A-13779, JULY 20, 1926, 6 COMP. GEN. 52

A-13779: Jul 20, 1926

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OR MAINTENANCE OF THE ARMY IS LIMITED IN APPLICATION TO CLAIMS OF PERSONS NOT IN OR SERVING UNDER THE CONTROL OF THE ARMY AND CONSTITUTES NO AUTHORITY FOR THE ALLOWANCE OF AN ARMY OFFICER'S CLAIM FOR DAMAGES TO HIS PRIVATE AUTOMOBILE. OR MAINTENANCE OF THE ARMY WHILE SUCH AUTOMOBILE WAS NOT IN USE BY HIM IN THE DISCHARGE OF HIS MILITARY DUTIES. * * * A BOARD OF OFFICERS MADE FINDINGS AND RECOMMENDATION AS FOLLOWS: FINDINGS: THE BOARD FINDS THAT THE PRIVATE AUTOMOBILE OF MAJOR R. WAS DAMAGED TO THE EXTENT OF FORTY-SIX DOLLARS AND SEVENTY-FIVE CENTS ($46.75) BY A PUBLIC HORSE BELONGING TO THE UNITED STATES. THAT SUCH DAMAGE WAS NOT THE FAULT OF EITHER MRS. WAS INCIDENT TO THE TRAINING. THE DAMAGE WAS ENTIRELY DIRECT DAMAGE.

A-13779, JULY 20, 1926, 6 COMP. GEN. 52

PROPERTY, PRIVATE - DAMAGED BY ARMY THE PROVISION IN THE SEVERAL ARMY APPROPRIATION ACTS AUTHORIZING THE PAYMENT OF CLAIMS FOR DAMAGES TO AND LOSS OF PRIVATE PROPERTY INCIDENT TO THE TRAINING, PRACTICE, OPERATION, OR MAINTENANCE OF THE ARMY IS LIMITED IN APPLICATION TO CLAIMS OF PERSONS NOT IN OR SERVING UNDER THE CONTROL OF THE ARMY AND CONSTITUTES NO AUTHORITY FOR THE ALLOWANCE OF AN ARMY OFFICER'S CLAIM FOR DAMAGES TO HIS PRIVATE AUTOMOBILE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, JULY 20, 1926:

THERE HAS BEEN RECEIVED YOUR LETTER OF MARCH 27, 1926, WHEREIN YOU STATE AS FOLLOWS:

* * * I DESIRE TO APPEAL FROM THE ACTION OF THE GENERAL ACCOUNTING OFFICE (MILITARY DIVISION), IN DISALLOWING BY SETTLEMENT OF OCTOBER 9, 1925 (NUMBER 0106278), THE CLAIM OF MAJOR R. M. PERKINS, C.A.C., U.S. ARMY, FOR DAMAGE TO HIS PRIVATE AUTOMOBILE INCURRED INCIDENT TO THE TRAINING, PRACTICE, OPERATION, OR MAINTENANCE OF THE ARMY WHILE SUCH AUTOMOBILE WAS NOT IN USE BY HIM IN THE DISCHARGE OF HIS MILITARY DUTIES. * * *

A BOARD OF OFFICERS MADE FINDINGS AND RECOMMENDATION AS FOLLOWS:

FINDINGS: THE BOARD FINDS THAT THE PRIVATE AUTOMOBILE OF MAJOR R. M. PERKINS, C.A.C., WHILE BEING DRIVEN (APRIL 16, 1925) BY HIS WIFE, MRS. MARGARET PERKINS, AND NOT IN USE IN THE MILITARY SERVICE, WAS DAMAGED TO THE EXTENT OF FORTY-SIX DOLLARS AND SEVENTY-FIVE CENTS ($46.75) BY A PUBLIC HORSE BELONGING TO THE UNITED STATES, RIDDEN BY PRIVATE JOHN W. BALDWIN, CAV.DET., USMA, ON OFFICIAL BUSINESS, AND THAT SUCH DAMAGE WAS NOT THE FAULT OF EITHER MRS. PERKINS OR PVT. BALDWIN, BUT WAS INCIDENT TO THE TRAINING, PRACTICE, MAINTENANCE, AND OPERATION OF THE ARMY. THE DAMAGE WAS ENTIRELY DIRECT DAMAGE.

RECOMMENDATION: THE BOARD RECOMMENDS THAT THE DAMAGE CLAIMED, FORTY-SIX DOLLARS AND SEVENTY-FIVE CENTS ($46.75) BE PAID TO MAJOR R. M. PERKINS, C.A.C., BY THE UNITED STATES, UNDER THE PROVISIONS OF A.R. 35-7040.

AFTER CERTIFICATION BY MAJOR PERKINS THAT HE WOULD ACCEPT $46.75 IN FULL SETTLEMENT OF HIS CLAIM FOR DAMAGES TO HIS AUTOMOBILE THE FINDINGS AND RECOMMENDATION OF THE LATTER BOARD WERE APPROVED BY THE SUPERINTENDENT OF THE MILITARY ACADEMY, AUGUST 1, 1925, AND AFTER REVIEW AND UPON RECOMMENDATION OF THE CHIEF OF FINANCE, WAS APPROVED BY YOU, AS ACTING SECRETARY OF WAR, AUGUST 15, 1925.

THE CLAIM WAS TRANSMITTED HERE FOR SETTLEMENT AUGUST 20, 1925, IN ACCORDANCE WITH THE PROVISION CONTAINED IN THE WAR DEPARTMENT APPROPRIATION ACT OF JUNE 7, 1924, 43 STAT. 483, AS FOLLOWS:

CLAIMS FOR DAMAGES TO AND LOSS OF PRIVATE PROPERTY

FOR PAYMENT OF CLAIMS OF NOT TO EXCEED $500 IN AMOUNT FOR DAMAGES TO AND LOSS OF PRIVATE PROPERTY INCIDENT TO THE TRAINING, PRACTICE, OPERATION, OR MAINTENANCE OF THE ARMY THAT HAVE ACCRUED, OR MAY HEREAFTER ACCRUE, FROM TIME TO TIME, $25,000: PROVIDED, THAT SETTLEMENT OF SUCH CLAIMS SHALL BE MADE BY THE GENERAL ACCOUNTING OFFICE, UPON THE APPROVAL AND RECOMMENDATION OF THE SECRETARY OF WAR, WHERE THE AMOUNT OF DAMAGES HAS BEEN ASCERTAINED BY THE WAR DEPARTMENT, AND PAYMENT THEREOF WILL BE ACCEPTED BY THE OWNERS OF THE PROPERTY IN FULL SATISFACTION OF SUCH DAMAGES.

THE ACT ALSO APPROPRIATED ON PAGE 483, $50,000 FOR THE PAYMENT OF CLAIMS OF OFFICERS, ENLISTED MEN, AND NURSES OF THE ARMY FOR PRIVATE PROPERTY LOST, DESTROYED, CAPTURED, AND ABANDONED, OR DAMAGED IN THE MILITARY SERVICE OF THE UNITED STATES, UNDER THE PROVISIONS OF AN ACT APPROVED MARCH 4, 1921.

MAJOR PERKINS'S CLAIM WAS DISALLOWED OCTOBER 9, 1925, FOR THE REASON THAT IT HAS BEEN CONSISTENTLY HELD BY THE ACCOUNTING OFFICERS THAT CLAIMS BY OFFICERS OF THE ARMY FOR DAMAGES TO THEIR PRIVATE PROPERTY ARE NOT PAYABLE FROM THE APPROPRIATIONS PROVIDING FOR THE PAYMENT OF CLAIMS GENERALLY FOR DAMAGES TO, AND LOSS OF, PRIVATE PROPERTY INCIDENT TO THE TRAINING, PRACTICE, OPERATION, OR MAINTENANCE OF THE ARMY.

YOU SUGGEST THE LANGUAGE OF THE LAW DOES NOT IN TERMS EXCLUDE ARMY PERSONNEL AND THAT AN INTENT TO DISCRIMINATE BETWEEN CITIZENS IN THE ARMY AND CITIZENS NOT IN THE ARMY SHOULD NOT BE READ INTO IT. THE TERM "PRIVATE PROPERTY" AS EMPLOYED IN THE ACT OF MARCH 3, 1885, 23 STAT. 350, AS EXTENDED AND AMENDED BY ACTS OF MARCH 28, 1918, 40 STAT. 479, JULY 9, 1918, 40 STAT. 880, AND MARCH 4, 1921, 41 STAT. 1436, PROVIDING FOR THE SETTLEMENT OF CLAIMS OF MILITARY PERSONNEL FOR PRIVATE PROPERTY DESTROYED IN THE MILITARY SERVICE HAS BEEN HELD NOT TO DEAL "WITH PRIVATE PROPERTY GENERALLY, BUT ONLY WITH PERSONAL PROPERTY, AND WITH VERY LIMITED CLASSES OF PERSONAL PROPERTY AT THAT" (SIBLEY V. UNITED STATES, 49 CT.CLS. 242, 249; ANDREWS, ET AL. V. UNITED STATES, 52 ID. 373, 380); WHEREAS THE TERM "PRIVATE PROPERTY" EMPLOYED IN THE ANNUAL APPROPRIATION ACTS RELATING TO CLAIMS "FOR DAMAGES TO AND LOSS OF PRIVATE PROPERTY INCIDENT TO THE TRAINING, PRACTICE, OPERATION, OR MAINTENANCE OF THE ARMY" HAS BEEN HELD TO "DEAL WITH ALL CLASSES OF PRIVATE PROPERTY SUSCEPTIBLE OF DAMAGE, THAT IS, BOTH REAL AND PERSONAL PROPERTY.' IT IS APPROPRIATE, THEREFORE, TO CONSIDER THE HISTORY OF LEGISLATION PROVIDING FOR THE SETTLEMENT OF CLAIMS OF THE LATTER TYPE. THE METHOD OF THEIR DISPOSITION PRIOR TO AUGUST 24, 1912, BEING SUCCINCTLY STATED IN HOUSE DOCUMENT NO. 1242, SIXTY-FIRST CONGRESS, THIRD SESSION, AS FOLLOWS:

SETTLEMENT OF CERTAIN DAMAGES FROM HEAVY GUN FIRE

LETTER FROM THE SECRETARY OF THE TREASURY, TRANSMITTING A COPY OF A COMMUNICATION FROM THE SECRETARY OF WAR SUBMITTING AN ESTIMATE OF APPROPRIATION FOR SETTLEMENT OF CERTAIN DAMAGES FROM HEAVY GUN FIRE. JANUARY 5, 1911, REFERRED TO THE COMMITTEE ON APPROPRIATIONS AND ORDERED TO BE PRINTED:

TREASURY DEPARTMENT,

WASHINGTON, DECEMBER 31, 1910.

SIR: I HAVE THE HONOR TO TRANSMIT HEREWITH, FOR THE CONSIDERATION OF CONGRESS, COPY OF A COMMUNICATION OF THE SECRETARY OF WAR OF THE 30TH INSTANT, SUBMITTING A SUPPLEMENTAL ESTIMATE OF APPROPRIATION OF $22,802.40 FOR THE SETTLEMENT OF 183 CLAIMS FOR DAMAGE TO AND LOSS OF PRIVATE PROPERTY BELONGING TO CITIZENS OF THE UNITED STATES, HAWAII, AND THE PHILIPPINE ISLANDS, DUE TO HEAVY GUN FIRING, TARGET PRACTICE, MANEUVERS, ETC., AND AN ESTIMATE OF APPROPRIATION IN THE SUM OF $5,000 TO PROVIDE FOR THE PROMPT PAYMENT OF LIKE CLAIMS THAT MAY ACCRUE FROM TIME TO TIME.

THE SECRETARY OF WAR STATES THE NECESSITY FOR THE SUBMISSION OF THESE ESTIMATES AT THIS TIME, AND THE REASONS WHY THEY WERE NOT INCLUDED IN HIS ANNUAL ESTIMATES SUBMITTED TO THE CONGRESS.

RESPECTFULLY,

FRANKLIN MACVEAGH, SECRETARY.

THE SPEAKER OF THE HOUSE OF REPRESENTATIVES.

WAR DEPARTMENT,

WASHINGTON, DECEMBER 30, 1910.

SIR: I HAVE THE HONOR TO FORWARD HEREWITH FOR TRANSMISSION TO CONGRESS A SUPPLEMENTAL ESTIMATE OF AN APPROPRIATION OF $22,802.40, REQUIRED BY THE WAR DEPARTMENT FOR THE SERVICE OF THE FISCAL YEAR ENDING JUNE 30, 1912, FOR THE SETTLEMENT OF 183 CLAIMS FOR DAMAGE TO AND LOSS OF PRIVATE PROPERTY BELONGING TO CITIZENS OF THE UNITED STATES, HAWAII, AND THE PHILIPPINE ISLANDS, DUE TO HEAVY GUN FIRING, TARGET PRACTICE, MANEUVERS, ETC., AND AN ESTIMATE OF $5,000 TO PROVIDE FOR THE PROMPT PAYMENT OF LIKE CLAIMS THAT ACCRUE FROM TIME TO TIME.

THE SUBMISSION OF THESE ESTIMATES IS DEEMED NECESSARY IN ORDER TO SECURE AN APPROPRIATION FOR THE EARLY SETTLEMENT OF THE CLAIMS ABOVE REFERRED TO, 153 OF WHICH WERE INCLUDED IN ESTIMATES SUBMITTED TO THE SIXTY-FIRST CONGRESS, SECOND SESSION (H. DOCS. NOS. 177, 519, 689, AND 897), AND NO ACTION HAD THEREON, AND TO PROVIDE FOR THE FUTURE SETTLEMENT OF CLAIMS OF THIS CHARACTER ARISING AS A RESULT OF TARGET PRACTICE WITH HEAVY GUNS PROMPTLY AND WITHOUT THE DELAY INCIDENT TO AN ANNUAL ESTIMATE AND APPROPRIATION.

THESE ESTIMATES ARE NOT INCLUDED IN THE ANNUAL ESTIMATES OF THE DEPARTMENT SUBMITTED TO THE TREASURY DEPARTMENT ON OCTOBER 15, LAST, AS REQUIRED BY LAW, FOR THE REASON THAT THE MATTER OF THESE CLAIMS WAS NOT BROUGHT TO MY ATTENTION UNTIL LATE IN NOVEMBER.

THE PRESIDENT HAS APPROVED THE SUBMISSION OF THESE ESTIMATES, AS SHOWN BY HIS NOTATION ON THE ESTIMATE PROPER.

VERY RESPECTFULLY,

J. M. DICKINSON,

SECRETARY OF WAR.

THE SECRETARY OF THE TREASURY.

ESTIMATES OF APPROPRIATIONS REQUIRED FOR THE SERVICE OF THE FISCAL YEAR ENDING JUNE 30, 1912, BY THE QUARTERMASTER'S DEPARTMENT, UNITED STATES ARMY:

WAR DEPARTMENT--- QUARTERMASTER'S DEPARTMENT CLAIMS FOR DAMAGES TO AND LOSS OF PRIVATE PROPERTY:

FOR SETTLEMENT OF CLAIMS FOR DAMAGES TO AND LOSS OF PRIVATE

PROPERTY BELONGING TO CITIZENS OF THE UNITED STATES, HAWAII,

AND THE PHILIPPINE ISLANDS THAT HAVE ARISEN PREVIOUS TO AUGUST

1, 1910 (ACT OF MAY 30, 1908, VOL. 35, P. 280, SEC. 1) ---- 22,802.40

(NOTE.--- THE STATED AMOUNT OF $22,802.40 IS ASKED FOR IN ORDER TO RENDER PRACTICABLE THE SETTLEMENT OF 183 CLAIMS NOW ON FILE IN THIS OFFICE AND PRESENTED PREVIOUS TO AUGUST 1, 1910.)

THESE CLAIMS EMBRACE DAMAGES DUE TO HEAVY-GUN FIRING AND DURING TARGET PRACTICE DAMAGES TO FENCES AND GROWING CROPS AND TO TREES BY TROOPS WHILE ENGAGED IN MANEUVERS, ETC.OF THE AMOUNT NOW ESTIMATED FOR MORE THAN ONE- HALF IS ATTRIBUTABLE TO HEAVY-GUN FIRING AT FORTS HAMILTON, N.Y. , HEATH, MASS.; LEVETT, ME.; BANKS, MASS.; WADSWORTH, N.Y.; REVERE, MASS.; MOULTRIE, S.C.; WINTHROP, MASS.; AND MILEY, CALIF. ESTIMATES OF APPROPRIATION COVERING 153 OF THESE CLAIMS AND AGGREGATING $19,033.14 WERE SUBMITTED TO CONGRESS AT ITS LAST SESSION, AS SHOWN BY HOUSE DOCUMENTS NOS. 177, 519, 689, AND 897, SIXTY-FIRST CONGRESS, SECOND SESSION, BUT THEY FAILED TO RECEIVE FAVORABLE CONSIDERATION.

AUTHORITY OF THE SECRETARY OF WAR FOR THE SUBMISSION OF AN ESTIMATE TO INCLUDE THE CLAIMS PREVIOUSLY ESTIMATED FOR, AS WELL AS THOSE SINCE RECEIVED IN THIS OFFICE, WAS NOT RECEIVED IN TIME TO RENDER PRACTICABLE SUBMISSION OF THIS ESTIMATE WITH THOSE FOR THE FISCAL YEAR 1912. (J. B. ALESHIRE, QUARTERMASTER GENERAL, UNITED STATES ARMY.)

FOR PAYMENT OF CLAIMS FOR DAMAGES TO AND LOSS OF PRIVATE PROPERTY

INCIDENT TO THE TRAINING, PRACTICE, AND OPERATIONS OF THE ARMY THAT

MAY ACCRUE FROM TIME TO TIME, TO BE IMMEDIATELY AVAILABLE AND TO

REMAIN AVAILABLE UNTIL EXPENDED: PROVIDED, THAT SETTLEMENT OF

SUCH CLAIMS SHALL BE MADE BY THE AUDITOR FOR THE WAR DEPARTMENT,

UPON THE APPROVAL AND RECOMMENDATION OF THE SECRETARY OF WAR, WHERE

THE AMOUNT OF DAMAGES HAS BEEN ASCERTAINED BY THE WAR DEPARTMENT,

AND PAYMENT THEREOF WILL BE ACCEPTED BY THE OWNERS OF THE

PROPERTY IN FULL SATISFACTION OF SUCH DAMAGES (SUBMITTED/- $5,000.00

APPROVED.

WM. H. TAFT.

NOTE.--- IN CONNECTION WITH THE FOREGOING ESTIMATES ATTENTION IS INVITED TO PAGE 36 OF THE ANNUAL REPORT OF THE SECRETARY OF WAR FOR THE FISCAL YEAR 1910, READING AS FOLLOWS:

"IT HAPPENS EVERY YEAR IN THE SERVICE OF THE ARMY THAT CLAIMS ARISE AGAINST THE WAR DEPARTMENT FOR DAMAGE DONE TO PRIVATE PROPERTY. THESE CLAIMS MAY NATURALLY BE GROUPED INTO THREE CLASSES: (1) THOSE WHICH ARE BOUND TO ARISE EVERY YEAR, (2) THOSE WHICH ARISE AT LESS-FREQUENT INTERVALS, AND (3) THOSE WHOSE OCCURRENCES ARE OCCASIONAL AND CAN NOT BE FORESEEN. OF THE FIRST CLASS IS DAMAGE DONE BY THE FIRING OF THE HEAVY GUNS OF OUR SEACOAST DEFENCES. EVERY YEAR WHEN TARGET PRACTICE TAKES PLACE IN SOME LOCALITIES IT IS UNAVOIDABLE THAT WINDOW GLASS WILL BE SHATTERED AND PLASTERING KNOCKED DOWN IN HOUSES BELONGING TO CITIZENS IN THE VICINITY. SOMETIMES WINDOW AND DOOR FRAMES AND DOORS ARE THROWN OUT OF PLUMB BY THE CONCUSSION. IT HAS BEEN THE CUSTOM TO HAVE CLAIMS OF SUCH DAMAGES IMMEDIATELY INVESTIGATED AND THE ACTUAL AMOUNT OF DAMAGE DETERMINED AND REPORTED UPON BY A BOARD OF COMPETENT OFFICERS, AND THE CONCLUSIONS OF THE DEPARTMENT, BASED UPON THOSE REPORTS, ARE SUBMITTED TO CONGRESS WITH RECOMMENDATION FOR SETTLEMENT OF THE CLAIMS. IT GENERALLY HAPPENS, HOWEVER, THAT SEVERAL YEARS ELAPSE BEFORE AN APPROPRIATION IS MADE, SO THAT IN ADDITION TO THE ANNOYANCE AND INCONVENIENCE CAUSED BY THE FIRING OF THE GUNS CITIZENS WHOSE PROPERTY IS DAMAGED ARE COMPELLED TO SUBMIT TO DELAY IN REIMBURSEMENT FOR THE DAMAGE INFLICTED. EVERY YEAR THE WAR DEPARTMENT IS IMPORTUNED TO DO AWAY WITH TARGET PRACTICE WITH THE BIG GUNS AT VARIOUS PLACES ON THE GROUND OF INJURY DONE TO PRIVATE PROPERTY. AS A RULE REQUESTS OF THIS KIND MUST, OF COURSE, BE DENIED, PRACTICE WITH THE GUNS BEING ESSENTIAL TO THE MAINTENANCE OF THE EFFICIENCY OF THE COAST ARTILLERY.

"EVERY EFFORT IS MADE BY THE DEPARTMENT TO REDUCE TO THE MINIMUM THE DISCOMFORT CAUSED TO CITIZENS BY THE HEAVY FIRING. IN LINE WITH THIS EFFORT IT IS DESIRABLE THAT AT LEAST IN THOSE CASES WHERE IT IS KNOWN THAT DAMAGE WILL BE INFLICTED ANNUALLY PROVISION SHOULD BE MADE BY CONGRESS FOR THE PROMPT REIMBURSEMENT OF THE DAMAGES TO PRIVATE PROPERTY AS ASCERTAINED BY BOARDS OF ARMY OFFICERS APPOINTED FOR THE PURPOSE, THEIR REPORTS TO BE SUBJECT TO APPROVAL BY THE SECRETARY OF WAR. SUCH A COURSE WAS AUTHORIZED BY THE ACT OF APRIL 23, 1904 (35 STAT. 265), MAKING PROVISION FOR JOINT ARMY AND MILITIA ENCAMPMENTS, MANEUVERS, AND FIELD INSTRUCTION, WHICH WORKED WELL AND AVOIDED MUCH OF THE DISSATISFACTION CAUSED TO CITIZENS IN PREVIOUS ENCAMPMENTS AND MANEUVERS. THIS PROVISION READS AS FOLLOWS: "* * * FOR PURCHASE OF SUPPLIES FOR THE QUARTERMASTER'S AND ORDNANCE DEPARTMENTS, INCLUDING REGULAR SUPPLIES, INCIDENTAL EXPENSES, BARRACKS, AND QUARTERS, TRANSPORTATION OF THE MILITIA AND ITS SUPPLIES, CLOTHING, AND EQUIPAGE, LEASES OF LAND, AND DAMAGES OF PROPERTY, SIX HUNDRED THOUSAND DOLLARS.'

"IT IS HOPED THAT SOME ADEQUATE LEGISLATION OF A SIMILAR CHARACTER MAY BE MADE FOR THE CLAIMS ABOVE INDICATED. AT THE PRESENT TIME THERE ARE 150 CASES, AMOUNTING TO $18,558.14, WHICH HAVE BEEN INVESTIGATED BY THIS DEPARTMENT AND RECOMMENDED TO CONGRESS FOR SETTLEMENT. THEY ARE PUBLISHED IN HOUSE DOCUMENT NO. 177, SIXTY-FIRST CONGRESS, SECOND SESSION; HOUSE DOCUMENT NO. 519, SIXTY-FIRST CONGRESS, SECOND SESSION; AND HOUSE DOCUMENT NO. 897, SIXTY-FIRST CONGRESS, SECOND SESSION. THEY ARE ALL FOR DAMAGES INCIDENT TO THE TRAINING, PRACTICE, AND OPERATIONS OF THE ARMY--- MOST OF THEM FOR DAMAGE CAUSED BY THE FIRING OF HEAVY GUNS. SOME OF THEM HAVE BEEN BEFORE CONGRESS SINCE DECEMBER, 1908, AND NO PROVISION HAS YET BEEN MADE FOR THE PAYMENT OF ANY OF THEM. THERE ARE SEVERAL ADDITIONAL CLAIMS NOW PENDING IN THE DEPARTMENT WHICH HAVE BEEN INVESTIGATED AND WILL BE REPORTED TO CONGRESS AT THE PRESENT SESSION. THE CLAIMANTS IN ALL THESE CASES HAVE BEEN ADVISED FROM TIME TO TIME OF THE STATUS OF THEIR CLAIMS, AND THAT SETTLEMENT AWAITS AN APPROPRIATION BY CONGRESS. NATURALLY, HOWEVER, THEY LOOK TO THE WAR DEPARTMENT TO EXPEDITE THE MATTER AS BEING IMMEDIATELY RESPONSIBLE FOR THE DAMAGE. IN SUBMITTING THE REPORT ABOVE REFERRED TO, I FEEL THAT IT IS INCUMBENT UPON ME TO SUBMIT AN ESTIMATE FOR AN AMOUNT LARGE ENOUGH TO COVER THE PAYMENT OF ALL SUCH CLAIMS AS REMAIN UNPAID, WHERE THE AMOUNT OF DAMAGES HAS BEEN ASCERTAINED BY THE WAR DEPARTMENT AND PAYMENT THEREOF WILL BE ACCEPTED BY THE OWNERS OF THE PROPERTY IN FULL SATISFACTION OF SUCH DAMAGES, AND ALSO TO SUGGEST A SMALL ADDITIONAL APPROPRIATION SUFFICIENT FOR THE ENSUING FISCAL YEAR.'

THE ACT OF AUGUST 24, 1912, 37 STAT. 586, CONTAINS THE FOLLOWING:

FOR SETTLEMENT OF CLAIMS FOR DAMAGES TO AND LOSS OF PRIVATE PROPERTY BELONGING TO CITIZENS OF THE UNITED STATES, HAWAII, AND THE PHILIPPINE ISLANDS, THIRTY-TWO THOUSAND SIX HUNDRED AND SIXTEEN DOLLARS: PROVIDED, THAT HEREAFTER THE SECRETARY OF WAR IS AUTHORIZED TO CONSIDER, ASCERTAIN, ADJUST, AND DETERMINE THE AMOUNTS DUE ON ALL CLAIMS FOR DAMAGES TO AND LOSS OF PRIVATE PROPERTY WHEN THE AMOUNT OF THE CLAIM DOES NOT EXCEED THE SUM OF ONE THOUSAND DOLLARS, OCCASIONED BY HEAVY GUN FIRE AND TARGET PRACTICE OF TROOPS, AND FOR DAMAGES TO VESSELS, WHARVES, AND OTHER PRIVATE PROPERTY, FOUND TO BE DUE TO MANEUVERS, OR OTHER MILITARY OPERATIONS FOR WHICH THE GOVERNMENT IS RESPONSIBLE, AND REPORT THE AMOUNTS SO ASCERTAINED AND DETERMINED TO BE DUE THE CLAIMANTS TO CONGRESS AT EACH SESSION THEREOF THROUGH THE TREASURY DEPARTMENT FOR PAYMENT AS LEGAL CLAIMS OUT OF APPROPRIATIONS THAT MAY BE MADE BY CONGRESS THEREFOR.

BUT NOTWITHSTANDING THE URGENT RECOMMENDATION OF THE THEN SECRETARY OF WAR CONTAINED IN HIS LETTER OF DECEMBER 30, 1910, SUPRA, AND SUBSEQUENT RECOMMENDATIONS SIMILAR IN CHARACTER, I.E., GENERAL WOOD'S LETTER OF AUGUST 27, 1915, ADDRESSED TO THE ADJUTANT GENERAL OF THE ARMY, NO FUNDS WERE MADE AVAILABLE FOR SETTLEMENT AND PAYMENT OF CLAIMS OF THIS CLASS BY ADMINISTRATIVE OFFICIALS, WITHOUT PRIOR SUBMISSION THEREOF TO THE CONGRESS, UNTIL THE ACT OF AUGUST 29, 1916, 39 STAT. 639, WAS ENACTED, CONTAINING THE FOLLOWING:

CLAIMS FOR DAMAGES TO AND LOSS OF PRIVATE PROPERTY

FOR PAYMENT OF CLAIMS FOR DAMAGES TO AND LOSS OF PRIVATE PROPERTY INCIDENT TO THE TRAINING, PRACTICE, AND OPERATIONS OF THE ARMY THAT HAVE ACCRUED, OR MAY HEREAFTER ACCRUE, FROM TIME TO TIME, TO BE IMMEDIATELY AVAILABLE AND TO REMAIN AVAILABLE UNTIL EXPENDED: PROVIDED, THAT SETTLEMENT OF SUCH CLAIMS SHALL BE MADE BY THE AUDITOR FOR THE WAR DEPARTMENT, UPON THE APPROVAL AND RECOMMENDATION OF THE SECRETARY OF WAR, WHERE THE AMOUNT OF DAMAGES HAS BEEN ASCERTAINED BY THE WAR DEPARTMENT, AND PAYMENT THEREOF WILL BE ACCEPTED BY THE OWNERS OF THE PROPERTY IN FULL SATISFACTION OF SUCH DAMAGES, $5,000.

SIMILAR PROVISIONS APPEARED IN THE ARMY APPROPRIATION ACT OF MAY 12, 1917, 40 STAT. 59, AND THE URGENT DEFICIENCY ACT OF OCTOBER 6, 1917, 40 STAT. 364. SUBSEQUENTLY, BEGINNING WITH THE APPROPRIATION ACT OF JULY 9, 1918, 40 STAT. 864, PAYMENT HAS BEEN AUTHORIZED OF CLAIMS FOR DAMAGES TO AND LOSS OF PRIVATE PROPERTY INCIDENT TO MAINTENANCE AS WELL AS OF THOSE INCIDENT TO THE TRAINING, PRACTICE, AND OPERATIONS OF THE ARMY, WITHIN THE LIMITS OF THE MODEST SUM APPROPRIATED AND, SINCE JUNE 30, 1922, 42 STAT. 725, NOT EXCEEDING $500 IN ANY ONE CASE.

IN THE HEARINGS ON THE ARMY APPROPRIATION BILL FOR THE FISCAL YEAR 1915, PAGES 709-711, APPEAR TWO LISTS, INSERTED ON REQUEST OF THE COMMITTEE CHAIRMAN, ONE OF 25 CLAIMS APPROVED BY THE SECRETARY OF WAR FOR A TOTAL SUM OF $3,631.75, THE OTHER OF 16 CLAIMS APPROVED FOR A TOTAL SUM OF $1,437.34; IN THE HEARINGS ON THE BILL FOR THE FISCAL YEAR 1916, PAGES 593 -597, ARE LISTED 117 CLAIMS APPROVED FOR A TOTAL SUM OF $2,928.86; IN THE HEARINGS ON THE BILL APPROPRIATING FOR THE FISCAL YEAR 1917, PAGES 656- 660, 50 CLAIMS ARE LISTED APPROVED FOR A TOTAL SUM OF $4,277.73; AND IN THE HEARINGS ON THE BILL APPROPRIATING FOR THE FISCAL YEAR 1918, PAGES 595 -596, 12 CLAIMS ARE LISTED APPROVED IN THE TOTAL SUM OF $3,379.66. OF THE 220 CLAIMS THUS PRESENTED TO CONGRESS FOR APPROPRIATION OR AS TYPICAL OF THE CLASS OF CLAIMS APPROVED BY THE DEPARTMENT FOR PAYMENT UNDER THE ANNUAL APPROPRIATION ACTS, NOT ONE WAS FOR DAMAGE TO OR LOSS OF PRIVATE PROPERTY OF A MEMBER OF THE MILITARY FORCES. TRUE, AMONG THE CLAIMS PRESENTED TO THE COMMITTEE ON MILITARY AFFAIRS IN CONNECTION WITH THE ESTIMATES FOR THE FISCAL YEAR 1916, PAGES 597-598, THERE WERE PRESENTED THE CLAIMS OF SEVERAL OFFICERS, ONE OF WHICH WAS THAT OF LIEUT H. E. MINER, FOR THE VALUE OF HIS PRIVATE MOUNT WHICH, WHILE BEING EXERCISED IN THE RIDING HALL AT WEST POINT, N.Y., ON DECEMBER 26, 1916, SUSTAINED A BROKEN LEG AS THE RESULT OF BEING KICKED BY ANOTHER HORSE, AND UPON THE ADVICE OF THE POST VETERINARIAN WAS SHOT. IT HAD BEEN HELD BY THE COMPTROLLER OF THE TREASURY (20 COMP. DEC. 238) AND BY THE COURT OF CLAIMS (SIBLEY V. UNITED STATES, 49 CT.CLS. 242; GRIFFIS V. UNITED STATES, 52 ID. 1, 170; AND ANDREWS ET AL. V. UNITED STATES, ID. 381) THAT CLAIMS OF THIS CHARACTER WERE NOT ALLOWABLE UNDER THE ACT OF MARCH 3, 1885, 23 STAT. 350. CONFRONTED WITH THIS CLAIM THE CHAIRMAN OF THE COMMITTEE ON MILITARY AFFAIRS APPARENTLY RECOGNIZED THE OFFICER HAD AN EQUITABLE RIGHT TO RELIEF BUT INSISTED THAT A CLAIM OF THAT CHARACTER HAD NOT BEEN APPROVED OR CONSIDERED PREVIOUSLY BY HIS COMMITTEE AND EXPRESSED THE OPINION IT OUGHT TO GO TO THE COMMITTEE ON CLAIMS. THE PRIOR LEGISLATIVE HISTORY OF THE ANNUAL PROVISION SHOWS CONCLUSIVELY THAT CONGRESS WAS DEALING ONLY WITH INJURIES TO PROPERTY OF CIVILIANS BECAUSE OF ARMY ACTIVITIES, AND WAS NOT MAKING AN ADDITIONAL PROVISION FOR ARMY PERSONNEL, AND SUCH HAS BEEN THE UNIFORM CONSTRUCTION OF THE LAW BY THE ACCOUNTING OFFICERS. FOR EXAMPLE:

IN A DECISION OF APRIL 13, 1920, 26 COMP. DEC. 826, TO WHICH YOU HAVE MADE REFERENCE, THERE WAS CONSIDERED AN APPLICATION OF COLONEL E. R. SCHREINER, MEDICAL CORPS, UNITED STATES ARMY, FOR REVISION OF THE ACTION OF THE AUDITOR FOR THE WAR DEPARTMENT IN DISALLOWING BY CERTIFICATE NO. 641468, DATED AUGUST 19, 1919, HIS CLAIM FOR $20 ON ACCOUNT OF DAMAGES TO HIS AUTOMOBILE CAUSED BY ARMY AUTO BUS NO. 2047, OPERATED BY PRIVATE HALIDAY, MT.C. NO. 808, ON MARCH 30, 1919. AT THE TIME OF THE ACCIDENT COLONEL SCHREINER WAS PROCEEDING IN HIS AUTOMOBILE TO WALTER REED HOSPITAL WHERE HE HAD GOVERNMENT QUARTERS. THE CLAIM WAS APPROVED BY THE THEN SECRETARY OF WAR AS ALLOWABLE UNDER THE ACT OF JULY 9, 1918, 40 STAT. 864, BUT THE ASSISTANT COMPTROLLER OF THE TREASURY EXPRESSED THE OPINION THAT THE PROPERTY WHOSE LOSS OR INJURY WAS DIRECTLY IN CONTEMPLATION IN THE PASSAGE OF THE LEGISLATION WAS UNQUESTIONABLY PROPERTY IN THE POSSESSION OF PERSONS UNCONNECTED WITH THE ARMY ITSELF, WITH WHICH THE ARMY ACTIVITIES ENUMERATED WOULD COME IN CONTACT ONLY EXTERNALLY, AND THAT THE PRIMARY AND OBVIOUS PURPOSE OF THE PROVISION WAS TO AFFORD SOME MEASURE OF RELIEF IN CASES WHERE SUCH EXTERNAL CONTACT HAD RESULTED INJURIOUSLY TO SUCH NONMILITARY PERSONS, AND SUSTAINED THE DISALLOWANCE OF THE CLAIM.

CONCERNING THE EQUITIES INVOLVED IT WAS POINTED OUT THAT WHEN CONSIDERING THE GENERAL SUBJECT OF RELIEF TO MEMBERS OF THE MILITARY FORCES CONGRESS WOULD NATURALLY OMIT TO PROVIDE RELIEF IN SUCH SITUATIONS AS IN ITS JUDGMENT DID NOT MERIT RELIEF, WHICH BY REASON OF THE ASSUMPTION OF THE MILITARY RISK BY A MEMBER OF THE MILITARY FORCES MIGHT VERY WELL INCLUDE MANY SITUATIONS IN WHICH UNDER EXACTLY SIMILAR CIRCUMSTANCES RELIEF MIGHT PROPERLY BE AFFORDED CIVILIANS, FOR, IN THE CASE OF THE CIVILIAN OWNER THE LOSS ARISES FROM CAUSES ENTIRELY OUTSIDE OF AND FOREIGN TO HIS ORDINARY AND USUAL OCCUPATION, WHEREAS IN THE CASE OF THE MILITARY OWNER IT ARISES THROUGH CAUSES DIRECTLY AND INTIMATELY CONNECTED WITH HIS OCCUPATION, USUALLY THROUGH AGENCIES WITH WHICH HIS RELATION IS ANALOGOUS TO THAT OF A FELLOW SERVANT. THE CONCLUSION WAS REACHED FROM THIS REASONING THAT THE TWO SITUATIONS BEING SO WIDELY DIFFERENT BOTH IN EFFECT AND PRINCIPLE, THE INTENTION OF CONGRESS TO APPLY THE SAME PROVISION TO THEM BOTH SHOULD NOT BE PRESUMED IF IT IS NOT DIRECTLY EXPRESSED OR CLEARLY IMPLIED.

IN ANOTHER OPINION DATED FEBRUARY 1, 1921, 27 COMP. DEC. 669, THE COMPTROLLER OF THE TREASURY, AFTER REVIEWING THE HISTORY OF STATUTES AUTHORIZING SETTLEMENT OF CLAIMS FOR DAMAGES TO AND LOSS OF PRIVATE PROPERTY, NOT ONLY REACHED A CONCLUSION SIMILAR TO THAT REACHED IN THE SCHREINER CASE BUT WENT FURTHER AND HELD THE STATUTES HAVE NO APPLICATION TO CLAIMS OF CIVILIANS EMPLOYED IN THE WAR DEPARTMENT FOR DAMAGES TO OR LOSS OF THEIR PERSONAL PROPERTY WHILE IN CHARGE OF MILITARY AUTHORITIES, EXPRESSING THE OPINION THAT THE APPROPRIATIONS WERE INTENDED TO BE AVAILABLE ONLY FOR THE PAYMENT OF CLAIMS OF THE GENERAL CHARACTER OF THOSE WHICH CONGRESS HAD BEEN MAKING SPECIFIC APPROPRIATION FOR UNDER THE ACT OF AUGUST 24, 1912, AND PRIOR THERETO--- "THAT IS TO SAY, CLAIMS OF CITIZENS NOT IN OR SERVING UNDER THE CONTROL OF THE ARMY.'

IN DECISION OF SEPTEMBER 3, 1921, APPEAL NO. 36815, 3 COMP. GEN. LETTERS 78, THIS OFFICE REVIEWED SETTLEMENT OF THE AUDITOR FOR THE WAR DEPARTMENT WHEREIN HE DISALLOWED CLAIM OF LIEUT. A. M. WHALEY WHICH HAD BEEN APPROVED BY THE SECRETARY OF WAR FOR $42.38 FOR DAMAGES SUSTAINED TO LIEUTENANT WHALEY'S PRIVATE AUTOMOBILE IN A COLLISION WITH AN ARMY TRUCK WHILE HE WAS STATIONED AT CAMP GRANT, ILL., AND WAS PROCEEDING ON AN ERRAND OF A PERSONAL NATURE, VIZ, TO INTERVIEW A MECHANIC CONCERNING REPAIRS TO HIS CAR. THE CLAIM WAS DISALLOWED BY THE AUDITOR FOR THE REASON THAT THE PROVISION IN THE ACT OF JULY 9, 1918, 40 STAT. 864, FOR PAYMENT OF DAMAGES TO AND LOSS OF PRIVATE PROPERTY DOES NOT EMBRACE LOSSES SUSTAINED BY PERSONS IN THE MILITARY SERVICE. THE AUDITOR CITED THE SCHREINER OPINION AS AUTHORITY FOR HIS SETTLEMENT, AND THE SETTLEMENT WAS SUSTAINED AS "IN ACCORDANCE WITH THE RULINGS OF THE ACCOUNTING OFFICERS.'

UNDER DATE OF FEBRUARY 13, 1922, APPEAL NO. 37814, 6 MS. COMP. GEN. 851, THIS OFFICE SUSTAINED DISALLOWANCE BY THE AUDITOR FOR THE WAR DEPARTMENT OF A CLAIM PRESENTED BY CAPTAIN CHESTER GRACIE, ADJUTANT GENERAL'S DEPARTMENT, WHICH HAD BEEN APPROVED BY THE SECRETARY OF WAR FOR $281.83, REPRESENTING THE COST OF REPAIRING DAMAGES SUSTAINED TO CAPTAIN GRACIE'S PRIVATE AUTOMOBILE NOVEMBER 22, 1919, IN A COLLISION WITH AN ARMY TRUCK AT SAN ANTONIO, TEX., WHILE HE WAS PROCEEDING, WITH A PARTY OF FRIENDS, TO ATTEND A FOOTBALL GAME.

IN DECISION OF MARCH 28, 1923, REVIEW NO. 3101, 19 MS. COMP. GEN. 1491, THE ABOVE DECISIONS WERE CITED AS AUTHORITY FOR SUSTAINING A SETTLEMENT WHEREIN WAS DISALLOWED THE CLAIM OF FIRST LIEUT. O. W. GRUCHY, F.D., APPROVED BY THE SECRETARY OF WAR FOR $494.53, AS DAMAGES SUSTAINED ABOUT 6.30 P.M. DECEMBER 22, 1921, TO LIEUTENANT GRUCHY'S PRIVATE AUTOMOBILE IN A COLLISION WITH AN ARMY TRUCK WHILE THE OFFICER WAS RETURNING ALONG THE BELAIR ROAD FROM A SHOPPING EXPEDITION TO BALTIMORE WITH HIS WIFE.

IN THE DECISION OF JULY 16, 1923, 3 COMP. GEN. 22, THERE WAS REVIEWED A CLAIM OF MAJ. STEWART W. STANLEY, C.A.C., WHEREIN THE FACTS WERE IDENTICAL IN ALL MATERIAL FEATURES TO THE ONE NOW PRESENTED BY MAJOR PERKINS, AND WHICH WAS DISALLOWED FOR AN IDENTICAL REASON BY THIS OFFICE IN ORIGINAL SETTLEMENT. NO QUESTION WAS RAISED IN THE APPLICATION FOR REVIEW AS TO THE CORRECTNESS OF THE DISALLOWANCE ON THE GROUND STATED, BUT RELIEF WAS SOUGHT UNDER ANOTHER STATUTE. THE SETTLEMENT WAS SUSTAINED AS MADE AND IT WAS POINTED OUT THAT NO FUNDS WERE AVAILABLE FOR PAYMENT OF CLAIMS APPROVED BY THE SECRETARY OF WAR UNDER THE OTHER STATUTE, VIZ, THE ACT OF DECEMBER 28, 1922, 42 STAT. 1086.

IT IS APPARENT THE SETTLEMENT DISALLOWING MAJOR PERKINS' CLAIM PROPERLY CONSTRUED THE LAW UNDER WHICH CLAIM WAS PRESENTED AND CONFORMED TO THE DECISIONS OF THE ACCOUNTING OFFICERS. IT MUST THEREFOR BE SUSTAINED.