A-14798, JANUARY 21, 1927, 6 COMP. GEN. 480

A-14798, JANUARY 21, 1927, 6 COMP. GEN. 480

SUBSISTENCE, PER DIEM IN LIEU OF - JURORS AND WITNESSES THE PER DIEM ALLOWANCE FOR SUBSISTENCE, AUTHORIZED BY SECTION 3 OF THE ACT OF APRIL 26, 1926, 44 STAT. 323, TO BE PAID TO WITNESSES WHILE IN ATTENDANCE BEFORE UNITED STATES COURTS AND UNITED STATES COMMISSIONERS UPON THE CERTIFICATION BY THE COURT OR COMMISSIONER THAT THE PLACE OF HOLDING COURT IS SO FAR REMOVED FROM RESIDENCE AS TO PROHIBIT RETURN THERETO "FROM DAY TO DAY," IS TO BE COMPUTED UPON THE CALENDAR DAY. COMP. GEN. 1028, MODIFIED.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, JANUARY 21, 1927:

THERE HAS BEEN RECEIVED YOUR LETTER OF OCTOBER 20, 1926, REQUESTING RECONSIDERATION OF THE DECISIONS OF THIS OFFICE OF OCTOBER 7, 1926, A 14972, WITH RESPECT TO THE REVISED VOUCHER FORMS FOR MAKING PAYMENTS TO JURORS AND WITNESSES AND OF JUNE 25, 1926, 5 COMP. GEN. 1028, IN WHICH IT WAS HELD THAT THE PER DIEM PAYMENTS FOR SUBSISTENCE TO WITNESSES AUTHORIZED BY THE ACT OF APRIL 26, 1926, 44 STAT. 323, SHOULD BE COMPUTED UPON PERIODS OF 24 HOURS EACH, BEGINNING WITH THE HOUR THE PAYEE ACTUALLY COMMENCED TRAVEL. YOU URGE THAT THE PROPER BASIS FOR THE PAYMENT OF THE PER DIEM ALLOWANCES IS THE CALENDAR DAY. YOU ALSO INVITE ATTENTION TO THE PROVISIONS OF SECTION 855 AND 846 OF THE REVISED STATUTES, AND THE FACT THAT ALL WITNESSES' AND JURORS' FEES ARE PAID UPON ORDER OF THE COURT, AND THAT THE MARSHAL UNDER SECTION 846, REVISED STATUTES, IS PROTECTED AGAINST ANY ERRONEOUS PAYMENT OF FEES AND COSTS MADE PURSUANT TO THE ORDER OF THE COURT.

SECTION 846 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 * * *.

THE PROTECTION AFFORDED THE MARSHAL BY SECTION 846, REVISED STATUTES, HOWEVER, ONLY GOES TO THE MARSHAL'S ACCOUNTS AND DOES NOT NECESSARILY PRECLUDE THE UNITED STATES FROM ASSERTING AN ERRONEOUS PAYMENT AS AGAINST THE WITNESS OR JUROR. DUVAL V. UNITED STATES, 23 CT.CLS. 102. AS BETWEEN WITNESS OR JUROR AND THE UNITED STATES, THEREFORE, THE MATTER OF FEES AND COSTS RECEIVED OR CLAIMED WOULD APPEAR TO INVOLVE THE MATTER OF THE AVAILABILITY OF THE PARTICULAR APPROPRIATION FOR PAYMENT AND WOULD BE FOR ULTIMATE ADJUSTMENT BY THIS OFFICE PURSUANT TO SECTION 236, REVISED STATUTES, AS AMENDED. THE FORM OF THE VOUCHER UPON WHICH SUCH FEES ARE PAYABLE BY THE MARSHAL IS ALSO A MATTER WITHIN THE JURISDICTION OF THIS OFFICE. SINGLETON V. UNITED STATES, 22 CT.CLS. 118.

THE ACT OF APRIL 26, 1936, 44 STAT. 323, PROVIDES:

SEC. 3. 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 THE 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 RETURNING: 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 PORTO 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 THIS ACT, TO A PER DIEM OF $3 FOR EXPENSES OF SUBSISTENCE FOR EACH DAY OF ACTUAL ATTENDANCE AND FOR EACH DAY NECESSARILY OCCUPIED IN TRAVELING TO ATTEND COURT AND RETURN HOME.

SEPARATED FROM THE REMAINDER OF THE ACT, THE PHRASE "DAYS OF ACTUAL ATTENDANCE" AND "DAYS NECESSARILY OCCUPIED IN TRAVELING" ARE SUSCEPTIBLE OF THE CONSTRUCTION ADOPTED IN DECISION IN 5 COMP. GEN. 1028.

IT IS NOTED, HOWEVER, THAT THE PER DIEM ALLOWANCES ARE PAYABLE ONLY UPON A CERTIFICATE BY THE COURT THAT THE PLACE OF HOLDING COURT IS SO FAR REMOVED FROM THE RESPECTIVE RESIDENCES OF THE WITNESSES AS TO"PROHIBIT RETURN THERETO FROM DAY TO DAY.' THIS PHRASE HAS REFERENCE TO THE DAYS OF HOLDING COURT AND TO HOLD THAT THE DAY IN THAT PHRASE MEANT PERIODS OF 24 HOURS EACH WOULD DOUBTLESS RESULT, IN SOME CASES, IN THE DAY ENDING IN THE MIDDLE OF A COURT SESSION WHICH WOULD BE INCONSISTENT WITH THE IDEA OF RETURNING HOME BETWEEN SESSIONS OF THE COURT OR OVERNIGHT, WHICH IS THE HARDSHIP EVIDENTLY INTENDED TO BE RELIEVED FROM.

IN VIEW OF ALL THAT HAS NOW BEEN SUBMITTED AND THE APPARENT PURPOSE OF THE ENACTMENT IT SEEMS REASONABLE TO CONCLUDE THAT WHAT WAS INTENDED WAS THE CALENDAR DAY AND SUCH MEANING WILL BE ADOPTED BY THIS OFFICE. 5 COMP. GEN. 1028, IS MODIFIED ACCORDINGLY.