A-59097, B-13101, APRIL 11, 1941, 20 COMP. GEN. 618

B-13101: Apr 11, 1941

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PAYMENTS ARE PROPOSED TO OTHERS THAN THE BENEFICIARIES CERTIFIED BY THE SECRETARY OF STATE. AS FOLLOWS:REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 28. IT IS NOTED THAT THE AUDIT ACTION BY YOUR OFFICE WITH RESPECT TO PAYMENTS MADE TO MERRILL G. WILL BE REVISED BY REASON OF THE FACT THAT SUCH ASSIGNEES WERE SPECIFICALLY DESIGNATED FOR PAYMENT IN THE CERTIFICATE OF THE SECRETARY OF STATE. IT WILL BE NECESSARY TO REFER SUCH MATTERS TO THE SECRETARY OF STATE FOR FURTHER CONSIDERATION. IT IS FURTHER POINTED OUT THAT CONSIDERABLE ADMINISTRATIVE DIFFICULTIES WOULD BE INVOLVED IN ADOPTING THE PROCEDURE SUGGESTED IN YOUR LETTER. THIS DEPARTMENT WILL BE GLAD TO ATTEND. IS AS FOLLOWS: I HAVE RECEIVED YOUR LETTER OF DECEMBER 27.

A-59097, B-13101, APRIL 11, 1941, 20 COMP. GEN. 618

CLAIMS OF UNITED STATES NATIONALS AGAINST FUNDS COLLECTED FROM OTHER NATIONS THE SECRETARY OF STATE HAS THE AUTHORITY AND DUTY FINALLY TO DETERMINE THE AMOUNT PAYABLE ON THE CLAIM OF A NATIONAL OF THIS COUNTRY FROM A FUND COLLECTED THROUGH INTERNATIONAL ARBITRATION AND THE TREASURY DEPARTMENT HAS THE MINISTERIAL FUNCTION OF PAYING THE AMOUNTS CERTIFIED BY THE SECRETARY OF STATE, BUT WHERE, BY REASON OF ASSIGNMENTS, ETC., PAYMENTS ARE PROPOSED TO OTHERS THAN THE BENEFICIARIES CERTIFIED BY THE SECRETARY OF STATE, THE MATTER INVOLVES DOUBTFUL QUESTIONS OF LAW AND FACT FOR DETERMINATION BY THE GENERAL ACCOUNTING OFFICE. WHERE, IN CONNECTION WITH A CLAIM OF A NATIONAL OF THIS COUNTRY FOR AN AMOUNT CHARGEABLE TO A FUND COLLECTED THROUGH INTERNATIONAL ARBITRATION, THE SECRETARY OF STATE HAS CERTIFIED AN AWARD TO A PERSON OTHER THAN THE ONE WHO ORIGINALLY SUFFERED THE DAMAGE OR LOSS, THE DOCUMENTARY EVIDENCE OF THE DERIVATION OF TITLE (ASSIGNMENT, LETTERS TESTAMENTARY, ETC.) SHOULD ACCOMPANY THE CERTIFICATES AND VOUCHERS SUBMITTED TO THE GENERAL ACCOUNTING OFFICE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE TREASURY, APRIL 11, 1941:

THERE HAS BEEN FURTHER CONSIDERED THE MATTER INVOLVED IN YOUR LETTER OF FEBRUARY 17, 1941, AS FOLLOWS:REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 28, 1940, RELATIVE TO NOTICES OF EXCEPTION PREVIOUSLY TRANSMITTED BY THE AUDIT DIVISION OF YOUR OFFICE TO THE ACCOUNT OF G. F. ALLEN FOR THE FOLLOWING VOUCHERS:

CHART

D. O. BUREAU PAYEE AMOUNT PERIOD VOUCHER VOUCHER 1084696 22 MERRILL G. HASTINGS, STANWOOD $201.30 JAN. 1938.

K. BOLTON, ASSIGNEES OF

J. SPENCER TURNER CO. 172773 51 MERRILL G. HASTINGS AND STANWOOD 155.92 AUG. 1938.

K. BOLTON, ASSIGNEES OF J.

SPENCER TURNER CO. 161547 72 MERRILL G. HASTINGS AND STANWOOD 155.92 JULY 1939.

K. BOLTON, ASSIGNEES OF J.

SPENCER TURNER CO. 161555 80 ROBERT BARKO, ASSIGNEE OF 401.76 JULY 1939.

CHRISTO G. PIROCACO 161556 81 ROBERT BARKO, ASSIGNEE OF 71.00 JULY 1939.

CHRISTO G. PIROCACO, FOR THE

BENEFIT OF RAY BLESSAS. 161557 82 BRONISTAWA DUDZIANKA, ASSIGNEE 1,300.00 JULY 1939.

OF CHRISTO G. PIROCACO.

IT IS NOTED THAT THE AUDIT ACTION BY YOUR OFFICE WITH RESPECT TO PAYMENTS MADE TO MERRILL G. HASTINGS AND STANWOOD K. BOLTON AS ASSIGNEES OF J. SPENCER TURNER CO. WILL BE REVISED BY REASON OF THE FACT THAT SUCH ASSIGNEES WERE SPECIFICALLY DESIGNATED FOR PAYMENT IN THE CERTIFICATE OF THE SECRETARY OF STATE.

YOUR LETTER ALSO STATES THAT WITH RESPECT TO PAYMENTS TO THE ASSIGNEES OF CHRISTO G. PIROCACO, IN WHICH CASES THE CHANGES IN BENEFICIARIES RESULTED FROM ASSIGNMENTS MADE AFTER THE CERTIFICATE OF THE SECRETARY OF STATE HAD BEEN ISSUED, IT WILL BE NECESSARY TO REFER SUCH MATTERS TO THE SECRETARY OF STATE FOR FURTHER CONSIDERATION.

THIS DEPARTMENT HAS TAKEN UP WITH THE STATE DEPARTMENT THE QUESTION OF THE CONSTRUCTION OF THE ACT OF FEBRUARY 27, 1896, 29 STAT. 32 ( U.S.C., TITLE 31, SEC. 547), REFERRED TO IN YOUR LETTER UNDER ACKNOWLEDGMENT, AND THE ADMINISTRATIVE PROBLEM ARISING FROM THE INTERPRETATION PLACED UPON SUCH ACT BY YOUR OFFICE. I AM ENCLOSING HEREWITH A COPY OF A LETTER DATED JANUARY 28, 1941, ADDRESSED TO THIS DEPARTMENT FROM THE SECRETARY OF STATE IN WHICH HE EXPRESSES THE OPINION THAT, UNDER THE LANGUAGE OF SUCH ACT, THE RECOGNITION OF THE RIGHTS OF SUCCESSORS IN INTEREST IN AWARDS CERTIFIED BY HIM TO THIS DEPARTMENT FOR PAYMENT NEED NOT BE REFLECTED IN NEW CERTIFICATES ISSUED BY THE STATE DEPARTMENT. IT IS FURTHER POINTED OUT THAT CONSIDERABLE ADMINISTRATIVE DIFFICULTIES WOULD BE INVOLVED IN ADOPTING THE PROCEDURE SUGGESTED IN YOUR LETTER.

THIS DEPARTMENT CONCURS IN THE VIEWS EXPRESSED IN THE LETTER OF THE SECRETARY OF STATE, AND THEREFORE REQUESTS THAT THE QUESTION OF CHANGING INTERESTS IN SUCH AWARDS BE AGAIN REVIEWED AND CONSIDERED BY YOUR OFFICE. IF YOU FEEL THAT IT WOULD BE HELPFUL THAT A CONFERENCE BE ARRANGED BETWEEN REPRESENTATIVES OF YOUR OFFICE AND OF THE STATE AND TREASURY DEPARTMENTS WITH A VIEW TO GIVING FURTHER CONSIDERATION TO SUCH PROBLEMS, THIS DEPARTMENT WILL BE GLAD TO ATTEND.

THE LETTER FROM THE SECRETARY OF STATE, OF WHICH YOU ENCLOSE A COPY, IS AS FOLLOWS:

I HAVE RECEIVED YOUR LETTER OF DECEMBER 27, 1940, REQUESTING THE DEPARTMENT'S VIEWS REGARDING NOTICES OF EXCEPTION TRANSMITTED BY THE AUDIT DIVISION OF THE GENERAL ACCOUNTING OFFICE WITH RESPECT TO CERTAIN PAYMENTS MADE BY YOUR DEPARTMENT TO THE ASSIGNEES OF CHRISTO G. PIROCACO, IN WHOSE BEHALF THE SECRETARY OF STATE HAS ISSUED A CERTIFICATE IN SATISFACTION OF HIS CLAIM AGAINST THE TURKISH GOVERNMENT.

IN THE COMPTROLLER GENERAL'S LETTER OF NOVEMBER 28, 1940, A COPY OF WHICH WAS TRANSMITTED WITH YOUR LETTER UNDER ACKNOWLEDGMENT, THE POSITION IS TAKEN THAT THE PERTINENT PROVISIONS OF THE ACT OF FEBRUARY 27, 1896 (29 STAT. 28, 32), QUOTED BELOW, DO NOT AUTHORIZE YOUR DEPARTMENT "TO MAKE PAYMENTS TO PERSONS OTHER THAN THOSE FOUND BY THE SECRETARY OF STATE TO BE ENTITLED THERETO" AND THAT "WHERE A CHANGE OF BENEFICIARY APPEARS REQUIRED DUE TO AN ASSIGNMENT AFTER THE CERTIFICATE OF THE SECRETARY OF STATE HAS ISSUED, THE MATTER WOULD APPEAR TO BE FOR RETURN TO THE SECRETARY OF STATE FOR FURTHER CONSIDERATION.'

THE PERTINENT PROVISIONS OF THE ACT OF 1896 READ AS FOLLOWS:

"HEREAFTER ALL MONEYS RECEIVED BY THE SECRETARY OF STATE FROM FOREIGN GOVERNMENTS AND OTHER SOURCES, IN TRUST FOR CITIZENS OF THE UNITED STATES OR OTHERS, SHALL BE DEPOSITED AND COVERED INTO THE TREASURY.

"THE SECRETARY OF STATE SHALL DETERMINE THE AMOUNTS DUE CLAIMANTS, RESPECTIVELY, FROM EACH OF SUCH TRUST FUNDS, AND CERTIFY THE SAME TO THE SECRETARY OF THE TREASURY, WHO SHALL, UPON THE PRESENTATION OF THE CERTIFICATES OF THE SECRETARY OF STATE, PAY THE AMOUNTS SO FOUND TO BE DUE.

"EACH OF THE TRUST FUNDS COVERED INTO THE TREASURY AS AFORESAID IS HEREBY APPROPRIATED FOR THE PAYMENT TO THE ASCERTAINED BENEFICIARIES THEREOF OF THE CERTIFICATES HEREIN PROVIDED FOR.'

WHEN THE SECRETARY OF STATE HAS ISSUED A CERTIFICATE UNDER THE ACT JUST QUOTED HE HAS DONE ALL THAT HE IS REQUIRED TO DO. IT IS NOT BELIEVED THAT CONGRESS INTENDED THAT THE SECRETARY'S JURISDICTION SHOULD FOLLOW THE CERTIFICATES, TO THE EXCLUSION OF OTHER COMPETENT AUTHORITIES, IN DETERMINING LEGAL RIGHTS SUCH AS, FOR INSTANCE, THOSE OF SUCCESSORS IN INTEREST.

IN THE CLAIM OF THE UNITED STATES ON BEHALF OF THE HEIRS AND ASSIGNS OF JOHN CELESTIN LANDREAU V. PERU, ARBITRATED UNDER A PROTOCOL OF MAY 21, 1921, AN AWARD HAVING BEEN RENDERED IN FAVOR OF THE PLAINTIFFS, THE SECRETARY OF STATE INFORMED YOUR DEPARTMENT ON JULY 2, 1925THAT---

"FOR THE REASONS MENTIONED IN A MEMORANDUM FROM THE SOLICITOR'S OFFICE OF THIS DEPARTMENT, DATED JUNE 15, 1925, A COPY OF WHICH IS ENCLOSED FOR YOUR INFORMATION, I HAVE EXECUTED AND AM ENCLOSING MY CERTIFICATE FOR $91,877.60 IN FAVOR OF " THE HEIRS OR ASSIGNS OF JOHN CELESTIN LANDREAU.'"

IN THE COMMUNICATION JUST MENTIONED IT WAS POINTED OUT THAT "THE PROPER ASCERTAINMENT OF THE DISTRIBUTEES AS AMONG THE HEIRS AND ASSIGNEES REALLY CALLS FOR THE EXERCISE OF A JUDICIAL FUNCTION BY A COURT WHICH CAN EXERCISE ALL THE POWERS OF A TRIBUNAL, AS BY SUMMONING WITNESSES, QUIETING ADVERSE INTERESTS, ET CETERA.' AFTER THE RECEIPT OF THE CERTIFICATE, THE SECRETARY OF THE TREASURY FILED IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA A BILL OF INTERPLEADER REPRESENTING TO THE COURT THAT THE SECRETARY OF STATE HAS INFORMED HIM OF THE LATTER'S INABILITY TO DETERMINE THE RIGHTS AND EQUITIES OF THE RESPECTIVE CLAIMANTS TO THE AWARD, BECAUSE OF NUMEROUS ASSIGNMENTS AND REASSIGNMENTS, AND BECAUSE OF THE LACK OF AUTHORITY TO COMPEL THE ATTENDANCE OR TESTIMONY OF WITNESSES. THE SECRETARY OF THE TREASURY HAVING REPRESENTED HIS OWN INABILITY TO DETERMINE SUCH RIGHTS, THE COURT DECIDED WHO SHOULD SHARE IN THE AWARD. SEE ANDREW W. MELLON, SECRETARY OF THE TREASURY V. J. HORACE HARDING ET AL., EQUITY SUIT NO. 45,867.

IN THE CLAIM JUST DISCUSSED THE SECRETARY OF STATE, REFRAINED, FOR THE REASONS MENTIONED, FROM CONSIDERING THE VALIDITY OF EVEN PRIMARY RIGHTS OF PARTICULAR INDIVIDUALS. NO NEW CERTIFICATES WERE REQUIRED FROM, OR ISSUED BY, THIS DEPARTMENT TO THE PERSONS WHOSE CLAIMS WERE JUDICIALLY DETERMINED.

ON AUGUST 16, 1912, MR. KNOX, SECRETARY OF STATE, MADE AN ORDER REGARDING THE DISTRIBUTION OF AN AWARD RENDERED IN THE ALSOP CLAIM UNDER A PROTOCOL OF DECEMBER 1, 1909, BETWEEN THE UNITED STATES AND CHILE. AFTER FINDING THAT CERTAIN PERSONS AS REPRESENTED BY THEIR ESTATES WERE "THE CLAIMANTS IN THIS CASE WITHIN THE MEANING OF SAID STATUTE (ACT OF 1896), AND ARE ENTITLED TO SHARE IN THE AWARD," HE ALLOWED "AS A MATTER OF GRACE" (ITALICS INSERTED) CERTAIN SUMS TO PERSONS HAVING "ORDERS ON OR ASSIGNMENTS OF THEIR (THE CLAIMANTS-) INTEREST" ( DISTRIBUTION OF ALSOP AWARD BY THE SECRETARY OF STATE, WASHINGTON, 1912, PAGE 5). HOWEVER, HE DISMISSED REQUESTS FOR PAYMENT BY CERTAIN PERSONS "NONE OF WHOM, IN MAKING THESE CLAIMS, APPEAR BEFORE ME AS CLAIMANTS WITHIN THE MEANING OF THE STATUTE" ( IBID., PAGE 6). THE SECRETARY OF STATE HELD THAT A PERSON WHO WAS NOT A ,CLAIMANT" HAD NO RIGHT TO OBTAIN A CERTIFICATE UNDER THE ACT OF 1896 AND THAT THE ALLOWANCE OF CLAIMS OF ASSIGNEES OF THE AWARD WAS "AS A MATTER OF GRACE.'

THE ORDER OF THE SECRETARY OF STATE WAS BASED ON AN OPINION OF J. REUBEN CLARK, SOLICITOR FOR THE DEPARTMENT OF STATE ( IBID.,PAGES 7 85).

IN DISCUSSING THE QUESTION OF THE EXTENT OF THE JURISDICTION OF THE SECRETARY OF STATE UNDER THE ACT OF 1896 MR. CLARK STATED:

"A STUDY OF THE STATUTE MAKES IT CLEAR THAT THE WHOLE QUESTION OF THE EXTENT OF THE JURISDICTION CONFERRED BY THIS LAW UPON THE SECRETARY OF STATE DEPENDS UPON THE MEANING AND INTERPRETATION TO BE GIVEN TO THE WORD "CLAIMANTS" AS USED THEREIN--- THE QUESTION BEING, WHAT PERSONS OR CLASSES OF PERSONS ARE TO BE HELD AS COVERED BY IT?

"IT MUST, IN THE FIRST PLACE, BE SAID THAT AN EXAMINATION OF THIS QUESTION MAKES IT QUITE EVIDENT THAT, UNDER THE CASES, THE PERSONS WHO HAVE INTERESTS IN ANY SUCH FUND AS THIS MAY BE READILY CLASSIFIED IN TWO GROUPS: (1) THOSE HAVING INITIAL OR PRIMARY RIGHTS, THAT IS, THOSE WHO HAVE RIGHTS BY REASON OF HAVING SUFFERED THE INJURY AT THE HANDS OF THE FOREIGN GOVERNMENT, WHO WILL, UNDER NORMAL CONDITIONS BE THOSE FOR WHOM THIS GOVERNMENT INTERVENES; AND (2) THOSE WHO HAVE SECONDARY OR DERIVATIVE RIGHTS, THAT IS, RIGHTS ARISING EITHER BY OPERATION OF LAW OR OUT OF TRANSACTIONS BETWEEN THEMSELVES AND THE PERSONS HAVING THE PRIMORDIAL RIGHTS. THESE WILL BE SUCH RIGHTS, FOR EXAMPLE, AS RESULT FROM INHERITANCE, ASSIGNMENTS, BARGAIN AND SALE, ETC.

"DOES THE TERM "CLAIMANT," AS USED IN THIS STATUTE, INCLUDE ONE OR BOTH OF THESE GENERAL CLASSES?

"IT MAY, IN THE FIRST PLACE, BE OBSERVED THAT THE TERM "CLAIMANT" HAS IN INTERNATIONAL RECLAMATIONS, SO FAR AS DIPLOMATIC DISCUSSION IS CONCERNED, A PERFECTLY DEFINITE MEANING, THAT IS, THE PERSON WHO HAS BEEN INJURED AND FOR WHOM THE GOVERNMENT INTERVENES. IT HAS IN SUCH CONNECTION BECOME A TERM OF ART. THIS IS SO CLEAR AS TO REQUIRE NO SPECIFIC CITATION OF AUTHORITY.

"DOES THE STATUTE, USING THE TERM IN CONNECTION WITH MUNICIPAL LAW, ALTER THE PRIMARY MEANING OF THE WORD?

"ON THIS BRANCH OF THE INQUIRY IT MAY FIRST BE OBSERVED THAT THE COURTS IN DEALING WITH INTERNATIONAL CLAIMS HAVE THEMSELVES MORE OR LESS UNIFORMLY USED THE TERM TO DESIGNATE THOSE HAVING THE PRIMORDIAL INTEREST, THAT IS, THOSE WHO SUFFERED THE INJURY.

"IT SEEMS, THEREFORE, CLEAR FROM WHAT HAS GONE BEFORE THAT THE TERM "CLAIMANT" IS, IN INTERNATIONAL AFFAIRS, USED BOTH BY THE EXECUTIVE AND THE COURTS PRIMARILY TO INDICATE THOSE HAVING THE PRIMORDIAL INTEREST IN THE CLAIM; I.E., THOSE WHO SUFFERED THE INJURY AT THE HANDS OF THE FOREIGN GOVERNMENT. THIS BEING TRUE, THE SECRETARY'S JURISDICTION UNDER THE STATUTE OF 1896 WOULD, AS FAR AS THE USE OF THIS TERM IS CONCERNED, APPEAR TO BE CONFINED TO DETERMINING WHO THOSE ARE WHO SUFFERED THE DIRECT INJURY AT THE HANDS OF THE FOREIGN GOVERNMENT, AND THE AMOUNTS RESPECTIVELY DUE THEM IN ADJUSTMENT OF SUCH INJURY" ( IBID., PP. 37-39).

IN THE CLAIM OF THE UNITED STATES OF AMERICA ON BEHALF OF J. SPENCER TURNER COMPANY V. THE REPUBLIC OF TURKEY, REFERRED TO IN THE ABOVE MENTIONED LETTER OF THE COMPTROLLER GENERAL ( AMERICAN TURKISH CLAIMS SETTLEMENT, OPINIONS AND REPORT BY NIELSEN, 1937, PAGE 454), AFTER CERTIFICATE NO. 2742 OF AUGUST 12, 1937, THAT PRIOR TO THE ISSUANCE OF THE CERTIFICATE MERRILL G. HASTINGS AND STANWOOD K. BOLTON HAD SUCCEEDED AS ASSIGNEES TO THE INTEREST OF THE COMPANY. IN TRANSMITTING ON DECEMBER 27, 1937, A NEW CERTIFICATE, NO. 2749, DATED DECEMBER 16, 1937, IN FAVOR OF THE ASSIGNEES, THIS DEPARTMENT DID NOT INTEND TO IMPLY THAT YOU WERE REQUIRED TO REFER BACK TO ITS CASES IN WHICH DERIVATIVE RIGHTS WERE CLAIMED. THIS DEPARTMENT MAY RECOGNIZE RIGHTS OF ASSIGNEES OR THOSE ACQUIRED BY OPERATION OF LAW WHEN THEY ARE BROUGHT TO ITS ATTENTION PRIOR TO THE ISSUANCE OF CERTIFICATES. THE FACT THAT YOUR DEPARTMENT HAD RETURNED WITH THE ABOVE-MENTIONED LETTER OF DECEMBER 9, 1937, THE OLD CERTIFICATE AND HAD SUGGESTED THE ISSUANCE OF A NEW ONE PROMPTED THIS DEPARTMENT'S COMPLIANCE WITH THE SUGGESTION. BUT WE DID NOT PRESUME TO DECIDE THE EXTENT OF THE AUTHORITY OF YOUR DEPARTMENT OR TO PRECLUDE IT FROM RECOGNIZING SUCH DERIVATIVE RIGHTS AS WERE NOT PASSED UPON AT THE TIME THE CERTIFICATE WAS ISSUED.

THE ABSENCE OF ANY EXPRESS STATUTORY PROVISION AUTHORIZING RECOGNITION OF ASSIGNMENTS DOES NOT NECESSARILY AMOUNT TO A DIRECTION THAT THEY SHALL NOT BE RECOGNIZED. IN THE LANDREAU CASE REFERRED TO ABOVE, YOUR DEPARTMENT MADE PAYMENT WITHOUT CERTIFICATES FROM THE SECRETARY OF STATE, TO THE PERSONS FOUND BY THE COURT TO BE ENTITLED TO RECEIVE PAYMENT. SUBJECT TO WHAT HAS BEEN STATED ABOVE, IT IS NOT PERCEIVED WHY YOU SHOULD NOT MAKE PAYMENT TO PERSONS WHOM YOU FIND TO BE RIGHTFULLY ENTITLED, BY OPERATION OF LAW OR BY ASSIGNMENT, TO SUCCEED TO THE INTERESTS OF THE CLAIMANT TO WHOM A CERTIFICATE HAS BEEN ISSUED BY THE SECRETARY OF STATE. THAT CERTIFICATE DETERMINES THE PRIMARY RIGHT AND THE ISSUANCE OF IT WOULD SEEM OF THE CLAIMANT TO WHOM A CERTIFICATE HAS BEEN ISSUED BY THE SECRETARY OF STATE, TO BE AS FAR AS THE LAW REQUIRES THE SECRETARY OF STATE TO GO IN THE MATTER OF DISTRIBUTION. FROM AN ADMINISTRATIVE POINT OF VIEW, IT WOULD SEEM TO BE PREFERABLE, AFTER THE ISSUANCE OF A CERTIFICATE BY THE SECRETARY OF STATE, THAT THE MATTER OF PAYMENT BE DEALT WITH BY ONE RATHER THAN TWO EXECUTIVE AGENCIES, AND THAT, IN THE ABSENCE OF LANGUAGE IN THE ACT OF 1896 REQUIRING YOU TO REFER BACK TO THIS DEPARTMENT THE QUESTION OF DERIVATIVE RIGHTS, THIS MATTER BE ENTRUSTED TO YOU. IT IS OBVIOUS THAT, UNLESS CLEARLY REQUIRED BY THE ACT OF 1896, SUCH ADDITIONAL DELAYS AND CORRESPONDENCE AS WOULD NECESSARILY BE INVOLVED IF YOU WERE TO REFER CASES BACK TO THIS DEPARTMENT SHOULD BE AVOIDED.

FOR MANY YEARS, BOTH PRIOR TO AND SINCE THE ENACTMENT OF FEBRUARY 27, 1896, QUOTED IN THE SECRETARY'S LETTER, IT HAS BEEN RECOGNIZED THAT THE SECRETARY OF STATE HAS THE AUTHORITY AND DUTY FINALLY TO DETERMINE THE AMOUNT PAYABLE ON THE CLAIM OF A NATIONAL OF THIS COUNTRY, FROM A FUND COLLECTED THROUGH INTERNATIONAL ARBITRATION. PURSUANT TO THAT VIEW, THE SECRETARY'S FORMAL CERTIFICATION OF SUCH A CLAIM REGULARLY HAS BEEN ACCEPTED AS A SUFFICIENT FOUNDATION, WITHOUT MORE, TO WARRANT A DISBURSEMENT FROM A TRUST FUND SUCH AS THAT NOW IN QUESTION, AND IT WAS THAT THOUGHT, ALSO, WHICH PROMPTED THE SUGGESTION MADE IN MY LETTER OF NOVEMBER 28, 1940, THAT THE SECRETARY'S CERTIFICATE TO CHRISTO G. PIROCACO AND SAID CLAIMANT'S ASSIGNMENTS TO ROBERT BARKO AND BRONISTAWA DUDZIANKA, BE RETURNED TO THE SECRETARY OF STATE FOR THE ISSUANCE OF NEW CERTIFICATES IN THE NAMES OF THE ASSIGNEES, BEFORE CREDIT PROPERLY COULD BE ALLOWED FOR THE PAYMENTS MADE TO THEM.

THE SECRETARY OF STATE IN THE LETTER QUOTED, SUPRA, NOW HAS INDICATED HIS VIEW THAT THE FUNCTIONS OF HIS OFFICE UNDER THE 1896 STATUTE DO NOT NECESSARILY GO TO SUCH LENGTH, AND THAT HIS EXCLUSIVE JURISDICTION IS CONFINED TO RECOGNITION OF THE PARTICULAR CLAIM AGAINST THE FUND COLLECTED FROM THE FOREIGN POWER, OR, AT LEAST, THAT SUCH JURISDICTION ENDS WITH THE ISSUANCE OF A CERTIFICATE TO THE PARTY ENTITLED AT THE TIME OF THE AWARD. THAT CONCLUSION FINDS SOME SUPPORT IN COURT DECISIONS, BOTH PRIOR AND SUBSEQUENT TO THE ENACTMENT OF THE ACT OF 1896, IN WHICH WERE CONSIDERED QUESTIONS CONCERNING THE TITLE TO CLAIMS AGAINST A FOREIGN GOVERNMENT WHICH HAD BECOME SUBJECT TO OTHER LIENS, BANKRUPTCY, AND THE LIKE, THE COURTS HOLDING THAT, WHILE THE ADMINISTRATIVE AWARD IS CONCLUSIVE AS TO THE FOREIGN GOVERNMENT'S LIABILITY,"IT CONCLUDED NO MORE THAN ITS OWN CORRECTNESS"--- LEAVING FOR ADJUDICATION OTHERWISE THE RIGHTS OF THE REAL PARTIES IN INTEREST, OR THE TRUE OWNERS OF THE CLAIMS. THUS, AS IT WAS SAID BY MR. JUSTICE STORY, IN THE EARLY, AND LEADING, CASE OF COMEGYS V. VASSE (1828) 1 PET. 193, 212:

IT HAS BEEN JUSTLY REMARKED, IN THE OPINION OF THE LEARNED JUDGE WHO DECIDED THIS CAUSE IN THE CIRCUIT COURT; THAT IT DOES NOT APPEAR, FROM THE STATEMENT OF FACTS, WHO WERE THE PERSONS WHO PRESENTED OR LITIGATED THE CLAIM BEFORE THE BOARD OF COMMISSIONERS; NOR WHETHER VASSE HIMSELF WAS BEFORE THE BOARD; NOR WHO WERE THE PARTIES TO WHOM, OR FOR WHOSE BENEFIT, THE AWARD WAS MADE. WE DO NOT THINK THAT THE FACT IS MATERIAL, UPON THE VIEW WHICH WE TAKE OF THE AUTHORITY AND DUTIES OF THE COMMISSIONERS. THE OBJECT OF THE TREATY WAS TO INVEST THE COMMISSIONERS WITH FULL POWER AND AUTHORITY TO RECEIVE, EXAMINE, AND DECIDE UPON THE AMOUNT AND VALIDITY OF THE ASSERTED CLAIMS UPON SPAIN, FOR DAMAGES AND INJURIES. THEIR DECISION, WITHIN THE SCOPE OF THIS AUTHORITY, IS CONCLUSIVE AND FINAL. IF THEY PRONOUNCE THE CLAIM VALID OR INVALID, IF THEY ASCERTAIN THE AMOUNT, THEIR AWARD IN THE PREMISES IS NOT REEXAMINABLE. THE PARTIES MUST ABIDE BY IT, AS THE DECREE OF A COMPETENT TRIBUNAL OF EXCLUSIVE JURISDICTION. REJECTED CLAIM CANNOT BE BROUGHT AGAIN UNDER REVIEW, IN ANY JUDICIAL TRIBUNAL; AN AMOUNT ONCE FIXED, IS A FINAL ASCERTAINMENT OF THE DAMAGES OR INJURY. THIS IS THE OBVIOUS PURPORT OF THE LANGUAGE OF THE TREATY. BUT IT DOES NOT NECESSARILY OR NATURALLY FOLLOW, THAT THIS AUTHORITY, SO DELEGATED, INCLUDES THE AUTHORITY TO ADJUST ALL CONFLICTING RIGHTS OF DIFFERENT CITIZENS TO THE FUND SO AWARDED. THE COMMISSIONERS ARE TO LOOK TO THE ORIGINAL CLAIM FOR DAMAGES AND INJURIES AGAINST SPAIN ITSELF, AND IT IS WHOLLY IMMATERIAL FOR THIS PURPOSE, UPON WHOM IT MAY, IN THE INTERMEDIATE TIME, HAVE DEVOLVED; OR WHO WAS THE ORIGINAL LEGAL, AS CONTRADISTINGUISHED FROM THE EQUITABLE OWNER PROVIDED HE WAS AN AMERICAN CITIZEN. IF THE CLAIM WAS TO BE ALLOWED AS AGAINST SPAIN, THE PRESENT OWNERSHIP OF IT, WHETHER IN ASSIGNEES OR PERSONAL REPRESENTATIVES, OF BONA FIDE PURCHASERS, WAS NOT NECESSARY TO BE ASCERTAINED IN ORDER TO EXERCISE THEIR FUNCTIONS IN THE FULLEST MANNER. NOR COULD THEY BE PRESUMED TO POSSESS THE MEANS OF EXERCISING SUCH A BROADER JURISDICTION, WITH DUE JUSTICE AND EFFECT. THEY HAD NO AUTHORITY TO COMPEL PARTIES, ASSERTING CONFLICTING INTERESTS, TO APPEAR AND LITIGATE BEFORE THEM, NOR TO SUMMON WITNESSES TO ESTABLISH OR REPEL SUCH INTERESTS; AND UNDER SUCH CIRCUMSTANCES, IT CANNOT BE PRESUMED, THAT IT WAS THE INTENTION OF EITHER GOVERNMENT, TO CLOTHE THEM WITH AN AUTHORITY SO SUMMARY AND CONCLUSIVE, WITH MEANS SO LITTLE ADAPTED TO THE ATTAINMENT OF THE ENDS OF A SUBSTANTIAL JUSTICE. THE VALIDITY AND AMOUNT OF THE CLAIM BEING ONCE ASCERTAINED BY THEIR AWARD, THE FUND MIGHT WELL BE PERMITTED TO PASS INTO THE HANDS OF ANY CLAIMANT; AND HIS OWN RIGHTS, AS ORDINARY COURSE OF JUDICIAL PROCEEDINGS IN THE ESTABLISHED COURTS, WHERE REDRESS COULD BE ADMINISTERED ACCORDING TO THE NATURE AND EXTENT OF THE RIGHTS OR EQUITIES OF ALL THE PARTIES. WE ARE THEREFORE OF OPINION, THAT THE AWARD OF THE COMMISSIONERS, IN WHATEVER FORM MADE, PRESENTS NO BAR TO THE ACTION, IF THE PLAINTIFF IS ENTITLED TO THE MONEY AWARDED BY THE COMMISSIONERS. * * * TO THE SAME EFFECT IS THE OPINION OF MR. JUSTICE HOLMES, IN HEARD V. STURGIS, 16 N.E. 437, 440, AS FOLLOWS:

IT IS SETTLED THAT THE ADJUDICATION OF THE COMMISSIONERS IS NOT CONCLUSIVE BETWEEN THE PARTIES. THAT ADJUDICATION ONLY DECIDES UPON THE AMOUNT AND VALIDITY OF THE CLAIM AS AGAINST THE UNITED STATES, SETS APART AND IDENTIFIES THE FUND FOR THE BENEFIT OF WHOEVER ULTIMATELY MAY PROVE ENTITLED TO IT, UNDER THE PROPER CONSTRUCTION OF THE STATUTE, AND LEAVES THE RIGHTS OF ALL PERSONS CLAIMING TO BE ENTITLED TO THE SUM AWARDED TO THE ORDINARY COURSE OF PROCEEDING IN THE ESTABLISHED COURTS. LEONARD V. NYE, 125 MASS. 455, 466; COMEGYS V. VASSE, 1 PET. 193, 212. THE COURT OF COMMISSIONERS HAVE EXPRESSED AND ACTED ON THIS VIEW OF THE LAW. * * * SEE THE SAME CASE, ON APPEAL, WILLIAMS V. HEARD, 140 U.S. 529; ALSO, SHEPPARD V. TAYLOR (1831) 5 PET. 675; FREVALL V. BACHE (1840) 14 PET. 95; GILL V. OLIVER (1850) 11 HOW. 529, 550; JUDSON V. CORCORAN (1885) 17 HOW. 612; LEWIS V. BELL (1885) 17 HOW. 616; BACHMAN V. LAWSON (1884) 109 U.S. 659; BAYARD V. WHITE (1888) 127 U.S. 246; AND BOYNTON V. BLAINE (1891) 139 U.S. 306.

NOTWITHSTANDING THE SPECIFIC LANGUAGE OF THE ENACTMENT OF 1896, QUOTED ABOVE, THE COURTS HAVE REJECTED THE CONTENTION THAT THE RULE OF THE EARLIER CASES WAS CHANGED THEREBY. IN MELLON V. ORINOCO IRON CO. (1924), 266 U.S. 121, INVOLVING A SUIT OF AN EQUITABLE LIENOR AGAINST A FUND AWARDED TO ANOTHER BY THE SECRETARY OF STATE UNDER THE ACT OF 1896, THE COURT ALLOWED THE CLAIM OF THE EQUITABLE LIENOR AS AGAINST (1) THE CONTENTION OF THE SECRETARY OF THE TREASURY THAT, UNDER THE STATUTE, HIS WAS A MINISTERIAL DUTY "TO CARRY OUT THE BEHEST OF THE SECRETARY OF STATE, WHO IS CHARGED BY LAW WITH DETERMINING WHO THE PROPER CLAIMANTS ARE, * * *" AS WELL AS (2) THE DISSENTING OPINION IN THE LOWER COURT (296 FED. 965, 972) THAT, UNDER THE 1896 ACT, PAYMENT WAS DUE ONLY TO THE PARTY CERTIFIED BY THE SECRETARY OF STATE. SEE, ALSO, MCCORMICK V. HARRAH ( D.C. APP. 1931), 51 F/2D) 316, AND A RECENT CASE UNDER A STATUTE EXPLICITLY SANCTIONING PAYMENTS TO ASSIGNEES, AMERICAN-MEXICAN MIXED CLAIMS BUREAU, INC. V. MORGENTHAU ( D.C. 1939), 26 F.1SUPP. 904.

THERE APPEARS TO BE NOTHING IN SUCH COURT DECISIONS, HOWEVER, NOR IN THE ACT OF 1896, AUTHORIZING, OR EVEN TENDING TO SUPPORT, A CONCLUSION TO THE EFFECT THAT IN SUCH CASES WHERE PAYMENT CANNOT BE MADE TO THE BENEFICIARY NAMED IN THE CERTIFICATE OF THE SECRETARY OF STATE, THE SECRETARY OF THE TREASURY, OR THE TREASURY DEPARTMENT, IS VESTED WITH POWER OR AUTHORITY TO ADJUDICATE SUCH CLAIMS OR TO DETERMINE THE PROPER PARTIES ENTITLED TO PAYMENT. THE FUNCTION OF THE TREASURY UNDER THE ACT OF 1896 IS CLEARLY MINISTERIAL, ONLY--- TO PAY THE AMOUNTS APPEARING IN CERTIFICATES OF THE SECRETARY OF STATE. MELLON V. ORINOCO IRON CO., 266 U.S. 121.

IT MAY BE CONCLUDED FROM THE FOREGOING THAT THE CERTIFICATION OF THE SECRETARY OF STATE IS BOTH NECESSARY AND CONTROLLING AS TO THE IDENTITY OF THE ORIGINAL CLAIMANT AND THE AMOUNT DUE UPON HIS CLAIM. VOUCHERS EVIDENCING SUCH PAYMENTS TO THE PERSONS NAMED IN THE AWARDS ARE ENTITLED TO CREDIT IN THE DISBURSING OFFICER'S ACCOUNTS, WHEN THE CERTIFICATES ARE FILED WITH THE VOUCHERS (OR, IN THE CASE OF SUBSEQUENT INSTALLMENT PAYMENTS, WHEN THEY CONTAIN REFERENCE TO THE PRIOR PAYMENTS MADE). WHERE, AS IN THE CASE OF THE FIRST THREE VOUCHERS LISTED IN YOUR LETTER, THE AWARD IS CERTIFIED BY THE SECRETARY OF STATE TO A PERSON OTHER THAN THE ONE WHO ORIGINALLY SUFFERED THE DAMAGE OR LOSS, THE DOCUMENTARY EVIDENCE OF THE DERIVATION OF HIS TITLE (ASSIGNMENT, LETTERS TESTAMENTARY, ETC.) SHOULD ACCOMPANY THE CERTIFICATES AND THE VOUCHERS, AS INDICATED IN MY LETTER OF NOVEMBER 28, 1940. SUCH EVIDENCE APPEARING WITH THE THREE VOUCHERS TO THE ASSIGNEES OF THE J. SPENCER TURNER CO., CREDIT FOR THOSE DISBURSEMENTS HAS BEEN ALLOWED IN THE AUDIT.

IN THE REMAINING CASES, PAYMENT WAS MADE TO CERTAIN ASSIGNEES OF CHRISTO G. PIROCACO, THE CLAIMANT WHO WAS NAMED IN THE AWARD OF THE SECRETARY OF STATE. AS, UPON EXAMINATION HERE, THE EVIDENCE SUBMITTED APPEARS ADEQUATELY TO ESTABLISH THE ASSIGNEES' CLAIMS, AND AS, IN ANY EVENT, THE SECRETARY OF STATE APPEARS NOW TO HAVE APPROVED THE PAYMENTS, CREDIT FOR THE REMAINING PAYMENTS LIKEWISE WILL BE ALLOWED, AND, IF OTHERWISE CORRECT, FOR ANY OTHER PAYMENTS CURRENTLY DUE UNDER THE SAME ASSIGNMENTS. HOWEVER, IT WOULD SEEM OBVIOUS THAT ANY SUCH PAYMENTS TO OTHERS THAN THE BENEFICIARIES NAMED IN THE CERTIFICATES OF THE SECRETARY OF STATE INVOLVE DOUBTFUL QUESTIONS OF LAW AS WELL AS FACT, AND THAT A DISBURSING OFFICER IS NEITHER EXPECTED NOR AUTHORIZED TO MAKE SUCH PAYMENT. GENERAL REGULATIONS 50, 5 COMP. GEN. 1058. ACCORDINGLY, ANY SUCH CLAIMS HEREAFTER PRESENTED FOR PAYMENT SHOULD BE FORWARDED TO THIS OFFICE, WITH THE SECRETARY'S CERTIFICATES, FOR DEVELOPMENT OF THE NECESSARY EVIDENCE OF TITLE AND SETTLEMENT AS CLAIMS, AS REQUIRED BY SECTION 236, REVISED STATUTES, AS AMENDED, 31 U.S.C. 71.

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