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Stat., 399, judgment was awarded in favor of the railroad company for the amount so deducted, it being held, quoting syllabi, that:
The National Guard of a State may become " troops of the United States” within the meaning of the land-grant act, but it is not the potentiality but the actuality of being in the service contemplated by the Constitution which fixes their status as such “ troops."
The meaning of the land-grant act is not to be restricted to the Regular Army nor can it be extended to include the National Guard when not actually in the service of the United States.
The National Guard as then constituted differed from the National Guard as constituted under the national defense act in that under the national defense act the members of the National Guard have enlisted as soldiers and taken the prescribed oath as soldiers of the United States.
The Supreme Court of the United States has held, In re Grimley, 137 U. S., 147, 157, “ that the taking of the oath of allegiance is the pivotal fact which changes the status from that of a civilian to that of soldier.” The Supreme Court of the United States in case of United States v. Union Pacific Railroad Company, 249 U. S., 354, held that:
Applicants for enlistment who have been accepted provisionally but have yet to be subjected to the final examination at the recruiting depots and to take the oath before they become part of the soldiery of the Nation, are not " troops of the United States." It is the actual enlistment, the oath of allegiance, that changes the status from a civilian to soldier.
It appears clearly established by court decisions that the status of soldier is determined by the oath of enlistment and that members of the National Guard as now constituted have already taken the oath of enlistment and therefore are troops of the United States and subject to active service under sections 101 and 111 of the national defense act, no further oath being required when called or drafted. The status of the National Guard, therefore, is that of troops of the United States subject to active service whenever called or drafted therefor. The United States is entitled to their transportation under the provision of the land-grant acts relating to the transportation of its troops in accordance with the cardinal rule of construction of statutes that the intent of the legislature is to prevail, and such intent is to be determined from the language as expressed in the statute, which language is to be given its clear, plain, ordinary, and obvious meaning.
If there is any doubt as to the interpretation of the language used in case of a public grant, such language must be construed in favor of the Government, it being a rule of law that public grants are construed in favor of the Government on grounds of public policy and can not be extended by implication in favor of the grantee beyond the natural and obvious meaning of the words employed. In Central Transportation Co. v. Pullman's Palace Car Co., 139 U. S., 24, the Supreme Court of the United States says:
By a familiar rule every grant of property or of privileges or franchises, if ambiguous, is to be construed against the grantee and in favor of the public, because an intention on the part of the Government to grant to private persons or to a particular corporation property or rights in which the whole public is interested can not be presumed, unless unequivocally expressed or necessarily to be implied in the terms of the grant, and because the grant is supposed to be made at the solicitation of the grantee and to be drawn up by him or by his agents, and therefore the words used are to be treated as those of the grantee, and this rule of construction is a wholesome safeguard of the interests of the public against any attempt of the grantee by the insertion of ambiguous language to take what could not be obtained in clear and express terms.
The National Guard, composed of men enlisted as soldiers in accordance with section 70 of the national defense act as amended by section 38 of the act of June 4, 1920, supra, are a part of the troops of the United States and must be so regarded within the meaning of the land-grant acts whenever transportation therefor is required by the United States over a land-grant railroad. The question involved here is the rights of the United States over a landgrant railroad and must be construed in accordance with the law making the grant to the railroad.
The transportation of members of the National Guard under consideration, having been required by the United States and furnished under authority of the War Department for the purpose of attending camp of instruction and training in order to more fully qualify them for the duties which they are required under their enlistment to render the United States when called upon, and being enlisted as soldiers of the National Guard of the United States, the deduction on account of land grant is properly applicable.
The United States being entitled under the condition of the grant to have its troops transported over said aided road, it is immaterial as to what branch of the service such troops are connected or the purpose for which the transportation is required so long as the United States requires the transportation for its purpose and pays the cost thereof, as in this case. The settlement is affirmed.
TRANSPORTATION OF MEMBERS OF NATIONAL GUARD TO AND
FROM CAMPS OF INSTRUCTION-JOINT MILITARY ARRANGEMENT.
Members of the National Guard while attending camps of instruction are not
a part of the Army of the United States as defined in section 1 of the national defense act of June 3, 1916, 39 Stat., 166, as amended by section 1 of the act of June 4, 1920, 41 Stat., 759, and are therefore not « enlisted men of the United States Army within the meaning of that term as used in the joint military arrangement, and the transportation of such members of the National Guard to and from camps of instruction is accordingly not subject to the 3 per cent allowance authorized under that arrangement for the transportation of enlisted men of the United States Army.
Decision by Comptroller General McCarl, February 6, 1923:
The Southern Railway Co. applied, per letter of January 5, 1923 (file D-2-P3602), for review of settlement W-67843, October 28, 1922, by which was deducted from the amount found due for passenger transportation during July, 1922, per bill 3602, July, 1922-P, the sum of $265.09 on account of transportation of enlisted men of the National Guard attending camps of instruction, for which payment had been made by Maj. E. O. Hopkins per vouchers 7028 and 7054, December, 1921, and 7592 and 7920, January, 1922.
The payment for the transportation had been made at the full commercial fare. The overpayment by the disbursing officer was determined by the application of the 3 per cent allowance authorized by the joint military arrangement for the transportation of enlisted men of the United States Army when traveling on transportation requests of the issue of the United States War Department, where the entire transportation cost is paid by the United States.
The question for determination in this case is whether the members of the National Guard are enlisted men in the United States Army within the meaning of this arrangement or agreement. The claimant contends that such deduction is not authorized and that the amount so deducted should be allowed.
Members of the National Guard are enlisted as soldiers in the National Guard of the United States, having signed an enlistment contract and subscribed to an oath of enlistment as prescribed 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. Section 1 of the national defense act, 39 Stat., 166, as amended by section 1 of the act of June 4, 1920, 41 Stat., 759, provides that “the National Guard, while in the service of the United States," is one of the constituent parts of the Army of the United States.
The status of members of the National Guard as troops of the United States within the meaning of the land-grant laws is set forth in decision of February 6, 1923, in Review No. 3459 of the Grand Trunk Railway System, but as set forth in said decision the members of the National Guard when attending camps of instruction are not in the service of the United States as a part of the Army as defined in section 1 of the national defense act. The question in this case is the construction of the agreement granting the Government an allowance on the transportation of “enlisted men of the United States Army,” as distinguished from the construction of the rights of the United States under the land-grant acts relating to the transportation of “troops of the United States.” Though enlisted men and troops of the United States, yet not being a part of the Army as defined by section 1 of the national defense act, the
transportation under consideration is not within the terms of the military arrangement or agreement and the 3 per cent allowance authorized thereunder is not applicable thereto. The amount deducted on this account is therefore allowed
AWARDS AND COURT EXPENSES IN CONDEMNATION PROCEED
INGS-DISTRICT OF COLUMBIA. The appropriations for the payment of awards and court expenses incurred
in condemnation proceedings brought by the Commissioners of the District of Columbia under the general authority conferred upon them by the act of March 4, 1913, 37 Stat., 950, are applicable to costs and expenses falling due and payable on final awards made during the respec
tive fiscal years for which the appropriations were made. Comptroller General McCarl to the President, Board of Commissioners of the District of Columbia, February 7, 1923:
I have your letter of January 10, 1923, requesting decision whether payment of awards and court expenses in condemnation proceedings instituted by the Commissioners of the District of Columbia under general powers given them by law may be made from appropriations for the fiscal year in which the verdict of the jury is finally ratified and confirmed by the court. Your submission is understood to relate only to those cases of condemnation brought under general authority to open, extend, or widen streets, avenues, roads, or highways given to the commission by the act of March 4, 1913, 37 Stat., 950.
The authorizing statute provides that the costs and expenses of the authorized proceedings should be paid from District revenues and that such sum as is necessary for said purpose during the fiscal year to end June thirtieth, nineteen hundred and fourteen, is hereby appropriated, payable entirely from the revenues of the District of Columbia.
Annually thereafter up to and including the fiscal year 1919 appropriation was made to carry out the provisions contained in the authorizing act aforesaid of “such sum as is necessary for said purpose” during the fiscal year for which the several appropriations were made. The appropriation for the fiscal year 1920 made by the act of July 11, 1919, 41 Stat., 76, carried the specific amount of $40,000 to carry out the provisions of this authorizing act. A specific appropriation of $50,000 for like purposes during the fiscal year 1921 was made by the act of June 5, 1920, 41 Stat., 846. The appropriation for the fiscal year 1922 made by the act of February 22, 1921, 41 Stat., 1116, was made indefinitely as in former years for such sum as was necessary for the purpose of carrying out the provisions of the act. The act of June 29, 1922, 42 Stat., 680, also appropriates an indefinite sum for like purposes.
Each and every one of the aforesaid appropriations is by its terms specifically made available for payment of the costs and expenses of the condemnation proceedings taken under the provisions of the act of 1913 and therefore is available for any such expense falling due and payable on final awards made during the respective fiscal years for which the appropriations were made. This case differs materially from those cases in which a specific permanent appropriation has been made for a definite purpose the accomplishment of which purpose requires the institution of condemnation proceedings.
The decision of the former Comptroller of the Treasury of January 30, 1920, to which you refer does not apply to this case.
AUTOMATIC PROMOTION OF POSTAL CLERKSCREDIT FOR MILI
TARY SERVICE. Credit, for purposes of promotion in the Postal Service, for time served in the
military or naval service of the United States during the World War, is limited to those employees who were in the Postal Service on June 5, 1920, or October 1, 1920, and who have remained continuously in said service
thereafter. Comptroller General McCarl to the Postmaster General, February 8, 1923:
I have your letter of January 30, 1923, requesting decision whether postal employees who were in the service as substitute clerks or carriers on June 5, 1920, or October 1, 1920, and who thereafter have been separated from the service and are reinstated subsequent to October 1, 1920, are entitled for purposes of promotion to credit for time served in the military, marine, or naval service of the United States during the World War.
The provision in the act of June 5, 1920, as amended by a provision in the act of March 1, 1921, 41 Stat., 1151, relative to the counting of time served as a substitute or in the military, marine, or naval service for the purpose of promotion in the Postal Service is as follows:
That clerks in first and second class post offices and letter carriers in the City Delivery Service shall be divided into five grades as follows: First grade salary, $1,400; second grade salary, $1,500; third grade salary, $1,600; fourth grade salary, $1,700; fifth grade salary, $1,800: Provided, That in the readjustment of grades for clerks at first and second class post offices and letter carriers in the City Delivery Service to conform to the grades herein provided, grade 1 shall include present grade 1, grade 2 shall include present grade 2, grade 3 shall include present grade 3, grade 4 shall include present grade 4, and grade 5 shall include present grades 5 and 6: Provided further, That hereafter substitute clerks in first and second class post offices and substitute letter carriers in the City Delivery Service when appointed regular clerks or carriers shall have credit for actual time served on a basis of one year for each three hundred and six days of eight hours served as substitute, and appointed to the grade to which such clerk or carrier would have progressed had his original appointment as substitute been to grade one: Provided, That postal employees and substitute postal employees who served in the military, marine or naval service of the United States during the World War and have not reached the maximum grade of salary shall receive credit for all time served in the military, marine or naval service on the basis of one day's credit of eight hours in the Postal Service for each day served in the military, marine or naval service and be promoted to the grade to which such postal employee or substitute postal employee would have progressed had his original appointment as substitute been to grade one: And provided further, That clerks in first and second class post offices and letter carriers in the City Delivery Service shall be promoted successively after one