the existing law in regard to other fees. Do you have a different provision for a juror than for a witness? Mr. KENNARD. We only perpetuate what exists now. The juror gets the per diem not only for the time he is sitting as a juror but when he is traveling; and the witness does not. Mr. HERSEY. It seems to me you could make no distinction between the juror and the witness. Mr. KENNARD. In regard to their travel, perhaps not. Mr. HERSEY. Well, in regard to their attendance. Doesn't the witness have to take care of himself as much so as the juror? Mr. KENNARD. Perhaps it would be well to allow them both the same. Mr. BURTNESS. I think they should both be allowed the per diem while they are traveling. Mr. HERSEY. It take just as much to feed a witness as it does a juror. Mr. KENNARD. Under this bill he would get only $3 a day while traveling. Mr. YATES. Who would? Mr. KENNARD. The witness. And the juror would get $6 a day while traveling. Mr. BURTNESS. I think that should be borne in mind. There is too much of a discrepancy. There may be some justification for the discrepancy in the per diem allowance that has existed all through these years, and it has been the policy of the Congress to allow witnesses only half what jurors get. Mr. HARRIS. The only reason is that it takes all of the jurors' time for three or four weeks while the witnesses as a usual thing are in attendance but two or three days. Mr. HERSEY. It does not make any difference; he is only paid for the time he serves. He is paid for the actual time, reckoning not by half days but by days. Why should he not have as much as a juror? Mr. HARRIS. I think he should. I was speaking of what probably was the intent of the original bill. Mr. PERLMAN. Is not the juror more able to stand the loss than the witness? The juror is often a business man. Mr. LARSON. The loss of the business man may be much greater than the loss of the witness. Mr. PERLMAN. You understand, of course, that it is a patriotic duty to serve? Mr. BURTNESS. Of course, Mr. Chairman, there is this slight difference. The witness will find a cheaper place than the juror. If the juror wants to go to it, and attempts to find it, he can locate a less expensive place because he is there longer, but the juror ordinarily goes to one of the best hotels. Mr. HERSEY. In my country you summon a witness and a juror. The juror will find a boarding house and the witness will find a hotel. One is there only temporarily and the other for a week or two. Mr. MAJOR. I suggest we make them both the same. Mr. HERSEY. I think they should be. Mr. KENNARD. Isn't the juror entitled to more pay on the ground that he is taken away from his business for an extended period, 84135-24- -2 whereas the witness is only temporarily detached? It would not be nearly the same for one day as it is when he is tied up. Mr. PERLMAN. The witness might be called on the first day of the trial and not reached until the last day. Mr. BURTNESS. Mr. Chairman, pardon one more suggestion. The proposition of making the two equal in all respects appeals to me very much. But I think I recognize somewhat the legislative situation which might exist on the floor of the House, and possibly on the floor of the Senate, if we attempted to raise the per diem of witnesses to $3. I doubt whether there is any State, for example, which allows a witness that large a fee, and I think we would run up against a somewhat dangerous situation. Mr. HERSEY. You can not always follow the States in legislating. In a Federal suit, a witness is often brought long distances, whereas in a State court the witness is generally within the bounds of the State. Mr. BURTNESS. I am very anxious to get some relief and get the bill through. Some of you may recall the furor that was raised when I attempted to carry this on an appropriation bill last year. Mr. Blanton made the point of order, and so I have at least found out a little about the attitude of the House in that regard. Therefore, if you are going to make them the same, I think then it might be advisable to reduce the per diem for the juror and increase the per diem for the witness, say to about $2 per day; and with that subsistence allowance of $3 it would mean that they would then get $5 a day in place of $1.50 and $3, respectively, as now. That would probably be plenty and we would then not meet so strongly at least the contention that we are robbing the Treasury. Mr. HERSEY. You provide for 50 cents a day difference? Mr. BURTNESS. The total would be $5. Mr. HERSEY. You would make a difference of 50 cents between a witness and a juror? Mr. BURTNESS. No difference; make them only $2. Bring the witness up to $2 and the juror down from $3 to $2, but give them $3 for subsistence and that makes the total allowance to each of them $5 plus the mileage. But I think the per diem for witnesses should cover the time consumed in going to and returning from the court, just exactly as it does for the jurors. That is not the case now and that feature of it is not corrected in the proposed measure of the departments. Mr. PERLMAN. How long have we been paying $3 a day to the jurors? About how long? Mr. KENNARD. I think since 1902. Mr. HERSEY. Since June 21, 1902. The act reads: That on and after the passage of this act, the per diem pay of each juror, grand of petit, in any court of the United States, shall be $3 a day instead of $2 a day as now provided by law. Mr. BURTNESS. This really proposes to increase the fee to $5; that is what my proposal amounts to. Mr. PERLMAN. Take the city juror; he does not get the subsistence. Mr. BURTNESS. The city juror is probably spending one-third of his time in the court room, in the morning or afternoon. If he sits in one third of the cases, that is all he does. Mr. PERLMAN. There is a case on trial now that has been on for three weeks, and they have been having night sessions. Mr. KENNARD. But the city witness goes home every day. I think the most important thing is to make the distinction between the man who can go home every day and the man who is called away from home. Mr. BURTNESS. Understand, I am not opposed to an allowance of $6 a day, which is what you would be giving if you raised the witnesses' fees up to that of the jurors' and gave them their subsistence allowance; but I am afraid of the legislative situation. I am afraid that it would sound as if a large amount were involved. Mr. HERSEY. When you pay them a subsistence you have got to cut down the allowance, it seems to me. There is no subsistence in the present law. In my opinion, you want to make it the same for witnesses as you do for jurors. (There followed a brief informal discussion, off the record.) Mr. YATES. There are two bills here, Nos. 2909 and 2860, and it is recommended by the Attorney General that a certain bill be substituted. The terms of that bill are in the letter from the Attorney General, are they? Mr. HARRIS. Yes, sir. Mr. YATES. That bill does not include the suggestion just made, of $2 per diem plus $3 for subsistence? Mr. KENNARD. That bill leaves the fees as they are, except that it abolishes the double fees in certain States; and it provides a new allowance for subsistence. Mr. YATES. And your bill provides how much for subsistence? Mr. KENNARD. $3. Mr. HERSEY. It allows $3 only for jurors, does it not? Mr. KENNARD. $3 for jurors' subsistence and $3 for witnesses' subsistence; and the per diem is fixed by law. Mr. HERSEY. I move that we combine the two bills into the Government proposal and make the witnesses' and jurors' per diem $2 a day and the subsistence $3 a day; and that a new bill be drafted which we can report to the full committee. Mr. YATES. Any remarks? Mr. PERLMAN. I am opposed to that motion only in so far as it would reduce the per diem pay of jurors to $2. I do not believe that at this time, after they have been getting $3 a day for 22 years, that you ought to reduce it. Mr. HERSEY. Yes; but they are getting their subsistence. Mr. PERLMAN. That is only for those who live outside of the city and who can not return to their homes the same night. Most of the jurors can return to their homes the same night; and I do not believe they ought to have their fees reduced to $2. If we want to give relief to those who live outside of the city limits, let us give them that relief without penalizing the others. Mr. HERSEY. Well, then, you might make in that connection a difference between the jurors in the town of their residence and Mr. PERLMAN (interposing). I would make no change so far as the men who live in the cities are concerned. They should continue getting what they have been getting, $3. What the proposed bill does is to take care of the jurors and witnesses who do not live within the city limits. They are entitled to relief, but not at the expense of the other jurors and witnesses. Mr. O'SULLIVAN. Is it in the record what the contemplated increase of expense is? Mr. KENNARD. No. Mr. YATES. I understood about $900,000. Mr. KENNARD. $900,000 increase, on the basis of $2 per day for per diem. Mr. O'SULLIVAN. On the basis of $3 per diem for subsistence the estimate was $2,000,000? Mr. KENNARD. I estimate that that large increase would cost at least $2,000,000 additional, whereas the more conservative measures would cost somewhat less than a million. Mr. O'SULLIVAN. By "that large increase" you mean what? Mr. O'SULLIVAN. Three and three would make a $2,000,000 increase? Mr. KENNARD. I think so; that is my estimate. Mr. HERSEY. I think the committee might work out a bill whereby discrimination could be made as to per diem and leave the other part as it is. Mr. BURTNESS. I was wondering whether there might not be still maintained a $1 difference-increase witnesses from $1.50 to $2, leave the jurors at $3, and allow a $3 subsistence for both. (A short informal discussion, off the record, followed.) Mr. HERSEY. I move, Mr. Chairman, that Mr. Burtness, the author of these measures, condense the two, as contemplated by the Department of Justice, into one bill in which there shall be discrimination, giving the jurors the same per diem as they now have, $3, and witnesses $2, and leaving the travel at 5 cents per mile; and in the next paragraph, relating to subsistence, carry forward the suggestion of the Department of Justice and make it apply to witnesses. Mr. BURTNESS. And also eliminate the present discrimination between witnesses and jurors where witnesses are not paid for the time consumed in going to and returning from court. Mr. HERSEY. Mr. Burtness is supposed to draw his bill and give it to the committee next Tuesday. (The motion was carried.) (Whereupon, at 11.30 a. m., the subcommittee adjourned to meet Tuesday, February 5, 1924, at 9.30 o'clock a. m.) |