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COMPUTING PAYMENTS OF ANNUAL OR MONTHLY COMPENSATION.
Under the provisions in section 4 of the act of April 28, 1904, for computing payments of annual or monthly compensation, a member of the crew of a revenue-cutter vessel who was absent from duty one day without pay during the month of July is only entitled to pay for twenty-nine days for said month.
(Comptroller Tracewell to the Secretary of the Treasury, July 28, 1904.)
I am in receipt of your communication of the 27th instant in which you request my decision whether an officer, or member of the crew of one of the revenue-cutter vessels, each absent one day during this month, such absence not being with pay, is entitled to twenty-nine days' pay or to thirty days' pay.
Assuming that their pay is either monthly or annual, I have the honor to inform you that, such service being continuous, they are each entitled to twenty-nine days' pay only.
Your question is fully covered by the spirit of the first illustration given in Treasury circular No. 46.
The communication of the special deputy collector bearing date of the 26th instant is returned herewith.
FEES OF CLERKS OF COURTS FOR ENTERING SEPARATE PROCEEDINGS.
The organization of a grand or petit jury, including the appointment of a foreman and bailiff, and the acceptance or rejection of persons summoned as jurors, constitute but a single proceeding, and the clerk can not by separating it into parts become entitled to separate folio fees for each part, but is only entitled to folio fees as for entering a single proceeding.
The appointment of bailiffs and court crier constitute but a single proceeding, and for entering the same the clerk is only entitled to folio fees as for the entry of one proceeding.
(Decision by Comptroller Tracewell, July 29, 1904.)
On June 22, 1904, the following statement and request from the Attorney-General was received and filed:
"In the departmental examination of the account of C. C. Bumpas, clerk of the United States circuit court for the east
ern district of Texas, for the quarter ended March 31, 1904, charges in excess of one folio 'for entering separately on the same date matters constituting phases of the same proceeding' were deducted, as follows:
February 15. Order empaneling grand jury, appointing foreman for grand jury, appointing bailiff for grand jury and grand jury to retire; 4 folios claimed, deduct 3, $0.45.
"Order empaneling petit jury, two orders excusing jurors, orders appointing crier and bailiffs; 6 folios claimed, deduct 4, $0.60.
"Like deductions were made for the other divisions, amounting to $3.90; so that the total amount deducted under your decision of April 18 in re Hyams amounted to $4.95. "All the above items were allowed by the Auditor in his settlement of the account.
"It is believed that all the various steps taken at the same. time relating to the organization of a grand or petit jury constitute a single proceeding. You are therefore requested to revise the settlement of said account and recharge to the clerk the amounts deducted by this Department and allowed by the Auditor, if in your judgment you are authorized by law to. do so."
The account referred to was settled by the Auditor for the State and other Departments per certificate No. 102073 dated June 11, 1904.
With his reply to the Attorney-General's request, the clerk submitted a certified copy of the journal entries made at the Jeffersonville division and stated that "the entries at the other divisions are practically the same."
The certified copy, which for convenience I have marked items 1, 2, 3, 4, 5, 6, and 7, reads:
(Item 1.) "Upon order the marshal called the venire facias returnable this day, and the following-named persons having been duly summoned and being present and having been examined upon oath as to their comptency and qualifications to serve as jurors in this court and being found duly qualified, the said persons were thereupon duly sworn and empaneled and charged as grand jurors for the term of court, to wit:
(1) T. T. Coley; (2) J. T. Wilson; (3) A. B. Carswell; (4) Walter Dean; (5) W. S. Stewart; (6) J. P. Craver; (7) W. A. Calloway; (8) J. C. Fant; (9) J. R. McCain; (10) V. D. Glass; (11) A. L. Bennett; (12) R. L. Masters; (13) John Lindsay;
(14) W. S. Billes; (15) G. W. Brown; (16) Oscar Hope; (17) J. M. Bird; (18) W. E. Hill; (19) W. J. Hicks.
(Item 2.) "Ordered that J. C. Fant be appointed foreman of grand jury. Ordered that T. K. Smith be appointed bailiff to grand jury. The grand jurors having been duly sworn, examined, and qualified and charged by the court, retired to their rooms accompanied by the said bailiff, who was also
(Item 3.) "Ordered that the following-named persons who, having been tried upon oath and found duly qualified, constitute the petit jury for the term of court, to wit:
"(1) W. F. Glass; (2) T. C. Glover; (3) W. A. Bryan; (4) Jordan M. Womack; (5) Yancy Littlefield; (6) Will Rash; (7) John Towles; (8) John Harris; (9) Frank Byrd; (10) K. T. Denton; (11) B. F. Nesbitt; (12) Wm. M. Woods; (13) John Cox; (14) A. J. Julian; (15) Meredith Mass; (16) H. B. Sickles; (17) S. F. Alford; (18) T. W. Hervey; (19) J. C. Turner; (20) G. W. Willis; (21) Dick Sellers; (22) E. Boehringer; (23) Chas. Young; (24) Allie Blocker; (25) C. W. Langenstein; (26) Jim Huey; (27) T. N. Lockett; (28) W. D. Kirkpatrick; (29) A. T. Foster; (30) M. K. Crawford; (31) Terrell Henderson.
"Whereupon the said persons were duly empaneled, sworn in civil causes generally for the term as petit jurors.
(Item 4.) "For cause shown it is ordered that the followingnamed persons be excused from further attendance at this term of court, to wit: John Paotist, C. F. Chevallier, T. S. Ellington, Gip Glover, S. E. Galloway, S. T. Richardson, A. C. Smith, Will Smith, Marge Minter.
(Item 5.) "Ordered that J. Marvin Singleton be appointed crier of this court, and that he attend as such at the ensuing term of this court.
(Item 6.) "Ordered that C. H. Richey and Harry Terrell be appointed bailiffs of this court, and that they attend as such at the ensuing term of this court.
(Item 7.) "Ordered that the following-named persons be excused from further attendance at this term of court, to wit: Miller Green, R. S. Wallace, E. C. Whaley, for cause shown."
The charges for these proceedings, as they appear in the account, and allowed by the Auditor, are dated February 15, and are as follows:
1. Ent. order empaneling grand jury..
2. Ent. order appointing foreman grand jury
2. Ent. order appointing bailiff grand jury.
2. Ent. order grand jury to require...
3. Ent. order empaneling petit jury, 2 folios, each 15 cents
4. Ent. order excusing jurors....
7. Ent. order excusing Miller Green and other jurors..
5. Ent. order appointing crier J. M. Singleton ..
6. Ent. order appointing bailiffs C. H. Richey, Harry Terrell...
Upon a careful count it is found that items 1 and 2 contain 201 words and figures; 3, 178 words and figures; and that 4, 5, 6, and 7 contain 45, 24, 26, and 25 words, respectively.
I agree with the Attorney-General "that all the various steps, taken at the same time, relating to the organization of a grand or petit jury constitute a single proceeding." This includes the appointment of foreman and bailiff to the grand jury, and the excusing as well as acceptance of persons drawn as either grand or petit jurors. I do not think, however, that the appointment of crier and bailiffs to the court is a part of such proceeding, but that it is a separate and independent proceeding not connected with or dependent upon the organization of juries.
In Hyams's case (10 Comp. Dec., 712), cited by the AttorneyGeneral, it is held, quoting from the syllabus:
"Where a clerk enters separate proceedings, either under separate captions or continuously, he is entitled to folio fees. for each entry of a separate and distinct proceeding, but he can not multiply fees by separating a single proceeding into two or more parts and entering them under separate captions."
While the subject-matter of the decision in Hyams' case was entries in causes only, yet the principle there announced applies with equal force to miscellaneous proceedings of the character now under consideration; therefore I hold that this clerk is not entitled to the folio fees as charged in the account, and allowed by the Auditor, but only to folio fees for the entry of each separate and distinct proceeding computed as a whole and as if entered continuously.
As to what constitutes separate proceedings in the journal entries set out supra, I have no difficulty except as to the two orders excusing jurors.
It is probable, however, and I so assume, that one of these orders related to persons drawn to serve as grand jurors, and the other to persons drawn to serve as petit jurors, and acting upon this assumption, will attach one of them to the organization of the former and the other to the latter. And I do this the more readily because, whether considered as a part of the one proceeding or the other, the result will be practically the same.
I find that in the entries quoted supra there are three separate proceedings, viz: Items 1, 2, and 4, containing 246 words and figures, 2 folios; 3 and 7, containing 203 words and figures,
2 folios, and 5 and 6, containing 50 words, 1 folio. It follows, therefore, that the clerk is entitled to fees for entering 5 folios instead of 10 as charged, and the excess of 75 cents is disallowed.
Taking the facts above set out as a basis, the following allowances and disallowances respecting like entries at other divisions are made, to wit:
Paris: 10 folios charged March 14, for orders empaneling juries, appointing foreman and bailiff to grand jury, and excusing jurors. No charge for orders appointing bailiff and criers to the court; 5 folios allowed and the excess, 75 cents, disallowed.
Sherman: 10 folios charged June 4, for entries, the same as those at Jefferson division; 5 allowed and the excess, 75 cents, disallowed.
Tyler: 6 folios charged June 25, for orders empaneling juries, appointing foreman and bailiff to grand jury, and excusing jurors; 3 allowed and the excess, 45 cents, disallowed; 2 folios charged January 29 for orders empaneling talesmen and excusing jurors, 1 allowed and the excess, 15 cents, disallowed; 3 folios charged January 30 for orders empaneling additional talesmen and excusing jurors, 1 allowed and the excess, 30 cents, disallowed; 2 folios charged February 1 for empaneling additional talesmen and excusing jurors, 1 allowed and the excess, 15 cents, disallowed; 2 folios charged February 6 for empaneling additional talesmen and excusing jurors, 1 allowed and the excess, 15 cents, disallowed; total at Tyler, $1.20.
REIMBURSEMENT OF AN OFFICER OF THE ARMY FOR TRAVEL ALLOWANCES.
Where an officer of the Army serving in the Philippine Islands accepted discharge under the provisions of General Orders, No. 54, of 1899, he thereby waived his right to travel allowances for the sea portion of the journey in returning to his home in the United States.
(Decision by Assistant Comptroller Mitchell, July 30, 1904.)
George N. Wolfe appealed June 16, 1904, from the action of the Auditor for the War Department in settlement dated December 12, 1903.