'This method of proceeding against seized property of the value of $ 500, or less, was in exclusive method and Congress undoubtedly had the right to make this provision. * * *
'The proceedings had were regular and the plaintiffs had personal notice of them. They chose to stand idle and allow the forfeiture to be prosecuted to a conclusion without availing themselves of the remedies provided by the statute.
'It is contended on behalf of the plaintiffs that both the seizure of the automobile and the proceeding to forfeit it were unlawful. Section 1624, U.S.C.A., title 26 subsec. (c)(now Section 3724, U.S.C.A., title 26, subsec. (c), provides that any person claiming seized articles can, by the giving of a bond of $ 250, have the forfeiture proceedings thrown into court. This the plaintiffs refused to do, although notified of their right by letter, and no claim is made that they were not able to give the small bond required. By this course the plaintiffs forfeited their right to the relief they now ask. * * *
'In this view of the case, which we think the proper one, all questions as to the legality of the seizure and the forfeiture proceedings that followed become immaterial.'(Emphasis added).
Hence, we are constrained to agree with the Government's counsel that the illegal seizure here is immaterial. By virtue of the declaration of forfeiture in that uncontested proceeding this Court is bound to presume that plaintiff's Ford truck had been used in violation of the Internal Revenue Laws. If plaintiff had contested that proceeding the Government would have had the opportunity as well as the burden to prove that this truck- as was established in the case of the Plymouth coupe- had been used illegally in connection with the still. There was no evidence at the hearing in this case which tended to overcome the presumption. Therefore, we find that prior to the illegal seizure the truck had been illegally used, that under Sec. 3116, 26 U.S.C.A., plaintiff had no property rights therein, and that all the property rights, including the right of possession, had already vested in the United States. As was held in Anthony DeBonis v. United States, D.C.W.D. Pa. 1952, 103 F.Supp. 123, in such circumstances any damage which plaintiff has suffered from the loss of the truck is damnum absque injuria.
Moreover, as in Anthony's case, we think the cause of action arose on May 19, 1948, the date of the wrongful seizure 54 C.J.S., Limitations of Actions, Sec. 177(5). In this case the Government contends, and we agree, that the action commenced on October 25, 1950 was barred. Section 2401, 28 U.S.C.A.
The Federal Tort Claims Act creates the right of action and fixes the period within which the enforcement action must be commenced. When that period expired, here on May 19, 1950, the right of action, remedy, and the corresponding liability were extinguished and the Court has no jurisdiction to entertain the suit. See Problems Under The Federal Tort Claims Act, by the Honorable Leon R. Yankwich, J.D., L.L.D., 9 F.R.D. 143, at pages 152-154; and Adams v. Albany, D.C.S.D. Cal. 1948, 80 F.Supp. 876; Carpenter v. United States, 2 Cir., 1932, 56 F.2d 828; Compagnie Generale Transatlantique v. United States, D.C.M.D.N.C. 1938, 21 F.Supp. 1007.
Even if the operation of Section 2401 could be suspended pending the summary forfeiture proceeding, it appears that after due notice the declaration of forfeiture was entered on July 1, 1948.
In Anthony's case we were not requested to apply the Statute. Anthony did not discover until after prolonged litigation that the forfeiture proceedings were invalid. But in the case here plaintiff should have known that the truck had been forfeited on July 1, 1948. When he failed to invoke his statutory remedy even after Judge Gibson pointed it out to him on September 15, 1948, he lost any equitable claim he might otherwise have had for postponing the condition imposed by the Act.
Appropriate findings and conclusions will be filed herewith.
Findings of Fact
1. Rocco DeBonis, the plaintiff, brought suit against the United States under the Federal Tort Claims Act to recover damages for the loss of a 1 1/2 ton Ford hoist dump truck which he owned and possessed prior to October, 1947.
2. On May 19, 1948, employees of the United States wrongfully seized this vehicle without a warrant while acting in the scope of their employment.
3. The truck was appraised at less than $ 500, notices were published, forfeiture was declared on July 1, 1948, and it was sold administratively on January 24, 1949 pursuant to Section 3724, Title 26, U.S.C.A. The plaintiff failed to file a claim or post a cost bond as provided in this section of the statute.
4. Plaintiff's complaint was filed on October 25, 1950.
Conclusions of Law
1. The complaint was filed more than two years after plaintiff's cause of action accrued and the Court is without jurisdiction.
2. Assuming that the Court had jurisdiction, plaintiff is bound by the summary forfeiture proceeding. Being so bound, presumable the vehicle involved was theretofore used to violate the Internal Revenue Laws and, therefore, at that time all the property rights therein, including the right of possession, were forfeited and vested in the United States.
3. Plaintiff had no property rights in the motor vehicle at the time it was illegally seized by the employees of the United States.
4. The plaintiff failed to make out a case that would entitle him to damages under the Federal Tort Claims Act.
5. The complaint should be dismissed with prejudice at the cost of the plaintiff.