« PreviousContinue »
for violations thereof may be instituted in either the States or Federal courts.
The established rule governing payment of expenses of attendance upon courts of officers whose official duty it is to aid in the investigation and prosecution of violators of law is that if they so attend for the purpose of aiding the prosecution or testifying as a witness to the facts which they have officially investigated their expenses so incurred are chargeable to the appropriation under which they are officially operating and not to the judiciary appropriation, whether they have been subpænaed or not. In cases of Government employees attending as witnesses upon States courts in civil matters in which the Federal Government has no part or interest, they are not entitled to receive any compensation whatever from the Federal Government for the time so engaged; they are summoned to appear and testify, as any private citizen of the State is required to do, necessarily giving their time to the State and receiving therefrom the compensation provided by State law for such services.
In the enforcement of the National Prohibition Act there appears no reason why Federal prohibition agents when acting under instructions from your department may not attend hearings instituted in State courts as a part of their official duty to assist in the prosecution of violators of said act, it being their duty to investigate and report violations of said act to the United States attorney for the district in which committed. Their attendance being in line of duty, any expense incurred by such attendance should be paid from the appropriation under which they are officially operating.
With respect to the expenses incident to the appearance of witnesses before a judge or commissioner for the purpose of making affidavit as the bases of issuance of search warrants, the act of June 15, 1917, 40 Stat., 228, referred to in Title II, section 25, of the National Prohibition Act provides that:
The judge or commissioner must, before issuing the warrant, examine on oath the complainant and any witnesses he may produce and require their affidavits or take their depositions in writing and cause them to be subscribed by the parties making them.
Any person possessing information and willing to make affidavit for the purpose of aiding prohibition enforcement officers to obtain search warrants may be subpoenaed to appear before any judge or commissioner and be paid for such service their fees and mileage in the regular way from the appropriation "Fees of Witnesses, United States Courts."
The expense of necessary medical or surgical treatment of persons who have
been arrested by officers of the United States and are held as prisoners of the United States is an expense incident to the arrest which, if incurred under proper conditions and with due authority, is a lawful charge against
the United States. The expense of medical or surgical treatment of persons after they have been
arrested by officers of the United States and released from custody on bond is a personal expense and the United States may not be obligated to pay therefor.
Decision by Comptroller General McCarl, June 13, 1923.
Dr. Frank E. Spencer requested a review of settlement per certificate No. 4424, dated February 1, 1923, wherein of his claim (No. T-235) for $55 for professional services rendered one James Mack, & wounded customs prisoner, there was allowed $10 and there was disallowed $45, the disallowance being based on the ground that the evidence submitted showed that amount to have been an expense that was incurred after the release of the prisoner from the custody of the United States officials.
From the record it appears that the said James Mack, with one Thomas McGauley, was apprehended at Plattsburg, N. Y., for smuggling; that at the time of the apprehension he was accidentally shot through the elbow; that Deputy Collector Ralph E. Hachmeister called the claimant to treat the wounded prisoner; that the said Mack was in the custody of the customs officers from 2 a. m. until 11 a. m., March 4, 1922, when he was brought before the United States commissioner on a charge of violation of section 3082, Revised Statutes, and the National Prohibition Law and was released under bond in the amount of $1,000 to secure his appearance in court; that information was filed against the said Mack and McGauley under date of March 10, 1922, at which time they appeared, plead guilty and were each fined $100.
Claimant's bill for treatment of the said James Mack is itemized as follows: Emergency examination, dressing, and treatment of gunshot wound
through right elbow at 4 a. m. on March 4, 1922, at courthouse---- $10.00 Hospital calls on 3/4/22 & 3/5/22 at $2.50 each.
5.00 Office dressings on March 6, 7, 8, 9, 10, 11, 12, 18, 19, 20, 21, 22, 23, 25, 27, 29, 31, and April 2, 4, and 7, at $2.00 each
55.00 In his request for review claimant states that he was called at 4 o'clock on the morning of March 4, 1922, to attend James Mack at the courthouse, after Mack had been accidentally shot through the right elbow by Officer Hachmeister; that he was so called by Officer Hachmeister, who authorized full treatment of the wounded man; and that such authorization was also given him by Officer George Andress, who directed him to send his account, “after the case had recovered," to George Holland, collector of customs at Ogdensburg. He further states that Dr. Robert S. McDonald, whose bill for $10 for five dressings of the wound has been disallowed, attended to the wounded man during his (Doctor Spencer's) short absence from Plattsburg
The expenses of necessary medical or surgical treatment of persons who have been arrested by officers of the United States and are held as prisoners of the United States is an expense incident to the arrest, which, if incurred under proper conditions and with due authority, is a lawful charge against the United States. 27 Comp. Dec., 531. In the instant case the wounded man was in the custody of the customs officers as a prisoner only from 2 a. m. to 11 a. m. on March 4, 1922, when he was released on bond. It does not appear that subsequent to the first treatment, itemized and charged for at $10, the said Mack was, when having his wound dressed by claimant, in the custody of an officer of the United States and held as a prisoner of the United States. Having been released on bond, the said Mack may be said to have assumed responsibility for the expense of medical or surgical treatment thereafter. His injuries were the result of his own misconduct and not in any way the result of an act for which the United States is liable. The customs officers were without authority to obligate the United States to pay for the expense of treatment rendered by the claimant during a period when the wounded man was not in the custody of an officer of the United States and held as a prisoner of the United States.
Upon a review of the matter no difference is found and the settlement is sustained.
FORAGE FOR FEDERALLY OWNED ANIMALS WHILE IN STATE
The National Guard regulations provide for the furnishing of forage by the
United States for Federally owned animals loaned for the training of the National Guard only through, the purchasing organization of the Army or by purchase locally upon specific authorization in advance; the State may not obligate the United States to pay for forage purchased by the State for such animals when removed from the place where foraged by
the United States and used for State purposes. Comptroller General McCarl to the Secretary of War, June 14, 1923.
There has beer. received your letter of April 30, 1923, requesting decision whether the State of Pennsylvania may be reimbursed for the cost of forage purchased by it for animals issued by the Federal Government for the training of the 104th Cavalry and 52d Machine Gun Squadron, Pennsylvania National Guard, in the circumstances hereafter described. While the question involves the reimbursement of the State the matter originates as an inquiry by the United States property and disbursing officer of the State to the Chief of the Militia Bureau, whether reimbursement is authorized, and no claim is submitted as actually asserted by the State.
The organizations named were ordered into the active service of the State by the governor July 20, 1922, "for the preservation of public peace and order [and] for the purpose of upholding the laws of this Commonwealth;” the necessity therefor being stated as because of industrial disturbances in the bituminous mining districts of the State. Apparently the equipment, including the horses belonging to the Federal Government, was used by the organizations. The horses are foraged by the Federal Government at the home stations of the organizations, the cost being payable from the allotment to the State of Pennsylvania under "Arming, equipping, and training the National Guard."
National Guard Regulations, 1922, paragraphs 839 and 944 to 985, contemplate the furnishing of forage by the United States through the purchasing organization of the Army. Paragraph 971 provides for purchase of forage by organization commanders only upon specific authorization in advance where supplies have not reached the organization.
In the present case the necessary forage was supplied by the United States at the home stations of the organization, but was not used because of the absence of the animals; and in requisitions for the subsequent period the quantity of forage reported on hand was deducted from the following period allowance, thus reducing the cost to the United States of foraging the animals. While the organizations were in active State service, the State "had, in addition to the Federal horses, a large number of hired and State-owned animals on this duty.” It is stated that all the animals were fed the prescribed field ration fixed by paragraph 1226, (?) Army Regulations, 1913, and further:
In view of the fact that the hired and State-owned horses were fed with the Federal horses, and that the animals were fed the increased forage ration, it is difficult to determine the exact amount of forage that the Federal horses consumed; it can be safely submitted that the Federal horses at least must have consumed their daily allowance as prescribed in the N. G. R., which is less than the field ration, and that the State of Pennsylvania should receive credit for the savings reported as accumulated during this period.
On suggestion, however, the consumption of the Federal horses. based on their number, the number of days in the field, and the field ration prescribed by paragraph 1077, Army Regulations, 1913, as amended, was found to have been 219,149.6 pounds of hay, 187,842.5 pounds of oats, and 52.162.9 pounds of straw. A bill rendered against and paid by the State for 22,207 pounds of straw and 210.859 pounds of hay, amounting to $2,453.01, is submitted as the basis of payment, it being certified that "had a like amount of forage been furnished by the Federal Government during the period in question the cost of same would approximate $2,824.87."
The case thus presented shows that the State fed the federally owned animals while in its service three items of forage, it seeks reimbursement for only two of the items, and these in a less amount than the estimated consumption; and that had the United States supplied the reduced quantity for which reimbursement is sought it would have cost more at the prevailing prices than was paid by the State.
In theory, if there is an obligation of the United States for the feed, it is to the original contractor who supplied the feed. The State was without authority to contract for or on behalf of the United States. There is no express contract; nor does an implied contract arise to reimburse a State for foraging Federal animals supplied for training the National Guard when those animals are removed for State purposes from the place at which the United States is prepared to and does forage them, and the law does not provide for the situation, sections 61, 87, 89, and 90 of the national defense act, as amended.
The animals were furnished "for the training of the National Guard.” The regulations for their forage provided only for the furnishing of forage by the United States or purchases locally upon specific authorization in advance. The State for its purpose having removed the animals from the places where the United States had made provision for their forage created a situation not contemplated by the law and regulations and can not shift to the United States the burden of foraging the animals while being used in its service, as neither the law nor the regulations authorize or provide for that situation. Payment is accordingly not authorized.
WAR RISK DISABILITY COMPENSATION-STEPCHILDREN.
Beneficiaries of the Veterans' Bureau receiving disability compensation under
the war risk act, are not entitled to additional compensation for a minor stepchild that is receiving compensation in its own right by reason of the death of its father in the military service.
Comptroller General McCarl to the Director, United States Veterans' Bureau,
June 14, 1923. I have your letter of April 18, 1923, requesting decision whether the Veterans' Bureau is authorized to pay to a compensation beneficiary additional compensation on account of a stepchild who is a minor and a member of his household, and who is entitled to and is receiving compensation and insurance as the child of a father whose death resulted from his military service.