A-74147, JUNE 8, 1936, 15 COMP. GEN. 1065

A-74147, JUNE 8, 1936, 15 COMP. GEN. 1065

LIQUOR LAW REPEAL AND ENFORCEMENT ACT OF 1935 - VIOLATIONS - VEHICLES AND AIRCRAFT SEIZED, RETURNED, SOLD, OR TURNED OVER TO GOVERNMENT AGENCY - PAYMENT OF EXPENSES AND ALLOWED CLAIMS DEPARTMENT OF JUSTICE APPROPRIATIONS ARE NOT AVAILABLE FOR THE PAYMENT OF EXPENSES INCIDENT TO THE SEIZURE AND FORFEITURE OF VEHICLES AND AIRCRAFT FOR VIOLATION OF THE INTERNAL REVENUE LAWS RELATING TO LIQUOR WHERE THE PROPERTY IS RETURNED TO THE CLAIMANT PURSUANT TO SECTION 204 (C) OF THE LIQUOR LAW REPEAL AND ENFORCEMENT ACT OF 1935, 49 STAT. 878, NOR FOR THE PAYMENT OF EXPENSES OF HAULING, TOWING, TRANSPORTING, AND STORAGE OF SUCH PROPERTY SEIZED BY OTHER THAN DEPARTMENT OF JUSTICE AGENTS. APPROPRIATED FUNDS ARE NOT AVAILABLE FOR PAYMENT OF ANY EXPENSES INCIDENT TO THE SEIZURE AND FORFEITURE OF VEHICLES AND AIRCRAFT FOR VIOLATION OF THE INTERNAL REVENUE LAWS RELATING TO LIQUOR WHERE THE SEIZED PROPERTY IS SOLD PURSUANT TO SECTION 204 (C) OF THE LIQUOR LAW REPEAL AND ENFORCEMENT ACT OF 1935, 49 STAT. 878, IF THE PROCEEDS ARE SUFFICIENT TO COVER SAME, BUT IF INSUFFICIENT SUCH EXPENSES EQUAL TO THE DEFICIENCIES MAY BE PAID FROM THE APPROPRIATION "SALARIES, FEES, AND EXPENSES OF MARSHALS, U.S. COURTS.' WHERE VEHICLES AND AIRCRAFT SEIZED FOR VIOLATION OF THE INTERNAL REVENUE LAWS RELATING TO LIQUOR ARE SOLD PURSUANT TO SECTION 204 (C) OF THE LIQUOR LAW REPEAL AND ENFORCEMENT ACT OF 1935, 49 STAT. 878, AND A CLAIM FOR REMISSION OR MITIGATION IS ALLOWED BY THE COURT, THE PROCEEDS IN EXCESS OF EXPENSES INCIDENT TO SEIZURE AND FORFEITURE MAY BE APPLIED UPON THE ALLOWED CLAIM, AND FURTHER EXCESS TO BE COVERED INTO THE TREASURY, BUT NO APPROPRIATION IS AVAILABLE FOR PAYMENT OF ANY DEFICIENCY IN CONNECTION WITH AN ALLOWED CLAIM. WHERE VEHICLES AND AIRCRAFT SEIZED FOR VIOLATION OF THE INTERNAL REVENUE LAWS RELATING TO LIQUOR ARE TURNED OVER TO ANOTHER GOVERNMENT AGENCY PURSUANT TO SECTION 305 OF THE LIQUOR LAW REPEAL AND ENFORCEMENT ACT OF 1935, 49 STAT. 880, ONLY THE COST OF "HAULING, TRANSPORTING, TOWING, AND RAGE," IF PAID FROM THE APPLICABLE DEPARTMENT OF JUSTICE APPROPRIATION, ARE PROPERLY FOR REIMBURSEMENT BY THE TRANSFEREE AGENCY, AND THE AMOUNT OF SUCH REIMBURSEMENT IS FOR CREDITING TO THE APPROPRIATION PREVIOUSLY CHARGED.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, JUNE 8, 1936:

THERE HAS BEEN CONSIDERED YOUR LETTER OF APRIL 20, 1936, AS FOLLOWS:

SECTION 204 OF THE LIQUOR REPEAL AND ENFORCEMENT ACT OF AUGUST 27, 1935, 49 STAT. 878, MODIFIES THE EARLIER PROCEDURE WITH RESPECT TO FORFEITURE OF VEHICLES AND AIRCRAFT SEIZED FOR VIOLATION OF THE INTERNAL REVENUE LAWS RELATING TO LIQUORS AND YOUR DECISIONS ON THE FOLLOWING QUESTIONS AND PROPOSITIONS INVOLVING APPROPRIATED FUNDS AND DISPOSITION OF PROCEEDS OF SALES ARE REQUESTED:

1. (A) IF A VEHICLE IS RETURNED TO A CLAIMANT PURSUANT TO PROVISIONS OF SECTION 204 (C),"SUCH RETURN SHALL BE MADE ONLY UPON PAYMENT OF ALL EXPENSES INCIDENT TO THE SEIZURE AND FORFEITURE INCURRED BY THE UNITED STATES.' IT IS ASSUMED THAT THE APPROPRIATION "SALARIES, FEES, AND EXPENSES OF MARSHALS, U.S. COURTS" IS NOT AVAILABLE FOR PAYMENT OF THESE EXPENSES IN THE FIRST INSTANCE WHEN THE COURT ORDERS THE RETURN OF THE VEHICLE. IF THE APPROPRIATION IS HELD TO BE AVAILABLE IN SUCH A CASE, MAY THE SUM PAID BY THE CLAIMANT BE DEPOSITED TO THE CREDIT OF THE APPROPRIATION FOR REUSE?

(B) IN THIS CONNECTION, THE QUESTION ARISES AS TO WHETHER IN VIEW OF THE PROVISIONS OF SECTION 305, EITHER THE APPROPRIATION "SALARIES, FEES, AND EXPENSES OF MARSHALS, U.S. COURTS," OR ANY OTHER APPROPRIATION UNDER THE CONTROL OF THIS DEPARTMENT IS AVAILABLE FOR THE PAYMENT OF EXPENSES OF HAULING, TOWING, TRANSPORTING, AND STORAGE OF PROPERTY WHICH IS SEIZED BY AGENTS OF THE INTERNAL REVENUE BUREAU OR BY OFFICERS OTHER THAN AGENTS OF THIS DEPARTMENT.

2. IN THE LAST SENTENCE OF SECTION 204 (C) PROVISION IS MADE IN CASES OF PUBLIC SALE FOR THE ,PAYMENT FROM THE PROCEEDS THEREOF, AFTER SATISFACTION OF ALL SUCH EXPENSES.' THIS, IN EFFECT, MODIFIES THE REQUIREMENTS OF SECTION 3617, REVISED STATUTES, THAT THE ENTIRE PROCEEDS SHALL BE DEPOSITED INTO THE TREASURY WITHOUT ABATEMENT OR DEDUCTION. THE DEPARTMENT ASSUMES THAT YOUR OFFICE WILL HOLD THAT "SUCH EXPENSES" REFERS TO THE "EXPENSES INCIDENT TO THE SEIZURE AND FORFEITURE INCURRED BY THE UNITED STATES" AND THAT NO APPROPRIATED FUNDS ARE AVAILABLE FOR PAYMENT OF EXPENSES OF SEIZURE, STORAGE, PUBLICATION, FORFEITURE, ETC., IF THE PROCEEDS ARE SUFFICIENT TO COVER SAME.

3. IF THE PROCEEDS ARE INSUFFICIENT FOR PAYMENT OF EXPENSES OF SEIZURE AND FORFEITURE, IT IS ASSUMED THAT THE PROCEDURE UNDER NATIONAL PROHIBITION WILL BE FOLLOWED, NAMELY, THAT THE DEFICIENCY BE PAID FROM APPROPRIATED FUNDS--- "SALARIES, FEES, AND EXPENSES OF MARSHALS, U.S. COURTS.'

4. THE DEPARTMENT ASSUMES, IN THE CASE OF A PUBLIC SALE, WHERE A CLAIM IS ALLOWED, THAT THE EXPENSES OF SEIZURE AND FORFEITURE ARE FIRST TO BE PAID FROM THE PROCEEDS OF THE SALE AND THAT THE BALANCE IS TO BE APPLIED UPON THE ALLOWED CLAIM, THAT ANY EXCESS IS TO BE PAID OVER TO THE COLLECTOR OF INTERNAL REVENUE AND THAT NO APPROPRIATION IS AVAILABLE FOR PAYMENT TO THE CLAIMANT OF ANY DEFICIENCY WHICH MAY DEVELOP.

5. IN CONNECTION WITH THE FORFEITURE OF VEHICLES UNDER SECTION 304 OF THE SAME ACT AND PAYMENT BY ANOTHER AGENCY OF THE EXPENSES OF FORFEITURE TO THIS DEPARTMENT UNDER SECTION 305 OF THIS ACT, THE UNITED STATES MARSHAL FOR THE DISTRICT OF MARYLAND HAS RECEIVED AND DEPOSITED IN HIS MARSHAL'S TRUST FUND ACCOUNT SEVERAL ITEMS OF EXPENSE IN CONNECTION WITH ADVERTISING NOTICES WHICH WERE PAID IN THE FIRST INSTANCE FROM THE APPROPRIATION "SALARIES, FEES, AND EXPENSES OF MARSHALS, U.S. COURTS.' MAY EXPENSES PAID FROM APPROPRIATED FUNDS UNDER THIS DEPARTMENT, WHICH ARE COVERED BY REIMBURSEMENTS FROM OTHER AGENCIES, BE RETURNED TO THE CREDIT OF THE APPROPRIATION FOR REUSE OR, MUST SUCH RECEIPTS BE DEPOSITED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS?

THE ACT OF AUGUST 27, 1935, 49 STAT. 872, REPEALING TITLE I AND II OF THE NATIONAL PROHIBITION ACT, PROVIDES IN PART AS FOLLOWS:

TITLE I, SECTION 8, 49 STAT. 874, 875---

* * * THE SEIZURE AND FORFEITURE OF ANY LIQUOR OR PROPERTY UNDER THE PROVISIONS OF THIS TITLE, OR UNDER THE PROVISIONS OF TITLE III OF THE NATIONAL PROHIBITION ACT, AND THE DISPOSITION OF SUCH LIQUOR OR PROPERTY SUBSEQUENT TO SEIZURE AND FORFEITURE, OR THE DISPOSITION OF THE PROCEEDS FROM THE SALE OF SUCH LIQUOR OR PROPERTY, SHALL BE IN ACCORDANCE WITH EXISTING LAWS OR THOSE HEREAFTER IN EXISTENCE RELATING TO SEIZURES, FORFEITURES, AND DISPOSITION OF PROPERTY OR PROCEEDS, FOR VIOLATION OF THE INTERNAL REVENUE LAWS.

TITLE II, SECTION 204 (A) AND (C), 49 STAT. 878---

(A) WHENEVER, IN ANY PROCEEDING IN COURT FOR THE FORFEITURE, UNDER THE INTERNAL-REVENUE LAWS, OF ANY VEHICLE OR AIRCRAFT SEIZED FOR A VIOLATION OF THE INTERNAL REVENUE LAWS RELATING TO LIQUOR, SUCH FORFEITURE IS DECREED, THE COURT SHALL HAVE EXCLUSIVE JURISDICTION TO REMIT OR MITIGATE THE FORFEITURE.

(C) UPON THE REQUEST OF ANY CLAIMANT WHOSE CLAIM FOR REMISSION OR MITIGATION IS ALLOWED AND WHOSE INTEREST IS FIRST IN THE ORDER OF PRIORITY AMONG SUCH CLAIMS ALLOWED IN SUCH PROCEEDING AND IS OF AN AMOUNT IN EXCESS OF, OR EQUAL TO, THE APPRAISED VALUE OF SUCH VEHICLE OR AIRCRAFT, THE COURT SHALL ORDER ITS RETURN TO HIM * * *. SUCH RETURN SHALL BE MADE ONLY UPON PAYMENT OF ALL EXPENSES INCIDENT TO THE SEIZURE AND FORFEITURE INCURRED BY THE UNITED STATES. IN ALL OTHER CASES THE COURT SHALL ORDER DISPOSITION OF SUCH VEHICLE OR AIRCRAFT AS PROVIDED IN TITLE 3 OF THIS ACT, AND IF SUCH DISPOSITION BE BY PUBLIC SALE, PAYMENT FROM THE PROCEEDS THEREOF, AFTER SATISFACTION OF ALL SUCH EXPENSES, OF ANY SUCH CLAIM INITS ORDER OF PRIORITY AMONG THE CLAIMS ALLOWED IN SUCH PROCEEDINGS.

TITLE III, SECTION 302, 49 STAT. 879---

IN THE EVENT THAT ANY PROPERTY IS OR HAS BEEN VOLUNTARILY ABANDONED TO ANY AGENCY IN SUCH MANNER AS TO VEST TITLE THERETO IN THE UNITED STATES, IT MAY BE RETAINED BY SUCH AGENCY AND DEVOTED TO OFFICIAL USE ONLY. SUCH AGENCY SHALL NOT DESIRE SO TO RETAIN SUCH PROPERTY, THE HEAD THEREOF SHALL FORTHWITH NOTIFY THE DIRECTOR (PROCUREMENT DIVISION) TO THAT EFFECT, AND THE DIRECTOR SHALL, WITHIN A REASONABLE TIME---

(A) ORDER SUCH AGENCY TO DELIVER THE PROPERTY TO ANY OTHER AGENCY WHICH REQUESTS AND IN HIS JUDGMENT SHOULD BE GIVEN THE PROPERTY, OR

(B) ORDER DISPOSAL OF THE PROPERTY AS OTHERWISE PROVIDED BY LAW.

TITLE III, SECTION 305, 49 STAT. 880---

THE APPROPRIATION AVAILABLE TO ANY AGENCY FOR THE PURCHASE, HIRE, OPERATION, MAINTENANCE, AND REPAIR OF PROPERTY OF ANY KIND SHALL BE AVAILABLE FOR THE PAYMENT OF EXPENSES OF OPERATION, MAINTENANCE, AND REPAIR OF PROPERTY OF THE SAME KIND RECEIVED BY IT UNDER ANY PROVISION OF THIS TITLE FOR OFFICIAL USE; FOR THE PAYMENT OF ANY LIEN RECOGNIZED AND ALLOWED PURSUANT TO LAW, AND FOR THE PAYMENT OF ALL MONEYS FOUND TO BE DUE ANY PERSON UPON THE DULY AUTHORIZED REMISSION OR MITIGATION OF ANY FORFEITURE; AND FOR REIMBURSEMENT OF OTHER AGENCIES AS HEREAFTER PROVIDED. THE COST OF HAULING, TRANSPORTING, TOWING, AND STORAGE OF SUCH PROPERTY SHALL BE PAID BY THE AGENCY WHICH HAS SEIZED SUCH PROPERTY OR TO WHICH IT HAS BEEN ABANDONED; AND, IF SUCH PROPERTY IS LATER DELIVERED TO ANOTHER AGENCY FOR OFFICIAL USE UNDER SECTIONS 302, 303, OR 304 OF THIS TITLE, THE LATTER SHALL MAKE REIMBURSEMENT FOR ALL SUCH COSTS INCURRED PRIOR TO THE DATE OF DELIVERY TO IT OF SUCH PROPERTY.

TITLE III, SECTION 308 (B), 49 STAT. 880---

NOTHING CONTAINED IN THIS TITLE SHALL BE CONSTRUED AS REPEALING ANY OTHER LAWS RELATING TO THE DISPOSITION OF FORFEITED OR ABANDONED PROPERTY, EXCEPT SUCH PROVISIONS OF SUCH LAWS AS ARE DIRECTLY IN CONFLICT WITH ANY PROVISIONS OF THIS TITLE.

SECTION 204 (A), (B), (C), (D), OF TITLE II, SUPRA, RELATES TO THOSE SEIZURES IN CONNECTION WITH WHICH FORFEITURE IS HAD BY COURT ACTION. WHERE A CLAIM FOR REMISSION OR MITIGATION IS ALLOWED PURSUANT TO SECTION 204 (C), THE CLAIMANT IS REQUIRED TO PAY "ALL EXPENSES INCIDENT TO THE SEIZURE AND FORFEITURE INCURRED BY THE UNITED STATES.' THUS THE ALLOWANCE OF A CLAIM FOR REMISSION OR MITIGATION IS CONDITIONED UPON THE CLAIMANT MAKING SUCH PAYMENTS, AND IN SUCH CASES NO APPROPRIATED FUNDS ARE AVAILABLE THEREFOR. SAID SECTION FURTHER PROVIDES, IN EFFECT, THAT IN ALL OTHER CASES THE COURT SHALL ORDER DISPOSITION "AS PROVIDED IN TITLE III," AND IF SUCH DISPOSITION BE BY PUBLIC SALE, THERE FIRST SHALL BE PAID FROM THE PROCEEDS THEREOF ALL EXPENSES INCIDENT TO SEIZURE AND FORFEITURE. THIS LATTER PROVISION IS IN CONFLICT IN PART WITH SECTION 3617, REVISED STATUTES, AND PURSUANT TO SECTION 308 (B) SUPRA, IT IS TO BE CONSIDERED AS A MODIFICATION THEREOF TO THE EXTENT OF THE CONFLICT. IN ANY CASE WHERE THE PROCEEDS OF SALE ARE SUFFICIENT TO COVER THE EXPENSES INCIDENT TO SEIZURE AND FORFEITURE, APPROPRIATED FUNDS ARE NOT AVAILABLE THEREFOR. HOWEVER, ANY SURPLUS REMAINING, AFTER PAYMENT OF EXPENSES OF SEIZURE AND FORFEITURE AND SATISFACTION OF AN ALLOWED CLAIM IS FOR COVERING INTO THE TREASURY AS PROVIDED BY LAW. IN THE EVENT THE BALANCE APPLICABLE TO AN ALLOWED CLAIM IS INSUFFICIENT TO COVER SAME, THE ACT CONTAINS NO AUTHORIZATION FOR PAYMENT OF THE DEFICIENCY FROM APPROPRIATED FUNDS, BUT IN THESE CASES WHERE THE PROPERTY IS FORFEITED BY COURT DECREE AND THE PROCEEDS OF SALE ARE INSUFFICIENT FOR PAYMENT OF EXPENSES OF SEIZURE AND FORFEITURE, THE DEFICIENCIES MAY BE PAID FROM "SALARIES, FEES, AND EXPENSES OF MARSHALS, UNITED STATES COURTS," IN ACCORDANCE WITH ESTABLISHED PROCEDURE (11 COMP. GEN. 422).

SECTION 305, TITLE III, SUPRA, PROVIDES, IN EFFECT, THAT "THE COST OF HAULING, TRANSPORTING, TOWING, AND STORAGE" OF PROPERTY ACQUIRED UNDER ANY PROVISIONS OF TITLE III SHALL BE PAID BY THE AGENCY SEIZING SAME OR TO WHICH IT HAS BEEN ABANDONED, BUT WHERE SUCH PROPERTY IS DELIVERED TO ANOTHER AGENCY UNDER SECTIONS 302, 303, OR 304, OF SAID TITLE, THE LATTER AGENCY SHALL MAKE REIMBURSEMENT FOR THE EXPENSES INCURRED PRIOR TO DATE OF RECEIPT BY IT OF SUCH PROPERTY. IN OTHER WORDS, THE APPLICABLE APPROPRIATION OF THE AGENCY MAKING A SEIZURE IS PROPERLY CHARGEABLE WITH THE EXPENSE OF HAULING, TRANSPORTING, TOWING, AND STORAGE, AND IN THE EVENT THE PROPERTY IS LATER DELIVERED TO ANOTHER AGENCY SUCH APPROPRIATION IS PROPERLY REIMBURSABLE. ACCORDINGLY, IN THOSE CASES WHERE SEIZURES ARE MADE BY AGENTS OF THE DEPARTMENT OF JUSTICE, THE PAYMENT OF EXPENSES OF ,HAULING, TOWING, TRANSPORTING, AND STORAGE" OF THE PROPERTY THUS SEIZED IS PROPERLY CHARGEABLE UNDER THE APPROPRIATION "SALARIES, FEES, AND EXPENSES OF MARSHALS, UNITED STATES COURTS," AND UPON DELIVERY OF SAID PROPERTY TO ANOTHER AGENCY FOR OFFICIAL USE UNDER SECTIONS 302, 303, OR 304, OF TITLE III, THE SUMS PAID IN REIMBURSEMENT OF SUCH COST BY THE LATTER AGENCY ARE PROPERLY FOR DEPOSIT TO THE CREDIT OF THE ABOVE APPROPRIATION. HOWEVER, SUCH REIMBURSEMENT OF EXPENDITURES AND THE CREDIT THEREOF IS LIMITED TO EXPENSES OF "HAULING, TOWING, TRANSPORTING, AND STORAGE," AS SPECIFIED IN SECTION 305, AND DOES NOT APPLY TO OTHER EXPENSES INCURRED, SUCH AS MARSHALS' FEES AND ADVERTISING COSTS, WHICH ARE PROPERLY CHARGEABLE TO THE ABOVE APPROPRIATION.

REPLYING SPECIFICALLY TO THE QUESTIONS SUBMITTED, YOU ARE ADVISED WITH RESPECT TO QUESTION 1 (A) AND (B) THAT NO APPROPRIATION OF THE DEPARTMENT OF JUSTICE IS AVAILABLE IN EITHER CASE FOR PAYMENT OF THE EXPENSES ENUMERATED.

AS TO QUESTION 2,"SUCH EXPENSES" REFER TO "EXPENSES INCIDENT TO THE SEIZURE AND FORFEITURE INCURRED BY THE UNITED STATES," AND NO APPROPRIATED FUNDS ARE AVAILABLE FOR PAYMENT OF ANY EXPENSES INCIDENT TO SEIZURE AND FORFEITURE IF THE PROCEEDS ARE SUFFICIENT TO COVER SAME.

RELATIVE TO QUESTION 3, IF THE PROCEEDS OF SALE ARE INSUFFICIENT FOR PAYMENT OF EXPENSES INCIDENT TO SEIZURE AND FORFEITURE, THE DEFICIENCIES MAY BE PAID FROM "SALARIES, FEES, AND EXPENSES OF MARSHALS, UNITED STATES COURTS.'

THE VIEWS EXPRESSED IN RESPECT TO QUESTION 4 ARE CORRECT.

WITH RESPECT TO QUESTION 5, WHERE THE SEIZED AND FORFEITED PROPERTY IS DELIVERED TO ANOTHER AGENCY, PURSUANT TO SECTION 305, THE COST OF "HAULING, TRANSPORTING, TOWING, AND STORAGE," ONLY, WHICH HAS BEEN PAID BY THE DEPARTMENT OF JUSTICE FROM "SALARIES, FEES, AND EXPENSES OF MARSHALS, UNITED STATES COURTS," ARE PROPERTY REIMBURSABLE BY THE AGENCY TO WHICH THE FORFEITED PROPERTY HAS BEEN DELIVERED. THE AMOUNT OF SUCH REIMBURSEMENT IS FOR DEPOSIT TO THE CREDIT OF SAID APPROPRIATION. THE FUNDS NOW HELD BY THE UNITED STATES MARSHAL FOR THE DISTRICT OF MARYLAND SHOULD BE DEPOSITED TO THE CREDIT OF THE APPROPRIATION FROM WHICH THEY WERE WITHDRAWN, AS THE ADVERTISING EXPENSES WERE PROPERLY PAID FROM "SALARIES, FEES, AND EXPENSES OF MARSHALS, UNITED STATES COURTS," SINCE ONLY THE COST OF "HAULING, TOWING, TRANSPORTING, AND STORAGE" IS PROPERLY REIMBURSABLE.