A-29287, APRIL 17, 1931, 10 COMP. GEN. 477

A-29287, APRIL 17, 1931, 10 COMP. GEN. 477

VEHICLES SEIZED UNDER THE TARIFF LAWS BUT FORFEITED UNDER PROHIBITION ACT WHEN A BOND HAS BEEN GIVEN UNDER SECTION 608 OF THE TARIFF ACT FOR THE PURPOSE OF STAYING FORFEITURE OF A VEHICLE UNDER SECTION 609 OF THAT ACT AND THE PROCEEDINGS UNDER THE TARIFF ACT ARE FOUND BY THE COURT TO BE WITHOUT MERIT, BUT THE GOVERNMENT IS PERMITTED TO PROCEED UNDER THE NATIONAL PROHIBITION ACT, THE OBLIGATION OF THE BOND IS NOT PAYABLE AND THE EXPENSES UP TO THE DISMISSAL OF THE PROCEEDINGS UNDER THE TARIFF ACT ARE PAYABLE FROM THE APPROPRIATION FOR ,COLLECTING REVENUE FROM CUSTOMS.'

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, APRIL 17, 1931:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 6, 1931, AS FOLLOWS:

THE DEPARTMENT REFERS TO YOUR OPINIONS DATED NOVEMBER 5, 1929, AND JUNE 18, 1930, FILE NO. A-29287, IN REGARD TO CLAIMS AND BOND GIVEN UNDER SECTION 608 OF THE TARIFF ACT OF 1922, WHICH SECTION HAS BEEN REENACTED AND GIVEN THE SAME NUMBER IN THE TARIFF ACT OF 1930.

IN A NUMBER OF CASES ARISING IN THE CUSTOMS COLLECTION DISTRICT OF FLORIDA, AUTOMOBILES VALUED AT LESS THAN $1,000.00 HAVE BEEN SEIZED FOR VIOLATION OF CERTAIN PROVISIONS OF THE TARIFF ACT AND SECTION 26, TITLE 2 OF THE NATIONAL PROHIBITION ACT. AFTER THE COLLECTOR OF CUSTOMS HAS ADOPTED THE SEIZURE AND TAKEN STEPS TO SECURE SUMMARY FORFEITURE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 607 OF THE TARIFF ACT, CLAIM AND BOND ARE FILED BY PERSONS HAVING AN INTEREST IN THE VEHICLES, UNDER PROVISIONS OF SECTION 608 OF THE TARIFF ACT, THEREBY REQUIRING JUDICIAL PROCEEDINGS TO DETERMINE THE LIABILITY OF THE PROPERTY TO FORFEITURE. WHEN THE CASE COMES UP FOR TRIAL AN ORDER IS ISSUED BY THE JUDGE DISMISSING THE LIBEL FILED UNDER THE CUSTOMS REVENUE LAWS, BUT ALLOWING THE GOVERNMENT TO PROCEED WITH THE CASE UNDER THE NATIONAL PROHIBITION ACT. NO MENTION IS MADE IN THE COURT ORDER AS TO WHO SHALL PAY THE EXPENSES ACCRUING AFTER THE DATE OF THE FILING OF THE CLAIM AND BOND.

I, ACCORDINGLY, IN THE CIRCUMSTANCES OUTLINED, REQUEST AN EXPRESSION OF YOUR OPINION WHETHER OR NOT EXPENSES FROM DATE CLAIM AND BOND ARE FILED SHOULD BE PAID (1) BY THE CLAIMANT UNDER THE BOND; (2) FROM THE APPROPRIATION "SALARIES, FEES, AND EXPENSES OF MARSHALS, UNITED STATES COURTS; " OR (3) FROM THE APPROPRIATION "COLLECTING THE REVENUE FROM CUSTOMS.'

SECTIONS 608 AND 609 OF THE TARIFF ACT OF 1930, 46 STAT. 755, PROVIDE:

ANY PERSON CLAIMING SUCH VESSEL, VEHICLE, MERCHANDISE, OR BAGGAGE MAY AT ANY TIME WITHIN TWENTY DAYS FROM THE DATE OF THE FIRST PUBLICATION OF THE NOTICE OF SEIZURE FILE WITH THE COLLECTOR A CLAIM STATING HIS INTEREST THEREIN. UPON THE FILING OF SUCH CLAIM, AND THE GIVING OF A BOND TO THE UNITED STATES IN THE PENAL SUM OF $250, WITH SURETIES TO BE APPROVED BY THE COLLECTOR, CONDITIONED THAT IN CASE OF CONDEMNATION OF THE ARTICLES SO CLAIMED THE OBLIGOR SHALL PAY ALL THE COSTS AND EXPENSES OF THE PROCEEDINGS TO OBTAIN SUCH CONDEMNATION, THE COLLECTOR SHALL TRANSMIT SUCH CLAIM AND BOND, WITH A DUPLICATE LIST AND DESCRIPTION OF THE ARTICLES SEIZED, TO THE UNITED STATES ATTORNEY FOR THE DISTRICT IN WHICH SEIZURE WAS MADE, WHO SHALL PROCEED TO A CONDEMNATION OF THE MERCHANDISE OR OTHER PROPERTY IN THE MANNER PRESCRIBED BY LAW.

IF NO SUCH CLAIM IS FILED OR BOND GIVEN WITHIN THE TWENTY DAYS HEREINBEFORE SPECIFIED, THE COLLECTOR SHALL DECLARE THE VESSEL, VEHICLE MERCHANDISE, OR BAGGAGE FORFEITED, AND SHALL SELL THE SAME AT PUBLIC AUCTION IN THE SAME MANNER AS MERCHANDISE ABANDONED TO THE UNITED STATES IS SOLD, AND SHALL DEPOSIT THE PROCEEDS OF SALE, AFTER DEDUCTING THE ACTUAL EXPENSES OF SEIZURE, PUBLICATION, AND SALE, IN THE TREASURY OF THE UNITED STATES.

THE BOND GIVEN UNDER SECTION 608 OF THE TARIFF ACT IS FOR THE PURPOSE OF STAYING THE FORFEITURE OF THE VEHICLE UNDER SECTION 609 OF THE ACT AND THE OBLIGATION OF THE BOND IS TO PAY ALL COSTS AND EXPENSES OF THE PROCEEDINGS TO OBTAIN CONDEMNATION "IN CASE OF CONDEMNATION OF THE ARTICLES SO CLAIMED.' THE CONDEMNATION REFERRED TO IS THE PROCEEDING UNDER THE TARIFF ACT. ACCORDINGLY, WHEN THE PROCEEDINGS UNDER THE TARIFF ACT ARE FOUND BY THE COURT TO BE WITHOUT MERIT, THE OBLIGATION OF THE BOND IS NOT PAYABLE AND THE EXPENSES UP TO THE TIME OF THE DISMISSAL OF THE PROCEEDINGS UNDER THE CUSTOMS LAWS WOULD BE PAYABLE FROM THE APPROPRIATION "COLLECTING REVENUE FROM CUSTOMS" WHICH CONTAINS A SPECIFIC PROVISION FOR "COST OF SEIZURE, STORAGE, AND DISPOSITION OF ANY * * * VEHICLE * * * SEIZED UNDER THE PROVISIONS OF THE CUSTOMS LAWS * * * WHERE THERE IS NO SALE.' SEE ACT OF MAY 15, 1930, 46 STAT. 339.