A-90191, MAY 2, 1938, 17 COMP. GEN. 892

A-90191: May 2, 1938

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WILL NOT BE QUESTIONED MERELY BECAUSE THE COMPLAINT WAS NOT FIRST APPROVED IN WRITING BY A UNITED STATES ATTORNEY. NOTWITHSTANDING SUCH AGENTS AND INSPECTORS ARE NOT SPECIFICALLY MENTIONED IN SECTION 19 OF THE ACT OF MAY 28. ARE HONORED WITHOUT SUCH APPROVAL. FUNCTIONS INTERNAL REVENUE AGENTS FORMERLY HAD IN THE MATTER OF DETECTING AND PROSECUTING VIOLATORS OF THE NARCOTIC AND MARIHUANA TAX ACTS ARE NOW VESTED IN THE "AGENTS" AND "INSPECTORS" OF THE BUREAU OF NARCOTICS. 1938: THERE WAS RECEIVED YOUR LETTER OF APRIL 20. AS FOLLOWS: A QUESTION HAS ARISEN AS TO WHETHER A UNITED STATES COMMISSIONER IS REQUIRED TO ISSUE A WARRANT FOR THE ARREST OF PERSONS CHARGED WITH VIOLATING THE MARIHUANA TAX ACT OF 1937.

A-90191, MAY 2, 1938, 17 COMP. GEN. 892

FEES - UNITED STATES COMMISSIONERS - ISSUANCE OF WARRANTS WITHOUT APPROVAL OF UNITED STATES ATTORNEY FEES CLAIMED FOR ISSUANCE OF WARRANTS ON COMPLAINTS FILED WITH A UNITED STATES COMMISSIONER CHARGING VIOLATION OF NARCOTIC AND MARIHUANA TAX LAWS WHEN SWORN TO BY AN "AGENT" OR "INSPECTOR" OF THE BUREAU OF NARCOTICS, WILL NOT BE QUESTIONED MERELY BECAUSE THE COMPLAINT WAS NOT FIRST APPROVED IN WRITING BY A UNITED STATES ATTORNEY, NOTWITHSTANDING SUCH AGENTS AND INSPECTORS ARE NOT SPECIFICALLY MENTIONED IN SECTION 19 OF THE ACT OF MAY 28, 1896, AS AMENDED, AMONG THOSE, INCLUDING INTERNAL REVENUE AGENTS, WHOSE COMPLAINTS, AS TO VIOLATIONS OF THE INTERNAL REVENUE LAWS, ARE HONORED WITHOUT SUCH APPROVAL, IT APPEARING THAT ALL THE POWERS, DUTIES, AND FUNCTIONS INTERNAL REVENUE AGENTS FORMERLY HAD IN THE MATTER OF DETECTING AND PROSECUTING VIOLATORS OF THE NARCOTIC AND MARIHUANA TAX ACTS ARE NOW VESTED IN THE "AGENTS" AND "INSPECTORS" OF THE BUREAU OF NARCOTICS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE TREASURY, MAY 2, 1938:

THERE WAS RECEIVED YOUR LETTER OF APRIL 20, 1938, AS FOLLOWS:

A QUESTION HAS ARISEN AS TO WHETHER A UNITED STATES COMMISSIONER IS REQUIRED TO ISSUE A WARRANT FOR THE ARREST OF PERSONS CHARGED WITH VIOLATING THE MARIHUANA TAX ACT OF 1937, 50 STAT. 551 (U.S.C., SUP. III, TITLE 26, SEC. 1399), UPON THE SWORN COMPLAINT OF INSPECTORS OR AGENTS OF THE BUREAU OF NARCOTICS, IN THE ABSENCE OF PRIOR WRITTEN APPROVAL OF SUCH COMPLAINT BY A UNITED STATES ATTORNEY. THE UNITED STATES COMMISSIONER AT SAN ANTONIO, TEXAS, INQUIRED OF YOUR OFFICE WHETHER THE COMMISSIONER'S FEES WOULD BE ALLOWED IN SUCH CIRCUMSTANCES. IN A LETTER DATED NOVEMBER 23, 1937, YOU RULED THAT UNLESS THE NARCOTIC AGENT OR INSPECTOR UPON WHOSE SWORN COMPLAINT IT IS DESIRED TO ISSUE THE WARRANT IS A COLLECTOR OR DEPUTY COLLECTOR OF INTERNAL REVENUE, OR A REVENUE AGENT, THERE IS NO LEGAL AUTHORITY FOR THE ISSUANCE OF A WARRANT IN THE ABSENCE OF WRITTEN APPROVAL OF THE COMPLAINT BY A UNITED STATES DISTRICT ATTORNEY.

AS A CONSEQUENCE OF THE ABOVE RULING, THE ENFORCEMENT OF THE MARIHUANA TAX ACT OF 1937 IS BEING IMPAIRED BECAUSE OF THE DIFFICULTY OF PROMPTLY SECURING WARRANTS FOR THE ARREST OF SUSPECTED VIOLATORS. UNDER THAT RULING, SERIOUS DELAYS IN THE ISSUANCE OF WARRANTS MAY RESULT FROM THE FACT THAT A UNITED STATES DISTRICT ATTORNEY IS NOT ALWAYS READILY AVAILABLE TO APPROVE THE COMPLAINT. FREQUENTLY, THE HEADQUARTERS OF THE UNITED STATES DISTRICT ATTORNEY IS REMOTE FROM THE OFFICE OF THE COMMISSIONER BEFORE WHOM THE NARCOTIC AGENT OR INSPECTOR APPEARS.

AT MY REQUEST, THE GENERAL COUNSEL FOR THE TREASURY HAS PREPARED A MEMORANDUM OF THE LEGAL AND HISTORICAL ASPECTS OF THIS PROBLEM WHICH I ENCLOSE FOR SUCH USE AS YOU MAY FIND FOR IT. IT SEEMS TO ME LIKELY THAT, WITH THE INFORMATION CONTAINED IN THIS MEMORANDUM, YOU MAY FIND A BASIS FOR RECONSIDERING YOUR RULING OF LAST NOVEMBER.

I ASSURE YOU THAT IT WILL BE OF GREAT ASSISTANCE TO THIS DEPARTMENT IF YOU SHOULD DISCOVER THAT YOU ARE NOW ABLE TO ARRIVE AT A CONCLUSION IN THIS MATTER FAVORABLE TO THE NEEDS OF OUR ENFORCEMENT ACTIVITIES.

IN THE MEMORANDUM DATED MARCH 14, 1938, OF THE GENERAL COUNSEL FOR THE TREASURY DEPARTMENT TO WHICH YOU REFER IN THE THIRD PARAGRAPH OF YOUR SAID LETTER, IT IS STATED:

SECTION 19 OF THE ACT OF MAY 28, 1896, 29 STAT. 184, AS AMENDED BY THE ACT OF MARCH 2, 1901, 31 STAT. 956 (U.S.C. TITLE 18, SEC. 594), AS IT APPEARS IN THE CODE, PROVIDES:

"EXCEPT AS PROVIDED IN SECTION 591 OF TITLE 28, WARRANTS OF ARREST FOR VIOLATIONS OF INTERNAL REVENUE LAWS MAY BE ISSUED BY UNITED STATES COMMISSIONERS UPON THE SWORN COMPLAINT OF A UNITED STATES DISTRICT ATTORNEY, ASSISTANT UNITED STATES DISTRICT ATTORNEY, COLLECTOR OR DEPUTY COLLECTOR OF INTERNAL REVENUE, OR REVENUE AGENT OR PRIVATE CITIZEN; BUT NO SUCH WARRANT OF ARREST SHALL BE ISSUED UPON THE SWORN COMPLAINT OF A PRIVATE CITIZEN UNLESS FIRST APPROVED IN WRITING BY UNITED STATES DISTRICT ATTORNEY.'

THE NARCOTIC AGENTS AND INSPECTORS CHARGED WITH ENFORCING THE HARRISON NARCOTIC ACT AND THE MARIHUANA TAX ACT OF 1937 ARE NOT EXPRESSLY INCLUDED IN THE FOREGOING STATUTORY ENUMERATION OF PERSONS UPON WHOSE SWORN COMPLAINT THE UNITED STATES COMMISSIONER SHALL ISSUE A WARRANT OF ARREST WITHOUT THE PRIOR WRITTEN APPROVAL OF A UNITED STATES DISTRICT ATTORNEY. NEVERTHELESS, IT IS SUBMITTED THAT WARRANTS SHOULD BE SO ISSUED IN THE CASE OF NARCOTIC AGENTS AND INSPECTORS BECAUSE, WITH RESPECT TO THE ENFORCEMENT OF THE LAWS RELATING TO NARCOTICS, THEY HAVE BY LAW SUCCEEDED TO THE FUNCTIONS OF THE REVENUE AGENTS EXPRESSLY INCLUDED IN THE STATUTE.

BY SECTION 10 OF THE HARRISON NARCOTIC ACT, 38 STAT. 789 (U.S.C., TITLE 26, SEC. 1050), THE COMMISSIONER OF INTERNAL REVENUE WAS AUTHORIZED TO APPOINT SUCH AGENTS, INSPECTORS, ETC., AS MIGHT BE NECESSARY TO ENFORCE THE PROVISIONS OF THE ACT. BUT THE NARCOTICS FUNCTIONS EXERCISED BY REVENUE AGENTS PURSUANT TO THAT PROVISION HAVE SINCE DEVOLVED UPON THE AGENTS AND INSPECTORS OF THE BUREAU OF NARCOTICS. BY SECTION 4 (A) OF THE ACT OF MARCH 3, 1927, 44 STAT. 1382 (U.S.C., TITLE 5, SEC. 281 (C) ( ALL THE "RIGHTS, PRIVILEGES, POWERS, AND DUTIES CONFERRED OR IMPOSED UPON THE COMMISSIONER OF INTERNAL REVENUE AND HIS ASSISTANTS, AGENTS, AND INSPECTORS" WITH RESPECT TO NARCOTICS WERE TRANSFERRED TO THE SECRETARY OF THE TREASURY. SECTION 4 (B) AUTHORIZED THE SECRETARY "TO CONFER OR IMPOSE ANY OF SUCH RIGHTS, PRIVILEGES, POWERS, AND DUTIES UPON THE COMMISSIONER OF PROHIBITION, OR ANY OF THE OFFICERS OR EMPLOYEES OF THE BUREAU OF PROHIBITION.' UNDER THE AUTHORITY CONFERRED BY THE ABOVE STATUTE, THE SECRETARY, ON APRIL 1, 1927, ISSUED AN ORDER (BUREAU OF PROHIBITION T.D. NO. 1) PROVIDING THAT---

"THERE ARE HEREBY CONFERRED AND IMPOSED UPON THE COMMISSIONER OF INTERNAL REVENUE (AND WHICH ARE TRANSFERRED TO AND CONFERRED AND IMPOSED UPON THE SECRETARY OF THE TREASURY BY SUBDIVISION "A" OF SECTION 4 OF THE ABOVE ACT OF MARCH 3, 1927) BY THE HARRISON NARCOTIC ACT, AS AMENDED, OR BY THE ACT ENTITLED "AN ACT REGULATING THE MANUFACTURE OF SMOKING OPIUM WITHIN THE UNITED STATES AND FOR OTHER PURPOSES," APPROVED JANUARY 17, 1914, IN SO FAR AS SUCH RIGHTS, PRIVILEGES, POWERS, AND DUTIES RELATE TO---

" "/A) THE INVESTIGATION AND THE DETECTION AND PUNISHMENT OF VIOLATIONS OF EITHER OF THE ABOVE LAWS, OR ANY REGULATIONS ISSUED THEREUNDER; * *

"THERE ARE HEREBY CONFERRED AND IMPOSED UPON THE OFFICERS AND EMPLOYEES OF THE BUREAU OF PROHIBITION, INCLUDING THE AGENTS, INSPECTORS, AND OTHER EMPLOYEES IN THE FIELD SERVICE OF THE BUREAU OF PROHIBITION, ALL THE RIGHTS, PRIVILEGES, POWERS, AND DUTIES CONFERRED OR IMPOSED UPON THE ASSISTANTS, AGENTS, AND INSPECTORS OF THE COMMISSIONER OF INTERNAL REVENUE (AND WHICH ARE TRANSFERRED TO AND CONFERRED AND IMPOSED UPON THE SECRETARY OF THE TREASURY BY SUBDIVISION "A" OF SECTION 4 OF THE ABOVE ACT OF MARCH 3, 1927), BY EITHER OF THE LAWS REFERRED TO IN SECTION VI OF THIS ORDER, IN SO FAR AS SUCH RIGHTS, PRIVILEGES, POWERS, AND DUTIES RELATE TO ANY OF THE MATTERS REFERRED TO IN PARAGRAPHS (A) TO (J), INCLUSIVE, OF SUCH SECTION. ALL SUCH OFFICERS AND EMPLOYEES OF THE BUREAU OF PROHIBITION, INCLUDING THE AGENTS, INSPECTORS, AND OTHER EMPLOYEES IN THE FIELD SERVICE OF THE BUREAU OF PROHIBITION, SHALL HAVE, IN THE PERFORMANCE OF THEIR FUNCTIONS UNDER THE NARCOTIC DRUG LAWS, ALL THE RIGHTS, PRIVILEGES, AND POWERS OF THE INTERNAL-REVENUE OFFICERS.'

PURSUANT TO THE ABOVE ORDER OF THE SECRETARY, VIOLATIONS OF THE ACT OF DECEMBER 17, 1914 (THE HARRISON NARCOTIC ACT), AS AMENDED, WERE HANDLED BY THE AGENTS OF THE BUREAU OF PROHIBITION UNTIL JULY 1, 1930, ON WHICH DATE THERE WAS ESTABLISHED THE BUREAU OF NARCOTICS PURSUANT TO SECTION 1 OF THE ACT OF JUNE 14, 1930, 46 STAT. 585 (U.S.C., TITLE 5, SEC. 282). SECTION 3 (B) OF THAT ACT, 46 STAT. 586 (U.S.C., TITLE 5, SEC. 282B (B) ( PROVIDED:

"THE SECRETARY OF THE TREASURY IS AUTHORIZED TO CONFER OR IMPOSE ANY OF THE RIGHTS, PRIVILEGES, POWERS, AND DUTIES IN RESPECT OF NARCOTIC DRUGS ENUMERATED IN SUBDIVISION (A) OF SECTION 4 OF THE ACT ENTITLED "AN ACT TO CREATE A BUREAU OF CUSTOMS AND A BUREAU OF PROHIBITION IN THE DEPARTMENT OF THE TREASURY," APPROVED MARCH 3, 1927 (U.S.C., TITLE 5, SEC. 281C), UPON THE COMMISSIONER OF NARCOTICS, OR ANY OFFICER OR EMPLOYEE OF THE BUREAU OF NARCOTICS.'

UNDER THE AUTHORITY CONFERRED BY THE FOREGOING ACT, THE SECRETARY ISSUED AN ORDER (NARCOTIC T.D. NO. 2, JULY 1, 1930) PROVIDING:

"THERE ARE HEREBY CONFERRED AND IMPOSED UPON THE COMMISSIONER OF PROHIBITION, SUBJECT TO THE GENERAL SUPERVISION AND DIRECTION OF THE SECRETARY OF THE TREASURY, ALL THE RIGHTS, PRIVILEGES, POWERS, AND DUTIES CONFERRED OR IMPOSED UPON THE COMMISSIONER OF INTERNAL REVENUE (AND WHICH ARE TRANSFERRED TO AND CONFERRED AND IMPOSED UPON THE SECRETARY OF THE TREASURY BY SUBDIVISION "A" OF SECTION 4 OF THE ABOVE ACT OF MARCH 3, 1927) BY THE HARRISON NARCOTIC ACT, AS AMENDED, OR BY THE ACT ENTITLED "AN ACT REGULATING THE MANUFACTURE OF SMOKING OPIUM WITHIN THE UNITED STATES AND FOR OTHER PURPOSES," APPROVED JANUARY 17, 1914, IN SO FAR AS SUCH RIGHTS, PRIVILEGES, POWERS, AND DUTIES RELATE TO---

" "/A) THE INVESTIGATION AND THE DETECTION AND PUNISHMENT OF VIOLATIONS OF EITHER OF THE ABOVE LAWS OR ANY REGULATIONS ISSUED THEREUNDER; * * *.'

"THERE ARE HEREBY CONFERRED AND IMPOSED UPON THE OFFICERS AND EMPLOYEES OF THE BUREAU OF NARCOTICS, INCLUDING THE AGENTS, INSPECTORS, AND OTHER EMPLOYEES IN THE FIELD SERVICE, ALL THE RIGHTS, PRIVILEGES, POWERS, AND DUTIES CONFERRED OR IMPOSED UPON THE ASSISTANTS, AGENTS, AND INSPECTORS OF THE COMMISSIONER OF INTERNAL REVENUE (AND WHICH ARE TRANSFERRED TO AND CONFERRED AND IMPOSED UPON THE SECRETARY OF THE TREASURY BY SUBDIVISION (A) OF SECTION 4 OF THE ACT OF MARCH 3, 1927, BY ANY NARCOTIC LAW IN SO FAR AS SUCH RIGHTS, PRIVILEGES, POWERS, AND DUTIES RELATE TO ANY OF THE MATTERS REFERRED TO IN PARAGRAPHS (A) TO (J), INCLUSIVE, OF SECTION III OF THIS ORDER. ALL SUCH OFFICERS AND EMPLOYEES OF THE BUREAU OF NARCOTICS, INCLUDING THE AGENTS, INSPECTORS, AND OTHER EMPLOYEES OF THE FIELD SERVICE, SHALL HAVE, IN THE PERFORMANCE OF THEIR FUNCTIONS UNDER THE NARCOTIC DRUG LAWS, ALL THE RIGHTS, PRIVILEGES, AND POWERS OF INTERNAL REVENUE OFFICERS.'

SECTION 14 OF THE MARIHUANA TAX ACT OF 1937, 50 STAT. 556 (U.S.C., SUP. III, TITLE 26, SEC. 1399 (M) ( PROVIDES:

"THE SECRETARY IS AUTHORIZED TO MAKE, PRESCRIBE, AND PUBLISH ALL NECESSARY RULES AND REGULATIONS FOR CARRYING OUT THE PROVISIONS OF THIS ACT AND TO CONFER OR IMPOSE ANY OF THE RIGHTS, PRIVILEGES, POWERS, AND DUTIES CONFERRED OR IMPOSED UPON HIM BY THIS ACT UPON SUCH OFFICERS OR EMPLOYEES OF THE TREASURY DEPARTMENT AS HE SHALL DESIGNATE OR APPOINT.'

PURSUANT TO THE AUTHORITY CONFERRED BY THE ABOVE SECTION, THE SECRETARY ISSUED AN ORDER (T.D. NO. 28, SEPTEMBER 1, 1937) PROVIDING:

"THE INVESTIGATION AND DETECTION, AND PRESENTATION TO PROSECUTING OFFICERS OF EVIDENCE, OF VIOLATION OF THE MARIHUANA TAX ACT OF 1937, SHALL BE THE DUTY OF THE COMMISSIONER OF NARCOTICS AND THE ASSISTANTS, AGENTS, INSPECTORS, OR EMPLOYEES UNDER HIS DIRECTION. EXCEPT AS SPECIFICALLY INCONSISTENT WITH THE TERMS OF SAID ACT AND OF THE ORDER, THE COMMISSIONER OF NARCOTICS AND THE COMMISSIONER OF INTERNAL REVENUE AND THE ASSISTANTS, AGENTS, INSPECTORS, OR EMPLOYEES OF THE BUREAU OF NARCOTICS AND THE BUREAU OF INTERNAL REVENUE, RESPECTIVELY, SHALL HAVE THE SAME POWERS AND DUTIES IN SAFEGUARDING THE REVENUE THEREUNDER AS THEY NOW HAVE WITH RESPECT TO THE ENFORCEMENT OF, AND COLLECTION OF THE REVENUE UNDER THE ACT OF DECEMBER 17, 1914, AS AMENDED.'

ON THE BASIS OF THE FOREGOING STATUTES AND THE ORDERS ISSUED PURSUANT TO THEM, IT IS EVIDENT THAT THE AGENTS AND INSPECTORS OF THE BUREAU OF NARCOTICS ARE NOW CHARGED BY LAW WITH THE DUTY OF ENFORCING THE ACT OF DECEMBER 17, 1914, AS AMENDED (THE HARRISON NARCOTIC ACT), AND THE MARIHUANA TAX ACT OF 1937. SINCE THE FUNCTIONS RELATING TO THE NARCOTICS LAWS FORMERLY EXERCISED BY THE INTERNAL REVENUE AGENTS AND INSPECTORS HAVE DEVOLVED UPON THE AGENTS AND INSPECTORS OF THE BUREAU OF NARCOTICS, THEY MUST BE DEEMED "REVENUE AGENTS" WITHIN THE MEANING OF THE ACT OF MAY 28, 1896, AS AMENDED, SUPRA. IT SEEMS, THEREFORE, THAT UNITED STATES COMMISSIONERS ARE REQUIRED TO ISSUE WARRANTS ON THEIR SWORN COMPLAINT, AND PRIOR APPROVAL OF A UNITED STATES ATTORNEY IS UNNECESSARY. * * *

IT THUS APPEARS THAT IN ACCORDANCE WITH STATUTORY AUTHORIZATION AND THE ADMINISTRATIVE REGULATIONS ISSUED PURSUANT THERETO, THE EMPLOYEES OF BUREAU OF NARCOTICS, TREASURY DEPARTMENT--- WHICH BUREAU HAS GENERAL SUPERVISION OF THE ENFORCEMENT OF THE HARRISON NARCOTIC ACT, THE MARIHUANA TAX ACT OF 1937, AND RELATED STATUTES--- WHO ARE DESIGNATED AS "AGENTS" AND "INSPECTORS" NOW ARE INVESTED WITH ALL THE POWERS, DUTIES, AND FUNCTIONS THAT THE INTERNAL REVENUE AGENTS FORMERLY HAD IN THE MATTER OF DETECTING AND PROSECUTING VIOLATORS OF THE NARCOTIC AND MARIHUANA TAX ACTS. THEREFORE, IT APPEARS THAT OPERATIVES OF THE BUREAU OF NARCOTICS, TREASURY DEPARTMENT, WHO HAVE BEEN APPOINTED AS "AGENTS" AND "INSPECTORS," ARE NOW CHARGED WITH THE DUTY OF APPREHENDING VIOLATORS OF THE INTERNAL REVENUE NARCOTIC AND MARIHUANA TAX LAWS, HAVING SUCCEEDED THE INTERNAL REVENUE AGENTS AS TO SUCH DUTY.

ACCORDINGLY, THIS OFFICE WILL NOT FURTHER QUESTION OTHERWISE ALLOWABLE FEES CLAIMED FOR THE ISSUANCE OF WARRANTS ON COMPLAINTS FILED WITH A UNITED STATES COMMISSIONER CHARGING VIOLATION OF THE TREASURY DEPARTMENT NARCOTIC AND MARIHUANA TAX LAWS WHEN SWORN TO BY AN "AGENT" OR AN ,INSPECTOR" OF THE BUREAU OF NARCOTICS, TREASURY DEPARTMENT, MERELY BECAUSE THE COMPLAINT WAS NOT FIRST APPROVED IN WRITING BY A UNITED STATES ATTORNEY. SEE 14 COMP. GEN. 398.

THE DECISION OF NOVEMBER 23, 1937, A-90191, CASE OF P. A. LOCKHART, UNITED STATES COMMISSIONER, WESTERN DISTRICT OF TEXAS, IS HEREBY MODIFIED ACCORDINGLY.