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hams located in Army warehouses at Norfolk, Va. Harris Bros. Co. offered 20 cents per pound for the entire quantity, and said bid was accepted and the acceptance communicated to said company on or before June 2, 1919. The entire quantity was delivered and paid for and the proceeds of the sale were covered into the Treasury as miscellaneous receipts. The basis of the claim on account of this transaction is that a large quantity of the hams proved to be unfit for human consumption. The bidders were advised at the time the hams were offered for sale that report of inspector states hams are at present sweet and sound, but surfaces are affected by mold, and that if reconditioned at once would be no loss from trimming, as the mold in its present condition can be removed by thoroughly washing and cleaning.” This was due notice that the hams were deteriorating and ample opportunity was given for thorough inspection by bidders.

In April, 1920, Harris Bros. Co. presented to the War Department a claim for damages alleged to have resulted from the deterioration of the hams purchased by it. Said claim was made the subject of a report dated June 22, 1920, by George F. B. Trask, colonel, Quartermaster Corps, to the Assistant Secretary of War, in which it was recommended that an allowance of $85,140.68 be made on the claim, subject to certain conditions. On June 26, 1920, the Assistant Secretary of War referred Colonel Trask's report to Colonel Fair. banks, vice chairman of the War Department claims board, directing that he have the claim reviewed with particular reference to the legal phases of the matter. Accordingly the claim was reviewed by the chairman, claims board, office Director of Purchase, who made the following statement in his report dated June 8, 1920:

I am of opinion that there was no implied warranty, the United States not being the producer or wholesaler of the hams. I think the implied warranty of wholesomeness in sale of food for human consumption is limited to producers and wholesalers and is not applicable to the United States in the sale of surplus Army property.

Colonel Fairbanks concurred in the legal views expressed in the report and Assistant Secretary of War Cat well approved the report as to “exposition of the facts.” On July 6, 1920, the matter was referred by direction of the Secretary of War to the Judge Advocate General for opinion. The opinion of the Judge Advocate General, dated July 21, 1920, was to the effect that there was no authority in the War Department to make settlement, and it was recommended that the claim be transmitted to the Auditor for the War Department. Under date of July 27, 1920, the Secretary of War transmitted the claim to the Auditor for the War Department “ for such action as you may deem proper in the premises.” The auditor disallowed the claim by certificate dated August 27, 1920, claim No. 745925, upon the ground that no funds were available for payment

of the claim even if it could be regarded as a valid claim against the United States.

I concur in the view expressed in the report hereinbefore quoted from relative to the absence of implied warranty of wholesomeness in the sales of surplus Army supplies, especially in reference to such a case as this, in which specific notice is given that the property has begun to deteriorate and is in need of immediate reconditioning. Furthermore, it appears from the evidence presented that at the time of sale and for a considerable time thereafter the hams were fit for human consumption, and that not until the latter part of August or later did the purchaser take any steps toward reconditioning. Even if there had been a warranty as to the condition of the hams and a breach thereof, neither of which is shown, the claim for damages resulting therefrom would not be for adjudication by the Secretary of War or any officer, board, or commission of the Army or the War Department.

The second question submitted does not involve a payment to be made under the War Department, but the authority of one indebted to the United States to withhold payment, and in the form stated it does not present a question properly for advance decision by this office. I may state, however, as a matter of administrative procedure in the present case, that you are not authorized to consent to, or enter into, any arrangement or agreement under which Harris Bros. Co. would be permitted to withhold the amount of any unadjudicated claim it may have against the United States from any amount due from it to the United States under the contract for the purchase of Camp Merritt.



The return of certain surplus war supplies owing to a local law prohibiting

their resale does not make the Government liable for expenses incurred by the purchaser for freight, storage, and handling when there was no

breach of condition or warranty chargeable to the Government. The return of surplus war supplies because of their failure to meet the specifi

cations under which sold renders the Government liable for the expenses incurred by the purchaser for freight, storage, and handling, which expenses may be reimbursed from the proceeds of the general sale of like

supplies when held in special-deposit account. Comptroller General McCarl to Maj. M. T. Legg, United States Army, February 6, 1923:

I have your letter of January 25, 1923, submitting, with request for decision whether payment thereon is authorized, a voucher in favor of Thompson & Kelly Co. for $5,795.11.

Of the amount in question $42.24 represents freight, storage, and handling charges on matches purchased from the Army and there

after redelivered to it because a certain city ordinance prohibited the resale of said matches.

The remainder of the amount, to wit, $5,752.87, represents the amount of expenses incurred by Thompson & Kelly Co. on account of freight, storage, and handling charges on certain lots of textiles purchased from surplus property of the Army and thereafter redelivered to the Army because not in accordance with the specifications under which they were sold.

It is proposed to make the reimbursement claimed from funds in your special-deposit account, being proceeds from other sales of surplus property of the same general classes.

In an unpublished decision of June 28, 1921, to the Secretary of War, the Comptroller of the Treasury held that proceeds of the general sale of such supplies could be used to reimburse the purchasers for such expenses as are now under consideration where the facts appearing show the reason for the return of the supplies purchased, and that said return was due to the failure of the goods sold to comply with the specifications under which the sales were made.

With reference to the matches, the local restriction upon the resale of matches is not chargeable against the United States and it does not appear that there was any failure of the United States as to the specifications under which they were sold, therefore reimbursement of the expenses incurred in connection with them is not authorized.

Payment on the voucher and evidence submitted is authorized in the sum of only $5,752.87, being the amount of the expenses incurred in connection with the textiles which did not comply with the specifications.



Members of the National Guard enlisted as soldiers in accordance with sec

tion 70 of the act of June 3, 1916, 39 Stat., 201, as amended by section 38 of the act of June 4, 1920, 41 Stat., 781, when going to and from training camps under authority of the War Department, are troops of the United States within the meaning of land-grant laws, and as troops are entitled to free transportation over that portion of the lines of the Michigan Central Railroad originally aided in its construction by a land grant under section 3, act of June 3, 1856, 11 Stat., 21, and section 3,

act of July 3, 1866, 14 Stat., 79. Decision by Comptroller General McCarl, February 6, 1923:

The Grand Trunk Railway system, western lines, applied per letter of December 4, 1922, S-9-218, for review of settlement W-68571, November 23, 1922, of its bills GO-1018 and 1019 for passenger transportation during September, 1922, in the sum of

$358.36, from which amount a deduction was made of $333.27 on account of overpayment by Maj. E. O. Hopkins per voucher 36811 (bill GO–815) of February, 1922, for transportation per request WQ-3116637, August 1, 1921, of 63 men of the Michigan National Guard from Ionia, Mich., to Rasmus, Mich., to National Guard field training camp, the amount paid therefor being at the fare of $7.50 per man, a total of $472.50. The amount due for the service was determined to be $139.23 on the basis of a net fare of $2.21 per man, resulting in an overpayment of $333.27, as noted above. The net fare of $2.21 was determined as follows:

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The deduction was on account of the portion of the transportation over the line of the Michigan Central Railroad, which was originally aided in its construction by grant of land under condition as provided by section 3 of the act of June 3, 1856, 11 Stat., 21, and section 3 of the act of July 3, 1866, 14 Stat., 79, that “The said railroad shall be and remain a public highway for the use of the Government of the United States, free from all toll or other charge upon the transportation of any property or troops of the United States," and provided further that the said road "shall be and remain a public highway for the use of the Government of the United States and shall transport free from toll or other charge all property, troops, and munitions of war belonging to the same.

In accordance with the conditions of the aforesaid grant the Government is entitled to free transportation of its troops over the line of railroad constructed under the provisions of said grant. The claimant in its application for review contends that members of the National Guard are not troops of the United States and therefore the provisions of the statutes cited are not applicable thereto, and that the payment for the service should be made at the full commercial fare without any deduction therefrom on account of the provisions of the acts cited.

The transportation under consideration was furnished members of the National Guard for the purpose of attending camp of instruction as provided by section 97 of the national defense act of June 3 1916, 39 Stat., 207, in accordance with which their pay, transportation, and subsistence were at the expense of and from appropriation made by the United States, being for the purpose of military training, to be better fitted for military service when

; and

called thereto or drafted therein, as hereinafter indicated. The members of the National Guard are enlisted as soldiers in the National Guard of the United States in accordance with the enlistment contract and oath of enlistment as provided by section 70 of the national defense act of June 3, 1916, 39 Stat., 201, as amended by section 38 of the act of June 4, 1920, 41 Stat., 781, as follows:

Men enlisting in the National Guard of the several States, Territories, and the District of Columbia, shall sign an enlistment contract and subscribe to the following oath of enlistment: “I do hereby acknowledge to have voluntarily enlisted this - day of

· 19, as a soldier in the National Guard of the United States and of the State of

for the period of three (or one) year —, under the conditions prescribed by law, unless sooner discharged by proper authority. And I do solemnly swear that I will bear true faith and allegiance to the United States of America and to the State of that I will serve them honestly and faithfully against all their enemies whomsoever, and that I will obey the orders of the President of the United States and of the governor of the State of —, and of the officers appointed over me according to law and the rules and Articles of War."

The men thus enlisted are, in accordance with section 101 of the national defense act of June 3, 1916, 39 Stat., 208, subject to be called into the service of the United States, or by section 111 of the national defense act, 39 Stat., 211, as amended by section 49 of the act of June 4, 1920, 41 Stat., 784, to be drafted into the military service of the United States, and from the time when so called under section 101, or drafted under section 111, are subject to such laws and regulations for the government of the Army of the United States as may be applicable to members of the Army whose permanent retention in the military service is not contemplated by law. In accordance with these statutes, members of the National Guard, without other oath or any further action on their part, whenever called or drafted are inducted into the service of the United States, each one having already taken the prescribed oath of enlistment as & soldier of the United States.

Though not in the service of the United States as a part of the Army as defined in section 1 of the national defense act, when attending camp of instruction (see 2 Comp. Gen., 189), the question for determination is whether they are troops of the United States within the meaning of the land-grant acts cited above. the court held that:

In the case of Charles Coe v. United States, 44 Ct. Cl., 419, 427,

In order to become a soldier in the United States Army, i. e., in order to become a fully enlisted man, the party must first enlist by signing the prescribed application, and he must then be accepted and sworn into the service by the proper officer, who is then said to have enlisted the soldier.

In the case of the Alabama Great Southern Railroad Company v. United States, 49 Ct. Cls., 522, which was a suit for amount deducted on account of the rights of the United States over a land-grant rail. road for transportation of organized militia under the act of January 21, 1903, 32 Stat., 775, as amended by the act of May 27, 1908, 35

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