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it is manifest that the attachment authorized by said section 4240 is not for the purpose of bringing a defaulting witness before a justice of the peace for punishment for a contempt, but for the purpose of compelling the attendance of the witness to give his testimony. Under such circumstances this attachment does not seem to fall within the reasoning of the cases of Ex parte Perkins (29 Fed. Rep., 900), In re Mason (43 Fed. Rep., 510), and Ex parte Doll (7 Phila., 595), which hold that a cominissioner has no power to arrest and punish for contempt. The power to issue the attachment seems simply to be part of the procedure required by the Code of Alabama in the hearing of a case by a justice and is, by section 1014, Revised Statutes of tie United States, applicable to hearings before commissioners in United States cases. The amount charged for issuing the attachment will, therefore, be allowed..

2. Certain per diem fees where the only action was deciding upon the amount of bail and the sufficiency thereof. Two of these per diems were properly disallowed by the Auditor under the decision of the Comptroller in Bowler's 1st Comp. Dec., 172, and one under the decision of the Comptroller in the Silsby Case (ante, p. 63).

The fourth per diem arose under the following circumstances: A defendant was brought before the commissioner for a hearing, and, upon the continuance of the case by the commissioner to a future day, was, in default of bail to appear on that day, committed; before the day fixed for the hearing he was able to furnish bail, and thereupon the commissioner admitted him to bail, and he again appeared before the commissioner on the day to which the case had been continued. As this action was taken by the commissioner in the progress of a case properly before him for hearing and deciding on criminal charges, the per diem fee seems to be allowable under the decision in United States v. Jones (134 U. S., 483), and not to come within the cases in Bowler's 1st Comp. Dec., 172, and the Silsby Case, in which certain per diems have not been allowed by the Comptroller for days upon which the only action taken by the commissioner was deciding on the amount of bail and the sufficiency thereof, under circumstances which did not bring the cases within the principle of the decision in the Jones Case as part of a hearing and deciding on criminal charges. The fee of $5 in this latter case will, tberefore, be allowed.

R. B. BOWLER,

Comptroller.

EXPENSES OF DISTRICT JUDGES WHEN HOLDING

A CIRCUIT OR DISTRICT COURT OUTSIDE OF

THEIR OWN DISTRICTS. United States district judges, when designated to hold a circuit or district

court outsido of their districts, are entitled to reimbursement for their actual and necessary expenses upon furnishing an itemized statement thereof, and are not entitled to reimbursement upon'their own certificate, as they are when attending upon the circuit courts of appeals.

TREASURY DEPARTMENT,
OFFICE OF COMPTROLLER OF THE TREASURY,

December 6, 1895. SIR: I am in receipt of yours of November 25, inclosing a copy of a letter from United States Circuit Judges Woods, Jenkins, and Showalter, of the seventh circuit, with copies of letters addressed to them from United States District Judges Bunn and Seaman, of the two Wisconsin districts, relating to the payment of the expenses of aistrict judges while holding court outside of their own districts.

The contention of these judges is that when district judges hold court outside of their own districts by order of the circuit judge they are entitled to be paid for their expenses a per diem of $10, evidenced by their own certificate, and are not required to furnish an itemized statement of their expenses. You ask my decision whether the marshals of the United States are authorized to pay to district judges so holding court $10 per day upon their own certificate only. For an intelligent answer to this question a review of the legislation in regard to the holding of court by district judges outside of their own districts is necessary.

The act of July 29, 1850 (9 Stat., 442), authorized the circuit judge to designate a district judge to hold court in another district under certain circumstances therein enumerated. Section 5 of said act provided that such district judge" shall be allowed his reasonable expenses of travel to and from and of residence in such other district necessarily incurred by reason of such designation and appointment and bis obedience thereto; and such expenses shall, when certified by the clerk and the district attorney of the judicial district within which such services shall have been performed, be paid by the marshal of such district, and allowed him in his ac. counts with the United States."

It will be noticed that this act provided for the expenses of the judges without limit as to the amount, and provided that

such expenses should be evidenced by the certificate of the clerk and district attorney.

Section 3 of the legislative, executive, and judicial appropriation act of March 3, 1871 (16 Stat., 494), provided for the salaries of certain judges of the United States, and further enacted:

"And all provisions of law providing for additional compensation or allowance to any judge for traveling expenses are hereby repealed.” . and further, that district judges holding court outside of their districts should do so “ without any other compensation than his (theirregular salary as established by law.” This provi. sion clearly repealed the provision in the act of 1850 allowing actual traveling and other expenses of district judges while holding court outside of their districts.

The act of March 5, 1872 (17 Stat., 36), provided that wheneverla district judge, from another district, shall hold a district or circuit court in the southern district of New York, his expenses, not exceeding ten dollars per day, certified by him, shall be paid by the marshal of said district, as a part of the expenses of the court, and be allowed in his account." · By this act a district judge holding court in the southern district of New York was put upon a different footing from district judges holding courts elsewhere, and payment was authorized to such judges, not of a per diem of $10, but of their expenses not exceeding $10 per day, and which expenses should be evidenced by the certificate of the judge.

These various statutes were incorporated into the Revised Statutes as sections 596 and 597, section 596 providing for the designation of district judges to hold court outside of their districts and providing that they should do so without any other compensation than their regular salaries, and section 597 providing for the payment of expenses, not exceeding $10 a day, to a district judge bolding court in the southern district of New York, upon his certificate.

In the sundry civil appropriation act of March 3, 1881 (21 Stat., 454), the following clause was enacted:

"And so much of section five hundred and ninety-six of the Revised Statutes as forbids the payment of the expenses of district judges while holding court outside of their districts is hereby repealed.”

and in the same act specific appropriation was made“for payment of expenses of district judges who may be sent out of their districts in pursuance of law to hold a circuit or district court.”

This provision manifestly was enacted to allow to district judges when holding court outside of their districts their actual expenses, which had been previously prohibited, but did not reenact the provision in the act of July 29, 1850, which required that these expenses should be evidenced by the certificate of the clerk and district attorney. Had it not been for the prohibition upon the payment of expenses to district judges when holding court outside of their districts, such expenses would probably have been allowable under the well-established rule that where civilian officers or employees of the Government are obliged to travel from the place where their regular duties are performed their actual expenses may be paid. It has always been required that these actual expenses should be itemized and supported by vouchers when the expenses are of such a character that proper vouchers can be obtained, and generally, by reg. ulations to that effect prescribed by the various Departments, sworn to. When the clause in the act of 1881, allowing expenses to be paid to district judges holding court outside of their disstricts, was enacted, it was construed by the accounting officers as authorizing the payment to these district judges of their actual expenses without limitation as to the amount, and that these expenses should be evidenced in the same manner as the expenses of other civil officers or employees of the Government were required to be evidenced, viz, by an itemized statement, supported by vouchers where possible, the provisions of section 597, Revised Statutes, relating to the holding of court in the southern district of New York, both as to the limit of $10 per day and the manner in which the expenses should be evidenced therein contained, not having been considered applicable to district judges when holding court outside of their districts elsewhere than in the southern district of New York. That construction has been consistently maintained up to the present time, and in consequence thereof district judges have always been required when holding court outside of their districts, other than in the southern district of New York, to evidence their expenses by an itemized statement, supported by vouchers where possible, and have been allowed such actual expenses even if the same exceeded $10 per day. As this construction seems to have conformed to the letter of the law and has been consistently followed by the accounting officers ever since its enactment, I see no reason why the construction should be changed so as to allow district judges to receive their actual expenses upon their own certificate only and at the same time to limit those expenses to $10 per day, such limitation not having been specifically made by Congress. It may well be that Congress intended to limit the expenses of a district judge, while holding court in the southern district of New York, to $10 per day, for his traveling expenses could not be very great, while it was not intended to limit the expenses of a district judge while holding court outside of his district in many of our Western States, where the actual cost of transportation in many cases would exceed the total amount allowable to him at the rate of $10 per day, in the event that he only held court for a few days consecutively.

No trouble seems to have been experienced in regard to this matter until after the creation of the circuit courts of appeals by the act of March 3, 1891 (26 Stąt., 826), which authorized district judges to sit in said court in certain cases, and section 8 of which provided that any justice or judge who “shall attend the circuit court of appeals held at any place other than where he resides shall, upon his written certificate, be paid by the marshal of the district in which the court shall be held his reasonable expenses for travel and attendance not to exceed ten dollars per day.” As a result of this enactment district judges when sitting in the circuit court of appeals were allowed their expenses upon their own certificates, but such expenses were limited to $10 per day. District judges found themselves, therefore, in this position, that when they sat in the circuit court of appeals they were entitled to receive their expenses not exceeding $10 a day, evidenced by their own certificate; but when they held a circuit or district court outside of their districts they were entitled to their reasonable actual expenses without limit, but which could only be evidenced by an itemized statement, supported by vouchers where possible. No doubt they have been unable to see why such a distinction should be drawn, nor is the Comptroller able to see why any such distinction should have been made; but the distinction seems clearly to have been made by the various enactments above cited, and the Comptroller finds himself unable to make any changes in the laws passed by Congress. The remedy lies with Congress.

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