A-40098, APRIL 27, 1932, 11 COMP. GEN. 407

A-40098: Apr 27, 1932

Additional Materials:

Contact:

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

 

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

PROHIBITION ENFORCEMENT - SEIZED AUTOMOBILES WHERE AN AUTOMOBILE IS SEIZED BY A PROHIBITION OFFICER PURSUANT TO SECTION 26 OF THE NATIONAL PROHIBITION ACT OF OCTOBER 28. SAID AUTOMOBILE IS SOLD UNDER THE ADMINISTRATIVE SALE PROVISIONS OF THE ACT AND THE NET PROCEEDS OF THE SALE COVERED INTO THE TREASURY AS "MISCELLANEOUS RECEIPTS. " IN THE ABSENCE OF A SHOWING THAT THE ADMINISTRATIVE ACTION WAS IRREGULAR OR OTHERWISE THAN REQUIRED BY THE STATUTE. IT APPEARS THE AUTOMOBILE WAS SEIZED SEPTEMBER 8. WHO WAS ARRESTED AT THE TIME FOR TRANSPORTATION OF A PINT OF WHISKEY. THAT THE ARREST AND SEIZURE WERE ADOPTED BY FEDERAL PROHIBITION AUTHORITIES. THAT THE DEFENDANT WAS ARRAIGNED SEPTEMBER 9.

A-40098, APRIL 27, 1932, 11 COMP. GEN. 407

PROHIBITION ENFORCEMENT - SEIZED AUTOMOBILES WHERE AN AUTOMOBILE IS SEIZED BY A PROHIBITION OFFICER PURSUANT TO SECTION 26 OF THE NATIONAL PROHIBITION ACT OF OCTOBER 28, 1919, 41 STAT. 315, IN CONNECTION WITH THE ILLEGAL TRANSPORTATION OF INTOXICATING LIQUOR, AND AFTER DUE ADVERTISING, NO CLAIMANT HAVING APPEARED, SAID AUTOMOBILE IS SOLD UNDER THE ADMINISTRATIVE SALE PROVISIONS OF THE ACT AND THE NET PROCEEDS OF THE SALE COVERED INTO THE TREASURY AS "MISCELLANEOUS RECEIPTS," IN THE ABSENCE OF A SHOWING THAT THE ADMINISTRATIVE ACTION WAS IRREGULAR OR OTHERWISE THAN REQUIRED BY THE STATUTE, THERE APPEARS NO BASIS TO REPORT THE MATTER TO THE CONGRESS AS AN EQUITABLE CLAIM PURSUANT TO THE ACT OF APRIL 10, 1928, 45 STAT. 413, FOR PAYMENT OF THE AMOUNT RECEIVED TO THE ALLEGED INNOCENT OWNER OF THE AUTOMOBILE.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 27, 1932:

CONSIDERATION HAS BEEN GIVEN TO THE REQUEST OF ELINOR FAREIRA THAT THERE BE REPORTED TO THE CONGRESS PURSUANT TO THE ACT OF APRIL 10, 1928, 45 STAT. 413, HER CLAIM FOR $325 AS THE AMOUNT DERIVED FROM THE SALE OF HER BUICK AUTOMOBILE BY PROHIBITION AUTHORITIES.

IT APPEARS THE AUTOMOBILE WAS SEIZED SEPTEMBER 8, 1929, BY NEW YORK CITY POLICE FROM ROBERT FAREIRA, THE CLAIMANT'S BROTHER, WHO WAS ARRESTED AT THE TIME FOR TRANSPORTATION OF A PINT OF WHISKEY; THAT THE ARREST AND SEIZURE WERE ADOPTED BY FEDERAL PROHIBITION AUTHORITIES; THAT THE DEFENDANT WAS ARRAIGNED SEPTEMBER 9, 1929, BEFORE A UNITED STATES COMMISSIONER CHARGED WITH TRANSPORTATION AND POSSESSION OF INTOXICATING LIQUOR AND HELD FOR FURTHER HEARING; THAT THE CASE WAS PRESENTED TO A FEDERAL GRAND JURY SEPTEMBER 26, 1929, BUT NO INDICTMENT WAS RETURNED; THAT NO FURTHER CRIMINAL PROCEEDINGS WERE HAD IN THE CASE, AND THAT, SUBSEQUENTLY, ON APRIL 8, 1930, NO ONE HAVING APPEARED TO CLAIM THE AUTOMOBILE, IT WAS ADVERTISED AND SOLD BY THE PROHIBITION AUTHORITIES FOR $325 AND THE PROCEEDS OF THE SALE COVERED INTO THE TREASURY OF THE UNITED STATES AS MISCELLANEOUS RECEIPTS PURSUANT TO THE PROVISIONS OF SECTION 26 OF THE NATIONAL PROHIBITION ACT OF OCTOBER 28, 1919, 41 STAT. 315.

THE PROHIBITION ADMINISTRATOR FOR THAT DISTRICT REPORTED FEBRUARY 9, 1931, RELATIVE TO THE SALE THAT---

4. DURING ALL THE TIME THE CAR WAS IN THE POSSESSION OF THE ADMINISTRATOR, NO ONE MADE CLAIM TO IT AND THE OFFICE HAD NO KNOWLEDGE OF WHOM THE OWNER MIGHT BE. AFTER THE VEHICLE HAD REMAINED IN STORAGE UNCLAIMED, IT WAS ADVERTISED FOR SALE WITH OTHER VEHICLES AND WAS SOLD TO J. LIPPNER, OF PERTH AMBOY, NEW JERSEY, FOR $325.00.

5. THE CRIMINAL CHARGE AGAINST SAID ARTHUR FAREIRA WAS DISMISSED ON SEPTEMBER 26, 1929, BUT NO CLAIM WAS MADE BY ANYONE FOR THE RETURN OR RELEASE OF THE VEHICLE PRIOR TO THE DATE OF SALE ON APRIL 8, 1930. THE FIRST CLAIM OF ANY KIND BEING MADE ON AUGUST 28, 1930, WHEN ARTHUR A. KESTLER, ATTORNEY FOR ELINOR FAREIRA, WROTE THIS OFFICE REQUESTING INFORMATION ABOUT THE DISPOSITION OF THE CAR. THIS OFFICE THEREUPON ADVISED MR. KESTLER OF THE SALE OF THE CAR AND THE AUTHORITY THEREFOR.

THE CLAIMANT, ELINOR FAREIRA, STATES THAT SHE WAS THE OWNER OF THE AUTOMOBILE; THAT SHE HAD NO KNOWLEDGE OF THE FACT THAT THE SAID AUTOMOBILE WAS TO BE USED FOR ILLEGAL PURPOSES; THAT IT WAS SOLD WITHOUT NOTICE TO HERE AND WITHOUT THE FILING OF ANY LIBEL OR ACTION OF FORFEITURE AGAINST THE AUTOMOBILE; AND THAT THE FIRST KNOWLEDGE SHE HAD OF THE DISPOSITION OF THE AUTOMOBILE WAS WHEN SHE ASKED FOR ITS RETURN AND WAS INFORMED IT HAD BEEN SOLD.

OTHER EVIDENCE WITH THE CASE INDICATES THAT THE PROHIBITION AUTHORITIES DID HAVE CLAIMANT'S NAME AND ADDRESS AS OWNER OF THE CAR, AND THE SAID PROHIBITION ADMINISTRATOR AT NEW YORK HAS REPORTED FURTHER, UNDER DATE OF APRIL 6, 1932, WITH REFERENCE TO THE REASON PERSONAL NOTICE WAS NOT GIVEN OF THE PROPOSED SALE OF THE AUTOMOBILE THAT THE OWNER WAS NOTIFIED IN ACCORDANCE WITH CIRCULAR LETTER NO. 317 OF "RIGHTS TO BOND OUT THE CAR," BUT AS NO RESPONSE WAS RECEIVED THE CAR WAS SUBSEQUENTLY SOLD AND THAT "IT IS NOT THE PRACTICE OF THIS OFFICE TO SEND NOTICES OF SALE TO INDIVIDUALS OTHER THAN TO ADVERTISE SAME AS PROVIDED FOR IN THE REGULATIONS.'

THE RECORD BEFORE THIS OFFICE DOES NOT ESTABLISH THAT THE ADMINISTRATIVE SALE OF THE VEHICLE WAS IRREGULAR OR INVALID. SECTION 26 OF THE NATIONAL PROHIBITION ACT, SUPRA, PROVIDES THAT UPON THE SEIZURE OF A 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 BY NEWSPAPER AND POSTED HANDBILLS 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 DIRECTED BY THE STATUTE WHERE NO CLAIMANT APPEARS TO CLAIM THE VEHICLE IS NOT MADE CONTINGENT ON THE RESULT OF ANY CRIMINAL PROCEEDINGS IN THE CASE OR UPON ANY LIBEL OR DECREE OF FORFEITURE BY THE COURT, NOR IS PERSONAL NOTICE TO THE OWNER REQUIRED, BUT THE ACT CLEARLY CONTEMPLATES THE DISPOSITION OF THE SEIZED PROPERTY BY THE ADMINISTRATIVE AUTHORITIES AND WITHOUT COURT ACTION WHERE NO ONE APPEARS AFTER ADVERTISEMENT OF THE SEIZURE AND CONTEMPLATED SALE, AND IT MAKES NO PROVISION FOR THE PAYMENT OF THE PROCEEDS OF SUCH SALES TO PERSONS SUBSEQUENTLY APPEARING FOR THE FIRST TIME CLAIMING AN INTEREST IN THE SEIZED VEHICLE. SEE A-39093, DECEMBER 17, 1931, 11 COMP. GEN. 241.

IN A SIMILAR CASE DECIDED SEPTEMBER 3, 1931, 11 COMP. GEN. 97, 99, WHERE A LIENOR DID NOT LEARN OF THE SEIZURE OF AN AUTOMOBILE, WHICH IT CLAIMED UNDER A CHATTEL MORTGAGE, UNTIL AFTER THE ADMINISTRATIVE SALE OF THE VEHICLE BY PROHIBITION OFFICERS, AND THEREUPON REQUESTED THAT THE MATTER BE REPORTED TO THE CONGRESS BY THIS OFFICE AS AN EQUITABLE CLAIM, IT WAS SAID:

WITH REFERENCE TO THE REQUEST THAT THE MATTER BE REPORTED TO THE CONGRESS AS AN EQUITABLE CLAIM PURSUANT TO THE ACT OF APRIL 10, 1928, IT DOES NOT APPEAR THAT THE ADMINISTRATIVE ACTION TAKEN IN CONNECTION WITH THE SEIZURE, ADVERTISEMENT, AND SALE OF THE PROPERTY WAS OTHERWISE THAN REQUIRED BY THE STATUTE OR THAT SUCH ACTION DISREGARDED ANY RIGHTS OF THE CLAIMANT. THE CLAIMANT'S FAILURE TO TAKE NOTICE OF THE ADVERTISED SEIZURE AND CONTEMPLATED SALE AND TO PURSUE THE REMEDY FOR THE PROTECTION OF ITS LIEN, EXPRESSLY AUTHORIZED BY THE STATUTE, * * * MAY HAVE CAUSED IT SOME LOSS, BUT IN THIS THE GOVERNMENT WAS NOT AT FAULT AND SUCH CIRCUMSTANCES MAY NOT BE CONSIDERED AS CREATING EQUITIES IN FAVOR OF THE CLAIMANT MAKING THE CLAIM ONE TO BE REPORTED PURSUANT TO THE ACT OF APRIL 10, 1928, AS DESERVING THE CONSIDERATION OF THE CONGRESS. * * *

IN ONE ASPECT THE ALLEGED EQUITIES OF THE PRESENT CASE ARE EVEN LESS THAT IN THAT CASE BECAUSE THERE THE CLAIMANT ALLEGED THAT IT DID NOT EVEN KNOW OF THE SEIZURE UNTIL LONG AFTER THE ADMINISTRATIVE SALE OF THE VEHICLE, WHILE HERE THE CLAIMANT KNEW OF THE SEIZURE AND COULD READILY HAVE MADE KNOWN TO THE AUTHORITIES AT ANY TIME DURING THE SEVEN MONTHS ELAPSING BETWEEN THE SEIZURE AND THE SALE HER CLAIMED OWNERSHIP OF THE AUTOMOBILE AND DEMANDED ITS RETURN. BUT, HOWEVER THAT MAY BE, ANY HARDSHIP IN THE CASE IS ONE CREATED BY THE TERMS OF THE STATUTE AND THE CLAIMANT'S FAILURE TO PROTECT HER OWN INTERESTS THEREUNDER, AND THERE APPEARS NO BASIS TO DISTINGUISH THIS CASE IN PRINCIPLE FROM OTHER SUCH CASES OR TO WARRANT THIS OFFICE RECOMMENDING TO THE CONGRESS THAT THE CLAIMANT BE RELIEVED OF THE CONSEQUENCES OF THE OPERATION OF THE STATUTE WHICH THE CONGRESS HAS ENACTED TO GOVERN SUCH MATTERS.

WHILE THE CASE MIGHT BE VIEWED IN A DIFFERENT LIGHT IF IT WERE ESTABLISHED THAT THE ADMINISTRATIVE ACTION WAS IRREGULAR OR ILLEGAL, THAT DOES NOT APPEAR HERE, AND, ACCORDINGLY, THE CLAIMANT'S REQUEST THAT THE MATTER BE REPORTED TO THE CONGRESS AS AN EQUITABLE CLAIM MUST BE AND IS DENIED.