A-11926, JANUARY 4, 1926, 5 COMP. GEN. 458

A-11926: Jan 4, 1926

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

ARE CHARGEABLE TO THE APPROPRIATION FOR THE ENFORCEMENT OF THE NATIONAL PROHIBITION ACT. WHILE QUESTIONS AS TO THE AVAILABILITY OF TREASURY DEPARTMENT APPROPRIATIONS ORDINARILY ARE FOR DECIDING BY THIS OFFICE ONLY ON SUBMISSION BY THE SECRETARY OF THE TREASURY. PROVIDED FOR THE SEIZURE OF VEHICLES IN WHICH INTOXICATING LIQUORS WERE BEING TRANSPORTED AND UNDER CERTAIN CIRCUMSTANCES FOR THE SALE OF THE VEHICLE SO SEIZED. THE AMOUNT OF WHICH IS FIXED IN EACH CASE BY THE ATTORNEY GENERAL AND IS NOT DEPENDENT UPON THE FEES EARNED OR COLLECTED BY THEM. MARSHALS AND THEIR DEPUTIES ARE ENTITLED TO A PER DIEM IN LIEU OF LODGING AND SUBSISTENCE WHEN AWAY FROM THEIR OFFICIAL STATION AND ALSO TO REIMBURSEMENT OF ACTUAL AND NECESSARY TRAVELING EXPENSES WHEN TRAVELING ON GOVERNMENT BUSINESS.

A-11926, JANUARY 4, 1926, 5 COMP. GEN. 458

INTERNAL REVENUE, PROHIBITION ENFORCEMENT - EXPENSES INCIDENT TO SEIZURE AND FORFEITURE OF AUTOMOBILES ACTUAL COSTS, SUCH AS EXPENSES INCURRED BY A UNITED STATES MARSHAL AND FEES EARNED BY A MARSHAL OR A CLERK OF A UNITED STATES COURT, INCIDENT TO THE SEIZURE AND FORFEITURE OF AN AUTOMOBILE TURNED OVER TO THE TREASURY DEPARTMENT, UNDER AUTHORITY OF SECTION 3 OF THE ACT OF MARCH 3, 1925, 43 STAT. 1116, ARE CHARGEABLE TO THE APPROPRIATION FOR THE ENFORCEMENT OF THE NATIONAL PROHIBITION ACT.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, JANUARY 4, 1926:

THERE HAS BEEN RECEIVED YOUR LETTER OF NOVEMBER 6, 1925, FILE JBH 23-87- 24, REFERRING TO SECTION 3 OF THE ACT OF MARCH 3, 1925, 43 STAT. 1116, RELATIVE TO THE USE OF CERTAIN TREASURY DEPARTMENT APPROPRIATIONS TO PAY THE ACTUAL COSTS INCIDENT TO SEIZURE AND FORFEITURE OF AUTOMOBILES TURNED OVER TO THE TREASURY DEPARTMENT UNDER AUTHORITY OF SAID ACT, AND REQUESTING DECISION OF QUESTIONS PRESENTED AS FOLLOWS:

(1) WHETHER THE EXPENSES INCURRED BY THE MARSHAL OR HIS DEPUTY IN SERVING PROCESS IN SUCH CASES SHOULD BE PAID OR REIMBURSED BY THE PROHIBITION AUTHORITIES FROM AN AVAILABLE APPROPRIATION UNDER THEIR CONTROL UNDER THE TERMS OF THE ACT ABOVE MENTIONED;

(2) WHETHER THE FEES EARNED BY THE MARSHAL UNDER SECTION 829, R.S., IN SERVING ANY NECESSARY PROCESS IN SUCH CASES SHOULD BE CHARGED TO AND COLLECTED FROM THE PROHIBITION AUTHORITIES;

(3) WHETHER THE FEES EARNED BY THE CLERK OF THE UNITED STATES DISTRICT COURT UNDER THE PROVISIONS OF THE ACT APPROVED FEBRUARY 11, 1925, 43 STAT.L. 857, IN SUCH CASES, SHOULD BE CHARGED TO AND COLLECTED FROM THE PROHIBITION AUTHORITIES.

WHILE QUESTIONS AS TO THE AVAILABILITY OF TREASURY DEPARTMENT APPROPRIATIONS ORDINARILY ARE FOR DECIDING BY THIS OFFICE ONLY ON SUBMISSION BY THE SECRETARY OF THE TREASURY, SINCE THE QUESTIONS HERE SUBMITTED INVOLVE COLLECTIONS AND INDIRECTLY APPROPRIATIONS OF YOUR DEPARTMENT, THE MATTER PROPERLY MAY BE CONSIDERED ON YOUR SUBMISSION.

SECTION 26 OF THE NATIONAL PROHIBITION ACT OF OCTOBER 28, 1919, 41 STAT. 315, PROVIDED FOR THE SEIZURE OF VEHICLES IN WHICH INTOXICATING LIQUORS WERE BEING TRANSPORTED AND UNDER CERTAIN CIRCUMSTANCES FOR THE SALE OF THE VEHICLE SO SEIZED. IT FURTHER PROVIDED THAT AFTER DEDUCTION OF CERTAIN EXPENSES AND COSTS AND UNDER CERTAIN CIRCUMSTANCES THE PAYMENT OF LIENS, THE REMAINDER OF THE PROCEEDS SHOULD BE COVERED INTO THE TREASURY OF THE UNITED STATES AS MISCELLANEOUS RECEIPTS.

SECTION 2 OF THE ACT OF MARCH 3, 1925, 43 STAT. 1116, PROVIDES:

THAT UPON APPLICATION THEREFOR BY THE SECRETARY OF THE TREASURY, ANY VESSEL OR VEHICLE FORFEITED TO THE UNITED STATES BY A DECREE OF ANY COURT FOR VIOLATION OF THE CUSTOMS LAWS OR THE NATIONAL PROHIBITION ACT MAY BE ORDERED BY THE COURT TO BE DELIVERED TO THE TREASURY DEPARTMENT FOR USE IN THE ENFORCEMENT OF THE CUSTOMS LAWS OR THE NATIONAL PROHIBITION ACT, IN LIEU OF THE SALE THEREOF UNDER EXISTING LAW.

SECTION 3 OF SAID ACT PROVIDED THAT THE APPROPRIATIONS AVAILABLE FOR DEFRAYING THE EXPENSES OF COLLECTING THE REVENUE FROM CUSTOMS OR FOR ENFORCEMENT OF THE NATIONAL PROHIBITION ACT SHOULD THEREAFTER "BE AVAILABLE FOR THE PAYMENT OF THE ACTUAL COSTS INCIDENT TO THE SEIZURE AND FORFEITURE" OF THE VESSELS OR VEHICLES SO DELIVERED TO THE TREASURY DEPARTMENT.

THE ANSWERS TO THE QUESTIONS SUBMITTED BY YOU MUST THEREFORE DEPEND UPON WHETHER OR NOT THE EXPENSES AND FEES ENUMERATED MAY BE REGARDED AS ACTUAL COSTS INCIDENT TO THE SEIZURE AND FORFEITURE WITHIN THE MEANING OF THE PROVISION.

BOTH MARSHALS AND CLERKS OF THE UNITED STATES COURTS RECEIVE AS COMPENSATION SALARIES, THE AMOUNT OF WHICH IS FIXED IN EACH CASE BY THE ATTORNEY GENERAL AND IS NOT DEPENDENT UPON THE FEES EARNED OR COLLECTED BY THEM. IN ADDITION TO THE SALARIES SO FIXED, MARSHALS AND THEIR DEPUTIES ARE ENTITLED TO A PER DIEM IN LIEU OF LODGING AND SUBSISTENCE WHEN AWAY FROM THEIR OFFICIAL STATION AND ALSO TO REIMBURSEMENT OF ACTUAL AND NECESSARY TRAVELING EXPENSES WHEN TRAVELING ON GOVERNMENT BUSINESS. ANY SUCH PER DIEM AND OUT-OF-POCKET EXPENSES INCURRED BY THE MARSHALS OR THEIR DEPUTIES IN CONNECTION WITH THE SEIZURE AND FORFEITURE OF AUTOMOBILES DELIVERED TO THE TREASURY DEPARTMENT UNDER AUTHORITY OF THE ACT OF MARCH 3, 1925, SUPRA, CLEARLY ARE WITHIN THE TERM "ACTUAL COSTS INCIDENT TO THE SEIZURE AND FORFEITURE," AND YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY.

THE SECOND AND THIRD QUESTIONS ARE NOT SO FREE FROM DOUBT. IT IS STIPULATED BY STATUTE THAT CERTAIN FEES FOR THE SERVICES OF THE MARSHALS AND CLERKS OF THE UNITED STATES COURTS ARE CHARGEABLE AGAINST THE PARTIES TO SUITS BEFORE SUCH COURTS, THE STATUTES FURTHER FIXING THE AMOUNTS OF FEES TO BE COLLECTED FOR EACH SPECIFIC SERVICE RENDERED. SEE SECTION 829, REVISED STATUTES, AND ACT OF FEBRUARY 11, 1925, 43 STAT. 857. THE PROCEEDINGS FOR THE FORFEITURE OF AUTOMOBILES, SUCH AS REFERRED TO IN SECTION 2 OF THE ACT OF MARCH 3, 1925, SUPRA, REQUIRE SERVICES TO BE RENDERED FOR WHICH FEES ARE PRESCRIBED BY LAW, AND IF THE VEHICLE SO FORFEITED IS SOLD THE COSTS TAXED, INCLUDING SUCH FEES, ARE PAYABLE FROM THE PROCEEDS OF SALE; AND THERE APPEARS NO VALID REASON FOR HOLDING THAT SUCH FEES MAY NOT ALSO BE REGARDED AS ACTUAL COSTS WHEN THE CAR IS DELIVERED TO THE TREASURY DEPARTMENT INSTEAD OF BEING SOLD. WHILE IT IS TRUE SUCH FEES ARE NOT FOR TAXING AGAINST OR PAYMENT BY THE UNITED STATES, THE MATTER HERE PRESENTED DOES NOT INVOLVE SUCH A TAXING OR PAYMENT. INVOLVES MERELY AN ACCOUNTING AS BETWEEN THE TWO DEPARTMENTS, A SERVICE BEING RENDERED BY ONE DEPARTMENT AND A BENEFIT BEING RECEIVED BY THE OTHER. ACCORDINGLY THE DEPARTMENT RENDERING THE SERVICE SHOULD HAVE CREDIT FOR RECEIVING THE PRESCRIBED FEES THEREFOR AND FOR COVERING THE AMOUNT THEREOF INTO THE TREASURY AS MISCELLANEOUS RECEIPTS, AND THE APPROPRIATION OF THE DEPARTMENT RECEIVING THE BENEFIT OF THE SERVICE SHOULD BE CHARGED WITH THE COST THEREOF.

I HAVE TO ADVISE, THEREFORE, IN ANSWER TO QUESTIONS 2 AND 3, THAT THE PRESCRIBED FEES FOR SERVICES ACTUALLY RENDERED BY MARSHALS AND CLERKS INCIDENT TO THE SEIZURES AND FORFEITURES IN QUESTION, AS WELL AS THE ACTUAL EXPENSES INCURRED IN CONNECTION THEREWITH, ARE TO BE REGARDED AS WITHIN THE TERM "ACTUAL COSTS" AS USED IN THE ACT OF MARCH 3, 1925, SUPRA.