A-14892, JULY 22, 1926, 6 COMP. GEN. 65

A-14892: Jul 22, 1926

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ARE NOT AVAILABLE FOR THE REIMBURSEMENT OF THE STATE OFFICER. FOR PAYMENT OF THE STORAGE BILLS INCURRED WHILE PROCEEDINGS WERE PENDING UNDER THE STATE LAW WITH A VIEW TO FORFEITURE TO THE COUNTY. THE VEHICLE HAVING BEEN SURRENDERED TO THE MARSHAL WHEN THE STATE LAW WAS FOUND INSUFFICIENT TO ENFORCE FORFEITURE. YOU ARE ADVISED THAT THE DEPARTMENT HAS RECEIVED A COMMUNICATION FROM THE UNITED STATES MARSHAL FOR THE DISTRICT OF NORTH DAKOTA. WHICH WAS SEIZED IN CONNECTION WITH A VIOLATION OF THE NATIONAL PROHIBITION ACT. WHICH READS IN PART AS FOLLOWS: "THE TRUCK WAS SEIZED ORIGINALLY BY THE CHIEF OF POLICE OF GRAND FORKS. AT SAID TIME ONE HARRY JAFFA WAS ARRESTED AND CHARGED WITH UNLAWFUL TRANSPORTATION OF LIQUOR.

A-14892, JULY 22, 1926, 6 COMP. GEN. 65

SEIZURE OF VEHICLES UNDER SECTION 3450, REVISED STATUTES THE PROCEEDS FROM THE SALE OF AN AUTOMOBILE SEIZED, FORFEITED, AND SOLD BY A UNITED STATES MARSHAL UNDER SECTION 3450, REVISED STATUTES, ARE NOT AVAILABLE FOR THE REIMBURSEMENT OF THE STATE OFFICER, A SHERIFF, WHO MADE THE ORIGINAL SEIZURE OF THE AUTOMOBILE UNDER A STATE LAW, FOR PAYMENT OF THE STORAGE BILLS INCURRED WHILE PROCEEDINGS WERE PENDING UNDER THE STATE LAW WITH A VIEW TO FORFEITURE TO THE COUNTY, THE VEHICLE HAVING BEEN SURRENDERED TO THE MARSHAL WHEN THE STATE LAW WAS FOUND INSUFFICIENT TO ENFORCE FORFEITURE.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, JULY 22, 1926:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 22, 1926, REQUESTING DECISION OF A QUESTION PRESENTED AS FOLLOWS:

BY DIRECTION OF THE ATTORNEY GENERAL, YOU ARE ADVISED THAT THE DEPARTMENT HAS RECEIVED A COMMUNICATION FROM THE UNITED STATES MARSHAL FOR THE DISTRICT OF NORTH DAKOTA, DATED JUNE 4, 1926, RELATIVE TO THE PAYMENT OF THE STORAGE CHARGES ON ONE WHITE TRUCK, WHICH WAS SEIZED IN CONNECTION WITH A VIOLATION OF THE NATIONAL PROHIBITION ACT, IN THE CASE OF UNITED STATES VS. ONE WHITE TRUCK, MOTOR NO. 18067, WHICH READS IN PART AS FOLLOWS:

"THE TRUCK WAS SEIZED ORIGINALLY BY THE CHIEF OF POLICE OF GRAND FORKS, NORTH DAKOTA, ON FEBRUARY 18, 1925, FOR VIOLATION OF THE PROHIBITION LAWS, AND AT SAID TIME ONE HARRY JAFFA WAS ARRESTED AND CHARGED WITH UNLAWFUL TRANSPORTATION OF LIQUOR. JAFFA WAS TRIED IN THE STATE COURTS, CONVICTED, AND SENTENCED TO SERVE A TERM IN THE STATE PENITENTIARY AT BISMARCK.

"THE TRUCK WAS PROCEEDED AGAINST IN THE STATE COURT, WITH A VIEW TO FORFEITURE PROCEEDINGS. THE DEFENDANT JAFFA, THROUGH HIS ATTORNEY, CONTESTED THE ACTION, SETTING FORTH A CHATTEL MORTGAGE, GIVEN BY SAID JAFFA TO THE PLYMOUTH FINANCE CORPORATION OF MINNEAPOLIS, MINNESOTA. THE STATE'S ATTORNEY OF GRAND FORKS COUNTY DOUBTED THE VALIDITY OF THE CHATTEL MORTGAGE, BUT UNDER THE STATE LAWS FELT CERTAIN THAT THE TRUCK COULD NOT BE FORFEITED TO THE COUNTY BECAUSE OF SUCH MORTGAGE.

"THE MATTER WAS TAKEN UP WITH THE UNITED STATES ATTORNEY AT A LATER DATE, AND IT WAS FINALLY AGREED THAT AN ACTION WOULD BE COMMENCED IN THE FEDERAL COURT FOR VIOLATION OF THE NATIONAL PROHIBITION ACT WITHIN THE DESCRIPTION OF SECTION 3450 OF THE REVISED STATUTES OF THE UNITED STATES. SUCH PROCEEDINGS WERE INSTITUTED ON THE 25TH DAY OF SEPTEMBER, 1925, AND THE TRUCK WAS SEIZED UNDER MONITION BY A REPRESENTATIVE OF THIS OFFICE ON SEPTEMBER 29, 1925.

"NO CLAIM WAS FILED BY THE DEFENDANT IN THIS COURT, AND ON MARCH 23, 1926, A WRIT OF VENDITIONI EXPONAS ISSUED, ORDERING THE SALE OF THE TRUCK. THE SALE WAS HELD AT GRAND FORKS ON APRIL 13, 1926, THE TRUCK SELLING FOR $256.50.

"THE STORAGE CHARGES FROM THE DATE OF SEIZURE BY THIS OFFICE UP TO THE DATE OF SALE, IN THE SUM OF $56.00, TOGETHER WITH THE ADVERTISING CHARGES, TOTALING $11.28, WERE PAID OUT OF THE PROCEEDS OF SUCH SALE BY THIS OFFICE, LEAVING A BALANCE OF $189.22 NOW BEING HELD BY ME.

"THE QUESTION NOW ARISES AS TO THE PAYMENT OF THE STORAGE CHARGES ON THIS TRUCK FROM FEBRUARY 19TH TO SEPTEMBER 3, 1925, AMOUNTING TO $71.00, DURING ALL OF WHICH TIME THE TRUCK WAS IN THE POSSESSION OF THE SHERIFF OF GRAND FORKS WHILE THE ACTION WAS PENDING IN THE STATE COURT.

"THE STORAGE BILL AS PAID BY THE SHERIFF WAS NOT RECEIVED HERE UNTIL AFTER THE SALE, AND THEREFORE COULD NOT BE ALLOWED BY THE COURT AS A CLAIM TO BE PAID OUT OF THE PROCEEDS OF SUCH SALE.

"I RESPECTFULLY REQUEST SPECIAL AUTHORITY FROM THE DEPARTMENT TO REIMBURSE THE SHERIFF FOR STORAGE CHARGES PAID ON THE TRUCK IN QUESTION OUT OF THE PROCEEDS OF THE SALE, AFTER WHICH THE BALANCE WILL BE DEPOSITED WITH THE CLERK.'

YOUR RULING IS RESPECTFULLY REQUESTED WHETHER THE EXPENSE OF STORAGE DURING THE PERIOD THE TRUCK WAS IN THE CUSTODY OF THE SHERIFF AND THE CASE PENDING IN THE STATE COURT MAY PROPERLY BE PAID FROM THE PROCEEDS OF THE SALE.

THE REGULARITY OF THE SEIZURE BY THE MARSHAL UNDER SECTION 3450, REVISED STATUES, UNDER THE CIRCUMSTANCES STATED BY YOU, DOES NOT APPEAR TO BE OPEN TO QUESTION, IT HAVING BEEN REPEATEDLY HELD THAT A SEIZURE BY A STATE OFFICER OR EVEN BY AN INDIVIDUAL CITIZEN IS SUFFICIENT IF THE PROPERTY WAS SUBJECT TO SEIZURE AND THE SEIZURE IS ADOPTED BY FEDERAL OFFICERS. UNITED STATES V. TWO AUTOMOBILES AND FIVE CASES OF WHISKEY, 2 FED.REP. (2) 264; UNITED STATES V. ONE STUDEBAKER SEVEN PASSENGER SEDAN, 4 FED.REP. (2) 534; THE SAGATIND, 4 FED.REP. (2) 928.

WHEN A SEIZURE IS MADE UNDER SECTION 26 OF THE NATIONAL PROHIBITION ACT, ALL EXPENSES INCIDENT THERETO ARE PROPERLY PAYABLE FROM THE PROCEEDS OF THE SALE IF SUFFICIENT. 2 COMP. GEN. 377; 4 ID. 191; A 7510, JANUARY 24, 1925. WHERE THE PROCEEDS, FROM THE SALE OF AN AUTOMOBILE SEIZED UNDER THE PROHIBITION ACT, ARE INSUFFICIENT TO MEET EXPENSES UNAVOIDABLY INCURRED IN CONNECTION THEREWITH, THE DEFICIT MAY BE PAID FROM THE APPROPRIATION FOR ENFORCEMENT OF THE PROHIBITION LAWS. 3 COMP. GEN. 682; A-7835, MARCH 2, 1925.

THE APPROPRIATIONS OF THE BUREAU OF INTERNAL REVENUE FOR THE ENFORCEMENT OF THE NARCOTIC AND NATIONAL PROHIBITION ACTS, ARE SPECIFICALLY MADE AVAILABLE FOR ENFORCEMENT OF THE PROHIBITION AND NARCOTIC ACTS AND BEING THUS RESTRICTED ARE NOT AVAILABLE FOR PAYMENT OF EXPENSES RESULTING FROM A SEIZURE AND SALE UNDER SECTION 3450, REVISED STATUTES; 4 COMP. GEN. 594; A -7510, JANUARY 24, 1925.

SECTION 3450, REVISED STATUES, PROVIDES AS FOLLOWS:

WHENEVER ANY GOODS OR COMMODITIES FOR OR IN RESPECT WHEREOF ANY TAX IS OR SHALL BE IMPOSED, OR ANY MATERIALS, UTENSILS, OR VESSELS PROPER OR INTENDED TO BE MADE USE OF FOR OR IN THE MAKING USE OF SUCH GOODS OR COMMODITIES ARE REMOVED, OR ARE DEPOSITED OR CONCEALED IN ANY PLACE, WITH INTENT TO DEFRAUD THE UNITED STATES OF SUCH TAX, OR ANY PART THEREOF, ALL SUCH GOODS AND COMMODITIES, AND ALL SUCH MATERIALS, UTENSILS, AND VESSELS, RESPECTIVELY, SHALL BE FORFEITED; AND IN EVERY SUCH CASE ALL THE CASKS, VESSELS, CASES, OR OTHER PACKAGES WHATSOEVER, CONTAINING, OR WHICH SHALL HAVE CONTAINED, SUCH GOODS OR COMMODITIES, RESPECTIVELY, AND EVERY VESSEL, BOAT, CART, CARRIAGE, OR OTHER CONVEYANCE WHATSOEVER, AND ALL HORSES OR OTHER ANIMALS, AND ALL THINGS USED IN THE REMOVAL OR FOR THE DEPOSIT OR CONCEALMENT THEREOF, RESPECTIVELY, SHALL BE FORFEITED. * * *

IT WILL BE NOTED THAT THIS SECTION MAKES NO PROVISION FOR ANY EXPENSES TO BE PAID FROM THE PROCEEDS OF THE SALE. SEIZURES THEREUNDER BEING MADE FOR VIOLATION OF THE INTERNAL REVENUE LAWS, THE PROCEEDS SHOULD BE TURNED OVER TO THE COLLECTOR OF INTERNAL REVENUE TO BE DEPOSITED AS INTERNAL REVENUE COLLECTIONS WITHOUT ANY DEDUCTIONS THEREFROM, PURSUANT, TO THE ACT OF MAY 27, 1908, AS AMENDED BY THE ACT OF MAY 10, 1916, 39 STAT. 86, SEC. 1612, INTERNAL REVENUE MANUAL.

ORDINARILY WHEN THE DEPARTMENT OF JUSTICE, THROUGH THE UNITED STATES MARSHAL, ASSUMES CONTROL OF A SEIZED VEHICLE FOR PURPOSE OF FORFEITURE UNDER SECTION 3450, REVISED STATUTES, SUCH CONTROL RELATES BACK TO THE DATE OF THE SEIZURE BY THE STATE OFFICERS SO AS TO OBLIGATE THE APPROPRIATIONS OF THAT DEPARTMENT FOR ANY EXPENSES IN CONNECTION WITH SUCH SEIZURE AS MAY HAVE BEEN INCURRED IN BEHALF OF THE FEDERAL GOVERNMENT, SUCH EXPENSES, IF ANY, TO BE PAYABLE FROM THE APPROPRIATION FOR "SALARIES, FEES, AND EXPENSES OF MARSHALS, UNITED STATES COURTS," FOR THE PROPER FISCAL YEAR. 4 COMP. GEN. 594. IN THE PRESENT CASE, HOWEVER, PRIOR TO THE ACTION OF THE MARSHAL IN ASSUMING JURISDICTION OVER THE VEHICLE IN THIS CASE, THE PROCEEDINGS HAD BEEN ENTIRELY UNDER STATE LAW--- THE SHERIFF ACTING, NOT IN BEHALF OF THE UNITED STATES, BUT ENTIRELY PURSUANT TO HIS DUTY AND AUTHORITY AS A STATE OFFICER. THE PERSONAL OFFENDERS WERE CONVICTED AND SENTENCED UNDER THE STATE LAW, AND IT APPEARS THE ORIGINAL SEIZURE OF THE VEHICLE WAS WITH A VIEW TO FORFEITURE TO THE COUNTY UNDER THE STATE LAW. THEREFORE, IT NOT APPEARING THAT ANY PART OF THE STORAGE CHARGES INCURRED AND PAID BY THE SHERIFF WAS INCIDENT TO OR FOR THE PURPOSE OF FORFEITURE TO THE UNITED STATES, IT MUST BE HELD THAT SAID CHARGES CONSTITUTE EXPENSES INCURRED BY THE STATE UNDER STATE LAWS AND WHICH CAN NOT BE ASSUMED BY THE FEDERAL GOVERNMENT.

ANSWERING YOUR QUESTION SPECIFICALLY, THE PROCEEDS FROM THE SALE OF THE AUTOMOBILE SEIZED, FORFEITED AND SOLD UNDER SECTION 3450, REVISED STATUTES, ARE NOT AVAILABLE FOR THE PAYMENT TO THE SHERIFF OF THE EXPENSES OF STORING THE CAR WHILE IN HIS OFFICIAL POSSESSION PENDING FORFEITURE PROCEEDINGS UNDER THE STATE LAWS.