A-17713, APRIL 22, 1927, 6 COMP. GEN. 686

A-17713: Apr 22, 1927

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WHO WAS NOT APPREHENDED. WHO ARE WITHOUT AUTHORITY TO CONTRACT ON BEHALF OF THE UNITED STATES. THE FACTS ON WHICH THE CLAIM IS BASED ARE REPORTED BY THE GENERAL PROHIBITION AGENT AT SYRACUSE. AS FOLLOWS: THE FOLLOWING FACTS ARE THE RESULT OF MY INVESTIGATION OF THE CASE OF THE REO COUPE. THE CAR WAS OWNED BY LEANDER THOMAS. WHICH WAS MADE BY CHIEF OF POLICE BRINK. WAS FOUND IN THE CAR. COMPLAINT WAS SIGNED BEFORE ROBERT MCCOWELL. THOMAS WAS NEVER ARRESTED OR ARRAIGNED. THE ONLY EXPLANATION OF THE LONG DELAY IN THE FINAL DISPOSITION OF THIS CASE IS GIVEN IN THE REPORT OF THE ACTING PROHIBITION ADMINISTRATOR TO THE DIRECTOR OF PROHIBITION SEPTEMBER 13. AS FOLLOWS: WHEN THE CASE WAS FIRST BROUGHT TO THE ATTENTION OF THE ADMINISTRATOR IN THIS DISTRICT A THOROUGH SEARCH WAS MADE IN THIS OFFICE FOR THE REPORT OF SEIZURE.

A-17713, APRIL 22, 1927, 6 COMP. GEN. 686

STORAGE - AUTOMOBILE SEIZED UNDER THE NATIONAL PROHIBITION ACT WHERE LOCAL POLICE SEIZED AN AUTOMOBILE FOR VIOLATION OF THE PROHIBITION LAWS AFTER IT HAD BEEN TOTALLY WRECKED BY THE OWNER, WHO WAS NOT APPREHENDED, THE FEDERAL PROHIBITION AGENTS, WHO ARE WITHOUT AUTHORITY TO CONTRACT ON BEHALF OF THE UNITED STATES, MAY NOT, BY ASSUMING JURISDICTION OVER THE CAR, THEREBY OBLIGATE THE UNITED STATES FOR THE PAYMENT OF STORAGE CHARGES IN EXCESS OF THE PROCEEDS RECEIVED FROM THE SALE OF THE CAR.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 22, 1927:

MURPHY AND BONITZ APPLIED FEBRUARY 24, 1927, FOR REVIEW OF SETTLEMENT OF NOVEMBER 13, 1926, 0146736, DISALLOWING THEIR CLAIM FOR STORAGE OF A WRECKED REO COUPE FROM OCTOBER 8, 1923, TO DECEMBER 28, 1925.

THE FACTS ON WHICH THE CLAIM IS BASED ARE REPORTED BY THE GENERAL PROHIBITION AGENT AT SYRACUSE, N.Y., AS FOLLOWS:

THE FOLLOWING FACTS ARE THE RESULT OF MY INVESTIGATION OF THE CASE OF THE REO COUPE, LICENSE NO. 627-123 N.Y. 1923.

THE CAR WAS OWNED BY LEANDER THOMAS, OF ITHACA, N.Y., AND DRIVEN BY HIM AT THE TIME OF THE SEIZURE, WHICH WAS MADE BY CHIEF OF POLICE BRINK, OF ELMIRA HEIGHTS, N.Y., ON OCT. 8TH, 1923, AFTER THOMAS HAD SMASHED UP THE CAR ON THE MAIN STREET OF THE VILLAGE AND LEFT THE SCENE OF THE ACCIDENT BEFORE THE ARRIVAL OF THE POLICE, THE CAR BEING A TOTAL WRECK.

CHIEF BRINK SIGNED A COMPLAINT AGAINST THOMAS BASED ON THE FACT THAT LIQUOR, NAMELY, WHISKEY, WAS FOUND IN THE CAR.

COMPLAINT WAS SIGNED BEFORE ROBERT MCCOWELL, THEN U.S. COMMISSIONER, ON NOV. 1ST, 1923, AND A WARRANT FOR THOMAS' ARREST ISSUED ON THE SAME DATE, THE WARRANT BEING TURNED OVER TO MARSHAL OR DEPUTY MARSHALL LINN, OF ROCHESTER, WHO DID NOT SERVE IT, AS LEANDER THOMAS RESIDED OUTSIDE MARSHAL LINN'S DISTRICT.

ON OCTOBER 10, 1923, COMMISSIONER MCDOWELL TURNED OVER THE SAMPLES TO AGENTS AMENDOLA AND STEVENS, WHO TOOK INFORMATION FOR A REPORT AND A RECEIPT FOR THE CAR FROM MR. CHAS. B. MURPHY, OF MURPHY AND BONITZ GARAGE, ELMIRA HEIGHTS, N.Y.

THOMAS WAS NEVER ARRESTED OR ARRAIGNED.

THE ONLY EXPLANATION OF THE LONG DELAY IN THE FINAL DISPOSITION OF THIS CASE IS GIVEN IN THE REPORT OF THE ACTING PROHIBITION ADMINISTRATOR TO THE DIRECTOR OF PROHIBITION SEPTEMBER 13, 1926, AS FOLLOWS:

WHEN THE CASE WAS FIRST BROUGHT TO THE ATTENTION OF THE ADMINISTRATOR IN THIS DISTRICT A THOROUGH SEARCH WAS MADE IN THIS OFFICE FOR THE REPORT OF SEIZURE, BUT SAME COULD NOT BE LOCATED. UNDER DATE OF AUGUST 1, 1925, A LETTER WAS ADDRESSED TO THE FEDERAL PROHIBITION DIRECTOR, NEW YORK, N.Y., RELATIVE TO THIS MATTER BY PROHIBITION COMMISSIONER R. A. HAYNES. STATED THAT THE FILES OF HIS OFFICE FAILED TO DISCLOSE A REPORT OF THE CASE, AND REQUESTED THAT THE MATTER BE LOOKED INTO.

ON AUGUST 5, 1925, THE PROHIBITION DIRECTOR OF NEW YORK FORWARDED THIS CORRESPONDENCE TO MR. MERRICK, DIVISIONAL CHIEF, FOR HIS ATTENTION, AND MR. MERRICK IN TURN TRANSMITTED THE CORRESPONDENCE TO THE AGENT IN CHARGE AT SYRACUSE, N.Y., STATING THAT HE HAD NO RECORD OF ANY SUCH SEIZURE IN HIS OFFICE, AND DIRECTING THAT THE AGENT IN CHARGE LOOK INTO IT AND SEE IF THE CAR WAS EVER TURNED OVER TO THE PROHIBITION DEPARTMENT OR IF IT WAS STRICTLY A POLICE SEIZURE AND PLACED IN STORAGE BY POLICE.

MR. EDWARD E. WICKHAM, GENERAL PROHIBITION AGENT, WENT TO ELMIRA HEIGHTS AND INVESTIGATED THE CASE, MAKING A LETTER REPORT TO MR. ANGELL UNDER DATE OF SEPTEMBER 30, 1925 (COPY OF WHICH IS ENCLOSED). IT APPEARS FROM THIS REPORT THAT THE CAR WAS TURNED OVER TO PROHIBITION AGENTS AMENDOLA AND STEVENS, AND THAT APPARENTLY THE CASE WAS ADOPTED BY THEM. THE INFORMATION WAS SECURED BY MR. WICKHAM FROM U.S. COMMISSIONER ROBER MCDOWELL.

THIS MATTER WAS FIRST BROUGHT TO THE ATTENTION OF THE ADMINISTRATOR BY LETTER, DATED OCTOBER 14, 1925, FROM HONORABLE GALE H. STALKER, HOUSE OF REPRESENTATIVES, WASHINGTON, D.C.

THE MATTER WAS IMMEDIATELY TAKEN UP WITH MURPHY AND BONITZ FOR INFORMATION SO THAT THE CASE COULD BE TRACED, BUT THEY COULD FURNISH NOTHING. THE AGENT IN CHARGE AT SYRACUSE WAS THEN CALLED UPON, AND HE SUBMITTED A REPORT AS SET FORTH IN AGENT WICKHAM'S LETTER.

UNDER DATE OF DECEMBER 22, 1925, AFTER ALL POSSIBLE FACTS HAD BEEN OBTAINED, THE U.S. ATTORNEY AT BUFFALO WAS CALLED UPON TO OBTAIN A COURT ORDER FOR THE FORFEITURE OF THIS CAR. THE ORDER WAS DRAWN AND SALE SET FOR THE THIRD DAY OF FEBRUARY, 1926. THE SALE WAS HELD ON THAT DATE, ACCORDING TO ADVICE RECEIVED FROM THE U.S. MARSHAL, BUT NO PURCHASERS APPEARED, AND ON MARCH 6, 1926, THE U.S. MARSHAL ADVISED THAT HIS OFFICE WAS SEEKING OFFERS FOR THE SALE OF THE CAR PRIVATELY. IT WAS NOT DISPOSED OF UNTIL APRIL 21, 1926, AS EVIDENCED BY REPORT OF SALE ATTACHED TO THE CLAIM.

UPON THE SALE OF THE CAR BY THE MARSHAL ONLY $5 WAS REALIZED THEREON, WHICH AMOUNT WAS RETAINED BY HIM AS PART OF THE EXPENSES OF THE SALE. THE CLAIMANT APPEARS TO HAVE BEEN PAID FROM SOME SOURCE NOT DISCLOSED FOR STORAGE AFTER DECEMBER 28, 1925, UNTIL THE DATE OF SALE AND NOW ASSERTS A CLAIM FOR $267 FOR STORAGE PRIOR TO DECEMBER 28, 1925, AT THE RATE OF $10 PER MONTH.

THE PROHIBITION AGENTS, AMENDOLA AND STEVENS, WHO, IT WOULD APPEAR ASSUMED JURISDICTION OVER THE WRECKED AUTOMOBILE, WERE NOT AUTHORIZED TO CONTRACT ON BEHALF OF THE UNITED STATES AND COULD NOT THEREFORE BIND THE GOVERNMENT FOR THE STORAGE OF THE AUTOMOBILE. NEITHER DOES IT APPEAR THAT ANY STORAGE CONTRACT WAS IN FACT ENTERED INTO BY THEM OR ANYONE ELSE ON BEHALF OF THE UNITED STATES IN THIS CASE. IT APPEARS FROM THE REPORT FROM THE PROHIBITION ADMINISTRATOR THAT THE MATTER WAS NOT CALLED TO HIS ATTENTION UNTIL OCTOBER 14, 1925, OVER TWO YEARS AFTER THE ALLEGED SEIZURE, AND THAT AS SOON THEREAFTER AS THE FACTS COULD BE ASCERTAINED THE CAR WAS TURNED OVER TO THE MARSHAL FOR SALE.

SECTION 26 OF THE NATIONAL PROHIBITION ACT OF OCTOBER 28, 1919, 41 STAT. 315, WHICH IS THE ONLY LAW AUTHORIZING A PROHIBITION AGENT TO TAKE POSSESSION OF A VEHICLE BEING USED FOR THE ILLEGAL TRANSPORTATION OF INTOXICATING LIQUORS, DOES NOT AUTHORIZE TAKING POSSESSION OF, AND INCURRING OBLIGATIONS IN CONNECTION WITH, VEHICLES SO DAMAGED THAT THEY COULD NOT THEREAFTER BE USED FOR TRANSPORTATION PURPOSES OR THAT THEY COULD NOT BE SOLD FOR AN AMOUNT SUFFICIENT TO PAY ALL COSTS OF SEIZURE, SALE, ETC., AND LEAVE A BALANCE TO BE COVERED INTO THE TREASURY. THIS IS SHOWN BY THE FACT THAT NEITHER SAID SECTION NOR ANY APPROPRIATION MADE FOR THE ENFORCEMENT OF THE PROHIBITION ACT PROVIDES FOR PAYMENT OF THE EXPENSES OF STORAGE OF SUCH PROPERTY IN EXCESS OF THE PROCEEDS. SEE 3 COMP. GEN. 347; ID 682. PERSONS ACCEPTING SUCH SEIZED VEHICLES OR WRECKS FOR STORAGE ARE CHARGED WITH KNOWLEDGE OF THE PROVISIONS OF THE LAW RELATIVE TO SEIZURE AND SALE, AND ALSO WITH KNOWLEDGE OF THE LIMITED POWERS OF OFFICERS AND EMPLOYEES OF THE UNITED STATES, AND SHOULD REFUSE TO ACCEPT ANY SUCH VEHICLE FOR STORAGE UNLESS AND UNTIL A CONTRACT THEREFOR IS DULY EXECUTED BY A PERSON LEGALLY AUTHORIZED TO MAKE SUCH CONTRACTS ON BEHALF OF THE GOVERNMENT, IF THERE IS ANY PROBABILITY THAT THE CLAIM FOR STORAGE CHARGES WILL EXCEED THE PROCEEDS OF SALE AFTER PAYMENT OF OTHER EXPENSES INCIDENT TO THE SEIZURE AND SALE.

THE CLAIMANTS IN THE PRESENT CASE HAVING ACCEPTED THE WRECKED VEHICLE FROM PERSONS HAVING NO LEGAL AUTHORITY TO OBLIGATE THE GOVERNMENT FOR ITS STORAGE, COULD ACQUIRE NO RIGHT TO PAYMENT OF STORAGE CHARGES BEYOND THE PROCEEDS OF SALE MERELY BECAUSE THE GOVERNMENT DID NOT REMOVE THE VEHICLE WHEN REQUESTED TO DO SO. ..END :