A-4505, AUGUST 19, 1924, 4 COMP. GEN. 191

A-4505: Aug 19, 1924

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ADVERTISING - SALE OF VEHICLES SEIZED UNDER THE NATIONAL PROHIBITION ACT WHEN A SEIZED VEHICLE IS ADVERTISED AND SOLD BY A FEDERAL PROHIBITION OFFICER WHO MADE THE SEIZURE UNDER THE PROVISIONS OF SECTION 26 OF THE ACT OF OCTOBER 28. IT IS COMPETENT FOR HIM. IS BY ORDER OF A COURT AFTER CONVICTION OF THE OWNER OR AFTER THE VEHICLE OTHERWISE COMES LAWFULLY INTO THE CUSTODY OF AN OFFICER OF A COURT. 1924: I HAVE YOUR LETTER OF AUGUST 4. IN CASES WHERE NO PERSON IS FOUND CLAIMING THE SEIZED VEHICLES. IN THIS CONNECTION IT MAY BE STATED THAT IT IS THE VIEW OF THIS DEPARTMENT THAT WHENEVER A VEHICLE WHICH HAS BEEN SEIZED FOR THE ILLEGAL TRANSPORTATION OF INTOXICATING LIQUOR HAS BEEN SURRENDERED TO THE CUSTODY OF A UNITED STATES MARSHAL OR OTHER OFFICER OF THE COURT BY A FEDERAL PROHIBITION OFFICER THE LATTER IS NOT CHARGED WITH ANY FURTHER RESPONSIBILITY REGARDING IT.

A-4505, AUGUST 19, 1924, 4 COMP. GEN. 191

ADVERTISING - SALE OF VEHICLES SEIZED UNDER THE NATIONAL PROHIBITION ACT WHEN A SEIZED VEHICLE IS ADVERTISED AND SOLD BY A FEDERAL PROHIBITION OFFICER WHO MADE THE SEIZURE UNDER THE PROVISIONS OF SECTION 26 OF THE ACT OF OCTOBER 28, 1919, 41 STAT. 315, IT IS COMPETENT FOR HIM, UNDER SUCH REGULATIONS AS THE SECRETARY OF THE TREASURY MAY PRESCRIBE, TO AUTHORIZE PUBLICATION OF THE ADVERTISEMENT. WHEN THE SALE OF A VEHICLE SEIZED UNDER THE PROVISIONS OF SECTION 26 OF THE ACT OF OCTOBER 28, 1919, 41 STAT. 315, IS BY ORDER OF A COURT AFTER CONVICTION OF THE OWNER OR AFTER THE VEHICLE OTHERWISE COMES LAWFULLY INTO THE CUSTODY OF AN OFFICER OF A COURT, THE PUBLICATION OF THE ADVERTISEMENT SHOULD BE AUTHORIZED BY THE COURT. A COURT ORDER TO ADVERTISE, UNDER SUCH CIRCUMSTANCES, WOULD NOT BE AN "ADVERTISEMENT NOTICE, OR PROPOSAL, FOR ANY EXECUTIVE DEPARTMENT OF THE GOVERNMENT," ETC., WITHIN THE INTENT AND MEANING OF SECTION 3828, REVISED STATUTES.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, AUGUST 19, 1924:

I HAVE YOUR LETTER OF AUGUST 4, 1924, IN WHICH YOU QUOTE SECTION 26 OF TITLE II OF THE NATIONAL PROHIBITION ACT OF OCTOBER 28, 1919, 41 STAT. 315 AND 316, AND REQUEST DECISION OF A QUESTION PRESENTED AS FOLLOWS:

FEDERAL PROHIBITION OFFICERS SURRENDER TO THE CUSTODY OF UNITED STATES MARSHALS ALL VEHICLES SEIZED BY THEM FOR THE ILLEGAL TRANSPORTATION OF INTOXICATING LIQUOR. IN SOME JURISDICTIONS, IN CASES WHERE NO PERSON IS FOUND CLAIMING THE SEIZED VEHICLES, IN ORDER TO COMPLY WITH THE REQUIREMENTS OF THE STATUTE, THE OFFICERS OF THE COURTS CALL UPON FEDERAL PROHIBITION DIRECTORS, TO WHOM THE SECRETARY OF THE TREASURY HAS DELEGATED AUTHORITY, TO ISSUE WRITTEN AUTHORIZATIONS FOR THE PUBLICATION OF THE ADVERTISEMENTS OF SALES. WHERE THIS PROCEDURE PREVAILS THE CONFUSION OF AUTHORITY AND DUTY SEEMS TO ARISE FROM THE EFFORTS ON THE PART OF THE OFFICERS OF THE COURTS AND THE PROHIBITION OFFICERS TO CONFORM WITH THE PROVISIONS OF SECTION 3828, REVISED STATUTES, WHICH PROVIDES:

"NO ADVERTISEMENT, NOTICE, OR PROPOSAL, FOR ANY EXECUTIVE DEPARTMENT OF THE GOVERNMENT, OR FOR ANY BUREAU THEREOF, OR FOR ANY OFFICE THEREWITH CONNECTED, SHALL BE PUBLISHED IN ANY NEWSPAPER WHATEVER, EXCEPT IN PURSUANCE OF A WRITTEN AUTHORITY FOR SUCH PUBLICATION FROM THE HEAD OF SUCH DEPARTMENT; AND NO BILL FOR ANY SUCH ADVERTISING, OR PUBLICATION, SHALL BE PAID UNLESS THERE BE PRESENTED, WITH SUCH A BILL, A COPY OF SUCH WRITTEN AUTHORITY.'

IN THIS CONNECTION IT MAY BE STATED THAT IT IS THE VIEW OF THIS DEPARTMENT THAT WHENEVER A VEHICLE WHICH HAS BEEN SEIZED FOR THE ILLEGAL TRANSPORTATION OF INTOXICATING LIQUOR HAS BEEN SURRENDERED TO THE CUSTODY OF A UNITED STATES MARSHAL OR OTHER OFFICER OF THE COURT BY A FEDERAL PROHIBITION OFFICER THE LATTER IS NOT CHARGED WITH ANY FURTHER RESPONSIBILITY REGARDING IT. AFTER THE VEHICLE IS PLACED IN THE CUSTODY OF THE COURT OR ITS OFFICERS IT WOULD SEEM THAT ITS RETENTION, RELEASE, OR SALE IS A MATTER FOR DECISION OF THE COURT, AND ANY DIRECTIONS OR ORDERS RESPECTING THE DISPOSITION OF THE VEHICLE PERTAINS TO LEGAL PROCEDURE THAT LIES SOLELY WITHIN THE JURISDICTION OF THE COURT OR ITS OFFICERS.

ACCORDINGLY YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER OR NOT, WHENEVER VEHICLES SEIZED FOR THE ILLEGAL TRANSPORTATION OF INTOXICATING LIQUOR ARE SURRENDERED BY FEDERAL PROHIBITION OFFICERS TO THE CUSTODY OF UNITED STATES MARSHALS OR OTHER OFFICERS OF THE COURT, AND THERE SHALL BE NO PERSON CLAIMING THE SAME, AND THE SALES THEREOF ARE TO BE ADVERTISED BY PUBLICATION IN NEWSPAPERS, SUCH ADVERTISING MUST BE BY WRITTEN AUTHORITY AS PRESCRIBED BY SECTION 3828, REVISED STATUTES, SUPRA. IF YOU HOLD IN THE AFFIRMATIVE, PLEASE STATE WHETHER IT IS THE DUTY OF THE SECRETARY OF THE TREASURY, OR HIS SUBORDINATE OFFICERS ACTING UNDER HIS DISCRETION, TO ISSUE THE WRITTEN AUTHORIZATIONS FOR THE ADVERTISING, OR DOES THIS DUTY DEVOLVE UPON THE ATTORNEY GENERAL OR HIS SUBORDINATE OFFICERS ACTING UNDER HIS AUTHORITY?

SECTION 26 OF TITLE II OF THE NATIONAL PROHIBITION ACT OF OCTOBER 28, 1919, 41 STAT. 315 AND 316, PROVIDES:

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 USED 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.

IN DECISION OF MARCH 25, 1924, 3 COMP. GEN. 682, IT WAS SAID THAT THE ENACTMENT PRESENTS THREE POSSIBLE CONDITIONS WITH RESPECT TO THE SEIZURE, TO WIT:

1. THE DELIVERY OF THE THING SEIZED TO THE OWNER UPON EXECUTION OF A BOND.

2. NO ONE FOUND CLAIMING AND IMMEDIATE SALE AFTER ADVERTISING.

3. OWNER APPEARING BUT REFUSING TO GIVE BOND.

AS TO 2, THE ENACTMENT CONTEMPLATES IMMEDIATE ADVERTISING AND SALE BY THE OFFICER MAKING THE SEIZURE WITHOUT WAITING FOR CONVICTION OR ANY OTHER ACTION BY THE COURT; THEREFORE, IN SUCH CASE, IT IS COMPETENT FOR THE FEDERAL PROHIBITION AGENT MAKING THE SEIZURE, UNDER SUCH REGULATIONS AS THE SECRETARY OF THE TREASURY MAY PRESCRIBE, TO AUTHORIZE THE ADVERTISEMENT OF THE SEIZURE AND A DESCRIPTION OF THE THING SEIZED, AND AFTER 10 DAYS FROM THE LAST PUBLICATION OF SUCH ADVERTISEMENT TO PROCEED WITH THE SALE AS DIRECTED IN THE STATUTE.

IN CASE OF SALE AFTER CONVICTION OF THE OWNER, OR IN ANY OTHER CASE OF SALE AFTER THE VEHICLE LAWFULLY COMES WITHIN THE CUSTODY AND JURISDICTION OF THE COURT OR AN OFFICER THEREOF, THE MATTER THEN APPEARS FOR THE COURT TO ORDER THE REQUIRED ADVERTISEMENT, THE EXPENSE THEREOF AS IN THE CASE OF ADVERTISEMENT AND SALE BY THE SEIZING OFFICER, TO BE PAID FROM THE PROCEEDS OF SALE. AN ORDER TO ADVERTISE, ISSUED BY THE COURT UNDER SUCH CIRCUMSTANCES, WOULD NOT BE AN "ADVERTISEMENT, NOTICE, OR PROPOSAL FOR ANY EXECUTIVE DEPARTMENT OF THE GOVERNMENT," ETC., WITHIN THE INTENT AND MEANING OF SECTION 3828, REVISED STATUTES.