B-4873, JULY 25, 1939, 19 COMP. GEN. 109

B-4873, JULY 25, 1939, 19 COMP. GEN. 109

DESTRUCTION OF MARIHUANA ON PRIVATE LANDS - EMPLOYMENT OF PERSONNEL - APPROPRIATION AVAILABILITY IF IT BE DETERMINED ADMINISTRATIVELY THAT DESTRUCTION OF MARIHUANA GROWING ON PRIVATE LANDS MAY BE ACCOMPLISHED MORE EFFECTIVELY AND ECONOMICALLY BY DIRECT MEANS THAN BY REQUIRING THE OWNERS OF THE PROPERTIES TO EFFECT SUCH DESTRUCTION, NO OBJECTION IS REQUIRED TO THE EMPLOYMENT, UNDER THE APPROPRIATION FOR THE BUREAU OF NARCOTICS AS MADE BY THE TREASURY DEPARTMENT APPROPRIATION ACT FOR THE FISCAL YEAR 1940, 53 STAT. 663, OF SUCH PERSONNEL AS MAY BE REQUIRED FOR SUCH PURPOSE.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF THE TREASURY, JULY 25, 1939:

YOUR LETTER OF JULY 12, 1939, IS AS FOLLOWS:

THERE HAS ARISEN IN THE BUREAU OF NARCOTICS A QUESTION AS TO WHETHER MONEY APPROPRIATED FOR THAT BUREAU MAY BE SPENT FOR THE PURPOSE OF EMPLOYING LABORERS FROM CIVIL-SERVICE ROLLS TO DESTROY GROWING MARIHUANA.

THIS GROWING MARIHUANA CONSTITUTES SOMEWHAT OF A PROBLEM IN THAT IT IS FOUND GROWING IN A NUMBER OF STATES IN CONSIDERABLE QUANTITIES BOTH ON PUBLIC AND PRIVATE LANDS. IN ONE PARTICULAR CITY A GREAT DEAL OF MARIHUANA HAS BEEN FOUND GROWING ON VACANT LOTS. IT IS MY UNDERSTANDING THAT THE TAXES HAVE NOT BEEN PAID ON THESE PARTICULAR LOTS FOR A NUMBER OF YEARS AND THAT THE CITY IS WITHOUT ANY AUTHORITY TO MAKE ANY EXPENDITURE FOR THE DESTRUCTION OF THE MARIHUANA.

IN A NUMBER OF STATES MARIHUANA GROWS EXTENSIVELY, IN AN UNCULTIVATED STATE, ON PRIVATE PROPERTY AND THE LAND OWNERS ARE RATHER RELUCTANT TO EXPEND THE TIME AND MONEY NECESSARY IN CUTTING AND DESTROYING THE MARIHUANA GROWTH.

MARIHUANA GROWING AS ABOVE DESCRIBED PRESENTS AN ENFORCEMENT PROBLEM OF CONSIDERABLE SIGNIFICANCE TO THE BUREAU OF NARCOTICS IN THAT IT HAS BEEN DEFINITELY ESTABLISHED THAT IN A GREAT MANY INSTANCES SUCH MARIHUANA CONSTITUTES THE SOURCE OF SUPPLYING FOR PEDDLERS OF MARIHUANA. THEREFORE, IT IS FELT THAT IF THIS GROWING MARIHUANA COULD BE DESTROYED BY THE BUREAU OF NARCOTICS, A CONSIDERABLE STEP FORWARD IN ENFORCEMENT OF THE MARIHUANA TAX ACT OF 1937 WOULD RESULT.

IN THIS CONNECTION I INVITE YOUR ATTENTION TO SECTION 4 OF THE MARIHUANA TAX ACT OF 1937 ( U.S.C., TITLE 26, SECTION 1399C), WHICH PROVIDES AS FOLLOWS:

"/A) IT SHALL BE UNLAWFUL FOR ANY PERSON REQUIRED TO REGISTER AND PAY THE SPECIAL TAX UNDER THE PROVISIONS OF SECTION 2 TO IMPORT, MANUFACTURE, PRODUCE, COMPOUND, SELL, DEAL IN, DISPENSE, DISTRIBUTE, PRESCRIBE, ADMINISTER, OR GIVE AWAY MARIHUANA WITHOUT HAVING SO REGISTERED AND PAID SUCH TAX.

"/B) IN ANY SUIT OR PROCEEDING TO ENFORCE THE LIABILITY IMPOSED BY THIS SECTION OR SECTION 2, IF PROOF IS MADE THAT MARIHUANA WAS AT ANYTIME GROWING UPON LAND UNDER THE CONTROL OF THE DEFENDANT, SUCH PROOF SHALL BE PRESUMPTIVE EVIDENCE THAT AT SUCH TIME THE DEFENDANT WAS A PRODUCER AND LIABLE UNDER THE SECTION AS WELL AS UNDER SECTION 2.'

SECTION 9 OF THE MARIHUANA TAX ACT OF 1937 ( U.S.C., TITLE 26, SECTION 1399H) PROVIDES AS FOLLOWS:

"/A) ANY MARIHUANA WHICH HAS BEEN IMPORTED, MANUFACTURED, COMPOUNDED, TRANSFERRED, OR PRODUCED IN VIOLATION OF ANY OF THE PROVISIONS OF THIS ACT SHALL BE SUBJECT TO SEIZURE AND FORFEITURE AND, EXCEPT AS INCONSISTENT WITH THE PROVISIONS OF THIS ACT, ALL THE PROVISIONS OF INTERNAL-REVENUE LAWS RELATING TO SEARCHES, SEIZURES AND FORFEITURES ARE EXTENDED TO INCLUDE MARIHUANA.

"/B) ANY MARIHUANA WHICH MAY BE SEIZED BY THE UNITED STATES GOVERNMENT FROM ANY PERSON OR PERSONS CHARGED WITH ANY VIOLATION OF THIS ACT, THE OWNER OR OWNERS OF WHICH ARE UNKNOWN, SHALL BE CONFISCATED BY AND FORFEITED TO THE UNITED STATES.

"/C) ANY MARIHUANA SEIZED OR COMING INTO THE POSSESSION OF THE UNITED STATES IN THE ENFORCEMENT OF THIS ACT, THE OWNER OR OWNERS OF WHICH ARE UNKNOWN, SHALL BE CONFISCATED BY AND FORFEITED TO THE UNITED STATES.

"/D) THE SECRETARY IS HEREBY DIRECTED TO DESTROY ANY MARIHUANA CONFISCATED BY AND FORFEITED TO THE UNITED STATES UNDER THIS SECTION OR TO DELIVER SUCH MARIHUANA TO ANY DEPARTMENT, BUREAU, OR OTHER AGENCY OF THE UNITED STATES GOVERNMENT, UPON PROPER APPLICATION THEREFOR UNDERSUCH REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY.'

I ALSO INVITE YOUR ATTENTION TO TREASURY DECISION 28, PROMULGATED BY THE SECRETARY OF THE TREASURY ON SEPTEMBER 1, 1937, A COPY OF WHICH IS ENCLOSED FOR YOUR READY REFERENCE, IN WHICH THE SECRETARY CONFERRED AND IMPOSED UPON THE COMMISSIONER OF NARCOTICS CERTAIN PRIVILEGES AND DUTIES IN CONNECTION WITH THE ENFORCEMENT OF THE MARIHUANA TAX ACT OF 1937.

IT IS MY BELIEF THAT MARIHUANA WHICH IS FOUND GROWING WILD ON PUBLIC OR PRIVATE LANDS HAS BEEN GROWN IN VIOLATION OF THE PROVISIONS OF THE MARIHUANA TAX ACT OF 1937, ABOVE QUOTED, AND IS SUBJECT TO SEIZURE, FORFEITURE, AND DESTRUCTION WITHIN THE PROVISIONS OF THE ACT. I, OF COURSE, DO NOT INCLUDE IN THIS CATEGORY MARIHUANA WHICH IS BEING GROWN AS A COMMERCIAL FIBER CROP, FOR IN THESE INSTANCES THE PERSON GROWING THE MARIHUANA WILL HAVE REGISTERED UNDER THE PROVISIONS OF THE MARIHUANA TAX ACT OF 1937.

I ALSO INVITE YOUR ATTENTION TO THE ACT OF MAY 6, 1939, WHICH MAKES APPROPRIATION FOR EXPENSES TO ENFORCE THE MARIHUANA TAX ACT OF 1937 AND PROVIDES FOR THE EMPLOYMENT OF NECESSARY EMPLOYEES IN THE BUREAU OF NARCOTICS.

I FEEL THAT THE DESTRUCTION OF THE LARGE QUANTITIES OF GROWING MARIHUANA IS A REAL ENFORCEMENT PROBLEM, AND IT IS MY BELIEF THAT THE BUREAU OF NARCOTICS MAY LAWFULLY MAKE EXPENDITURES FOR THE PURPOSE OF HIRING LABORERS TO DESTROY GROWING MARIHUANA. HOWEVER, BEFORE TAKING ANY ACTION IN THE MATTER, I SHOULD LIKE TO SECURE YOUR DECISION.

THE GROWING MARIHUANA IS NOW AT A STAGE WHEN IT SHOULD BE DESTROYED IMMEDIATELY TO PREVENT THE PLANTS FROM REACHING MATURITY, THEREBY CAUSING THE SEEDS TO BE SCATTERED ABOUT AND RESULTING IN ANOTHER GROWTH OF MARIHUANA NEXT YEAR. I ASSURE YOU THAT IT WILL BE OF GREAT ASSISTANCE TO THIS DEPARTMENT IF YOU ARE ABLE TO ARRIVE AT A CONCLUSION IN THIS MATTER FAVORABLE TO THE NEEDS OF OUR ENFORCEMENT ACTIVITIES.

THE APPROPRIATION FOR THE BUREAU OF NARCOTICS FOR THE FISCAL YEAR 1940 AS MADE BY THE ACT OF MAY 6, 1939, PUBLIC, 65, 53 ST. 663, PROVIDES GENERALLY FOR THE EMPLOYMENT OF SUCH PERSONNEL AS MAY BE NECESSARY TO ENFORCE THE PROVISIONS OF SEVERAL STATUTES, INCLUDING THE MARIHUANA TAX ACT OF 1937. HOWEVER, THERE IS NOTHING IN SPECIFIC TERMS, EITHER IN APPROPRIATION OR IN THE SAID MARIHUANA TAX ACT, AUTHORIZING THE EMPLOYMENT OF PERSONNEL FOR THE PREEMPTORY DESTRUCTION OF MARIHUANA GROWING EITHER WILD OR OTHERWISE ON PUBLIC OR PRIVATE LANDS.

THE DUTY AND RESPONSIBILITY OF ENFORCING THE PROVISIONS OF THE MARIHUANA TAX ACT ARE PRIMARILY ADMINISTRATIVE MATTERS FOR YOUR DEPARTMENT AND ALTHOUGH THE ACT MAY NOT BE SPECIFIC AS TO THE METHOD OF DESTRUCTION OF THE MARIHUANA PLANT IN CASES SUCH AS REFERRED TO IN YOUR LETTER IF IT IS DETERMINED ADMINISTRATIVELY THAT SUCH DESTRUCTION MAY BE ACCOMPLISHED MORE EFFECTIVELY AND ECONOMICALLY BY DIRECT MEANS THAN BY REQUIRING THE OWNERS OF THE PROPERTIES TO EFFECT SUCH DESTRUCTION, THIS OFFICE WILL NOT BE REQUIRED TO OBJECT TO THE EMPLOYMENT, UNDER THE APPROPRIATION FOR THE BUREAU OF NARCOTICS, OF SUCH PERSONNEL AS MAY BE REQUIRED FOR SUCH PURPOSE.