In your letter of December 10, 1923, it is explained that when the defendant appeared before you on December 20, 1919, instead of discharging him you continued the case until February 2, 1920, upon request of the United States district attorney and in accordance with the order of the district court, as shown by the docket in said court in criminal case No. 4445. Under date of April 10, 1924, you were requested by letter to furnish copy of the court's order in each case which directed you to continue the cases and to per form further service after an indictment had been returned by the grand jury, and further to state in detail what service you performed in each case, and to furnish any other instructions you may have received from the court or district attorney concerning the matter. To date, no response has been received from you regarding the matter and the case will be considered upon the evidence now appearing. Paragraph 1029 of current instructions provides as follows:
A commissioner is not entitled to a per diem fee for hearing and deciding on criminal charges in the following instances:
- When the only action taken is to admit the defendant to bail for appearance before another commissioner for hearing. (See 2 Comp. [Dec.] 281.)
- Merely for services renderd under section 1019, R. S. U. S., preliminary to taking new bonds of defendants who had previously given bonds for appearance in court. (See 4 Comp. [Dec.] 465.)
- For deciding only, on the second day, a case in which the hearing had been fully completed on the first day. ( See 4 Comp. [ Dec.] 472.)
- Merely for taking bonds of defendants under indictment. (See 18 Comp. [Dec.] 444.)
- When the only service was the taking and certifying of depositions.
Section 21 of the act approved May 28, 1896, 29 Stat. 184, provides in part as follows:
for hearing and deciding on criminal charges and reducing the testimony to writing when required by law or order of court, five dollars a day for the time necessarily employed: Provided, That not more than one per diem shall be allowed in a case, unless the account shall show that the hearing could not be completed in one day, when one additional per diem may be specially approved and allowed by the Court: Provided further, That not more than one per diem shall be allowed for any one day: * * *.
This section has been construed in a decision by this office under date of May 5, 1924, 3 Comp. Gen. 831, as follows:
The allowance of the second per diem in any case may be made only after final hearing and deciding. Where a case is continued several times and the facts established justify the allowance of two per diems under the law, the per diem should be charged only for the day of arraignment and for the day the case is finally disposed of. No per diem is allowable for intervening days. In cases where the court assumes jurisdiction of the case prior to the date set for the final hearing before the commissioner, no second per diem is allowable. To entitle a commissioner to a per diem for a second hearing, there must be a final hearing and deciding on criminal charges, and the testimony reduced to writing when required by law or order of court.
The facts appearing are that on December 1 defendant was arraigned before you for a hearing, and the case continued to December 20, 1919. On December 5, 1919, an indictment was returned by the grand jury holding the defendant to answer to the court
