Conway v. Stannard/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 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 any one 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 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, therefore, the question certified by the judges below must be

ANSWERED IN THE AFFIRMATIVE.