Under the fifteenth section of the Act of July 18, 1866, 14
Stat. at Large 180, providing for the sale of unclaimed perishable
property or property the expense of keeping which would reduce the
proceeds of sale (as
ex. gr., horses), of less value than
$500, used in smuggling goods into the United States, the collector
need not give the twenty days allowed by previous sections in the
case of like property, nonperishable, for the
Page 84 U. S. 399
claimant to prefer his claim to it, and allow fifteen days'
notice of sale, but may publicly advertise it for sale at once, on
seizure, and proper certificate by appraisers of its value and
character, and, after not less than one week's notice, may sell
it.
Before the Act of July 18, 1866, was passed it was necessary, in
all cases of seizure of property for violation of the revenue laws,
to institute proceedings in court for its condemnation.
The statute referred to effected a change in the mode of
proceeding where the property in question did not exceed in value
$500, and provided a way in which the title of the owner could be
divested without enforcing the forfeiture in court.
By the eleventh section, the seizing officer was required, after
having caused the property to be appraised, to give notice for
three successive weeks, describing the property, stating the time,
place, and cause of seizure and requiring any person claiming it to
appear and file his claim with the collector
within twenty
days from the first publication of such notice.
By the twelfth section, if a claimant appeared within the time
prescribed,
i.e., within twenty days from the first
publication of this notice, filed his claim with the collector and
gave proper bond, the forfeiture had to be enforced in the proper
court as in cases exceeding $500 in value. But if no claimant
appeared within that time, the officer was directed to advertise
the property for sale, giving
not less than fifteen days'
notice of sale, and to deposit the proceeds of sale in the
Treasury. By the thirteenth section, it was enacted that if it
should happen that the owner, notwithstanding the publicity given
to the transaction, did not know of the seizure and sale, and was
not guilty of any intentional fraud on the revenue, the Secretary
of the Treasury, on satisfactory proof of these facts, within three
months from the deposit of the
Page 84 U. S. 400
money, might remit the forfeiture and restore the proceeds of
sale.
The fifteenth section of the act -- the section on which the
dispute in this case turned -- requires the officer, if the
property, being of less value than $500, shall be certified on oath
by the appraisers, in their belief, to be liable to perish or
deteriorate by keeping, or cannot be kept without disproportionate
expense,
"and when no claim shall have been interposed therefor
as hereinbefore provided," to advertise that he had seized and
would sell it, giving not less then one week's notice of such
seizure and intended sale.
This act of 1866 being in force, Stannard, as an officer of the
customs for the District of Vermont, on the 14th of January, 1868,
seized the
horses harness, and sleigh of one Conway as
being engaged in smuggling goods from Canada. He caused the
property to be appraised immediately, and the appraisers finding it
worth $191, and no claim being interposed, and the appraisers
certifying their belief on oath that it was liable to speedy
deterioration by keeping, and that the expense of keeping it would
largely reduce the net proceeds of the sale of it, the collector
gave public notice on the 15th that he would sell it on the 29th
following, and accordingly did sell it on the said 29th of January
-- that is to say, without allowing Conway twenty days from the
notice of seizure within which to prefer his claim. The proceeds
were paid into the Treasury.
Hereupon Conway brought trespass
de bonis asportatis,
in the court below, for taking and carrying away the horses
&c.
The collector pleaded the facts as above given.
The plaintiff demurred to the plea, and the opinion of the
judges being opposed upon the question whether the plea was a bar
to the action, the question was certified for decision here.
Page 84 U. S. 402
MR. JUSTICE DAVIS delivered the opinion of the Court.
It is conceded by the demurrer that the property was subject to
forfeiture, but the counsel for the plaintiff insists that the
officer sold it before, by law, he had a right to do so, and that
this act makes him liable as a trespasser
ab initio. It is
unnecessary to consider the last point, because, in our opinion,
the seizing officer observed the requirements of the statute on
this subject, and is, therefore, protected from suit.
It is further insisted on the part of the plaintiff that he was
allowed by the terms of the section twenty days from notice of
seizure within which to prefer his claim, and as this condition was
violated by the officer making the sale, the plea is not a bar to
the action. This construction is more plausible than sound. It
cannot be adopted, because it is inconsistent with other positive
directions, about which there is no controversy, and would,
besides, defeat the manifest purpose that Congress intended to
accomplish by this legislation.
This section is the last of the series concerning the seizure
and sale of property worth less than $500. The sections which
precede it apply to property generally of this limited value, while
this affects property of the same value, but of a
Page 84 U. S. 403
perishable nature. The scheme adopted for the condemnation of
property of this limited value, without a resort to the courts,
could not be complete unless it embraced property liable to
deteriorate, as well as that which was not of this character. And
of necessity, the provisions for the condemnation of both could not
be the same. Perishable property ought to be speedily sold, while
property not in this condition could not be injured by delay. The
statute recognizes this difference, and provides for it. In the
case of property not perishable -- doubtless supposed to be the
kind which would usually come under condemnation -- the first step
to be taken is to give notice of the seizure, which is to be
continued for three successive weeks. If the owner appears in
twenty days from the first publication of this notice, he can put a
stop to the summary proceeding. If he does not appear, the property
is to be advertised for sale on notice of not less than fifteen
days. And he is turned over to the Secretary of the Treasury for
remission of the forfeiture, if he has suffered injustice at the
hands of the government.
The requirements concerning the disposition of perishable
property are very different. In the first place, no separate notice
of seizure is exacted of the officer, but the notice of seizure is
to go out with the notice of sale. This provision shows that it was
intended to hasten the sale of this kind of property; and it is
clear that this object could not be attained if the officer had to
publish a preliminary notice of seizure, wait twenty days for
anyone interested to prefer a claim, and then advertise and sell.
Before all this could be done, the property might become worthless.
At any rate, the longer the delay, the greater the deterioration;
and in recognition of this fact, the officer is authorized to sell
property in this predicament in a week, if he thinks proper to do
so; while, as we have seen, he is estopped from selling property
not in this condition until the expiration of thirty-five days from
the publication of notice of seizure. In the latter case, the owner
can have twenty days to file his claim, and yet the officer can
discharge his duty under the law; in
Page 84 U. S. 404
the former, he cannot enjoy this privilege and the officer be
allowed to exercise his discretion to sell the property after a
week's notice.
The two things cannot coexist, nor is Congress chargeable with
such loose legislation, for the condition can be construed so as to
harmonize all parts of the section and thereby secure an effective
system for the speedy disposition of property subject to
forfeiture, of less value than $500, whether perishable or not.
It is argued that the words "as hereinbefore provided" control
the condition, and make it broad enough to embrace everything
secured on this subject in a previous part of the statute. This
result by no means follows. The words, it is true, are general, but
they necessarily refer to the manner of making the claim as
previously directed, and not to the time within which the claimant
of property, not perishable, could interfere.
The twelfth section pointed out the way in which the party
interested had to proceed in order to arrest the sale of his
property. He must file his claim with the officer, state the nature
of it, and give bond with certain conditions. If these things were
done, the summary proceeding was stopped, and the district attorney
authorized to proceed to condemn the property in the ordinary mode
prescribed by law.
By the fifteenth section, the owner of perishable property was
informed that if he interposed and perfected his claim in the same
way, the same consequences would follow. If he did not choose to do
this, the officer was directed, without any loss of time, to
advertise and sell his property, leaving him, in case of injury, to
seek redress at the hands of the Secretary of the Treasury.
This is the scope and extent of this section. On this theory of
construction, the plan adopted for the sale of perishable property
can be made to work effectively. On the theory advanced by the
plaintiff, it is practically inoperative.
It follows from these views that the demurrer to the special
plea in bar should have been overruled and that
Page 84 U. S. 405
therefore the question certified by the judges below must be
Answered in the affirmative.
* 14 Stat. at Large 180.
