A-38826, NOVEMBER 3, 1931, 11 COMP. GEN. 165

A-38826: Nov 3, 1931

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DAMAGES TO PRIVATE PROPERTY - PROHIBITION ENFORCEMENT THERE IS NO AUTHORITY FOR A UNITED STATES MARSHAL TO USE THE PROCEEDS OF A SALE OF AN AUTOMOBILE FORFEITED TO THE UNITED STATES UNDER THE NATIONAL PROHIBITION ACT OF OCTOBER 28. THE BALANCE IS REQUIRED TO BE DEPOSITED IN THE TREASURY AS MISCELLANEOUS RECEIPTS. WHEREBY CREDIT WAS DISALLOWED IN HIS ACCOUNTS FOR THE AMOUNT OF $49.15 PAID BY HIM. WHILE THE LATTER WAS BEING DRIVEN TO NEWPORT. THE FOLLOWING REPORT OF THE ACCIDENT WAS SUBMITTED BY AGENT PETRIE TO DEPUTY PROHIBITION ADMINISTRATOR BERT S. IN WHICH HE AND STANDISH WERE WORKING. I WAS AHEAD. THE LINCOLN WAS IN THE MIDDLE AND THE BORDER PATROL CAR WAS LAST. A CAR WAS COMING IN THE OPPOSITE DIRECTION SO THAT STANDISH WAS UNABLE TO PULL AROUND THE SLOW MOVING VEHICLE AHEAD OF HIM SO HE TRIED TO STOP.

A-38826, NOVEMBER 3, 1931, 11 COMP. GEN. 165

DAMAGES TO PRIVATE PROPERTY - PROHIBITION ENFORCEMENT THERE IS NO AUTHORITY FOR A UNITED STATES MARSHAL TO USE THE PROCEEDS OF A SALE OF AN AUTOMOBILE FORFEITED TO THE UNITED STATES UNDER THE NATIONAL PROHIBITION ACT OF OCTOBER 28, 1919, 41 STAT. 315, TO REIMBURSE THE OWNER OF ANOTHER AUTOMOBILE FOR DAMAGES SUSTAINED IN A COLLISION WITH THE FORFEITED AUTOMOBILE AFTER ITS SEIZURE BY PROHIBITION AGENTS. THE PROCEEDS OF SUCH SALES MAY BE USED ONLY TO PAY CHARGES AND LIENS EXPRESSLY AUTHORIZED BY SECTION 26 OF SAID ACT, AND THE BALANCE IS REQUIRED TO BE DEPOSITED IN THE TREASURY AS MISCELLANEOUS RECEIPTS.

DECISION BY COMPTROLLER GENERAL MCCARL, NOVEMBER 3, 1931:

UNITED STATES MARSHAL A. W. HARVEY HAS REQUESTED REVIEW OF SETTLEMENT F- 30912-J, DATED AUGUST 10, 1931, WHEREBY CREDIT WAS DISALLOWED IN HIS ACCOUNTS FOR THE AMOUNT OF $49.15 PAID BY HIM, PER SALES REPORT NO. 1 OF HIS ACCOUNT FOR THE QUARTER ENDED SEPTEMBER 30, 1929, TO J. R. VIOLETTE FROM THE PROCEEDS DERIVED FROM THE SALE OF A LINCOLN AUTOMOBILE SEIZED ON SEPTEMBER 13, 1928, BY PROHIBITION AGENT GERALD R. PETRIE, AS REIMBURSEMENT FOR ALLEGED DAMAGES TO MR. VIOLETTE'S AUTOMOBILE RESULTING FROM A COLLISION WITH THE LINCOLN CAR, WHILE THE LATTER WAS BEING DRIVEN TO NEWPORT, VT., FOR STORAGE.

THE FOLLOWING REPORT OF THE ACCIDENT WAS SUBMITTED BY AGENT PETRIE TO DEPUTY PROHIBITION ADMINISTRATOR BERT S. HYLAND ON SEPTEMBER 15, 1928:

I AM ENCLOSING HEREWITH REPORT OF ACCIDENT WHICH TOOK PLACE ON OUR WAY INTO NEWPORT WITH SEIZED LINCOLN ON THE MORNING OF SEPT. 13TH.

BEING ALONE AT THE TIME, I MADE A SEIZURE OF A LINCOLN TOURING CAR WITH LOAD OF LIQUOR ON THE ABOVE DATE. I SECURED THE SERVICES OF INSPECTORS STANDISH AND BASSETT OF THE BORDER PATROL IN BRINGING THE SEIZED CAR AND LIQUOR AND THE ONE PRISONER INTO NEWPORT. I TOOK THE PRISONER WITH ME IN NO. 1937, INSPECTOR STANDISH DROVE THE SEIZED LINCOLN, WHILE BASSETT DROVE THE PATROL CAR, IN WHICH HE AND STANDISH WERE WORKING. I WAS AHEAD, THE LINCOLN WAS IN THE MIDDLE AND THE BORDER PATROL CAR WAS LAST.

WHILE COMING DOWN PLEASANT ST. INTO NEWPORT, STANDISH FOUND HIMSELF BEHIND A SLOW MOVING VEHICLE TRAVELLING IN HIS SAME DIRECTION, I HAVING GOTTEN SOME DISTANCE AHEAD IN NO. 1937. A CAR WAS COMING IN THE OPPOSITE DIRECTION SO THAT STANDISH WAS UNABLE TO PULL AROUND THE SLOW MOVING VEHICLE AHEAD OF HIM SO HE TRIED TO STOP; THE BRAKES ON THE LINCOLN DID NOT WORK, SO TO AVOID HITTING THE VEHICLE AHEAD OF HIM HE ENDEAVORED TO PULL OUT AND GET AROUND IT ONLY TO COLLIDE WITH THE CAR WHICH WAS COMING IN THE OPPOSITE DIRECTION.

THE LINCOLN WAS HEAVILY LOADED AND WAS PROCEEDING DOWN A GRADE WHEN THIS HAPPENED SO THAT IT WOULD REQUIRE A GOOD BRAKE TO COMPLETELY STOP IT.

THE DAMAGE TO THE PRIVATELY OWNED CAR WAS NOT LARGE, CONSISTING OF A JAMMED FENDER, RADIATOR, AND A BROKEN HEADLIGHT. HOWEVER, THE DRIVER WAS UNABLE TO WORK THAT DAY AND WANTS TO CLAIM THAT AS DAMAGES ALSO. MR. VIOLETTE, THE LAST I KNEW, WAS HAVING HIS CAR REPAIRED AND AS SOON AS SAME WAS DONE WAS TO FILE WITH YOU A CLAIM FOR DAMAGES.

I DO NOT KNOW OUR POSITION ON A CASE OF THIS KIND, BUT WILL GLADLY ANSWER ANY QUESTIONS OR GIVE YOU FURTHER INFORMATION ON IT THAT I MAY KNOW OR FIND OUT.

THE FORMS I AM SENDING YOU ARE SOME THAT I SECURED FROM THE BORDER PATROL OFFICE.

THE MATTER APPEARS TO HAVE BEEN REPORTED BY MR. HYLAND TO PROHIBITION ADMINISTRATOR J. S. LEWIS, WHO REPLIED ON OCTOBER 9, 1928, AS FOLLOWS:

I AM RETURNING FORMS 26, 27, AND 28 WITH REFERENCE TO THE ACCIDENT IN WHICH THE SEIZED LINCOLN TOURING CAR WAS INVOLVED AS THESE FORMS ARE ONLY APPLICABLE TO GOVERNMENT-OWNED CARS.

IN VIEW OF INSTRUCTIONS AS GIVEN IN DEPARTMENT LETTER DATED JUNE 19, 1925, WHICH STATES THAT THE GOVERNMENT IS NOT RESPONSIBLE FOR A TORT MADE BY ONE OF ITS AGENTS, IT IS EXTREMELY DOUBTFUL IF THE DEPARTMENT WILL PAY THE BILL IF SUBMITTED AS A CLAIM FOR DAMAGES.

HOWEVER, IT IS CLEARLY EVIDENT FROM THE REPORT THAT THIS ACCIDENT WAS NOT THE FAULT OF THE AGENT, BUT WAS CAUSED BY DEFECTIVE BRAKES ON THE SEIZED CAR WHILE THIS AGENT WAS TAKING IT TO GOVERNMENT STORAGE; THEREFORE THIS BILL IS PART OF THE EXPENSE INCIDENTAL TO THE SEIZURE, AND SHOULD BE PAID FROM THE PROCEEDS OF THE SALE WHEN THE CASE IS DISPOSED OF.

WILL YOU PLEASE KEEP IN TOUCH WITH THIS CASE AND WHEN THE CAR IS FORFEITED AND SOLD PRESENT THE BILL TO THE DEPARTMENT MAKING THE SALE. THAT IS, IF THE UNITED STATES MARSHAL SELLS THE CAR TAKE THE MATTER UP WITH HIM AND HAVE THIS BILL PAID OUT OF THE PROCEEDS OF THE SALE.

FROM THE MARSHAL'S SALE REPORT IT APPEARS THAT THE SEIZED AUTOMOBILE WAS CONDEMNED AND FORFEITED UNDER THE PROVISIONS OF THE NATIONAL PROHIBITION ACT OF OCTOBER 28, 1919, 41 STAT. 315, THAT IT WAS SOLD BY THE MARSHAL ON JUNE 29, 1929, FOR THE SUM OF $85, AND THAT AFTER DEDUCTING FROM SUCH SUM THE AMOUNT OF $35.85, REPRESENTING THE EXPENSES OF ADVERTISING THE SEIZURE AND THE SALE OF THE AUTOMOBILE, THE STORAGE CHARGES, AND THE FEES IN THE CASE, THE BALANCE OF THE PROCEEDS OF THE SALE, $49.15, WAS PAID TO MR. VIOLETTE ON ACCOUNT OF THE ALLEGED DAMAGES TO HIS AUTOMOBILE.

IN HIS REQUEST FOR A REVIEW OF THE ACTION OF THIS OFFICE IN DISALLOWING CREDIT FOR THE ITEM AS AN UNAUTHORIZED PAYMENT FROM THE PROCEEDS OF THE SALE, THE MARSHAL STATES:

THIS MATTER HAS BEEN TAKEN UP WITH THE DEPUTY PROHIBITION ADMINISTRATOR FOR THE DISTRICT OF VERMONT WHO CALLS OUR ATTENTION TO THE FACT THAT THE EXPENSE SHOULD BE CONSIDERED AS A "SECURING EVIDENCE EXPENSE" INCIDENTAL TO THE SEIZURE OF THE AUTOMOBILE, IN VIEW OF THE FACT THAT THE ACCIDENT HAPPENED IMMEDIATELY AFTER THE CAR WAS SEIZED AND WHILE THE AGENT WAS TAKING IT TO A PLACE OF STORAGE. HE WAS UNFAMILIAR WITH THE CAR AND CONSEQUENTLY NOT AWARE OF ITS CONDITION, AND SHOULD NOT BE HELD RESPONSIBLE FOR THE COLLISION WHICH RESULTED WHEN THE AUTOMOBILE WAS PROCEEDING DOWN GRADE AND THEN IT WAS FOUND THERE WERE NO BRAKES ON THE CAR. IT APPEARS THAT THE OWNER OF THE DAMAGED CAR HAD A RIGHTFUL CLAIM AGAINST THE SEIZED AUTOMOBILE AND AS A MATTER OF LAW HIS CLAIM WOULD PROBABLY HAVE RESULTED IN A LIEN AGAINST THE SEIZED AUTOMOBILE HAD HE PRESSED HIS CLAIM IN COURT.

SECTION 3617, REVISED STATUTES, PROVIDES THAT THE GROSS AMOUNT OF ALL MONEYS RECEIVED FROM WHATEVER SOURCE FOR THE UNITED STATES, SHALL, WITH AN EXCEPTION NOT HERE MATERIAL, BE PAID INTO THE TREASURY "WITHOUT ANY ABATEMENT OR DEDUCTION ON ACCOUNT OF SALARY, FEES, COSTS, CHARGES, EXPENSES, OR CLAIM OF ANY DESCRIPTION WHATEVER.' THERE IS NO AUTHORITY OF LAW FOR A UNITED STATES MARSHAL TO PAY FROM THE PROCEEDS OF A SALE MADE BY HIM OF AN AUTOMOBILE FORFEITED UNDER THE PROVISIONS OF THE NATIONAL PROHIBITION ACT OF OCTOBER 28, 1919, ANY EXPENSES OR CLAIMS NOT SPECIFICALLY AUTHORIZED BY THAT ACT TO BE PAID FROM SUCH PROCEEDS. SECTION 26 OF THE SAID ACT, 41 STAT. 315, LIMITS THE ITEMS TO BE DEDUCTED FROM THE PROCEEDS OF THE SALE OF PROPERTY FORFEITED THEREUNDER TO THE EXPENSES OF KEEPING THE PROPERTY, THE FEE FOR THE SEIZURE, AND THE COST OF THE SALE; AND EXPRESSLY REQUIRES THAT THE BALANCE, AFTER THE PAYMENT THEREFROM OF ANY LIENS ON THE VEHICLE JUDICIALLY DETERMINED TO BE BONA FIDE AND PROPER, SEE 11 COMP. GEN. 97, SHALL BE COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS.

NO LIEN ON THE CAR IN FAVOR OF A PRIVATE INDIVIDUAL COULD BE CREATED AFTER THE CAR WAS SEIZED BY AND WAS IN THE POSSESSION OF THE GOVERNMENT, NOR DOES IT APPEAR THAT ANY LIEN ON THE CAR WAS DETERMINED BY THE COURT TO EXIST IN FAVOR OF MR. VIOLETTE. ACCORDINGLY, AND AS THE CLAIM FOR DAMAGES IN THE PRESENT CASE DOES NOT COME WITHIN ANY OF THE CLASSES OF ITEMS AUTHORIZED TO BE PAID FROM THE PROCEEDS OF THE SALE, THE PAYMENT OF SUCH CLAIM BY THE MARSHAL WAS UNAUTHORIZED AND ILLEGAL. A-13226, MARCH 5, 1926.

IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR, THE UNITED STATES IS NOT LIABLE FOR INJURIES OR DAMAGES TO THE PERSON OR THE PROPERTY OF INDIVIDUALS CAUSED BY THE TORTS OR NEGLIGENCE OF ITS EMPLOYEES OR OFFICERS, OR BY ITS AUTHORIZED ACTIVITIES. SEE A-19354, AUGUST 9, 1927; 1 COMP. GEN. 178; 8 ID. 661. EVEN WERE THE RULE OTHERWISE THERE WOULD APPEAR TO BE NO VALID CLAIM IN THIS CASE AS IT IS REPORTED THAT THE ACCIDENT WAS NOT THE FAULT OF THE AGENT. BUT HOWEVER THAT MAY BE, IT IS CLEAR THAT AS THERE IS NO AUTHORITY OF LAW FOR THE PAYMENT OF ANY AMOUNT TO AN INDIVIDUAL OUT OF THE PROCEEDS OF THE SALE OF A VEHICLE CONDEMNED AND FORFEITED UNDER THE PROVISIONS OF THE NATIONAL PROHIBITION ACT, FOR DAMAGES TO HIS PROPERTY ALLEGED TO HAVE RESULTED FROM A COLLISION WITH THE SEIZED VEHICLE, NOR ANY APPROPRIATION AVAILABLE FOR THE PAYMENT OF SUCH A CLAIM, THE DISALLOWANCE OF CREDIT IN YOUR ACCOUNTS FOR SUCH PAYMENT WAS CORRECT, AND, UPON REVIEW, MUST BE AND IS SUSTAINED.

THE AMOUNT OF $49.15 SHOULD BE DEPOSITED BY THE MARSHAL WITHOUT FURTHER DELAY, TO BE COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS, AS EXPRESSLY REQUIRED BY THE APPLICABLE STATUTE.