Opinion
No. A-7668.
October 13, 1952.
Wendell P. Kay, Anchorage, Alaska, for plaintiffs.
Walter Hodge, Cordova, Alaska, Hellenthal, Hellenthal Cottis, Anchorage, Alaska, for defendants.
After judgment was rendered in this action the defendants filed a cost bill containing the following:
"Witness Fees:
Felix J. Toner, expert witness, 3 days actual attendance, plus 2 days necessarily absent from the witness' usual place of abode, at $25.00 per day, $125.00
Kenneth B. Aldrich, expert witness, 3 days actual attendance, plus 2 days necessarily absent from the witness' usual place of abode, at $25.00 per day, $125.00"
"Mileage Fees:
Felix J. Toner, residing at Juneau, Alaska, from Juneau to Cordova, and return, via air travel, 982 miles @ 22¢ per mile, $216.04
Kenneth B. Aldrich, residing at Portland, Oregon, from Annette, Alaska, being the point of his entry into the Territory, to Cordova, and return to Annette, via air travel, 1,444 miles @ 22¢ per mile, 317.68 ------- Total ........................... $533.72
"Subsistence Expense:
Felix J. Toner, 4 days @ $5.00 per day, $ 20.00
Kenneth B. Aldrich, 4 days @ $5.00 per day, 20.00 ------- $ 40.00"
The plaintiffs have objected to the claim for witness' fees at the rate of $25 per day on the ground that there is no authority in law for payment of anything other than the witness fees established by the Attorney General at the rate of $4 per day. Objections are also made to the mileage claimed upon the ground that it is excessive, and to the claim for subsistence for more than three days.
As indicated, witness fees are claimed for Toner and Aldrich as expert witnesses at the rate of $25 per day. The fee schedule now in force, promulgated by the Attorney General under authority of law appears in the Federal Register of October 25, 1949, Vol. 14, No. 206, page 6497. That schedule provides fees for witnesses at the rate of $4 per day. No exception for expert witnesses is made. The Supreme Court has held that in the absence of authorization by Congress, the District Courts have no power to allow greater fees for expert witnesses than are paid other witnesses. Henkel v. Chicago, etc. Ry, 1931, 284 U.S. 444, 52 S.Ct. 223, 76 L.Ed. 386. The ruling in this case was adhered to in the Fourth Circuit Court of Appeals as recently as 1952. Specialty Equipment Machinery Corp. v. Zell Motor Car Co., 193 F.2d 515. No act of Congress has been found which gives the District Judge authority to allow fees for experts in an amount greater than other witnesses receive except in criminal cases. Rule 28 of the Federal Rules of Criminal Procedure, 18 U.S.C.A.
By the schedule of the Attorney General above mentioned, the amount to be allowed for a witness for travel by air in the First Judicial Division of Alaska is 18¢ per mile; and in the Second, Third and Fourth Judicial Divisions, 22¢ per mile. Witness Toner resides at Juneau and travelled from that place to Cordova to attend trial. Witness Aldrich resides in Oregon, and was obliged to travel from that State to Alaska to be in attendance at the trial.
Under the ruling of this Court in the case of Humphries v. Starns, D.C., 12 Alaska 535, 87 F. Supp. 374, it was held that mileage expense of a witness coming to Alaska from any other part of the United States to testify in any civil case may cover only that part of his journey within the Territory of Alaska. Accordingly, it is necessary to determine the distance travelled by each of the witnesses within Alaska. To that end, inquiry was made of the Civil Aeronautics Administration who reported distances as follows:
Juneau to Cordova, Alaska — 460 miles
Annette Island Airport in extreme Southeastern Alaska, to Juneau — 260 miles
It is estimated that the distance from Juneau to the dividing line between the First and Third Divisions is 200 miles, and therefore, the distance from that dividing line to Cordova is 260 miles. Using these figures and calculating the travel in the First Division at 18¢ per mile, and in the Third Division at 22¢ per mile, as provided by the schedule of the Attorney General, we arrive at the following:
Witness Toner, roundtrip between Juneau and Cordova, $186.40
Witness Aldrich, roundtrip between Annette Island Airport and Cordova, 280.00 ------- $466.40
For each of the witnesses, Toner and Aldrich, witness fees should be allowed at $4 per day for five days attendance, or $20 for each, making a total of $40. The subsistence expenses of Toner and Aldrich should be calculated as claimed in the cost bill, four days at $5 per day, $20 each, or a total of $40 for this item. With the exceptions above mentioned, the cost bill filed is approved and allowed.
What is here said should be read in connection with the opinion given by this Court in Humphries v. Starns, D.C., 12 Alaska 535, 87 F. Supp. 374, in which the question of costs, including the subjects herein treated, was discussed with some degree of detail.