The opinion of the court was delivered by: Campbell, Chief Judge.
This cause is presently before me on the motion of the
defendant, the United States of America, to dismiss the complaint
for failure to state a claim upon which relief could be granted,
or in lieu thereof for summary judgment. Title 49 §§ 781-788 deal
with "Seizure and Forfeiture of Carriers Transporting, etc.,
Contraband Articles". The automobile was forfeited to the United
States pursuant to the authority of these sections.
Both parties agree as to the facts, which the government's
memorandum in support of its motion sets out as follows, and
which I adopt as my findings of fact.
1. On December 6, 1961, and April 12, 1962, a 1960 Ford
Thunderbird Coupe, Motor and Serial Number OY71Y171111, was used
by Johnnie L. Carter to facilitate the sale of narcotic drugs in
Chicago, Illinois. During the sale which took place on December
6, 1961, all negotiations, the sale, and the delivery of drugs
took place in this 1960 Ford Thunderbird. All of the narcotic
drugs were contraband as defined by 49 U.S.C. § 781, as shown in
2. On July 26, 1962, the Narcotic District Supervisor caused
the automobile to be seized by federal narcotic agents pursuant
to 49 U.S.C. § 782. The Narcotic District Supervisor determined
the domestic value of the automobile at the time and place of
seizure to be $2,430.00 pursuant to 19 U.S.C. § 1606,
49 U.S.C. § 784, and 26 C.F.R. § 153.3.
4. On August 7, 1962, the Narcotic District Supervisor mailed
to the Pullman Savings and Trust Bank, 400 E. 111th Street,
Chicago, Illinois, a notice that the automobile had been seized
by the Bureau of Narcotics on July 26, 1962, at Chicago,
Illinois, for violation of 49 U.S.C. § 781-788 and that steps
were being taken to forfeit the vehicle to the United States
Government, as shown in Exhibit A(3).
5. No one filed with the Narcotic District Supervisor a claim
to the automobile and gave bond within 20 days from the date of
first publication of the notice of seizure as contemplated by
19 U.S.C. § 1608, 49 U.S.C. § 784 and 26 C.F.R. § 153.4. On September 12,
1962, the Narcotic District Supervisor declared the automobile
forfeited to the United States pursuant to 19 U.S.C. § 1609,
49 U.S.C. § 784, and 26 C.F.R. § 153.6, as shown in Exhibit A(4).
6. On August 17, 1962, a petition for remission or mitigation
of forfeiture of the automobile was received by the Narcotic
District Supervisor from the registered owner of the automobile,
Johnnie L. Carter, and Barbara Carter. On September 21, 1962,
after due investigation, the petition of Johnnie L. Carter and
Barbara Carter was denied by the Commissioner of Narcotics for
the reason that Johnnie L. Carter used the automobile in
violation of the law, and further for the reason that Barbara
Carter lacked a sufficient interest in the automobile to support
a petition as shown in Exhibit A(5). By Treasury Department Order
No. 180-1 of December 9, 1953 (18 F.R. 8208), the Secretary of
the Treasury delegated to the Commissioner of Narcotics the
authority to exercise administrative discretion on petitions of
the kind presented, the delegation having been made pursuant to
Reorganization Plan No. 26 of 1950, note following
5 U.S.C. § 133Z-15.
7. On October 1, 1962, the Commissioner of Narcotics advised
the Narcotic District Supervisor in Chicago that since the
petition regarding the automobile had been denied, the automobile
could be put into official use, as shown in Exhibit A(6). By a
letter received on October 4, 1962, the Commissioner of Narcotics
was advised by the Narcotic District Supervisor that the
automobile would be put into official use on October 3, 1962, as
shown in Exhibit A(7).
8. On December 12, 1962, the Commissioner of Narcotics received
from the Pullman Trust and Savings Bank, by Marshall Patner its
attorney, a "Supplemental Petition" in regard to the automobile.
This petition stated that the petitioner had an interest in the
automobile by virtue of a retail installment contract. The
petition further alleged that under the terms of the contract the
purchasers were not in default until October 6, 1962, and
therefore until this date, the petitioner "* * * had no standing
to petition as a lienholder for the said automobile", as shown in
9. On December 13, 1962, the Commissioner of Narcotics denied
the petition submitted by the Pullman Trust and Savings Bank. The
Commissioner ruled, and the petitioner was advised by letter
dated December 17, 1962, that the petitioner was in error in
alleging that it had no standing to petition. The petitioner
could have submitted a petition as lienholder immediately upon
receiving notice of the seizure on August 7, 1962, pursuant to
26 C.F.R. § 153.8. Accordingly, in conformance with the regulations
contained in 26 C.F.R. § 153.8(c) and 26 C.F.R. § 153.9, the petitioner was
notified that since the automobile had been authorized for
official use on October 1, 1962, the petition submitted could
only receive consideration by being treated as a petition for
restoration of proceeds of sale or value of the property. The
petitioner was further advised that a petition for restoration
must be supported by satisfactory proof that the petitioner did
not know of the seizure prior to the
declaration or condemnation of forfeiture (26 C.F.R. § 153.9). Since
notice of forfeiture was mailed to the petitioner on August 7,
1962, and the automobile was not declared forfeited until
September 12, 1962, the petitioner was not in a position to
support a petition for restoration of proceeds of sale or value
of the property, as shown in Exhibit A(9-11).
10. On December 26, 1962, another petition was received in the
Bureau of Narcotics Chicago office from the Pullman Trust and
Savings Bank. On January 3, 1963, the Commissioner of Narcotics
notified the petitioner through its attorney Mr. Patner, that
since the petitioner had not submitted additional support for
administrative relief the Commissioner was compelled to abide by
his decision of December 17, 1962, and the amended petition was
denied, as shown in Exhibit A(12, 13).
11. On January 17, 1963, the Commissioner of Narcotics received
a letter from Mr. Patner which requested reconsideration of the
Commissioner's decisions denying the petitions submitted. Mr.
Patner's letter also raised a question as to what he had been
advised by Mr. Wanzeck of the Bureau of Narcotics Chicago office
regarding the period within which the filing of a petition would
be considered as being "timely", as shown in Exhibit A(14).
12. On January 25, 1963, Narcotic Agent William T. Wanzeck
submitted his comments to the Narcotic District Supervisor
regarding the conversation with Mr. Patner in early December of
1962. Agent Wanzeck's letter reveals that he properly advised Mr.
Patner regarding the caption of the petition and in advising him
that the only recourse available to Mr. Patner was a petition for
restoration of proceeds or value of property. Mr. Patner then
acknowledged to Agent Wanzeck that the petitioner had been
notified of the seizure by letter ...