Page images


Opinion of the Court



be remedial in nature, they should be given the liberal construction generally applied to such enactments.

This general rule is set forth in 19 Corpus Juris Secundum, Sec. 1743, p. 1508, as follows:

Statutes extending the life of the corporation, variously phrased as they are, should be so construed as to give effect to their purposes and,

have been liberally construed so as to enlarge and not to limit the

corporate privileges. It is important to note that Section 3373 is part of Chapter 190 of Title XXXV, which purports to contain provisions of general application,” as the title indicates; whereas Sections 3470 to 3477 inclusive, relating to the procedure for dissolving a corporation, appear in Chapter 191 of said Title XXXV, which deals with corporations "with capital stock.” It is a rule of construction that the provisions of a general enabling statute are not to be limited by construction because of provisions relating to special classes of corporations.

As Fletcher states the rule (16 Fletcher Cyclopedia Corporations, Sec. 7982, p. 673), it is:

If one statute fixes the period of corporate life for corporations generally, and another statute fixes the period of corporate life of a particular class of corporations created under such statute, then, of course, the former rather than the latter statute applies to a corporation of the particular class

appears to us that the Connecticut statute in plain, unambiguous provisions provides for survivorship of dissolved corporations “to enable them

to close up their affairs, dispose of their property and distribute their assets," and by express provision, “to prosecute and defend suits by or against them."

It is clear that the legislature considered that there might well be, after dissolution, affairs to be closed up, property to be disposed of, assets to be distributed and suits to be prosecuted and defended.

The meaning of the word "prosecute” not only in its ordinary definitive sense but by the interpretation of many courts, includes the commencement or institution of suits.



111 C. Cls. Opinion of the Court Western Electric Co. v. Pickett, 51 Col. 415, 420; Cheshire v. Des Moines City Ry. Co., 153 Iowa 808; Great Barrington v. Gibbons, 199 Mass. 527, 529; Choate v. Boston, 304 Mass. 298; Wall v. Chesapeake RR. Co., 290 III. 227, Webster's New International Dictionary, 2nd Ed.

It is well also to note an express provision of the Connecticut statute which would bar the attempt now made by the defendant to limit the meaning of the plain words of Section 3373. Section 6568 of Chapter 341 of the General Statutes of 1930 provides:

In the construction of the statutes, words and phrases shall be construed according to the commonly approved

usage of the language Such corporate survivorship statutes have been held to enable corporations to commence and maintain suits although they have been previously dissolved. The rule is well stated by the United States Supreme Court in considering the Virginia corporate survivorship statute, Hawkins v. Glenn, 131 U. S. 319, 331.

As the corporation, notwithstanding it may have ceased the prosecution of the objects for which it was organized, could still proceed in the collection of debts, the enforcement of liabilities, and the application of its assets to the payment of its creditors, all corporate porers essential to these ends remained unimpaired. [Italics

supplied.] Suits may not only be commenced by dissolved corporations but against them, by virtue of the enabling provisions of corporate survivorship statutes.

The Connecticut Supreme Court considered the effect of a Federal survivorship statute relating to national banking associations, in a suit against a bank where it appeared that the charter had expired by limitation prior to the commencement of the suit. Cogswell v. Second National Bank, 76 Conn. 252. The Federal statute provided for survivor. ship of national banks after dissolution,"for the sole purpose of liquidating their affairs until such affairs are finally closed.” It is to be noted that although that statute did not expressly confer on the expired corporation capacity to


Syllabus prosecute and defend suits, the Connecticut court nevertheless held that such capacity was implied, stating at p. 260:

For the purpose of liquidating their affairs, it is obviously necessary that they should retain the capacity of suing and being sued, and the statutory extension of

the franchise accomplishes that result. We are further of the opinion that the voluntary dissolution of the corporation by the director-trustees of the corporation at a time when the plaintiff had full knowledge of its rights under the contract did not in any way constitute an abandonment of such rights.

The survivorship statute does not become applicable until after the corporation has been dissolved. At that time, the dissolution having already occurred, the corporation may still have claims to be enforced and affairs to be closed up, and the legislature of the State of Connecticut has provided for the continued existence for the enumerated purposes.

One of those enumerated purposes is "to prosecute and defend suits by or against them," and to hold in the face of these clear words of the statute that a dissolved corporation cannot bring suit to enforce a claim in this court would restore the hardships and inequities which this and other survivorship statutes are intended to eliminate.

The defendant's plea of nul tiel corporation is hereby dismissed. It is so ordered..

MADDEN, Judge; WHITAKER, Judge; LITTLETON, Judge; and JONES, Chief Justice, concur.


[No. 46240. Decided July 6, 1948]

On the Proofs

Pay and allowances; assistant commandant of the Coast Guard

entitled to retired pay of rear admiral, upper half, under section 3 of the Act of 1923.—Under the provisions of the Act of 1923 and the Act of 1940, an assistant commandant of the United States Coast Guard, whatever may have been his length

111 C. Cls. Roporter's Statement of the Case of service, is entitled upon retirement to the pay of a rear admiral of the lower half; but if he has had 40 years' service he is entitled to the pay of a rear admiral of the upper half, in accordance with the provisions of Section 3 of the Act of 1923. See William E. Reynolds v. United States, 95 C. Cls. 160.

The Reporter's statement of the case:

Mr. Fred W. Shields for plaintiff. Messrs. King & King were on the brief.

Mr. Frank J. Keating, with whom was Mr. Assistant Attorney General H. G. Morison, for the defendant.

The court made special findings of fact as follows: 1. Plaintiff is a citizen of the United States and was appointed a cadet in the United States Coast Guard on June 18, 1900. He thereafter served continuously on active duty as a commissioned officer in the United States Coast Guard until January 1, 1942, when he was transferred to the retired list with the rank of rear admiral, which rank he had held on the active list since May 24, 1939.

2. At the time of plaintiff's retirement he was serving on active duty as Assistant Commandant of the United States Coast Guard. He was retired with the rank of a rear admiral and since his retirement he has received the pay of a rear admiral, lower half. Plaintiff was appointed Assistant Commandant of the United States Coast Guard on May 24, 1939, at which time he held the rank of captain in the United States Coast Guard. Upon his appointment as Assistant Commandant he received the rank of rear admiral by virtue of his appointment as Assistant Commandant. At the time of his retirement he held the rank of rear admiral by virtue of being at that time the Assistant Commandant of the Coast Guard.

3. Plaintiff at the time of his retirement was credited with 41 years, 6 months and 13 days' active service.

4. On June 24, 1943, plaintiff reported for active duty, pursuant to orders directing him to report for such duty and issued to him on June 22, 1943. He was still serving on active duty at the time the reply of the Navy Department was filed in this Court on March 2, 1945.


Opinion of the Court 5. Plaintiff filed claim in the General Accounting Office for the difference in the retired pay of a rear admiral of the lower half and of a rear admiral of the upper half for the period from January 1, 1942, to May 31, 1942, which claim was disallowed by that office on July 8, 1942, and again on September 9, 1943.

The court decided that the plaintiff was entitled to recover.

WHITAKER, Judge, delivered the opinion of the court:

Plaintiff sues for the pay of a rear admiral of the upper half, to which he claims he is entitled under the proviso to section 3 of the Act of January 12, 1923 (42 Stat. 1130).

On May 24, 1939, plaintiff was appointed Assistant Commandant of the United States Coast Guard. He retired on January 1, 1942, after having served 41 years, 6 months, and 13 days.

The proviso to section 3 of the Act of January 12, 1923, provides that after a commissioned officer of the Coast Guard has served forty years and he shall retire, “he shall be placed on the retired list with the rank and retired pay of one grade above that actually held by him at the time of retirement." Under this Act plaintiff is entitled to the retired pay of a rear admiral of the upper half. He has been receiving the pay of a rear admiral of the lower half.

The Comptroller General, however, says that since plaintiff was serving as Assistant Commandant of the Coast Guard when he retired, he is only entitled to the pay of a rear admiral of the lower half because of section 3 of the Act of June 6, 1940 (54 Stat. 246). This provides that when an officer serving as Assistant Commandant of the Coast Guard shall be retired, whether before or after the termination of his service as Assistant Commandant, he shall be retired with the rank of rear admiral and receive the retired pay of a rear admiral of the lower half. This section is quoted in a footnote below. This section, it is alleged, applies to

1 “The President is authorized to appoint in the Coast Guard, by and with the advice and consent of the Senate, one Assistant Commandant who shall serve for a term of four years unless sooner relieved by the President. The Assistant Commandant shall perform such duties as the Commandant of the Coast Guard may prescribe and shall act as Commandant during the absence or disability of the Commandant or in the event that there is a vacancy in the

« PreviousContinue »