A-39093, DECEMBER 17, 1931, 11 COMP. GEN. 241

A-39093: Dec 17, 1931

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IS NOT REQUIRED TO BE DELAYED UNTIL AFTER THE DISPOSITION OF CRIMINAL CHARGES AGAINST THE PERSON IN CHARGE OF THE CAR AT THE TIME OF SEIZURE. WHEREIN WAS DISALLOWED ITS CLAIM IN THE SUM OF $305 AND INTEREST AT 6 PERCENT. WHICH WAS SEIZED AND SOLD UNDER THE PROVISIONS OF SECTION 26 OF THE NATIONAL PROHIBITION ACT OF OCTOBER 28. WAS SEIZED IN BROOKLYN. AT WHICH TIME TWO MEN WERE ARRESTED AND CHARGED WITH TRANSPORTATION AND POSSESSION. THE MEN WERE HELD UNDER BOND AND THE TRUCK STORED IN THE UNITED STATES GOVERNMENT WAREHOUSE AT 641 WASHINGTON STREET. THE PROHIBITION SUPERVISOR FOR THE DISTRICT IN WHICH SEIZURE WAS MADE ADDRESSED A REGISTERED LETTER TO THE RECORD OWNER OF THE TRUCK REQUESTING THAT HE CALL AT THAT OFFICE AS CLAIMANT OF THE CAR.

A-39093, DECEMBER 17, 1931, 11 COMP. GEN. 241

PROHIBITION ENFORCEMENT - SEIZURE AND SALE OF AUTOMOBILES - LIENS THE ADMINISTRATIVE SALE OF AN AUTOMOBILE SEIZED UNDER THE PROVISIONS OF SECTION 26 OF THE NATIONAL PROHIBITION ACT OF OCTOBER 28, 1919, 41 STAT. 318, WHERE NO CLAIMANT APPEARS AFTER DUE ADVERTISING, IS NOT REQUIRED TO BE DELAYED UNTIL AFTER THE DISPOSITION OF CRIMINAL CHARGES AGAINST THE PERSON IN CHARGE OF THE CAR AT THE TIME OF SEIZURE, AND THE NET PROCEEDS OF SUCH SALE, REQUIRED BY THE STATUTE TO BE PAID INTO THE TREASURY AS MISCELLANEOUS RECEIPTS, MAY NOT BE USED TO PAY SUBSEQUENTLY ASSERTED LIENS THAT HAD NOT BEEN PREVIOUSLY ESTABLISHED IN JUDICIAL PROCEEDINGS TO BE A PROPER CHARGE AGAINST THE VEHICLE AS REQUIRED BY THE ACT.

DECISION BY COMPTROLLER GENERAL MCCARL, DECEMBER 17, 1931:

GENERAL MOTORS ACCEPTANCE CORPORATION HAS REQUESTED REVIEW OF SETTLEMENT NO. 0219269, DATED SEPTEMBER 9, 1931, WHEREIN WAS DISALLOWED ITS CLAIM IN THE SUM OF $305 AND INTEREST AT 6 PERCENT, FOR REMISSION OF FORFEITURE OF ONE 1929 CHEVROLET 1 1/2-TON TRUCK, MOTOR NO. T 890625, SERIAL NO. 19074, WHICH WAS SEIZED AND SOLD UNDER THE PROVISIONS OF SECTION 26 OF THE NATIONAL PROHIBITION ACT OF OCTOBER 28, 1919, 41 STAT. 315.

IT APPEARS THAT THE TRUCK, LOADED WITH BEER AND EMPTY BEER BARRELS, WAS SEIZED IN BROOKLYN, Y., MARCH 19, 1930, AT WHICH TIME TWO MEN WERE ARRESTED AND CHARGED WITH TRANSPORTATION AND POSSESSION. THE MEN WERE HELD UNDER BOND AND THE TRUCK STORED IN THE UNITED STATES GOVERNMENT WAREHOUSE AT 641 WASHINGTON STREET, NEW YORK. ON APRIL 9, 1930, THE PROHIBITION SUPERVISOR FOR THE DISTRICT IN WHICH SEIZURE WAS MADE ADDRESSED A REGISTERED LETTER TO THE RECORD OWNER OF THE TRUCK REQUESTING THAT HE CALL AT THAT OFFICE AS CLAIMANT OF THE CAR. A REGISTRY RECEIPT DATED APRIL 10, 1930, ON FILE IN THE PROHIBITION OFFICE, SHOWS THAT THE LETTER WAS DELIVERED, BUT NO ONE APPEARED TO CLAIM THE TRUCK.

IT FURTHER APPEARS THAT ON APRIL 25, 1930, THE UNITED STATES ATTORNEY FOR THE DISTRICT OF NEW YORK DISMISSED THE CRIMINAL ACTION AGAINST THE DEFENDANTS. ON JUNE 3 AND 10, 1930, THE TRUCK IN QUESTION WAS ADVERTISED IN THE NEW YORK POST, AND, NO ONE CLAIMING THE VEHICLE, IT WAS SOLD ON JUNE 25, 1930, UNDER THE ADMINISTRATIVE SALE PROVISION OF THE ACT OF OCTOBER 28, 1919, SUPRA, AND THE NET PROCEEDS OF SALE (AFTER DEDUCTING EXPENSES) AMOUNTING TO $432.80, WERE DEPOSITED JUNE 26, 1930, TO THE CREDIT OF THE TREASURER OF THE UNITED STATES AND COVERED INTO THE TREASURY AS ,MISCELLANEOUS RECEIPTS.'

ON JUNE 27, 1931, GENERAL MOTORS ACCEPTANCE CORPORATION FILED WITH THE SECRETARY OF THE TREASURY A CLAIM FOR $305, TO SATISFY ITS LIEN ON THE TRUCK, STATING THAT ON JULY 20, 1929, ONE PHILIP J. SCHWEGLER PURCHASED THE TRUCK IN QUESTION FROM SPIELMAN MOTOR SALES CO. (INC.), UNDER A WRITTEN CONTRACT OF CONDITIONAL SALE, THE CONTRACT PROVIDING FOR THE PAYMENT OF THE PURCHASE PRICE IN INSTALLMENTS, AND THE RETENTION OF TITLE IN THE SELLER UNTIL THE FULL AMOUNT HAS BEEN PAID; THAT SHORTLY THEREAFTER THE SPIELMAN MOTOR SALES CO. (INC.) ASSIGNED ALL ITS RIGHT, TITLE, AND INTEREST IN AND TO THE CONTRACT AND MOTOR TRUCK TO THE CLAIMANT, AND THAT THERE REMAINS DUE ON THE TRUCK A BALANCE OF $305.

SECTION 26 OF THE NATIONAL PROHIBITION ACT, 41 STAT. 315, UNDER THE PROVISIONS OF WHICH THE SEIZURE AND SALE OF THE AUTO TRUCK WERE MADE, IS AS FOLLOWS:

WHEN THE COMMISSIONER, HIS ASSISTANTS, INSPECTORS, OR ANY OFFICER OF THE LAW SHALL DISCOVER ANY PERSON IN THE ACT OF TRANSPORTING IN VIOLATION OF THE LAW, INTOXICATING LIQUORS IN ANY WAGON, BUGGY, AUTOMOBILE, WATER OR AIR CRAFT, OR OTHER VEHICLE, IT SHALL BE HIS DUTY TO SEIZE ANY AND ALL INTOXICATING LIQUORS FOUND THEREIN BEING TRANSPORTED CONTRARY TO LAW. WHENEVER INTOXICATING LIQUORS TRANSPORTED OR POSSESSED ILLEGALLY SHALL BE SEIZED BY AN OFFICER HE SHALL TAKE POSSESSION OF THE VEHICLE AND TEAM OR AUTOMOBILE, BOAT, AIR OR WATER CRAFT, OR ANY OTHER CONVEYANCE, AND SHALL ARREST ANY PERSON IN CHARGE THEREOF. SUCH OFFICER SHALL AT ONCE PROCEED AGAINST THE PERSON ARRESTED UNDER THE PROVISIONS OF THIS TITLE IN ANY COURT HAVING COMPETENT JURISDICTION; BUT THE SAID VEHICLE OR CONVEYANCE SHALL BE RETURNED TO THE OWNER UPON EXECUTION BY HIM OF A GOOD AND VALID BOND, WITH SUFFICIENT SURETIES, IN A SUM DOUBLE THE VALUE OF THE PROPERTY, WHICH SAID BOND SHALL BE APPROVED BY SAID OFFICER AND SHALL BE CONDITIONED TO RETURN SAID PROPERTY TO THE CUSTODY OF SAID OFFICER ON THE DAY OF TRIAL TO ABIDE THE JUDGMENT OF THE COURT. THE COURT UPON CONVICTION OF THE PERSON SO ARRESTED SHALL ORDER THE LIQUOR DESTROYED, AND UNLESS GOOD CAUSE TO THE CONTRARY IS SHOWN BY THE OWNER, SHALL ORDER A SALE BY PUBLIC AUCTION OF THE PROPERTY SEIZED, AND THE OFFICER MAKING THE SALE, AFTER DEDUCTING THE EXPENSES OF KEEPING THE PROPERTY, THE FEE FOR THE SEIZURE, AND THE COST OF THE SALE, SHALL PAY ALL LIENS, ACCORDING TO THEIR PRIORITIES, WHICH ARE ESTABLISHED, BY INTERVENTION OR OTHERWISE AT SAID HEARING OR IN OTHER PROCEEDING BROUGHT FOR SAID PURPOSE, AS BEING BONA FIDE AND AS HAVING BEEN CREATED WITHOUT THE LIENOR HAVING ANY NOTICE THAT THE CARRYING VEHICLE WAS BEING USE OR WAS TO BE USED FOR ILLEGAL TRANSPORTATION OF LIQUOR, AND SHALL PAY THE BALANCE OF THE PROCEEDS INTO THE TREASURY OF THE UNITED STATES AS MISCELLANEOUS RECEIPTS. ALL LIENS AGAINST PROPERTY SOLD UNDER THE PROVISIONS OF THIS SECTION SHALL BE TRANSFERRED FROM THE PROPERTY TO THE PROCEEDS OF THE SALE OF THE PROPERTY. IF, HOWEVER, NO ONE SHALL BE FOUND CLAIMING THE TEAM, VEHICLE, WATER OR AIR CRAFT, OR AUTOMOBILE, THE TAKING OF THE SAME, WITH A DESCRIPTION THEREOF, SHALL BE ADVERTISED IN SOME NEWSPAPER PUBLISHED IN THE CITY OR COUNTY WHERE TAKEN OR IF THERE BE NO NEWSPAPER PUBLISHED IN SUCH CITY OR COUNTY, IN A NEWSPAPER HAVING CIRCULATION IN THE COUNTY, ONCE A WEEK FOR TWO WEEKS AND BY HANDBILLS POSTED IN THREE PUBLIC PLACES NEAR THE PLACE OF SEIZURE, AND IF NO CLAIMANT SHALL APPEAR WITHIN TEN DAYS AFTER THE LAST PUBLICATION OF THE ADVERTISEMENT, THE PROPERTY SHALL BE SOLD AND THE PROCEEDS AFTER DEDUCTING THE EXPENSES AND COSTS SHALL BE PAID INTO THE TREASURY OF THE UNITED STATES AS MISCELLANEOUS RECEIPTS.

THE TRUCK WAS NOT SOLD PURSUANT TO A FORFEITURE DECREE OF THE COURT UNDER THE PROVISIONS OF THE LAST SENTENCE OF SECTION 26 OF THE ACT, QUOTED, PROVIDING FOR ADMINISTRATIVE SALE OF SEIZED VEHICLES AFTER ADVERTISING WHERE NO ONE IS FOUND CLAIMING THE VEHICLE. THE CLAIMANT NOW URGES THAT THE CRIMINAL PROCEEDINGS WERE NOT DISPOSED OF UNTIL JUNE 23, 1930, AND THAT THE ADMINISTRATIVE SALE OF THE TRUCK TWO DAYS LATER, ON JUNE 25, 1930, WAS IRREGULAR AND UNAUTHORIZED BECAUSE THE STATUTE REQUIRES ADVERTISING ONCE A WEEK FOR TWO WEEKS AND A LAPSE OF 10 DAYS AFTER THE LAST PUBLICATION BEFORE THE SALE IS MADE, AND, THEREFORE, THAT ITS CLAIM FOR THE TRUCK, ASSERTED ON JULY 2, 1930, WAS TIMELY MADE.

ACCORDING TO THE ADMINISTRATIVE REPORT OF THE COMMISSIONER OF INDUSTRIAL ALCOHOL IN THE MATTER, THE UNITED STATES ATTORNEY ADVISED THE PROHIBITION ADMINISTRATOR ON JUNE 23, 1930, THAT THE CRIMINAL CASE AGAINST THE DEFENDANTS WHO WERE ARRESTED WHEN THE TRUCK WAS SEIZED WAS DISMISSED APRIL 25, 1930. THUS IT APPEARS THE CRIMINAL PROCEEDINGS WERE ACTUALLY DISPOSED OF ON APRIL 25, 1930, AND NOT ON JUNE 23, 1930, AS ASSERTED BY CLAIMANT, BUT, HOWEVER THAT MAY BE, IT IS NOT DECISIVE OF THE MATTER. THE ACT DOES NOT REQUIRE THAT AN ADMINISTRATIVE SALE OF AN UNCLAIMED VEHICLE SEIZED PURSUANT TO THE ACT BE DELAYED UNTIL AFTER THE DISPOSITION OF ANY CRIMINAL PROCEEDINGS IN CONNECTION THEREWITH. THE ACT PROVIDES THAT UPON THE SEIZURE OF THE VEHICLE THE PERSON IN CHARGE SHALL BE ARRESTED AND PROCEEDED AGAINST CRIMINALLY AND THE VEHICLE RETURNED TO THE OWNER UNDER BOND TO RETURN THE PROPERTY ON THE DAY OF TRIAL TO ABIDE THE JUDGMENT OF THE COURT, BUT, IF, HOWEVER, NO ONE IS FOUND CLAIMING THE VEHICLE, ITS SEIZURE AND DESCRIPTION SHALL BE ADVERTISED FOR TWO WEEKS AND IF NO CLAIMANT APPEARS WITHIN 10 DAYS AFTER THE LAST PUBLICATION, IT SHALL BE SOLD AND THE MONEY PAID INTO THE TREASURY OF THE UNITED STATES AS MISCELLANEOUS RECEIPTS. THE ADMINISTRATIVE SALE WHERE NO CLAIMANT APPEARS IS NOT MADE CONTINGENT UPON, OR REQUIRED TO BE DELAYED UNTIL AFTER THE DISPOSITION OF ANY CRIMINAL PROCEEDINGS AGAINST THOSE ARRESTED AT THE TIME OF SEIZURE BUT THE ACT CLEARLY CONTEMPLATES A SPEEDY DISPOSITION OF THE PROPERTY WHERE NO ONE APPEARS AFTER THE SEIZURE TO CLAIM THE VEHICLE, AND MAKES NO PROVISION FOR THE PAYMENT OF LATER ASSERTED LIENS FROM THE PROCEEDS OF SUCH ADMINISTRATIVE SALES, PARTICULARLY WHERE SUCH LIENS HAVE NOT BEEN ESTABLISHED IN JUDICIAL PROCEEDINGS TO BE A PROPER CHARGE AGAINST THE VEHICLE AS REQUIRED BY THE ACT. SEE 11 COMP. GEN. 97.

THE RECORD BEFORE THIS OFFICE DOES NOT ESTABLISH THAT THE ADMINISTRATIVE SALE OF THE VEHICLE WAS IRREGULAR OR INVALID, AND, FURTHERMORE, AS THE PROCEEDS OF THE SALE HAVE BEEN PAID INTO THE TREASURY AS MISCELLANEOUS RECEIPTS AS DIRECTED BY THE STATUTE, AND MAY NOT BE WITHDRAWN EXCEPT IN PURSUANCE OF AN APPROPRIATION MADE BY LAW, NO FUNDS ARE AVAILABLE FOR PAYMENT OF THE CLAIM, EVEN IF IT COULD BE ESTABLISHED AS A VALID AND SUBSISTING OBLIGATION OF THE UNITED STATES.

ACCORDINGLY, UPON REVIEW, THE SETTLEMENT DISALLOWING THE CLAIM MUST BE AND IS SUSTAINED.