A-92154, FEBRUARY 25, 1938, 17 COMP. GEN. 684

A-92154, FEBRUARY 25, 1938, 17 COMP. GEN. 684

CLAIMS AGAINST THE UNITED STATES - AWARDS, WAR MINERALS RELIEF ACT - POWERS OF ATTORNEY OF DEFUNCT STATE CORPORATION AN IRREVOCABLE POWER OF ATTORNEY, COUPLED WITH AN INTEREST AND EXECUTED BY A CORPORATION NO LONGER AUTHORIZED TO ACT UNDER THE LAWS OF THE STATE OF ITS INCORPORATION, MAY NOT BE MADE THE BASIS FOR PAYMENT OF A CLAIM AGAINST THE UNITED STATES PRESENTED UNDER THE ACT OF JUNE 30, 1936, 49 STAT. 2040, AMENDING THE WAR MINERALS RELIEF ACT OF 1919, SUCH POWER OF ATTORNEY BEING VOID UNDER BOTH STATE AND FEDERAL LAW. PAYMENT OF AN AWARD UNDER THE ACT OF JUNE 30, 1936, 49 STAT. 2040, AMENDING THE WAR MINERALS RELIEF ACT OF 1919, IS FORBIDDEN IN THE ABSENCE OF PROOF A PROPER CLAIM WAS PRESENTED TO THE SECRETARY OF THE INTERIOR WITHIN SIX MONTHS AFTER APPROVAL OF THE ACT.

ACTING COMPTROLLER GENERAL ELLIOTT TO F. H. MITCHELL, FEBRUARY 25, 1938:

THERE HAS BEEN RECEIVED YOUR LETTER OF JANUARY 29, 1938, AS FOLLOWS:

I RECEIVED YOUR LETTER OF JANUARY 24, 1938, RELATIVE TO THE WAR MINERALS CLAIM OF THE ELEANOR MANGANESE COMPANY, NO. 530, * * *.

I HAVE * * * FELT THAT AN EXPLANATION OF MY CONNECTION WITH IT AND ATTENDANT INFORMATION, WOULD PERMIT THE MATTER TO BE CLARIFIED.

IN RESPECT TO THE SECOND PARAGRAPH OF YOUR LETTER, I CAN SAY THAT THE ELEANOR MANGANESE IS A DEFUNCT CORPORATION. LIKE NUMEROUS OTHER ASSOCIATIONS THAT INCORPORATED THEIR WAR MINERALS ENTERPRISES, THEY HAD NO REASON TO PERPETUATE THEIR CORPORATIONS AFTER THE ARMISTICE AND THE COLLAPSE OF THE MARKET FOR THE WAR MINERALS, AND PERMITTED THEIR CORPORATE EXISTENCE TO EXPIRE, RATHER THAN CONTINUE USELESS INCORPORATION FEES AND EXPENSES AFTER THEIR ENTERPRISE HAD BEEN RENDERED IMPOTENT BY THE END OF THE WAR.

IN RESPECT TO THE THIRD PARAGRAPH OF YOUR LETTER, RESPECTING MY POWER OF ATTORNEY TO REPRESENT THAT CLAIMANT COMPANY, I WILL SAY THAT NO CLAIM IS AVAILABLE TO INSPECTION AT THE DEPARTMENT OF THE INTERIOR WITHOUT A POWER OF ATTORNEY TO REPRESENT THE CLAIMANT THEREIN. BEFORE I INTRODUCED MY BILL--- OR RATHER HAD IT INTRODUCED IN CONGRESS--- IN THE SPRING OF 1935, IT WAS NECESSARY THAT I SECURE POWERS OF ATTORNEY TO REPRESENT THE CLAIMANTS UNDER THAT BILL, S. 1567, BEFORE COMMITTEES OF CONGRESS, NAMELY, THE SENATE AND HOUSE MINES COMMITTEES AND THE HOUSE RULES AND APPROPRIATION COMMITTEES. I WAS CALLED UPON FOR AN ESTIMATE OF THE AMOUNT THAT WOULD BE NECESSARY TO LIQUIDATE THE CLAIMS TO BE REINSTATED UNDER MY BILL. THIS I ASCERTAINED, BY REASON OF HAVING POWERS OF ATTORNEY TO EXAMINE THE CLAIMS AND SUBMITTED MY FINDINGS TO THOSE CONGRESSIONAL COMMITTEES.

MY POWERS OF ATTORNEY ALSO AUTHORIZED ME TO PROSECUTE THOSE CLAIMS BEFORE ANY OF THE DEPARTMENTS OF THE GOVERNMENT. THERE WAS NO SET TIME WHEN I WOULD OR COULD DO THIS, BUT I HAD AUTHORITY IN THE POWER OF ATTORNEY TO DO SO, ALTHOUGH I AM FREE TO ADMIT THAT, HAD NOT THE CONGRESS PASSED MY BILL, THE LATTER AUTHORIZATION WOULD HAVE BEEN VALUELESS, BUT SINCE THE BILL BECAME THE LAW, I FEEL THAT THE AUTHORITY TO PROCEED IN THE CLAIMS BEFORE THE PROPER GOVERNMENT DEPARTMENTS IS A VALID LEGAL AUTHORIZATION. I DO KNOW THAT MY PROPOSAL TO THE CLAIMANTS UNDER 49 STAT. 2040, WAS THAT I WOULD DRAW A BILL THAT WOULD REINSTATE THEIR CLAIMS FOR ADJUDICATION; PROSECUTE THOSE CLAIMS TO AN AWARD, AND SECURE FROM THE CONGRESS AN APPROPRIATION TO PAY THE AWARDS GRANTED.

I HAVE DONE THOSE THINGS SINCE JUNE 1934, AND THE CLAIMANTS EXPECT ME TO CONTINUE MY ENDEAVORS IN THEIR BEHALF UNDER THE POWERS OF ATTORNEY GIVEN TO ME. THOSE POWERS OF ATTORNEY HAVE BEEN CONSIDERED SUFFICIENT HERETOFORE AND I AM UNABLE TO CONCEIVE WHY THEY ARE NOT STILL RECOGNIZED AS VALID WITHOUT ADDITIONAL AND SPECIFIC INSTRUCTIONS FROM THE CLAIMANTS WHO ORIGINALLY EXECUTED THEM.

ANOTHER MATTER. SO FAR AS AFFIXING THE CORPORATE SEAL OF THE DEFUNCT WAR MINERALS CORPORATIONS, I VERY MUCH DOUBT THAT FEW OR ANY OF THEM CAN NOW LOCATE THOSE SEALS. THEY HAVE BEEN DEFUNCT AND OUT OF BUSINESS SO MANY YEARS THAT IT IS QUITE PROBABLE THAT THEY HAVE NO IDEA WHERE THEIR SEALS ARE.

I AM SURE THAT IT IS THE INTENT OF CONGRESS AND THE DEPARTMENT OF THE INTERIOR TO WIND UP THIS WAR MINERALS MATTER AT THE EARLIEST POSSIBLE DATE, AND IF WE CAN SIMPLIFY THE PROCEDURE TO ATTAIN THAT END, I AM WILLING TO DO EVEN MORE THAN MY PART, SINCE I AM ONE OF THESE CLAIMANTS MYSELF AND AM ONLY REPRESENTING MY FELLOW CLAIMANTS.

YOUR LETTER OF DECEMBER 16, 1937, IS AS FOLLOWS:

AS ATTORNEY OF RECORD IN THE WAR MINERALS CLAIM OF THE ELEANOR MANGANESE COMPANY, NO. 530, IN WHICH AN AWARD OF $7,003.36 WAS MADE BY THE ACTING SECRETARY OF THE INTERIOR ON DECEMBER 3, 1937, AND ACCEPTED BY ME FOR THE CLAIMANT AS FINAL AND CONCLUSIVE SETTLEMENT OF THE SAID CLAIM, I RESPECTFULLY REQUEST THAT ALL FURTHER COMMUNICATIONS IN THE MATTER AND TREASURY CHECK IN PAYMENT OF THE SAID AWARD BE SENT TO ME AT MY ABOVE ADDRESS (VIZ: SUITE 1021 TOWER BUILDING).

IN ASKING THAT PAYMENT BE SENT TO YOU RELIANCE IS HAD UPON WHAT PURPORTS TO BE A POWER OF ATTORNEY DATED NOVEMBER 12, 1934, RECITING THAT THE ELEANORE (SIC) MANGANESE CO. OF ROANOKE, VA., HAS THEREIN AND THEREBY REVOKED ALL PRIOR POWERS OF ATTORNEY AND MADE SAID POWER OF ATTORNEY OF NOVEMBER 12, 1934, IRREVOCABLE, VESTING IN YOU POWER TO PROSECUTE TO A TERMINATION AND ADJUSTMENT ITS WAR MINERALS CLAIM NO. 530 AND TO RECEIVE AND RECEIPT FOR PAYMENT THEREON. THIS PAPER IS SIGNED, ELENORE MANGANESE CO., BY T. R. WIRSING, SECRETARY AND TREASURER, WITNESSED BY ELEANOR M. WIRSING. YOU ALSO RELY UPON AN IRREVOCABLE POWER OF ATTORNEY OF FEBRUARY 2, 1938, SIGNED ELEANOR MANGANESE CO., BY T. R. WIRSING, TRUSTEE, WITNESSED BY M. J. ATKINS AND PURPORTING TO REVOKE ALL PRIOR POWERS OF ATTORNEY.

ACCEPTING WHAT IS NOT ESTABLISHED BY ANY PROOF, THAT THE SIGNATURES OF THESE PARTIES ARE GENUINE AND THAT THEY WERE FULLY EMPOWERED TO ACT AS AND FOR THE CORPORATION AT THE TIME OF ITS DISSOLUTION, SUCH IRREVOCABLE POWERS OF ATTORNEY, COUPLED WITH AN INTEREST, WOULD NOT CONSTITUTE ANY PROPER BASIS FOR THIS OFFICE APPROVING PAYMENT TO YOU OF THE AWARD AS YOU REQUEST. SEE SECTIONS 3477 AND 3620, REVISED STATUTES, AS AMENDED, 31 U.S.C. 203, 492.

THIS AWARD WAS MADE AS UNDER SECTION 5 OF THE ACT OF MARCH 2, 1919, 40 STAT. 1272, AS AMENDED BY ACTS OF NOVEMBER 23, 1921, 42 STAT. 322; FEBRUARY 13, 1929, 45 STAT. 1166; MAY 18, 1936, 49 STAT. 1355; AND THE ACT OF JUNE 30, 1936, 49 STAT. 2040, 50 U.S.C. 80. PAYMENT IS AUTHORIZED OF THE AWARD IN THIS CASE ONLY AS PROVIDED IN SECTION 2 OF THE CITED ACT OF JUNE 30, 1936, IN PERTINENT PART AS FOLLOWS:

* * * THE RIGHTS OF ANY CORPORATION WHICH FILED A CLAIM UNDER SECTION 5 OF THE ACT OF MARCH 2, 1919, BUT WHICH CEASED TO EXIST AT ANY TIME AFTER FILING SUCH CLAIM, SHALL BE HELD AND CONSIDERED TO DESCEND---

(1) TO THE PERSONS WHO AT THE TIME SUCH CORPORATION CEASED TO EXIST WERE ENTITLED UNDER THE LAWS OF THE STATE OF INCORPORATION TO SHARE IN THE ASSETS OF SUCH CORPORATION UPON THE DISSOLUTION THEREOF, OR IF ANY SUCH PERSON BE DEAD, OR DIES AFTER THE ENACTMENT OF THIS ACT BUT BEFORE HE RECEIVES THE BENEFITS OF THIS ACT, TO HIS LEGAL REPRESENTATIVE AS PERSONAL PROPERTY; AND

(2) TO ANY OFFICER, DIRECTOR, OR STOCKHOLDER OF SUCH CORPORATION AT THE TIME IT CEASED TO EXIST AS TRUSTEE FOR THE PERSONS OR LEGAL REPRESENTATIVES REFERRED TO IN CLAUSE (1); AND SUCH PERSONS OR THEIR LEGAL REPRESENTATIVES AND SUCH OFFICERS, DIRECTORS, AND STOCKHOLDERS SHALL BE ENTITLED TO THE BENEFITS OF THIS ACT.

IT NOW IS SETTLED THAT THE FEDERAL GOVERNMENT IS POWERLESS TO RESURRECT A CORPORATION WHICH A STATE HAS PUT OUT OF EXISTENCE FOR ALL PURPOSES AND IF A STATE ATTACH QUALIFICATIONS TO EXTINCTION NOTHING CAN BE ADDED TO OR TAKEN FROM THOSE QUALIFICATIONS BY FEDERAL AUTHORITY. IT LIKEWISE IS SETTLED THAT A PRIVATE CORPORATION CAN EXIST ONLY UNDER THE EXPRESS LAW OF THE STATE OR SOVEREIGNTY BY WHICH IT WAS CREATED, ITS DISSOLUTION PUTS AN END TO ITS EXISTENCE, THE RESULT OF WHICH MAY BE LIKENED TO THE DEATH OF A NATURAL PERSON, AND THERE MUST BE SOME STATUTORY AUTHORITY FOR THE PROLONGATION OF ITS LIFE EVEN FOR LITIGATION PURPOSES. CHICAGO TITLE AND TRUST CO. V. FORTY-ONE THIRTY SIX WILCOX BUILDING CORPORATION, 302 U.S. 120.

IT IS UNDERSTOOD THAT UNDER THE LAWS OF THE STATE OF VIRGINIA WHERE THE ELEANOR (OR ELENORE) MANGANESE CO. WAS INCORPORATED, A FAILURE BY THE CORPORATION FOR 2 SUCCESSIVE YEARS AND 90 DAYS TO PAY THE ANNUAL REGISTRATION FEE OR THE ANNUAL FRANCHISE TAX AUTOMATICALLY REVOKED ITS CHARTER OR LICENSE TO DO BUSINESS--- SECTIONS 210 AND 211 OF THE VIRGINIA TAX CODE; ALSO, THAT ON DISSOLUTION THROUGH EXPIRATION OR REVOCATION OF THE CHARTER BY OPERATION OF LAW THE PERIOD WAS LIMITED THEREAFTER FOR THE SETTLING OF ITS AFFAIRS BY ITS DIRECTORS IN THE ABSENCE OF INTERVENTION AND ADMINISTRATION UNDER AN EQUITY COURT.

IT IS NOT UNDERSTOOD THAT THE ELENORE (OR ELEANOR) MANGANESE CO. HAD ANY LEGAL EXISTENCE OR AUTHORITY TO ACT IN A CORPORATE CAPACITY UNDER THE LAWS OF THE STATE OF VIRGINIA EITHER ON NOVEMBER 12, 1934, OR ON FEBRUARY 2, 1938, THOSE BEING THE DATES OF THE GIVING OF THE POWERS OF ATTORNEY HEREINBEFORE DESCRIBED. PUTTING TO ONE SIDE, THEREFORE, THAT THE SAID POWERS OF ATTORNEY APPEAR VOID ON THEIR FACE UNDER THE FEDERAL STATUTES ABOVE CITED, NEVERTHELESS, THEIR VALIDITY WOULD SEEM OPEN TO QUESTION ALSO UNDER THE STATE STATUTES.

THERE WAS NO ATTEMPT IN THE FEDERAL ACT OF JUNE 30, 1936, TO REVIVE THE LEGAL ENTITY OF A CORPORATION WHICH HAD CEASED TO EXIST UNDER STATE LAW AFTER THE FILING OF ITS CLAIM UNDER THE WAR MINERALS RELIEF ACT OF 1919, AND OTHERWISE THE AUTHORITY TO SO REVIVE IT WAS WHOLLY LACKING.

PENDING SUBMISSION OF PROOF THAT A PROPER CLAIM WAS PRESENTED TO THE SECRETARY OF THE INTERIOR WITHIN 6 MONTHS AFTER APPROVAL OF THE ACT OF JUNE 30, 1936, SECTION 3 OF THE SAID ACT FORBIDS ANY PAYMENT THEREON. FURTHERMORE, THERE HAS BEEN NO PROOF PRESENTED TO SHOW THE IDENTITY AND INTEREST OF THE SEVERAL PERSONS WHO SUCCEEDED TO THE RIGHTS OF THE CORPORATION AT THE TIME IT CEASED TO EXIST UNDER THE LAWS OF THE STATE OF VIRGINIA. THE AWARD, IF OTHERWISE UPON A PROPER CLAIM TIMELY FILED MAY BE ALLOWED FOR PAYMENT ONLY TO SUCH PERSONS SUCCEEDING TO THE RIGHTS OF THE CORPORATION AS ARE DESIGNATED IN SECTION 2 OF THE ACT. ACCORDINGLY, THE MATTER MUST REMAIN IN ABEYANCE IN THE ABSENCE OF ANY EVIDENCE TO SUPPORT A PAYMENT.