A-12320, MAY 3, 1926, 5 COMP. GEN. 883

A-12320: May 3, 1926

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NATIONAL GUARD PAY - ARMORY DRILL - FILIPINOS THE ENLISTMENT IN THE NATIONAL GUARD OF HAWAII OF NATIVES OF THE PHILIPPINE ISLANDS WHO ARE NOT CITIZENS OF THE UNITED STATES AND THOSE WHO HAVE NOT DECLARED THEIR INTENTION TO BECOME CITIZENS OF THE UNITED STATES IS CONTRARY TO LAW. REQUESTING TO BE ADVISED AS TO WHETHER YOU ARE AUTHORIZED TO PAY SAME IN VIEW OF THE LETTER OF THE ADJUTANT GENERAL OF HAWAII DATED SEPTEMBER 4. ON THE PAY ROLL IS A CERTIFICATE SIGNED BY THE COMMANDING OFFICER OF SAID COMPANY AS FOLLOWS: THE NAMES OF THE OFFICERS AND ENLISTED MEN WHICH APPEAR HEREON WERE NOT OMITTED FROM THE ORIGINAL ROLL OF THIS ORGANIZATION FOR THE PERIOD COVERED HEREIN (VOU. THEY WERE NOT PAID ON ACCOUNT OF THE RULING CONTAINED IN THE RADIOGRAMS MENTIONED HEREIN.

A-12320, MAY 3, 1926, 5 COMP. GEN. 883

NATIONAL GUARD PAY - ARMORY DRILL - FILIPINOS THE ENLISTMENT IN THE NATIONAL GUARD OF HAWAII OF NATIVES OF THE PHILIPPINE ISLANDS WHO ARE NOT CITIZENS OF THE UNITED STATES AND THOSE WHO HAVE NOT DECLARED THEIR INTENTION TO BECOME CITIZENS OF THE UNITED STATES IS CONTRARY TO LAW, AND NO RIGHT TO ARMORY-DRILL PAY ACCRUES TO THEM UNDER SUCH ENLISTMENT.

COMPTROLLER GENERAL MCCARL TO CAPT. HERBERT BALDWIN, UNITED STATES ARMY, MAY 3, 1926:

THERE HAS BEEN RECEIVED YOUR 7TH ENDORSEMENT OF NOVEMBER 20, 1925, TRANSMITTING SUPPLEMENTAL PAY ROLL OF COMPANY L, 298TH INFANTRY, NATIONAL GUARD, TERRITORY OF HAWAII, COVERING ARMORY DRILL PAY ALLEGED TO BE DUE THE OFFICERS AND ENLISTED MEN OF SAID COMPANY FOR THE PERIOD JULY 1 TO SEPTEMBER 30, 1924, AND REQUESTING TO BE ADVISED AS TO WHETHER YOU ARE AUTHORIZED TO PAY SAME IN VIEW OF THE LETTER OF THE ADJUTANT GENERAL OF HAWAII DATED SEPTEMBER 4, 1925, AND COPIES OF RADIOGRAMS ATTACHED TO THE PAY ROLL.

ON THE PAY ROLL IS A CERTIFICATE SIGNED BY THE COMMANDING OFFICER OF SAID COMPANY AS FOLLOWS:

THE NAMES OF THE OFFICERS AND ENLISTED MEN WHICH APPEAR HEREON WERE NOT OMITTED FROM THE ORIGINAL ROLL OF THIS ORGANIZATION FOR THE PERIOD COVERED HEREIN (VOU. NO. 321, ACCOUNTS OF CAPTAIN HERBERT BALDWIN, F.D., HONOLULU, T.H., FOR MARCH, 1925). THE NAMES OF THE OFFICERS WHICH APPEAR HEREON DID APPEAR ON THE ORIGINAL ROLL, BUT THEY WERE NOT PAID ON ACCOUNT OF THE RULING CONTAINED IN THE RADIOGRAMS MENTIONED HEREIN. THE NAMES OF THE ENLISTED MEN WHICH ARE INCLUDED ON THIS ROLL DID APPEAR ON THE ORIGINAL ROLL, BUT THEY WERE NOT PAID BECAUSE IT WAS BELIEVED THAT THEY WERE NOT ENTITLED TO PAY ON ACCOUNT OF NOT BEING CITIZENS OF THE UNITED STATES OF AMERICA, NOR HAVING MADE LEGAL DECLARATION OF INTENTION OF SO BECOMING. SEE ATTACHED TRUE COPIES OF PARAGRAPH 3, RADIOGRAM NO. 2354, OFFICE OF THE ADJUTANT GENERAL, WASHINGTON, D.C., DATED OCTOBER 16, 1924; PARAGRAPH 1, RADIOGRAM NO. 2189. HEADQUARTERS HAWAIIAN DEPARTMENT, HONOLULU, T.H., DATED OCTOBER 18, 1924; AND RADIOGRAM NO. 2363, OFFICE OF THE ADJUTANT GENERAL, WASHINGTON, D.C., DATED OCTOBER 21, 1924.

ALL ENLISTED MEN WHOSE NAMES APPEAR HEREON, WITH THE EXCEPTION OF THOSE WHO HAVE AFTER THEIR NAMES A REMARK TO THE CONTRARY, HAVE HAD NO PREVIOUS SERVICE IN THE U.S. ARMY, REGULAR ARMY, NAVY, OR MARINE CORPS.

PARAGRAPH 3 OF THE RADIOGRAM OF OCTOBER 16, 1924, AS CLARIFIED BY THE RADIOGRAM OF OCTOBER 21, 1924, REFERRED TO, IS AS FOLLOWS:

AFTER CONFERENCE WITH COLONEL SMOOT, FOLLOWING FOR INFORMATION ADJUTANT GENERAL OF HAWAII:

FILIPINOS RESIDENT OF TERRITORY WHO ARE ALSO CITIZENS OR HAVE MADE DECLARATION ELIGIBLE FOR ENLISTMENT. IMMEDIATELY DISCHARGE THOSE INELIGIBLE. IF ANY MAKE DECLARATION, ANY CAN BE IMMEDIATELY REENLISTED. * * * NO PAY FOR LAST QUARTER TO INELIGIBLE FILIPINOS OR OFFICERS BELONGING TO ORGANIZATIONS WHERE THIS RULING AFFECTS PAY OF OFFICERS * *

IN SAID LETTER OF SEPTEMBER 4, 1925, THE ADJUTANT GENERAL OF HAWAII, STATES:

2. THE ACTUAL FACTS AND CIRCUMSTANCES OF THE DISCHARGE OF THESE SOLDIERS ARE THAT THERE WERE MANY, SEVERAL HUNDRED IN FACT, FILIPINOS IN THE HAWAII NATIONAL GUARD WHO HAD BEEN PREVIOUSLY ENLISTED WITH THE ASSUMPTION THAT A FILIPINO OWING ALLEGIANCE TO THE UNITED STATES BY VIRTUE OF HIS BIRTH IN THE PHILIPPINE ISLANDS WAS ENTITLED TO ENLISTMENT IN THE NATIONAL GUARD OF THE UNITED STATES AND OF THE TERRITORY OF HAWAII. AFTER MUCH DISCUSSION WITH FEDERAL AND TERRITORIAL LEGAL AUTHORITIES, OPINIONS WERE PROMULGATED THAT A FILIPINO WAS NOT ELIGIBLE TO SERVICE IN THE HAWAII NATIONAL GUARD UNLESS HE WAS A CITIZEN OF THE UNITED STATES BY VIRTUE OF HIS BIRTH WITHIN THE UNITED STATES PROPER OR THROUGH HAVING DECLARED HIS INTENTION OF BECOMING A CITIZEN OF THE UNITED STATES AND EVENTUALLY HAVING SECURED HIS FULL CITIZENSHIP PAPERS. ON ACCOUNT OF SUCH RULING BY THE TERRITORIAL ATTORNEY GENERAL, NO TERRITORIAL FUNDS COULD BE SPENT ON THESE SOLDIERS NOR COULD THEY RECEIVE ANY TERRITORIAL NATIONAL GUARD PAY.

3. WHEN THE DECISION MENTIONED ABOVE WAS PUBLISHED IN THE LOCAL NEWSPAPERS THROUGH THE ATTORNEY GENERAL'S OFFICE, TERRITORY OF HAWAII, THE OFFICER IN CHARGE OF NATIONAL GUARD AFFAIRS, HEADQUARTERS HAWAIIAN DEPARTMENT, AND THE FINANCE OFFICER OF THE HAWAIIAN DEPARTMENT DECIDED THAT THESE SAME FILIPINO GUARDSMEN WERE ALSO NOT ENTITLED TO FEDERAL PAY THOUGH THEY HAD HONESTLY AND FAITHFULLY PERFORMED THEIR USUAL WEEKLY DRILLS IN A SATISFACTORY MANNER. APPROXIMATELY 800 FILIPINOS WHO WERE IN THE CLASS AS DEFINED BY THE ATTORNEY GENERAL AS NOT BEING ELIGIBLE FOR SERVICE IN THE HAWAII NATIONAL GUARD WERE HONORABLY DISCHARGED DURING THE MONTHS OF NOVEMBER, DECEMBER, AND JANUARY, AND WITHOUT RECEIVING PAY DUE THEM FOR THE QUARTERS ENDING DECEMBER 31, 1924, AND MARCH 31, 1925.

4. IT IS THE OPINION OF THESE HEADQUARTERS THAT THESE EX-SOLDIERS (FILIPINOS) HAVING BEEN LEGALLY ENLISTED AND HAVING FAITHFULLY PERFORMED THEIR DUTIES FOR SEVERAL MONTHS TO SEVERAL YEARS (MANY OF THEM HAVING SERVED A YEAR OR MORE IN THE ARMY OF THE UNITED STATES DURING THE WORLD WAR) ARE CERTAINLY ENTITLED TO FEDERAL PAY TO THE DATE OF THEIR DISCHARGE.

WHILE NOT EXPRESSLY SO STATED, IT IS IMPLIED THAT THE ENLISTED MEN IN QUESTION ARE NATIVES OF THE PHILIPPINE ISLANDS AND HAVE NOT DECLARED THEIR INTENTION TO BECOME CITIZENS OF THE UNITED STATES.

THE TREATY OF DECEMBER 10, 1898, PROCLAIMED APRIL 11, 1899, 30 STAT. 1754, UNDER WHICH THE PHILIPPINE ISLANDS WERE CEDED TO THE UNITED STATES, PROVIDED IN ARTICLE 9 THEREOF THAT THE CIVIL RIGHTS AND POLITICAL STATUS OF THE NATIVE INHABITANTS OF THE TERRITORIES CEDED SHALL BE DETERMINED BY THE CONGRESS.

IN SECTION 2 OF THE ACT OF AUGUST 29, 1916, 39 STAT. 546, IT IS PROVIDED THAT ALL INHABITANTS OF THE PHILIPPINE ISLANDS WHO WERE SPANISH SUBJECTS ON APRIL 11, 1899, AND THEN RESIDED IN SAID ISLANDS, AND THEIR CHILDREN BORN SUBSEQUENT THERETO, SHALL BE DEEMED AND HELD TO BE CITIZENS OF THE PHILIPPINE ISLANDS, EXCEPT THOSE WHO ELECTED TO REMAIN SPANISH SUBJECTS AND THOSE WHO HAVE BECOME CITIZENS OF SOME OTHER COUNTRY.

IT THUS APPEARS THAT UNITED STATES CITIZENSHIP HAS NOT BEEN CONFERRED UPON THE NATIVE INHABITANTS OF THE PHILIPPINE ISLANDS AS SUCH. SEE IN THIS CONNECTION 26 COMP. DEC. 762, AND ACT OF JANUARY 26, 1918, 40 STAT. 432.

THE JUDGE ADVOCATE GENERAL OF THE ARMY (DIGEST OF OPINIONS--- 1917, P. 82) HELD:

ONLY CITIZENS OF THE UNITED STATES OR PERSONS WHO HAVE DECLARED THEIR INTENTIONS TO BECOME CITIZENS OF THE UNITED STATES ARE ELIGIBLE FOR ENLISTMENTS IN THE MEDICAL ENLISTED RESERVE CORPS. * * * CITIZENS OF THE PHILIPPINE ISLANDS ARE, THEREFORE, INELIGIBLE.

SECTIONS 57 AND 58 OF THE ACT OF JUNE 3, 1916, 39 STAT. 197, PROVIDES:

SEC. 57. COMPOSITION OF THE MILITIA.--- THE MILITIA OF THE UNITED STATES SHALL CONSIST OF ALL ABLE-BODIED MALE CITIZENS OF THE UNITED STATES AND ALL OTHER ABLE-BODIED MALES WHO HAVE OR SHALL HAVE DECLARED THEIR INTENTION TO BECOME CITIZENS OF THE UNITED STATES, WHO SHALL BE MORE THAN EIGHTEEN YEARS OF AGE AND, EXCEPT AS HEREINAFTER PROVIDED, NOT MORE THAN FORTY-FIVE YEARS OF AGE, AND SAID MILITIA SHALL BE DIVIDED INTO THREE CLASSES, THE NATIONAL GUARD, THE NAVAL MILITIA, AND THE UNORGANIZED MILITIA.

SEC. 58. COMPOSITION OF THE NATIONAL GUARD.--- THE NATIONAL GUARD SHALL CONSIST OF THE REGULARLY ENLISTED MILITIA BETWEEN THE AGES OF EIGHTEEN AND FORTY-FIVE YEARS ORGANIZED, ARMED, AND EQUIPPED AS HEREINAFTER PROVIDED, AND OF COMMISSIONED OFFICERS BETWEEN THE AGES OF TWENTY-ONE AND SIXTY-FOUR YEARS.

THIS LATTER SECTION WAS AMENDED BY THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1075, BUT THE AMENDMENT DOES NOT AFFECT THE QUESTION HERE INVOLVED.

SECTION 57 PRESCRIBES THAT THE MILITIA (ALL OF THE MILITIA) SHALL CONSIST OF ABLE-BODIED MALE CITIZENS OF THE UNITED STATES, AND SECTION 58 THAT THE NATIONAL GUARD CLASS OF MILITIA SHALL CONSIST OF "THE REGULARLY ENLISTED MILITIA.'

THE LAW IS MANDATORY THAT MEMBERS OF THE NATIONAL GUARD SHALL CONSIST OF ABLE-BODIED MALE CITIZENS OF THE UNITED STATES AND ALL OTHER ABLE-BODIED MALES WHO HAVE DECLARED THEIR INTENTION TO BECOME CITIZENS OF THE UNITED STATES, AND THESE STATUTORY REQUIREMENTS CAN NOT BE WAIVED. AS SAID ENLISTED MEN WERE NOT CITIZENS OF THE UNITED STATES NOR HAD DECLARED THEIR INTENTION TO BECOME SUCH THEY WERE NOT ELIGIBLE FOR MEMBERSHIP IN THE NATIONAL GUARD, THEIR ENLISTMENT THEREIN WAS CONTRARY TO LAW AND NO RIGHT TO PAY THEREUNDER ACCRUED TO THEM. SEE 1 MS. COMP. GEN. 753, SEPTEMBER 6, 1921; 4 COMP. GEN. 244. THE PAYEE IS NOT SUFFICIENT EVIDENCE OF A CLAIM AGAINST THE UNITED STATES TO AUTHORIZE PAYMENT OF THE CHECK TO THE HOLDER THEREOF.

DECISION BY COMPTROLLER GENERAL MCCARL, MAY 3, 1926:

CONSIDERATION HAS BEEN GIVEN TO REQUEST OF THE FIRM OF B. B. SHIMONOWSKY AND BROTHER, DATED MARCH 16, 1926, THAT IT BE AUTHORIZED TO INDORSE AND COLLECT THREE CHECKS, WHICH ARE PRESENTED, ISSUED BY H. E. MITCHELL, SPECIAL DISBURSING AGENT, UNITED STATES VETERANS' BUREAU, WHIPPLE BARRACKS, ARIZONA, UNDER SYMBOL 11286, TO HANS HOEFT, VICENTE CHACON, AND JAY C. GOOCH, FORMER EMPLOYEES OF THE UNITED STATES VETERANS' BUREAU, FOR SALARY TO DATE OF RESIGNATION, IN THE AMOUNTS OF $8, $4.80, AND $6.13, RESPECTIVELY.

NONE OF THE ABOVE-DESCRIBED CHECKS BEAR THE INDORSEMENT OF THE PAYEE. CLAIMANT STATES THAT DILIGENT EFFORT TO LEARN THE PRESENT ADDRESSES OF THE PAYEES HAS NOT BEEN SUCCESSFUL, AND SUBMITS AN AFFIDAVIT AS FOLLOWS:

WE, HEREBY, CERTIFY THAT WE ARE AWARE AND KNOW THAT THE FIRM OF B. B. SHIMONOWSKY AND BROTHER HAS RECEIVED CHECKS:

NO. 25125 IN FAVOR OF HANS HOEFT

26496 IN FAVOR OF VICENTE CHACON

26498 IN FAVOR OF JAY C. GOOCH TO APPLY ON ACCOUNT AND ENDORSEMENT HAVING BEEN OMITTED, WE HAVE ASSISTED IN AN ATTEMPT TO LOCATE THE WHEREABOUTS OF THE ABOVE-MENTIONED PARTIES, AND THE FIRMS AS WELL AS OUR EFFORTS HAVE BEEN UNSUCCESSFUL.

WE DO NOT KNOW AND DO NOT BELIEVE THAT ANYONE WITH WHOM WE ARE IN TOUCH KNOWS THE PRESENT WHEREABOUTS OF SAID PARTIES.

IN WITNESS, WHEREOF, WE HAVE SET OUR SEAL THIS 12TH DAY OF DECEMBER, 1924.

(SIGNED) L. C. LEACH.

(SIGNED) CHAS. GILBERT.

SUBSCRIBED AND SWORN TO BEFORE ME.

(SIGNED) H. A. M. BOTHE.

NOTARY PUBLIC.

MY COMMISSION EXPIRES OCTOBER 27, 1928.

THE AFFIANTS AVER THEY KNOW THAT THE FIRM OF B. B. SHIMONOWSKY AND BROTHER RECEIVED THE CHECKS IN QUESTION TO APPLY ON ACCOUNT. THEY DO NOT STATE UPON WHAT FACTS OR CIRCUMSTANCES THEIR KNOWLEDGE IS PREDICATED, FROM WHOM THE CHECKS WERE RECEIVED, THE CONDITIONS UNDER WHICH THEY WERE RECEIVED, OR UPON WHOSE ACCOUNT OR ACCOUNTS THEY WERE TO BE APPLIED.

THE EVIDENTIARY VALUE OF AN EX PARTE AFFIDAVIT, AT BEST, IS WEAK AND ALTHOUGH THE ALLEGATIONS IN THE AFFIDAVIT HERE PRESENTED BE ACCEPTED AS TRUE, THEY DO NOT ESTABLISH FACTS SUFFICIENT TO SHOW ON THE PART OF THE PAYEES OF THE CHECKS THE ACT OF, OR THE INTENT TO, MAKE THE CLAIMANT OWNER OF THE CHECKS; NOR DO THE ALLEGATIONS SHOW EVEN AN ORAL POWER OF ATTORNEY BY THE PAYEES AUTHORIZING CLAIMANT TO INDORSE SAID CHECKS FOR THEM. COSMOPOLITAN TRUST CO. V. LEONARD WATCH O., 143 N.E. 827.

IT APPEARS TO HAVE BEEN DUE TO THE NEGLIGENCE OF THE CLAIMANT OR HIS AUTHORIZED AGENT THAT THE CHECKS WERE ACCEPTED WITHOUT INDORSEMENT, AND, WHILE NOT HERE MATERIAL, IT MAY BE PROPER TO STATE THAT CLAIMANT'S REMEDY, IF ANY, WOULD SEEM TO BE AGAINST THE PAYEES OF THE CHECKS. MARLING V. FITZ GERALD, 138 WIS. 93, 120 N.W. 388; PLANTERS BANK AND TRUST COMPANY V. YELVERTON, 117 S.E. 299.

IN THE ABSENCE OF SATISFACTORY EVIDENCE SHOWING THAT THE PAYEES TRANSFERRED THE CHECKS TO THE CLAIMANT AND AUTHORIZED IT TO INDORSE FOR THEM, MERE POSSESSION OF THE UNINDORSED CHECKS--- THE HOLDER BEING A MERE EQUITABLE ASSIGNEE (SALEM V. BANK OF STATE OF NEW YORK, 97 N.Y.S. 361; SCHOEPFER V. TOMMACK, 97 ILL.APPS. 562/--- VESTS IN THE HOLDER NO LEGAL CLAIM AGAINST THE UNITED STATES REQUIRING SETTLEMENT BY THIS OFFICE. LAWRENCE, FIRST COMPTROLLER'S DECISIONS, 455; III ID. 18; 9 COMP. DEC. 663.

ACCORDINGLY, UPON THE RECORD PRESENTED, PAYMENT OF THE CHECKS IN QUESTION IS NOT AUTHORIZED AND THEY WILL ACCORDINGLY BE RETURNED TO THE CLAIMANT WITHOUT PREJUDICE TO SUBMIT CLAIM TO THIS OFFICE FOR CONSIDERATION AT THE PROPER TIME UNDER THE PROVISIONS OF SECTIONS 306, 307, AND 308 OF THE REVISED STATUTES OF THE UNITED STATES.