§ 113-412. Seizure and sale of contraband oil, gas and product. - North Carolina Statutes

§ 113‑412.  Seizureand sale of contraband oil, gas and product.

Apart from, and in addition to, any other remedy or procedure which maybe available to the Department, or any penalty which may be sought against orimposed upon any person with respect to violations relating to illegal oil,illegal gas, or illegal product, all illegal oil, illegal gas and illegalproduct shall, except under such circumstances as are stated herein, becontraband and shall be seized and sold. Such sale shall not take place unlessthe court shall find, in the proceeding provided for in this paragraph, thatthe commodity involved is contraband. Whenever the Department believes thatillegal oil, illegal gas or illegal product is subject to seizure and sale, asprovided herein, it shall, through the Attorney General, have issued a warrantof attachment and bring a civil action in rem for that purpose in the superiorcourt of the county where the commodity is found, or the action may bemaintained in connection with any suit or cross bill for injunction or forpenalty relating to any prohibited transaction involving such illegal oil,illegal gas or illegal product. Any interested person who may show himself tobe adversely affected by any such seizure and sale shall have the right to intervenein such suit to protect his rights.

The action referred to above shall be strictly in rem and shall proceedin the name of the State as plaintiff against the illegal oil, illegal gas orillegal product mentioned in the complaint, as defendant, and no bond or bondsshall be required of the plaintiff in connection therewith. Upon the filing ofthe complaint, the clerk of the court shall issue a summons directed to thesheriff of the county, or to such other officer or person as the court mayauthorize to serve process, requiring him to summon any and all persons(without undertaking to name them) who may be interested in the illegal oil,illegal gas, or illegal product mentioned in the complaint to appear and answerwithin 30 days after the issuance and service of such summons. The summonsshall contain the style and number of the suit and a very brief statement ofthe nature of the cause of action. It shall be served by posting one copythereof at the courthouse door of the county where the commodity involved inthe suit is alleged to be located and by posting another copy thereof near theplace where the commodity is alleged to be located. Copy of such summons shallbe posted at least five days before the return day stated therein, and theposting of such copy shall constitute constructive possession of such commodityby the State. A copy of the summons shall also be published once each week forfour weeks in some newspaper published in the county where the suit is pendingand having a bona fide circulation therein. No judgment shall be pronounced byany court condemning such commodity as contraband until after the lapse of fivedays from the last publication of said summons. Proof of service of saidsummons, and the manner thereof, shall be as provided by general law.

Where it appears by a verified pleading on the part of the plaintiff,or by affidavit, or affidavits, or by oral testimony, that grounds for theseizure and sale exist, the clerk, in addition to the summons or warning order,shall issue a warrant of attachment, which shall be signed by the clerk andbear the seal of the court. Such warrant of attachment shall specificallydescribe the illegal oil, illegal gas or illegal product, so that the same maybe identified with reasonable certainty. It shall direct the sheriff to whom itis addressed to take into his custody, actual or constructive, the illegal oil,illegal gas or illegal product, described therein, and to hold the same subjectto the orders of the court. Said warrant of attachment shall be executed as awrit of attachment is executed. No bond shall be required before the issuanceof such warrant of attachment, and the sheriff shall be responsible upon hisofficial bond for the proper execution thereof.

In a proper case, the court may direct the sheriff to deliver thecustody of any illegal oil, illegal gas or illegal product seized by him undera warrant of attachment, to a commissioner to be appointed by the court, whichcommissioner shall act as the agent of the court and shall give bond with suchapproved surety as the court may direct, conditioned that he will faithfullyconserve such illegal oil, illegal gas or illegal product, as may come into hiscustody and possession in accordance with the orders of the court; provided,that the court may in its discretion appoint any member of the Department orany agent of the Department as such commissioner of the court.

Sales of illegal oil, illegal gas or illegal product seized under theauthority of this law, and notices of such sales, shall be in accordance withthe laws of this State relating to the sale and disposition of attachedproperty; provided, however, that where the property is in custody of acommissioner of the court, the sale shall be held by said commissioner and notby the sheriff. For his services hereunder, such commissioner shall receive areasonable fee to be paid out of the proceeds of the sale or sales to be fixedby the court ordering such sale.

The court may order that the commodity be sold in specified lots orportions, and at specified intervals, instead of being sold at one time. Titleto the amount sold shall pass as of the date of the law which is found by thecourt to make the commodity contraband. The judgment shall provide for theclear proceeds of the sales to be remitted to the Civil Penalty and ForfeitureFund in accordance with G.S. 115C‑457.2. The amount sold shall be treatedas legal oil, legal gas or legal product, as the case may be, in the hands ofthe purchaser, but the purchaser and the commodity shall be subject to allapplicable laws, rules, and orders with respect to further sale or purchase oracquisition, and with respect to the transportation, refining, processing, orhandling in any other way, of the commodity purchased.

Nothing in this section shall deny or abridge any cause of action aroyalty owner, or a lienholder, or any other claimant, may have, because of theforfeiture of the illegal oil, illegal gas, or illegal product, against theperson whose act resulted in such forfeiture. No illegal oil, illegal gas orillegal product shall be sold for less than the average market value at thetime of sale of similar products of like grade and character. (1945, c. 702, s. 32; 1973, c. 1262, s. 86; 1987, c.827, s. 123; 1998‑215, s. 51.)