A-91611, A-91736, A-92484, MARCH 17, 1939, 18 COMP. GEN. 716

A-91611,A-92484,A-91736: Mar 17, 1939

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POSTAL-SAVINGS DEPOSITS - DECEASED DEPOSITORS - PUBLIC ADMINISTRATOR PAYMENTS - AUDIT - EVIDENCE REQUIREMENTS PAYMENTS OF POSTAL-SAVINGS DEPOSITS TO PUBLIC ADMINISTRATORS SHOULD BE SUPPORTED BY THE SAME EVIDENCE AS IS REQUIRED IN THE CASE OF PRIVATE ADMINISTRATORS. THAT IS. WHERE A CLAIM AGAINST THE UNITED STATES IS THE SOLE ASSET OF AN ESTATE. ARE MODIFIED ACCORDINGLY. 1939: REFERENCE IS MADE TO A LETTER DATED JULY 23. SUCH EVIDENCE HAD BEEN SUBMITTED BY THE RESPECTIVE POSTMASTERS TO SHOW FOR WHOM THE PAYEES WERE ACTING. WHICH DECLARED APPLICABLE TO POSTAL SAVINGS FUNDS THE LONG-ESTABLISHED RULE OF THE ACCOUNTING OFFICERS THAT WHERE A CLAIM AGAINST THE UNITED STATES IS THE SOLE ASSET OF AN ESTATE.

A-91611, A-91736, A-92484, MARCH 17, 1939, 18 COMP. GEN. 716

POSTAL-SAVINGS DEPOSITS - DECEASED DEPOSITORS - PUBLIC ADMINISTRATOR PAYMENTS - AUDIT - EVIDENCE REQUIREMENTS PAYMENTS OF POSTAL-SAVINGS DEPOSITS TO PUBLIC ADMINISTRATORS SHOULD BE SUPPORTED BY THE SAME EVIDENCE AS IS REQUIRED IN THE CASE OF PRIVATE ADMINISTRATORS, THAT IS, BY EVIDENCE OF THE APPOINTMENT OF THE PUBLIC ADMINISTRATOR TO ADMINISTER THE ESTATE OF THE DECEASED DEPOSITOR AND OF THE PAYMENT AUTHORIZATION ISSUED BY THE POST OFFICE DEPARTMENT. DECISIONS DATED MARCH 1, 1933, AND MARCH 30, 1934, A-30163, WHICH DECLARED APPLICABLE TO SUCH FUNDS THE LONG-ESTABLISHED RULE OF THE ACCOUNTING OFFICERS THAT, WHERE A CLAIM AGAINST THE UNITED STATES IS THE SOLE ASSET OF AN ESTATE, THERE MUST BE A SHOWING OF HEIRS, CREDITORS, ETC., FOR CONSIDERATION IN CONNECTION WITH THE MATTER OF A POSSIBLE ESCHEAT TO THE STATE, BEFORE THE CLAIM MAY BE ALLOWED, ARE MODIFIED ACCORDINGLY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE POSTMASTER GENERAL, MARCH 17, 1939:

REFERENCE IS MADE TO A LETTER DATED JULY 23, 1938, FROM THE THIRD ASSISTANT POSTMASTER GENERAL AS ACTING POSTMASTER GENERAL, IN REPLY TO MY LETTER OF JULY 12, 1938, TO YOU, REQUESTING THAT CERTAIN STANDARD FORMS NO. 1055, FURNISHED BY THE POSTMASTERS AT RALEIGH, N.C., GLENDALE, CALIF., AND BUFFALO, N.Y., IN SUPPORT OF PAYMENTS OF POSTAL SAVINGS DEPOSITS TO PUBLIC ADMINISTRATORS, AND APPARENTLY BEING WITHHELD BY THE THIRD ASSISTANT POSTMASTER GENERAL, BE TRANSMITTED TO THIS OFFICE FOR CONSIDERATION IN THE AUDIT OF THE ACCOUNTS OF THE POSTMASTERS CONCERNED. SUCH EVIDENCE HAD BEEN SUBMITTED BY THE RESPECTIVE POSTMASTERS TO SHOW FOR WHOM THE PAYEES WERE ACTING, AS REQUIRED BY DECISIONS OF THE FORMER COMPTROLLER GENERAL DATED MARCH 1, 1933, AND MARCH 30, 1934, A-30163, WHICH DECLARED APPLICABLE TO POSTAL SAVINGS FUNDS THE LONG-ESTABLISHED RULE OF THE ACCOUNTING OFFICERS THAT WHERE A CLAIM AGAINST THE UNITED STATES IS THE SOLE ASSET OF AN ESTATE, THERE MUST BE A SHOWING OF HEIRS, CREDITORS, ETC., BEFORE THE CLAIM MAY BE ALLOWED.

THE ACTING POSTMASTER GENERAL DID NOT FURNISH THE EVIDENCE IN QUESTION, BUT REQUESTED RECONSIDERATION OF THE DECISIONS REFERRED TO ABOVE, APPARENTLY UPON THE GROUNDS THAT THE RULINGS OF THIS OFFICE ARE CONTRARY TO THE DECISION OF THE CIRCUIT COURT OF THE UNITED STATES, WESTERN DISTRICT OF KENTUCKY, IN THE CASE OF AMERICAN LOAN AND TRUST CO. V. GRAND RIVERS CO., 159 FED. 775, AND THAT THIS OFFICE IS WITHOUT AUTHORITY TO REQUIRE SUBMISSION OF STANDARD FORM NO. 1055 IN THIS CLASS OF DISBURSEMENTS, IN VIEW OF THE AUTHORITY VESTED BY LAW IN THE BOARD OF TRUSTEES OF THE POSTAL SAVINGS SYSTEM "TO MAKE ALL NECESSARY AND PROPER REGULATIONS FOR THE RECEIPT, TRANSMITTAL, CUSTODY, DEPOSIT, INVESTMENT, AND REPAYMENT OF THE FUNDS DEPOSITED AT POSTAL-SAVINGS DEPOSITORY OFFICES.'

THE CASE OF AMERICAN LOAN AND TRUST CO. V. GRAND RIVERS CO., SUPRA, HELD UNCONSTITUTIONAL, AS IN VIOLATION OF THE FIFTH AMENDMENT, SECTION 996, REVISED STATUTES, AS AMENDED BY SECTION 3 OF THE ACT OF FEBRUARY 19, 1897, 29 STAT. 578, PROVIDING THAT MONEYS REMAINING IN THE REGISTRY OF COURTS OF THE UNITED STATES UNCLAIMED FOR 10 YEARS OR LONGER SHOULD BE DEPOSITED IN A DESIGNATED DEPOSITORY OF THE UNITED STATES, TO THE CREDIT OF THE UNITED STATES. WITH RESPECT TO ANY RIGHT OF THE UNITED STATES TO FORFEIT SUCH MONEYS TO ITSELF BY STATUTE, THE COURT, AFTER REVIEWING THE AUTHORITIES, SAID:

THESE AUTHORITIES INEVITABLY LEAD TO THE CONCLUSION THAT THE NATIONAL GOVERNMENT IS NOT IN ANY CASE THE PARENS PATRIAE TO WHICH OWNERLESS PROPERTY OF ANY SORT IN ANY STATE OF THE UNION REVERTS. WE THINK THAT WITHIN THE STATES RESPECTIVELY IT IS THE STATE WHICH EXCLUSIVELY IS PARENS PATRIAE, AND THIS RESULT CANNOT BE AFFECTED BY THE FACT THAT THE PROPERTY MIGHT HAPPEN TO BE IN THE REGISTRY OF A FEDERAL COURT. THOUGH IN THE REGISTRY, IT IS, NEVERTHELESS, A PART OF THE GENERAL PROPERTY IN THE STATE. THE STATE, UNDER THE AUTHORITIES CITED, MIGHT WITH MORE PLAUSIBILITY BE HELD TO SUCCEED TO THE TITLE OF SUCH PROPERTY, AND MIGHT HAVE THE RIGHT THROUGH ITS ESCHEATOR TO APPLY TO THE COURT FOR IT IF ANY GOVERNMENT BE ENTITLED TO DO SO. IN SAYING THIS WE BY NO MEANS INTEND TO INTIMATE THAT THE STATE WOULD, IN FACT, HAVE THE SLIGHTEST RIGHT TO AN ESCHEAT OF THE MONEY IN COURT IN THIS CASE. WE ONLY CONCLUDE, UNDER THE AUTHORITIES CITED, THAT IF ANY GOVERNMENT CAN CLAIM TO BE PARENS PATRIAE IT IS THAT OF THE STATE, AND NOT THAT OF THE NATION.

AS EARLY AS 1882, FIRST COMPTROLLER WILLIAM LAWRENCE STATED, IN DISCUSSING THE WEIGHT TO BE GIVEN BY THE ACCOUNTING OFFICERS TO DECISIONS OF THE COURTS OTHER THAN THE SUPREME COURT OF THE UNITED STATES, THAT---

THE DECISIONS OF OTHER COURTS MAY SETTLE THE RIGHTS OF PARTIES IN PARTICULAR CASES, AND THE GENERAL PRINCIPLES THEREIN ASSERTED ARE ALWAYS ENTITLED TO RESPECT, BUT THEY ARE NOT, NECESSARILY, TO BE ADOPTED BY THE ACCOUNTING OFFICERS OF THE TREASURY DEPARTMENT. IN VIEW OF THE MANY CONFLICTING DECISIONS THIS COULD NOT BE OTHERWISE. AND THE LAW HAS GIVEN ACCOUNTING OFFICERS A JURISDICTION OVER WHICH THEY ARE TO EXERCISE THEIR OWN JUDGMENT. * * * III LAWRENCE, 1ST COMP. DEC., XLII.

AS ILLUSTRATING THE POINT MADE BY THE FORMER FIRST COMPTROLLER, SEE THE CASE IN RE MONEYS IN REGISTRY OF DISTRICT COURT (1909), 170 FED. 470, WHERE THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA, CONSTRUING THE IDENTICAL PROVISION OF LAW INVOLVED IN THE AMERICAN LOAN AND TRUST CO. CASE, HELD THAT SUCH PROVISION DID NOT ATTEMPT TO FORFEIT OR ESCHEAT THE MONEY DESCRIBED THEREIN, BUT MERELY CHANGED THE DEPOSITORY, AND THAT THE COURT HAD NO POWER TO ORDER PAYMENT OF SUCH FUNDS TO PRIVATE PARTIES, BUT MUST DIRECT THEM TO BE TRANSFERRED TO THE CREDIT OF THE UNITED STATES.

HOWEVER, THERE APPEARS AT THIS TIME NO CONFLICT BETWEEN THE DECISIONS OF THIS OFFICE IN THE MATTER HERE IN QUESTION AND THE RULING OF THE COURT IN THE AMERICAN LOAN AND TRUST CO. CASE. IT WAS STATED IN DECISION OF JULY 6, 1934, A-30163, THAT---

* * * ASIDE FROM ANY QUESTION OF ESCHEAT THERE IS INVOLVED THE VITAL MATTER OF THE FEDERAL GOVERNMENT RELINQUISHING CUSTODY AND CONTROL OF THE FUNDS ENTRUSTED TO IT BY TURNING THEM OVER TO A PUBLIC ADMINISTRATOR REPRESENTING NO HEIRS, NEXT OF KIN, OR CREDITORS, AND EVENTUALLY TO THE STATE IN WHICH THE ESTATE OF THE DECEASED IS ALLEGEDLY BEING ADMINISTERED SO THAT IN THE EVENT HEIRS OR NEXT OF KIN, POSSIBLY RESIDING ELSEWHERE SHOULD AT A FUTURE TIME, APPEAR AND DEMAND THE MONEYS THERE MIGHT BE SUCCESSFULLY ASSERTED LIABILITY OF THE GOVERNMENT FOR FAILURE TO PRESERVE THE MONEYS FOR THE BENEFIT OF HEIRS, ETC. IN ANY EVEN AND IF SETTLEMENT COULD BE OBTAINED IT WOULD APPARENTLY BE UNDER STATE LAWS RATHER THAN UNDER LAWS GOVERNING POSTAL SAVINGS DEPOSITS. IT IS NOT BELIEVED THAT THE LAWS AUTHORIZING SUCH POSTAL-SAVINGS DEPOSITS HAD IN CONTEMPLATION SUCH PROCEDURE. * * *

NOTWITHSTANDING THE REFERENCE IN THE DECISION OF MARCH 1, 1933, A 30163, TO A RIGHT OF ESCHEAT IN FAVOR OF THE UNITED STATES, EXAMINATION OF THE DECISION SHOWS NO PURPOSE THEREIN TO DECLARE A FORFEITURE OF ANY POSTAL- SAVINGS DEPOSITS TO THE UNITED STATES, APPROVAL OF THE PAYMENTS IN QUESTION BEING WITHHELD FOR THE REASON THAT THE FUNDS, AS IN THE CASE REPORTED IN 7 COMP. GEN. 478, THEREIN REFERRED TO, WERE IN THE CUSTODY OF THE FEDERAL GOVERNMENT AS TRUSTEE FOR THE ESTATE. SEE IN THIS CONNECTION THE AMENDMENT TO SECTION 996, REVISED STATUTES, MADE BY THE ACT OF MARCH 3, 1911, 36 STAT. 1083, AND THE CASE OF UNITED STATES V. KLEIN, 303 U.S. 276, 282.

WITH RESPECT TO THE AUTHORITY OF THIS OFFICE TO REQUIRE STANDARD FORM 1055 IN SUPPORT OF PAYMENTS OF POSTAL-SAVINGS DEPOSITS TO PUBLIC ADMINISTRATORS--- AS STATED IN MY LETTER OF JULY 12, 1938, THE REQUIREMENT IS NOT A MANDATORY ONE--- WHILE THE BOARD OF TRUSTEES OF THE POSTAL SAVINGS SYSTEM IS AUTHORIZED BY SECTION 1 OF THE ACT OF JUNE 25, 1910, 36 STAT. 814, AS AMENDED, TO MAKE ALL NECESSARY AND PROPER REGULATIONS FOR, AMONG OTHER THINGS, THE REPAYMENT OF THE FUNDS DEPOSITED AT POSTAL-SAVINGS DEPOSITORY OFFICES, SECTION 12 OF THE ACT PROVIDES THAT POSTMASTERS AND OTHER OFFICERS AND EMPLOYEES OF THE POSTAL SERVICE SHALL BE HELD TO THE SAME ACCOUNTABILITY UNDER THEIR BONDS FOR POSTAL-SAVINGS DEPOSITORY FUNDS AS FOR PUBLIC MONEYS, AND THAT ALL STATUTES RELATING TO THE SAFEKEEPING OF AND PROPER ACCOUNTING FOR POSTAL RECEIPTS ARE MADE APPLICABLE TO POSTAL- SAVINGS FUNDS. THIS OFFICE IS REQUIRED BY LAW, SECTION 72, TITLE 31, U.S.C. TO AUDIT ALL EXPENDITURES IN THE POSTAL SAVINGS SYSTEM. SEE, AS TO THE AUTHORITY OF THIS OFFICE TO DETERMINE WHAT EVIDENCE IS NECESSARY IN CONNECTION WITH THE AUDIT, 34 OP.ATTY.GEN. 446, IN PART AS FOLLOWS:

IT WILL BE OBSERVED THAT THE COMPTROLLER GENERAL STATES THAT THIS REQUIREMENT IS MADE NECESSARY IN ORDER THAT A SATISFACTORY AUDIT MAY BE MADE. WHAT PAPERS OR DATA HE SHOULD HAVE TO MAKE SUCH AN AUDIT WOULD SEEM TO BE A MATTER SOLELY FOR HIS DETERMINATION. * * *

HOWEVER, IN ACCORDANCE WITH THE REQUEST IN THE LETTER OF JULY 23, 1938, THE ENTIRE MATTER OF THE EVIDENCE NECESSARY TO SUPPORT PAYMENTS OF POSTAL- SAVINGS DEPOSITS TO PUBLIC ADMINISTRATORS HAS BEEN REEXAMINED WITH THE RESULT THAT IT HAS BEEN DETERMINED, IN VIEW OF THE PECULIAR CHARACTERISTICS WITH WHICH POSTAL-SAVINGS FUNDS ARE CLOTHED BY LAW, SET FORTH AT LENGTH IN LEKA, ADMX. V. UNITED STATES, 69 CT.CLS. 79, THAT THE INTERESTS OF THE UNITED STATES WILL BE FULLY PROTECTED AND A SATISFACTORY AUDIT WILL BE ENABLED IN THE CASE OF OTHERWISE PROPER PAYMENTS OF THIS CLASS TO PUBLIC ADMINISTRATORS IF THERE BE FURNISHED THIS OFFICE THE SAME EVIDENCE AS IS REQUIRED IN THE CASE OF PRIVATE ADMINISTRATORS, THAT IS TO SAY, EVIDENCE OF THE APPOINTMENT OF THE PUBLIC ADMINISTRATOR TO ADMINISTER THE ESTATE OF THE DECEASED DEPOSITOR AND OF THE AUTHORIZATION ISSUED BY THE POST OFFICE DEPARTMENT. THE DECISIONS OF MARCH 1, 1933, MARCH 30, 1934, AND JULY 6, 1934, A-30163, ARE MODIFIED ACCORDINGLY.

IN ORDER THAT THE CASES NOW PENDING MAY BE DISPOSED OF, WHERE POSSIBLE, WITHOUT THE NECESSITY FOR REQUIRING FURTHER EVIDENCE FROM THE POSTMASTER WHOSE ACCOUNTS ARE INVOLVED, IT IS REQUESTED THAT THE EVIDENCE SUBMITTED TO THE THIRD ASSISTANT POSTMASTER GENERAL IN THE CASES OF THE POSTMASTERS AT RALEIGH, N.C., GLENDALE, CALIF., AND BUFFALO, N.Y., AND IN OTHER LIKE CASES, BE TRANSMITTED HERE FOR CONSIDERATION IN THE AUDIT OF THE ACCOUNTS.