OCTOBER 4, 1921, 1 COMP. GEN. 183

OCTOBER 4, 1921, 1 COMP. GEN. 183

FEES OF UNITED STATES COMMISSIONERS FEDERAL PROHIBITION AGENTS AND DEPUTY COLLECTORS OF INTERNAL REVENUE HAVING AUTHORITY TO SERVE SEARCH WARRANTS UNDER THE NATIONAL PROHIBITION ACT, UNITED STATES COMMISSIONERS ARE ENTITLED TO FEES IN SUCH CASES FOR DRAWING THE COMPLAINT, ISSUING THE SEARCH WARRANT, AND ENTERING THE RETURN.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 4, 1921.

THE CHIEF, STATE AND OTHER DEPARTMENTS DIVISION, SUBMITTED SEPTEMBER 26, 1921, HIS MEMORANDUM FOR APPROVAL, DISAPPROVAL, OR MODIFICATION, AS FOLLOWS:

ACCOUNTS OF UNITED STATES COMMISSIONERS, NOW UNDER EXAMINATION AND SETTLEMENT, CLAIM GROUPS OF FEES (DRAWING COMPLAINT, ISSUING SEARCH WARRANT AND ENTERING RETURN THEREON), IN CASES UNDER THE NATIONAL PROHIBITION ACT WHERE SEARCH WARRANTS WERE DELIVERED TO A PROHIBITION AGENT. THESE FEES HAVE BEEN SUSPENDED PENDING YOUR DECISION UPON CONSTRUCTION OF SEC. 2 OF TITLE 1, ACT OF OCTOBER 28, 1919, 41 STAT., 305- 307; SEC. 28 OF TITLE 2, ACT OF OCTOBER 28, 1919, 41 STAT., 305 316; SEC. 2 OF TITLE 2, ACT OF OCTOBER 28, 1919, 41 STAT., 305-308; SEC. 6 OF TITLE XI, ACT OF JUNE 15, 1917, 40 STAT., 217-229, AS TO WHETHER A PROHIBITION AGENT IS AUTHORIZED BY LAW TO SERVE A SEARCH WARRANT. THE SAME CHARGES IN THE COMMISSIONER'S ACCOUNTS HAVE BEEN SUSPENDED BECAUSE THE SEARCH WARRANTS WERE ISSUED FOR SERVICE TO DEPUTY COLLECTORS OF INTERNAL REVENUE.

SECTION 5 OF TITLE 1, ACT OF OCTOBER 28, 1919, 41STAT., 305-307, PROVIDES THAT "THE COMMISSIONER OF INTERNAL REVENUE, HIS ASSISTANTS, AGENTS, AND INSPECTORS * * * SHALL HAVE ALL THE POWER FOR THE ENFORCEMENT OF THE WAR PROHIBITION ACT OR ANY PROVISIONS THEREOF WHICH IS CONFERRED BY LAW FOR THE ENFORCEMENT OF EXISTING LAWS RELATING TO THE MANUFACTURE OR SALE OF INTOXICATING LIQUORS UNDER THE LAW OF THE UNITED STATES.'

SECTION 28 OF TITLE 2, ACT OF OCTOBER 28, 1919, 41 STAT., 305-316, PROVIDES THAT "THE COMMISSIONER, HIS ASSISTANTS, AGENTS, AND INSPECTORS * * * SHALL HAVE ALL THE POWER AND PROTECTION IN THE ENFORCEMENT OF THIS ACT OR ANY PROVISIONS THEREOF WHICH IS CONFERRED BY LAW FOR THE ENFORCEMENT OF EXISTING LAWS RELATING TO THE MANUFACTURE OR SALE OF INTOXICATING LIQUORS UNDER THE LAW OF THE UNITED STATES.'

SECTION 2 OF TITLE 2, ACT OF OCTOBER 28, 1919, 41 STAT., 305-316, PROVIDES THAT "SECTION 1014 R.S. U.S. IS HEREBY APPLICABLE TO THE ENFORCEMENT OF THIS ACT. OFFICERS MENTIONED IN SAID SECTION 1014 ARE AUTHORIZED TO ISSUE SEARCH WARRANTS UNDER THE LIMITATIONS PROVIDED INTITLE XI OF THE ACT APPROVED JUNE 15, 1917, 40 STAT., 217-229.'

SECTION 6 OF TITLE XI, ACT OF JUNE 15, 1917, 40 STAT., 217-229, PROVIDES THAT "HE (THE COMMISSIONER) MUST ISSUE A SEARCH WARRANT * * * TO A CIVIL OFFICER OF THE UNITED STATES DULY AUTHORIZED TO ENFORCE OR ASSIST IN ENFORCING ANY LAW THEREOF, * * * COMMANDING HIM FORTHWITH TO SEARCH THE PERSON OR PLACE NAMED, FOR THE PROPERTY SPECIFIED, AND TO BRING IT BEFORE THE * * * COMMISSIONER.'

A PROHIBITION AGENT IS AN AGENT OF THE COMMISSIONER OF INTERNAL REVENUE AND IT IS A QUESTION WHETHER HIS EMPLOYMENT IS AN OFFICE,"A PUBLIC STATION OR EMPLOYMENT, EMBRACING THE IDEAS OF TENURE, DURATION, EMOLUMENT AND DUTIES; " THUS FULFILLING THE REQUIREMENTS OF CLAUSE 2, SECTION 2 OF ARTICLE 2 OF THE CONSTITUTION, AS CONSTRUED IN 6 WALLACE 385; 99 U.S. 508; 124 U.S. 307; 124 U.S. 525, 533. THESE SUPREME COURT DECISIONS ARE CITED BY THE COMPTROLLER OF THE TREASURY, 3 COMP. DEC. 651, TO SHOW THAT U.S. DEPUTY MARSHALS, APPOINTED UNDER THE PROVISIONS OF SECTION 780 R.S. U.S., AND SECTION 11 OF THE ACT OF MAY 28, 1896, ARE NOT OFFICERS OF THE UNITED STATES AND THAT THE ACT OF MAY 28, 1896, SECTION 11, 29 STAT., 140-182, LEAVES THEM IN THE SAME RELATION TO THE MARSHAL AND THE UNITED STATES AS THEY WERE, OR ARE (FOR THE COMPTROLLER HELD THAT THE PROVISIONS OF SEC. 780 R.S. ARE STILL IN FORCE) HELD IN BY SAID SECTION 780 R.S. AND SECTION 11 OF THE ACT OF MAY 28, 1896, 27 STAT., 182. THE COMPTROLLER FURTHER SAID (AGE 653) THAT "IT IS NO DOUBT CUSTOMARY TO GIVE DEPUTIES FORMAL COMMISSIONS OR OTHER WRITTEN EVIDENCES OF THEIR APPOINTMENT OR EMPLOYMENT, BUT THE EXECUTION OF SUCH WRITTEN EVIDENCE IS NOT THE APPOINTMENT OR EMPLOYMENT ITSELF.' THIS IS ALSO TRUE OF A REGULAR FORMAL COMMISSION WHICH, AS SOON AS IT IS SIGNED AND SEALED VESTS THE OFFICE IN THE APPOINTEE. DOUBTLESS, THE PROHIBITION AGENT RECEIVES ALSO A PAPER WRITING IN THE NATURE OF A COMMISSION BUT IT IS NO MORE TO BE DENOMINATED "LETTERS PATENT" GRANTED BY THE GOVERNMENT, UNDER THE PUBLIC SEAL, TO A PERSON APPOINTED TO AN OFFICE, GIVING HIM AUTHORITY TO PERFORM THE DUTIES OF THE OFFICE, THAN IS THE EQUALLY SIMPLE "COMMISSION" THAT IS GIVEN TO THE DEPUTY MARSHAL. UNDER THE PROVISIONS OF SECTION 78 R.S. U.S. THE MARSHAL HIMSELF IS THE ONLY OFFICER MENTIONED WITH AUTHORITY TO SERVE THE PROCESS OF THE COURTS BUT IN PRACTICE HE SELDOM PERSONALLY PERFORMS SUCH SERVICES, WHICH DEVOLVES UPON THE DEPUTY MARSHALS, APPOINTED BY HIMSELF UNDER THE PROVISIONS OF SECTION 780 R.S. U.S. AND OF SECTION 11, ACT OF MAY 28, 1896, 29 STAT., 180. THE PROHIBITION AGENT IS APPOINTED BY THE COMMISSIONER OF INTERNAL REVENUE (OR ATTORNEY GENERAL) UNDER THE PROVISIONS OF SECTION 38 OF THE ACT OF OCT. 28, 1919, 41 STAT., 319. AND THIS APPLIES AS WELL TO THE PROHIBITION AGENT AS TO THE DEPUTY MARSHAL; NEITHER IS AN "OFFICER" IN STRICT CONTEMPLATION OF LAW AS CONSTRUED BY THE SUPREME COURT.

IN HIS DECISION OF SEPT. 30, 1919, 26 COMP. DEC., 228, THE COMPTROLLER OF THE TREASURY DECIDED THAT A U.S. COMMISSIONER COULD NOT BE ALLOWED FEES FOR ISSUING A SEARCH WARRANT FOR SERVICE TO A SPECIAL AGENT OF THE DEPARTMENT OF JUSTICE IN A CASE COMING UNDER THE PROVISIONS OF THE ACT OF JUNE 15, 1917, 40 STAT., 229, BECAUSE UNDER SEC. 6 OF SAID LAW THE SPECIAL AGENT WAS NOT AN OFFICER WITHIN THE MEANING OF THIS STATUTE AND THAT THE SERVICE OF SUCH PROCESS "FALLS EXCLUSIVELY UPON THE MARSHAL AND HIS APPOINTED DEPUTIES UNLESS OTHERWISE SPECIFICALLY PROVIDED BY LAW.' IN MY OPINION THIS BASES THE RIGHT OF THE COMMISSIONER TO ISSUE A SEARCH WARRANT TO THE PROHIBITION AGENT FOR SERVICE SIMPLY UPON THE QUESTION OF WHETHER THE AGENT WAS A "CIVIL OFFICER OF THE UNITED STATES.' HE WAS ONLY AUTHORIZED IF HE WAS A CIVIL OFFICER, FOR THE PROHIBITION ACT CONFERS ON HIM "ALL THE POWER AND PROTECTION IN THE ENFORCEMENT OF THIS ACT OR ANY PROVISIONS THEREOF * * * CONFERRED BY LAW FOR THE ENFORCEMENT OF EXISTING LAWS * * * RELATING TO THE MANUFACTURE OR SALE OF INTOXICATING LIQUORS," AND ALSO ENACTS THAT THE PROVISIONS AND LIMITATIONS AS TO ISSUE OF SEARCH WARRANTS IN SECTION 6 OF THE ACT OF JUNE 15, 1917, 40 STAT., 229, SHALL BE ADOPTED. SAID SECTION 6 PROVIDES THAT SEARCH WARRANTS MAY BE ISSUED FOR SERVICE TO "A CIVIL OFFICER OF THE UNITED STATES DULY AUTHORIZED TO ENFORCE OR ASSIST IN ENFORCING ANY LAW THEREOF * * *.' HE IS AUTHORIZED TO ENFORCE, BUT IS HE AN OFFICER?

THE ACT OF OCT. 28, 1919, 41 STAT., 305, BECAME A LAW NEARLY A MONTH AFTER THE RENDITION OF THE COMPTROLLER'S DECISION. IT PROVIDED FOR ONE OF THE REQUIREMENTS CONTAINED IN THAT DECISION, AUTHORITY TO ENFORCE THE PROHIBITION LAW; AND, IN ADDITION TO THAT, SPECIFIC AUTHORIZATION TO SERVE SEARCH WARRANTS UNDER THIS LAW, IF THE AGENT WAS A CIVIL OFFICER OF THE UNITED STATES. THE PROHIBITION AGENT CAN SCARCELY BE UNDERSTOOD AS HOLDING AN OFFICE AS DESCRIBED IN THE SUPREME COURT DECISIONS, AND IN THE COMPTROLLER'S DECISION CITED ABOVE; BUT, HE FILLS AN EMPLOYMENT WHICH HAS AN OFFICE, THAT OF OBEYING THE MANDATES AND CARRYING OUT THE ORDERS OF HIS SUPERIOR OFFICER IN ENFORCING THE PROHIBITION LAW, AND IT APPEARS REASONABLE TO SUPPOSE THAT THE TERM "CIVIL OFFICER" WAS EMPLOYED BY CONGRESS IN THIS POPULAR AND GENERALLY ACCEPTED SENSE IN ENACTING THIS LAW. POPULARLY SUCH EMPLOYEES ARE KNOWN AS OFFICERS AND IT IS A QUESTION IF IT WAS NOT USED BY CONGRESS IN THIS SENSE.

ASSUMING THIS TO BE THE CASE, I HOLD THAT PROHIBITION AGENTS ARE AUTHORIZED, BY THE ACTS OF JUNE 15, 1917, AND OF OCT. 28, 1919, TO SERVE SEARCH WARRANTS ISSUED UNDER THE PROVISION OF THE LATTER ACT AND THAT COMMISSIONERS ISSUING SUCH WARRANTS TO THEM ARE ENTITLED TO THEIR FEES FOR ISSUING SAID WARRANTS. AND FOR THE SAME REASONS I HOLD THAT WARRANTS ISSUED TO DEPUTY COLLECTORS OF INTERNAL REVENUE ARE ISSUED TO "CIVIL OFFICERS OF THE UNITED STATES, AUTHORIZED TO ENFORCE * * * ANY LAW THEREOF," AND THAT THE COMMISSIONERS ISSUING THEM ARE ENTITLED TO THEIR FEES THEREFOR.

I UNDERSTAND THAT NO OBJECTION TO SERVICE OF THE SEARCH WARRANTS AS MADE HAS BEEN RAISED BEFORE THE JUDICIARY.

SECTION 3462, REVISED STATUTES, PROVIDES AS FOLLOWS:

THE SEVERAL JUDGES OF THE CIRCUIT AND DISTRICT COURTS OF THE UNITED STATES, AND COMMISSIONERS OF THE CIRCUIT COURTS, MAY, WITHIN THEIR RESPECTIVE JURISDICTIONS, ISSUE A SEARCH-WARRANT, AUTHORIZING ANY INTERNAL -REVENUE OFFICER TO SEARCH ANY PREMISES WITHIN THE SAME, IF SUCH OFFICER MAKES OATH IN WRITING THAT HE HAS REASON TO BELIEVE, AND DOES BELIEVE, THAT A FRAUD UPON THE REVENUE HAS BEEN OR IS BEING COMMITTED UPON OR BY THE USE OF SAID PREMISES.

SECTION 28 OF TITLE 2, ACT OF OCTOBER 28, 1919, 41 STAT., 316, PROVIDES THAT:

THE COMMISSIONER, HIS ASSISTANTS, AGENTS, AND INSPECTORS, AND ALL OTHER OFFICERS OF THE UNITED STATES, WHOSE DUTY IT IS TO ENFORCE CRIMINAL LAWS, SHALL HAVE ALL THE POWER AND PROTECTION IN THE ENFORCEMENT OF THIS ACT OR ANY PROVISIONS THEREOF WHICH IS CONFERRED BY LAW FOR THE ENFORCEMENT OF EXISTING LAWS RELATING TO THE MANUFACTURE OR SALE OF INTOXICATING LIQUORS UNDER THE LAW OF THE UNITED STATES.

UNDER SECTION 3462, REVISED STATUTES, ANY INTERNAL REVENUE OFFICER MAY SERVE A SEARCH WARRANT RESULTING FROM HIS OWN COMPLAINT, AND UNDER SECTION 28 OF TITLE 2, ACT OF OCTOBER 28, 1919, 41 STAT., 316, IT SEEMS CLEAR THAT CONGRESS INTENDED TO CLOTHE THE COMMISSIONER OF INTERNAL REVENUE, HIS ASSISTANTS, AGENTS, AND INSPECTORS WITH EQUAL POWER AND PROTECTION IN THE ENFORCEMENT OF THE NATIONAL PROHIBITION ACT.