, TO TESTIFY ON BEHALF OF THE GOVERNMENT, AND WHOSE TRANSPORTATION AND SUBSISTENCE ARE NOT PAID FROM PERSONAL FUNDS, MAY BE PASSED TO CREDIT IN THE ACCOUNTS OF THE UNITED STATES MARSHAL INVOLVED, THE PAYMENTS HAVING BEEN MADE UNDER COURT ORDER PURSUANT TO SECTION 855, REVISED STATUTES, AND SECTION 846, REVISED STATUTES, PROVIDING THAT NO CHARGE SHALL BE MADE AGAINST THE MARSHAL FOR FEES PAID UNDER SUCH ORDER, BUT THE PROTECTION AFFORDED MARSHALS BY THE SAID SECTION 846 DOES NOT PRECLUDE THE UNITED STATES FROM ASSERTING CLAIMS FOR REFUNDS FROM THE WITNESSES OR JURORS WHERE ERRONEOUS PAYMENTS ARE RECEIVED BY THEM. 18 COMP. GEN. 609, AMPLIFIED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ATTORNEY GENERAL, APRIL 5, 1939:

LETTER OF JANUARY 31, 1939, FROM YOUR ADMINISTRATIVE ASSISTANT, IS AS FOLLOWS:

REFERENCE IS MADE TO YOUR RULING OF JANUARY 17, 1939, FILE A-98715, ADDRESSED TO UNITED STATES MARSHAL J. M. MOORE, LEXINGTON, KY., DISALLOWING CREDIT IN HIS ACCOUNT FOR THE QUARTER ENDED DECEMBER 1936, FOR THREE ITEMS OF WITNESS FEES, IN THE AGGREGATE AMOUNT OF $8.

YOU ARE ADVISED THAT MARSHAL MOORE HAS INFORMED THE DEPARTMENT THAT HE DESIRES TO CLAIM PROTECTION IN THE PAYMENT OF THE ITEMS IN QUESTION, UNDER THE ORDER OF THE COURT, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 846 REVISED STATUTES. IN THIS CONNECTION, ATTENTION IS INVITED TO THE DECISIONS IN THE CASES OF UNITED STATES V. HILLIER (146 U.S. 360), AND HARMON V. UNITED STATES (147 U.S. 268).

IT MAY FURTHER BE STATED THAT THE FEES CLAIMED ARE APPARENTLY NOT FOR CONSIDERATION AS DETAINED WITNESS FEES UNDER SECTION 846 REVISED STATUTES, BUT RATHER AS ORDINARY WITNESS FEES. THE ITEMS IN QUESTION WERE "PASSED" BY THIS DEPARTMENT, IN LIEU OF THE HIGHER STATUTORY FEE OF $1.50 PER DAY, TO WHICH THEY APPARENTLY WERE ENTITLED UNDER RULINGS OF THE COMPTROLLER OF THE TREASURY, DATED MARCH 28, 1903, TO UNITED STATES MARSHAL PALMER OF THE DISTRICT OF COLUMBIA, AND ALSO 6 COMP. DEC. 588.

IT WILL BE NOTED THAT THE RULINGS ABOVE REFERRED TO HOLD, IN EFFECT, THAT WHEN A PERSON WHO IS SERVING A TERM IN JAIL IS USED AS A WITNESS, HE IS ENTITLED TO THE STATUTORY PER DIEMS FOR THE DAYS OF HIS ATTENDANCE UPON COURT AS A GOVERNMENT WITNESS, PROVIDED HIS TIME DOES NOT BELONG TO THE GOVERNMENT; IN OTHER WORDS, IF HE HAS BEEN CONVICTED AND IS SERVING AS A FEDERAL PRISONER, HE IS NOT SO ENTITLED. THE PRINCIPLE OF ALLOWING THE USUAL PER DIEM FOR EACH DAY'S ATTENDANCE IN COURT, WHEN THE SERVICES OF THE WITNESS DO NOT BELONG TO THE GOVERNMENT, IS ALSO APPROVED IN 16 COMP. GEN. (DEC.) 729. THE WITNESSES IN THE CASE UNDER CONSIDERATION WERE STATE PRISONERS.

UNDER A LONG-ESTABLISHED PRACTICE, COVERING A PERIOD OF AT LEAST THIRTY YEARS, FEDERAL PRISONERS AWAITING TRIAL, AS WELL AS STATE PRISONERS, WHOSE TIME CLEARLY DOES NOT BELONG TO THE GOVERNMENT, HAVE BEEN PAID, UPON AN ORDER OF COURT, THE STATUTORY WITNESS FEE FOR EACH DAY OF ATTENDANCE UPON COURT AS A WITNESS.

YOUR RECONSIDERATION OF THE MATTER IS REQUESTED.

THE CITATION OF THE FIRST COURT CASE IN THE SECOND PARAGRAPH OF THE ABOVE LETTER APPEARS TO BE IN ERROR. APPARENTLY THREE CASES WERE INTENDED TO BE CITED, UNITED STATES V. HILLYER, 58 FED. 78; MCMULLEN V. UNITED STATES, 146 U.S. 360, AND HARMON V. UNITED STATES. 147 U.S. 268. NONE OF THESE CASES, HOWEVER, APPEARS TO BE PARTICULARLY IN POINT INSOFAR AS THE FACTS ARE CONCERNED, SINCE THEY DO NOT INVOLVE THE PAYMENT OF WITNESS FEES TO STATE PRISONERS AS IN THE CASE UNDER CONSIDERATION.

WITH RESPECT TO THE PRESENT CASE, HOWEVER, SINCE SECTION 846, REVISED STATUTES, PROVIDES THAT NO ACCOUNTS OF FEES OR COSTS PAID TO ANY WITNESS OR JUROR, UPON THE ORDER OF ANY JUDGE OR COMMISSIONER, SHALL BE SO REEXAMINED AS TO CHARGE ANY MARSHAL FOR AN ERRONEOUS TAXATION OF SUCH FEES OR COSTS, AND AS THE WITNESS FEES APPARENTLY WERE PAID BY THE MARSHAL UNDER COURT ORDER PURSUANT TO THE PROVISIONS OF SECTION 855, REVISED STATUTES, CREDIT WILL NOW BE ALLOWED IN THE MARSHAL'S ACCOUNTS FOR THE PAYMENTS UNDER CONSIDERATION. BUT IT SHOULD BE UNDERSTOOD THAT THE PROTECTION AFFORDED UNITED STATES MARSHALS BY SECTION 846, REVISED STATUTES, RELATES ONLY TO THEIR ACCOUNTS AND DOES NOT PRECLUDE THE UNITED STATES FROM ASSERTING CLAIM FOR REFUND OF THE PAYMENTS RECEIVED BY THE WITNESSES OR JURORS WHEN SUCH PAYMENTS ARE CLEARLY ERRONEOUS. DUVAL V. UNITED STATES, 23 CT.CLS. 102. IN THIS PARTICULAR CASE SINCE IT IS NOT LIKELY THAT RECOVERY COULD BE HAD FROM THE THREE PRISONERS INVOLVED, NO CHARGE WILL BE RAISED AGAINST THEM, BUT IT MAY BE FOR CONSIDERATION BY THE COURTS WHETHER FEES SHOULD BE ORDERED PAID TO PRISONERS IN THE CUSTODY OF STATE OR FEDERAL AUTHORITIES AS UNDER THE LAW THERE IS AT LEAST A QUESTION WHETHER SUCH PERSONS NOT SUBJECTED TO ANY EXPENSE BY REASON OF THEIR ATTENDANCE ARE ENTITLED TO RECEIVE SUCH FEES.