A-14155, MARCH 26, 1927, 6 COMP. GEN. 626

A-14155: Mar 26, 1927

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

NATIONAL GUARD PROPERTY - REIMBURSEMENT TO STATE WHERE PROPERTY PURCHASED BY A STATE FROM SOURCES OTHER THAN THE WAR DEPARTMENT FOR THE USE OF ITS NATIONAL GUARD WAS BROUGHT INTO THE FEDERAL SERVICE IN 1917 BY ORGANIZATIONS OF THE NATIONAL GUARD UNDER THE AUTHORITY OF CIRCULAR LETTER NO. 1. IN WHICH IT WAS STATED THAT FOR SUCH PROPERTY THUS BROUGHT INTO THE FEDERAL SERVICE THE STATE WOULD RECEIVE REIMBURSEMENT IN KIND. 1927: THERE IS FOR CONSIDERATION THE CLAIM OF THE STATE OF COLORADO FOR REIMBURSEMENT FOR THE PROPERTY OF THE STATE PROCURED FROM SOURCES OTHER THAN THE WAR DEPARTMENT AND ALLEGED TO HAVE BEEN BROUGHT INTO THE FEDERAL SERVICE BY THE NATIONAL GUARD OF THAT STATE WHEN THE MEMBERS THEREOF WERE DRAFTED INTO THE FEDERAL SERVICE AUGUST 5.

A-14155, MARCH 26, 1927, 6 COMP. GEN. 626

NATIONAL GUARD PROPERTY - REIMBURSEMENT TO STATE WHERE PROPERTY PURCHASED BY A STATE FROM SOURCES OTHER THAN THE WAR DEPARTMENT FOR THE USE OF ITS NATIONAL GUARD WAS BROUGHT INTO THE FEDERAL SERVICE IN 1917 BY ORGANIZATIONS OF THE NATIONAL GUARD UNDER THE AUTHORITY OF CIRCULAR LETTER NO. 1, DATED JULY 3, 1917, ISSUED BY THE CHIEF OF THE MILITIA BUREAU, IN WHICH IT WAS STATED THAT FOR SUCH PROPERTY THUS BROUGHT INTO THE FEDERAL SERVICE THE STATE WOULD RECEIVE REIMBURSEMENT IN KIND, THE STATE HAS BEEN FULLY REIMBURSED BY THE ISSUES OF PROPERTY IN KIND TO ITS NATIONAL GUARD UNDER THE ACT OF JULY 11, 1919, 41 STAT. 126, AND SUBSEQUENT ACTS.

DECISION BY COMPTROLLER GENERAL MCCARL, MARCH 26, 1927:

THERE IS FOR CONSIDERATION THE CLAIM OF THE STATE OF COLORADO FOR REIMBURSEMENT FOR THE PROPERTY OF THE STATE PROCURED FROM SOURCES OTHER THAN THE WAR DEPARTMENT AND ALLEGED TO HAVE BEEN BROUGHT INTO THE FEDERAL SERVICE BY THE NATIONAL GUARD OF THAT STATE WHEN THE MEMBERS THEREOF WERE DRAFTED INTO THE FEDERAL SERVICE AUGUST 5, 1917.

IT APPEARS THAT ON JULY 15, 1918, THE MILITIA BUREAU CALLED ON THE ADJUTANTS GENERAL OF ALL THE STATES FOR ITEMIZED LISTS OF STATE-OWNED PROPERTY TAKEN INTO FEDERAL SERVICE (CLASSIFIED AS TO QUARTERMASTER, ORDNANCE, SIGNAL, ENGINEER, AND MEDICAL), SUCH LISTS TO SHOW THE DATE OF ORIGINAL PURCHASE BY THE STATE, DATE OF TRANSFER TO THE FEDERAL SERVICE DURING 1917, CONDITION AT TIME OF TRANSFER, AND VALUATION UPON WHICH THE STATE CLAIMS REIMBURSEMENT, THE LISTS TO BE ACCOMPANIED BY THE BEST OBTAINABLE CORROBORATIVE EVIDENCE OF SUCH TRANSFER TO AND ACCEPTANCE BY THE FEDERAL GOVERNMENT.

THE STATE OF COLORADO SUBMITTED SUCH CLAIM WHICH WAS APPROVED BY THE SECRETARY OF WAR IN THE SUM OF $119,023.22, WHICH AMOUNT WAS PLACED TO THE CREDIT OF THE STATE ON THE BOOKS OF THE MILITIA BUREAU, AND THAT $1,869.36 WAS LATER CHARGED AGAINST THIS CREDIT ON REPORTS OF SURVEY, MILITIA BUREAU FILE NOS. 143, 8-QM.-COLORADO-16, 17, 18, 19, 21, 22, AT THE REQUEST OF THE STATE AUTHORITIES, THUS LEAVING THE BALANCE ALLEGED TO BE DUE THE STATE OF $117,153.86.

IT FURTHER APPEARS THAT THE COLORADO STATE QUARTERMASTER SUBMITTED A REQUISITION TO THE WAR DEPARTMENT, DATED MAY 28, 1924, FOR CERTAIN ARTICLES OF CLOTHING, EQUIPMENT, LIBRARY AND OTHER FURNITURE, CAMP EQUIPAGE, BEDDING, WRITING EQUIPMENT, OFFICERS' EQUIPMENT, ETC., TO REPLACE THE STATE PROPERTY TAKEN INTO THE FEDERAL SERVICE IN 1917, TO BE CHARGED AGAINST THE STATE CREDIT ON THE BOOKS OF THE MILITIA BUREAU, "THIS PROPERTY TO BECOME STATE PROPERTY WITHOUT ACCOUNTABILITY TO THE FEDERAL GOVERNMENT.'

THE QUESTION HAVING ARISEN AS TO WHETHER THE COST OF PACKING, CRATING, AND TRANSPORTATION OF THE SUPPLIES SHOULD BE CHARGED AGAINST WAR DEPARTMENT FUNDS OR AGAINST MILITIA BUREAU FUNDS, THE CHIEF, MILITIA BUREAU, STATED THAT THE PROPOSED ISSUE WAS NOT TO BE MADE UNDER SECTIONS 67, 83, AND 87 OF THE NATIONAL DEFENSE ACT, BUT WAS TO BE MADE FOR THE PURPOSE OF REIMBURSING THE STATE FOR STATE-OWNED PROPERTY PURCHASED FROM FUNDS APPROPRIATED BY THE STATE LEGISLATURE, SUCH ARTICLES AS WOULD BE ISSUED TO BECOME STATE PROPERTY WITHOUT ACCOUNTABILITY THEREFOR TO THE UNITED STATES; THAT THE ISSUE WOULD CONSTITUTE PAYMENT OF A DEBT DUE FROM THE UNITED STATES TO THE STATE; AND THAT AS THE ISSUE WAS NOT TO BE MADE UNDER THE PROVISIONS OF THE NATIONAL DEFENSE ACT FOR "ARMING, UNIFORMING, AND EQUIPPING THE NATIONAL GUARD," THE APPROPRIATION FOR THE NATIONAL GUARD WAS NOT AVAILABLE.

THE BUDGET OFFICER OF THE WAR DEPARTMENT, IN MEMORANDUM OF APRIL 22,1925, RAISED THE QUESTION WHETHER ANYTHING IS DUE THE STATE, STATING THAT CLOTHING, EQUIPMENT, ETC., GREATLY EXCEEDING IN VALUE THE PROPERTY ALLEGED TO HAVE BEEN BROUGHT BY THE COLORADO NATIONAL GUARD INTO THE FEDERAL SERVICE, HAVE BEEN ISSUED TO THAT STATE, UNDER THE AUTHORITY OF THE ACT OF JULY 11, 1919, 41 STAT. 126, 127, AND SUBSEQUENT ACTS, AND HE SUGGESTED THAT THE QUESTION OF REIMBURSEMENT SHOULD BE HANDLED IN ONE OF THE FOLLOWING WAYS:

(A) DECLINING TO FILL ANY REQUISITIONS WHATEVER FOR THIS PURPOSE ON THE GROUND THAT THE FEDERAL GOVERNMENT, BY ITS FREE ISSUES FAR IN EXCESS OF THE CLAIM HAS FULFILLED ITS OBLIGATIONS TO THE STATES AND COMPLIED WITH THE INTENT OF THE LAW; OR

(B) CONSIDER THE PAPERS IN THE CASE AS A CLAIM FOR REIMBURSEMENT IN CASH AND SEND SUCH CLAIM TO THE GENERAL ACCOUNTING OFFICE WITH THE STATEMENT THAT IT IS FOR THE PURPOSE OF REIMBURSING THE STATE FOR STATE PROPERTY BROUGHT INTO AND USED IN THE FEDERAL SERVICE.

IN REPLY TO THE SUGGESTION OF THE BUDGET OFFICER OF THE WAR DEPARTMENT THAT THE ISSUES MENTIONED HAVE DISCHARGED THE OBLIGATION OF THE UNITED STATES TO THE STATE OF COLORADO, THE CHIEF OF THE MILITIA BUREAU POINTS OUT THAT THE ACT OF JULY 11, 1919, 41 STAT. 126, 127, PROVIDES THAT THE ISSUES THEREIN AUTHORIZED SHALL CONSTITUTE REIMBURSEMENT FOR FEDERAL PROPERTY BROUGHT INTO THE FEDERAL SERVICE AND CONTENDS THAT NEITHER THAT ACT NOR ANY SUBSEQUENT ACT AUTHORIZING SUCH ISSUES HAS ANY APPLICATION TO THE INSTANT CASE.

THE MATTER HAVING BEEN SUBMITTED TO THE JUDGE ADVOCATE GENERAL OF THE ARMY, IN HIS OPINION OF JULY 3, 1925, SIXTH INDORSEMENT, AFTER REVIEWING THE ABOVE CONTENTIONS, HE STATED:

* * * THIS CREDIT (PLACED ON THE BOOKS OF THE MILITIA BUREAU) IS APPARENTLY BASED UPON CIRCULAR LETTER NO. 1, CHIEF OF THE MILITIA BUREAU, JULY 3, 1917, WHICH STATED THAT, FOR PROPERTY SUCH AS THAT BROUGHT BY THE NATIONAL GUARD OF COLORADO INTO THE FEDERAL SERVICE, UPON WHICH THE CLAIM HERE UNDER CONSIDERATION IS BASED, THE STATE WOULD RECEIVE REIMBURSEMENT IN KIND; AND IT WAS HELD, IN AN OPINION OF THIS OFFICE (J.A.G. 158, JUNE 19, 1918), THAT THIS LETTER APPARENTLY HAVING BEEN ISSUED WITH THE AUTHORITY OF THE SECRETARY OF WAR, WHERE SUCH PROPERTY WAS BROUGHT INTO THE FEDERAL SERVICE SUBSEQUENT TO JULY 3, 1917, THERE EXISTED A CONTRACT UNDER WHICH THE UNITED STATES WAS OBLIGATED TO REIMBURSE THE STATE IN KIND. HOWEVER, NO APPROPRIATION FOR DISCHARGING THIS OBLIGATION HAS BEEN MADE, AND THIS OFFICE IS AWARE OF NO STATUTORY AUTHORITY FOR THE RETURN IN KIND OF PROPERTY TAKEN BY THE NATIONAL GUARD INTO THE FEDERAL SERVICE, EXCEPT THAT CONTAINED IN SECTION 86 OF THE NATIONAL DEFENSE ACT, WHICH PERTAINS TO PROPERTY PURCHASED BY THE STATE FROM THE UNITED STATES FOR THE USE OF ITS NATIONAL GUARD AND IS CLEARLY INAPPLICABLE TO PURELY STATE PROPERTY BOUGHT FROM OTHER SOURCES.

4. SECTION 3678, REVISED STATUTES, PROVIDES:

"ALL SUMS APPROPRIATED FOR THE VARIOUS BRANCHES OF EXPENDITURE IN THE PUBLIC SERVICE SHALL BE APPLIED SOLELY TO THE OBJECTS FOR WHICH THEY ARE RESPECTIVELY MADE, AND FOR NO OTHERS.'

THERE BEING NO STATUTORY AUTHORIZATION OF THE PROPOSED ISSUE, IT IS THE OPINION OF THIS OFFICE THAT THE ISSUE OF STORES PURCHASED FROM THE GENERAL APPROPRIATIONS OF THE WAR DEPARTMENT FOR THE PURPOSE OF DISCHARGING A DEBT DUE THE STATE, WOULD VIOLATE THE PROVISIONS OF R.S. 3678. IN THIS CONNECTION, ATTENTION IS INVITED TO THE OPINION OF THE ATTORNEY GENERAL, DATED FEBRUARY 28, 1899 (22 OPS.ATTY.GEN. 372, 376), HOLDING THAT STORES PURCHASED FROM THE GENERAL APPROPRIATIONS OF THE WAR DEPARTMENT MIGHT NOT BE ISSUED TO THE MILITIA AS REIMBURSEMENT FOR FEDERAL PROPERTY BROUGHT INTO THE FEDERAL SERVICE DURING THE WAR WITH SPAIN. THIS OFFICE IS, THEREFORE, OF THE OPINION THAT THERE IS NO AUTHORITY FOR THE PROPOSED ISSUE.

5. THE OPINION OF THIS OFFICE IS REQUESTED AS TO THE PROPER MANNER OF SETTLEMENT OF THIS CLAIM. IF THE STATE HAS A PROPER CLAIM, IT IS NOT BELIEVED THAT FREE ISSUES MADE UNDER ANY OF THE APPROPRIATION ACTS HEREINBEFORE CITED WOULD DISCHARGE THE INDEBTEDNESS. NO SPECIFIC PROVISION OF LAW FOR THE SETTLEMENT OF THIS CLAIM IS KNOWN, HOWEVER. IS, THEREFORE, RECOMMENDED THAT IT BE PRESENTED TO THE GENERAL ACCOUNTING OFFICE FOR SETTLEMENT AS SUGGESTED IN PARAGRAPH 16B OF THE BASIC COMMUNICATION HEREINBEFORE QUOTED.

THE SAID REQUISITION WITH THE CORRESPONDENCE ATTACHED THERETO WAS ACCORDINGLY TRANSMITTED TO THIS OFFICE BY THE CHIEF OF FINANCE IN SEVENTEENTH INDORSEMENT DATED NOVEMBER 12, 1925, FOR SETTLEMENT AS A CLAIM FOR REIMBURSEMENT IN CASH. THE ORIGINAL CLAIM WHICH WAS THE BASIS FOR THE CREDIT PLACED ON THE BOOKS OF THE MILITIA BUREAU WAS NOT TRANSMITTED. THERE IS THEREFORE NO EVIDENCE IN THIS OFFICE AS TO WHAT STATE PROPERTY, IF ANY, WAS BROUGHT BY THE NATIONAL GUARD OF COLORADO INTO THE FEDERAL SERVICE, AND AS TO THE VALUE THEREOF, NOR HAS EVIDENCE BEEN PRESENTED OR SUGGESTED THAT SUCH PROPERTY WAS TAKEN UP AND ACCOUNTED FOR ON THE PROPERTY RECORDS OF THE WAR DEPARTMENT. THE QUESTION AS TO WHETHER THE STATE IS NOW ENTITLED TO REIMBURSEMENT IN CASH WILL BE CONSIDERED, AND IT WILL BE ASSUMED FOR THE PURPOSE OF THIS CONSIDERATION THAT STATE PROPERTY WAS BROUGHT INTO THE FEDERAL SERVICE AS ALLEGED.

THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 199, ET SEQ., SECTION 67, PROVIDES THAT THEREAFTER A SUM OF MONEY SHALL BE APPROPRIATED ANNUALLY FOR THE SUPPORT OF THE NATIONAL GUARD, INCLUDING THE EXPENSE OF PROVIDING ARMS, ORDNANCE STORES, QUARTERMASTER STORES, AND CAMP EQUIPAGE, AND ALL OTHER MILITARY SUPPLIES FOR ISSUE TO THE NATIONAL GUARD, AND SUCH OTHER EXPENSES PERTAINING TO SAID GUARD AS ARE NOW OR MAY HEREAFTER BE AUTHORIZED BY LAW; THAT THE AMOUNT SO APPROPRIATED SHALL BE APPORTIONED AMONG THE SEVERAL STATES AND TERRITORIES, AND THAT SO MUCH OF THE APPORTIONMENT AS MAY BE NECESSARY SHALL BE PAID TO THE PROPERTY AND DISBURSING OFFICERS OF THE RESPECTIVE STATES AND TERRITORIES UPON PROPER REQUISITIONS; SECTION 82, THAT THE NATIONAL GUARD SHALL, AS FAR AS PRACTICABLE, BE UNIFORMED, ARMED, AND EQUIPPED WITH THE SAME TYPE OF UNIFORMS, ARMS, AND EQUIPMENTS AS ARE OR SHALL BE PROVIDED FOR THE REGULAR ARMY; SECTION 83 PROVIDES FOR ISSUE, WITHIN THE LIMITS OF AVAILABLE APPROPRIATIONS, ON REQUISITION OF THE GOVERNORS OF THE STATES OF SUCH ARMS AND OTHER MATERIALS AS ARE NECESSARY TO ARM, UNIFORM, OR EQUIP THE NATIONAL GUARD FOR FIELD SERVICE AND THAT, WHENEVER IT SHALL BE SHOWN TO THE SATISFACTION OF THE SECRETARY OF WAR THAT THE NATIONAL GUARD OF ANY STATE IS PROPERLY ORGANIZED, ARMED, AND EQUIPPED FOR FIELD SERVICE, FUNDS ALLOTTED TO THAT STATE FOR THE SUPPORT OF ITS NATIONAL GUARD MAY BE USED FOR THE PURCHASE, FROM THE WAR DEPARTMENT, OF ANY ARTICLE ISSUED BY ANY OF THE SUPPLY DEPARTMENTS OF THE ARMY; SECTION 86, THAT ANY STATE MAY, WITH THE APPROVAL OF THE SECRETARY OF WAR, PURCHASE FOR CASH FROM THE WAR DEPARTMENT FOR THE USE OF THE NATIONAL GUARD ANY STORES, SUPPLIES, MATERIAL OF WAR, AND MILITARY PUBLICATIONS FURNISHED TO THE ARMY, IN ADDITION TO THOSE ISSUED UNDER THE PROVISIONS OF THIS ACT, AND THAT THE STORES, SUPPLIES, ETC., SO PURCHASED MAY, IN TIME OF ACTUAL OR THREATENED WAR, BE REQUISITIONED BY THE UNITED STATES FOR USE IN THE MILITARY SERVICE THEREOF, AND WHEN SO REQUISITIONED BY THE UNITED STATES AND DELIVERED CREDIT FOR THE ULTIMATE RETURN OF SUCH PROPERTY IN KIND SHALL BE ALLOWED TO SUCH STATE; SECTION 87, THAT ALL MILITARY PROPERTY ISSUED TO THE NATIONAL GUARD AS HEREIN PROVIDED SHALL REMAIN THE PROPERTY OF THE UNITED STATES; THAT WHENEVER ANY OF SUCH PROPERTY SHALL HAVE BEEN LOST, DAMAGED, OR DESTROYED OTHERWISE THAN THROUGH CARELESSNESS OR NEGLECT THE SECRETARY OF WAR IS AUTHORIZED TO RELIEVE THE STATE FROM FURTHER ACCOUNTABILITY THEREFOR, BUT IF THE LOSS, DAMAGE, OR DESTRUCTION OF THE PROPERTY WAS DUE TO CARELESSNESS OR NEGLECT, THE MONEY VALUE OF SUCH PROPERTY SHALL BE CHARGED TO THE ACCOUNTABLE STATE TO BE PAID FROM FUNDS OTHER THAN FEDERAL.

UNDER DATE OF APRIL 2, 1917, SPECIAL REGULATIONS NO. 55 WERE ISSUED GOVERNING THE MOBILIZATION OF THE NATIONAL GUARD CALLED OR DRAFTED BY THE PRESIDENT INTO THE SERVICE OF THE UNITED STATES, WHICH PROVIDED, AS PER PARAGRAPH 9, THAT THE HOME STATION OF A COMPANY OR OTHER NATIONAL GUARD ORGANIZATION WILL BE KNOWN AS ITS COMPANY RENDEZVOUS; THAT THE PLACE OF ASSEMBLY FOR THE NATIONAL GUARD FROM A STATE WHEN CALLED OR DRAFTED INTO THE SERVICE OF THE UNITED STATES WILL BE KNOWN AS THE MOBILIZATION CAMP; AND THAT A CONCENTRATION CAMP IS A PLACE NEAR THE SCENE OF INTENDED OPERATION OR NEAR EMBARKATION POINT, WHERE TROOPS ARE ASSEMBLED FOR IMMEDIATE USE AGAINST THE ENEMY OR FOR TRANSPORT TO AN OVERSEA THEATER OF OPERATIONS, AS PER PARAGRAPH 37:

UNITED STATES PROPERTY.--- ALL ARMS, AMMUNITION, EQUIPMENT, SUPPLIES, CLOTHING, ANIMALS, WHEEL TRANSPORTATION, AND OTHER UNITED STATES PROPERTY IN THE POSSESSION OF ORGANIZATIONS, WHETHER SUPPLIED BY THE UNITED STATES FROM FEDERAL FUNDS OR PURCHASED BY THE STATE AUTHORITIES, WILL BE TAKEN WITH THE ORGANIZATION OR SHIPPED TO THE MOBILIZATION CAMPS OR TO ITS NEW STATION. (SEE PARS. 4, 27, 28 AND 30.) * * *

STATE, ORGANIZATION, AND PRIVATELY OWNED PROPERTY, SUCH AS AUTOMOBILES, TRUCKS, AND MOTORCYCLES, IF TAKEN, SHOULD BE TRANSPORTED AND MAINTAINED AT THE EXPENSE OF THE STATE, ORGANIZATIONS, OR INDIVIDUAL AND NOT AT THE EXPENSE OF THE UNITED STATES.

AS PER PARAGRAPH 45, THAT---

SUITABLE ANIMALS OWNED BY A STATE AND IN THE POSSESSION OF MOUNTED ORGANIZATIONS CALLED OR DRAFTED INTO THE SERVICE OF THE UNITED STATES, OR OWNED BY THE MOUNTED ORGANIZATION OR ENLISTED MEN THEREOF, MAY BE SOLD TO THE UNITED STATES AT THE COMPANY RENDEZVOUS (SEE PAR. 37) OR THE MOBILIZATION CAMP. THEY WILL NOT BE PURCHASED ELSEWHERE NOR TAKEN WITH MOUNTED ORGANIZATIONS CALLED OR DRAFTED EXCEPT TO THE MOBILIZATION CAMP UNTIL SOLD TO THE UNITED STATES. * * *

PARAGRAPH 48 PROVIDES FOR THE METHOD OF ACCOUNTING FOR UNITED STATES PROPERTY FOR THE NATIONAL GUARD WHEN IT IS NOT IN THE FEDERAL SERVICE, AND PARAGRAPH 49 PROVIDES FOR THE TRANSFER OF ACCOUNTABILITY FOR SUCH PROPERTY WHEN THE NATIONAL GUARD IS CALLED OR DRAFTED INTO THE FEDERAL SERVICE. SAID PARAGRAPH 49 ALSO PROVIDES THAT ANY PROPERTY PURCHASED BY A STATE FROM THE WAR DEPARTMENT UNDER THE PROVISIONS OF SECTION 86 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, SHOULD BE BROUGHT INTO THE SERVICE OF THE UNITED STATES IN THE SAME MANNER AS UNITED STATES PROPERTY. THE LAST SENTENCE OF PARAGRAPH 37 EXPRESSLY DISCLAIMS ANY FEDERAL RESPONSIBILITY FOR STATE-OWNED PROPERTY, SUCH AS AUTOMOBILES, TRUCKS, AND MOTOR CYCLES, IF TAKEN TO THE MOBILIZATION CAMP; AND PARAGRAPH 45 EXPRESSLY AUTHORIZES THE PURCHASE OF SUITABLE ANIMALS OWNED BY THE STATE AND IN THE POSSESSION OF MOUNTED ORGANIZATIONS. THE REFERENCE, HOWEVER, IN THE FIRST SENTENCE OF PARAGRAPH 37 TO UNITED STATES PROPERTY "PURCHASED BY THE STATE AUTHORITIES" APPARENTLY WAS NOT CLEAR.

ON JULY 3, 1917, THE CHIEF OF THE MILITIA BUREAU ISSUED CIRCULAR LETTER NO. 1, IN WHICH, AFTER STATING THAT MANY INQUIRIES RECEIVED FROM STATE AUTHORITIES SUGGESTED THE ADVISABILITY OF A GENERAL LETTER ON THE SUBJECT OF "FEDERAL PROPERTY," STATED IN PARAGRAPH 4 THEREOF:

STATE AUTHORITIES SHOULD INSIST UPON PROMPT SETTLEMENT BY SUPPLY OFFICERS OF TRANSFERS OF PROPERTY TO FEDERAL SERVICE. ALL ADJUSTMENTS NECESSARY SHOULD BE MADE BETWEEN DATE OF DRAFT AND DATE TROOPS ARE MOVED TO CONCENTRATION CAMP. WHERE QUESTIONS ARE NOT SETTLED PROMPTLY BY SURVEY OFFICERS APPOINTED BY THE LOCAL COMMANDERS, SEE ARMY REGULATION 711, SAME SHOULD BE SUBMITTED TO THE DEPARTMENT COMMANDER FOR PROPER ACTION. THE LAW REQUIRES THAT ALL ARTICLES OF FIELD EQUIPMENT IN THE STATE WHICH HAVE BEEN PURCHASED FROM THE WAR DEPARTMENT BE TRANSFERRED TO FEDERAL SERVICE AND TAKEN UP AS FEDERAL PROPERTY BY THE SUPPLY OFFICERS. FOR THIS CLASS OF PROPERTY THE STATE WILL RECEIVE REIMBURSEMENT IN KIND, AND NOT MONEY VALUE. SEE SECTION 86, ACT OF JUNE 3, 1916, SUPRA. THERE IS STILL ANOTHER CLASS OF PROPERTY IN SOME STATES, VIZ: THAT PURCHASED WITH FUNDS APPROPRIATED BY THE STATE AND FROM SOURCES OTHER THAN THE WAR DEPARTMENT. FOR SUCH PROPERTY BROUGHT INTO FEDERAL SERVICE WITH ORGANIZATIONS OF THE NATIONAL GUARD, THE STATE WILL RECEIVE REIMBURSEMENT IN KIND. (VOL. 2, OPINIONS OF JUDGE ADVOCATE GENERAL OF THE ARMY, 1918, P. 477.)

THE PRESENT CLAIM OF THE STATE OF COLORADO IS BASED ON THE PROVISIONS OF THIS CIRCULAR LETTER, AND IN THE INTERPRETATION OF ITS PROVISIONS IT IS TO BE PRESUMED THERE WAS NO INTENT TO EXCEED AUTHORITY OR TO INCUR AN OBLIGATION CONTRARY TO LAW.

THE DUTY OF PURCHASING OR PROCURING EQUIPMENT FOR THE USE OF THE ARMY IS NOT WITHIN THE FUNCTIONS OF THE MILITIA BUREAU. THERE WAS AND IS NO AUTHORITY OF LAW FOR THE CHIEF OF THE MILITIA BUREAU OF ANY OFFICER OF THE ARMY OR WAR DEPARTMENT TO OBTAIN FOR THE USE OF THE ARMY ANY STATE-OWNED PROPERTY PURCHASED FROM SOURCES OTHER THAN THE WAR DEPARTMENT IN CONSIDERATION OF OR ON CONDITION THAT THE STATE WILL RECEIVE REIMBURSEMENT IN KIND, IF BY SUCH REIMBURSEMENT IT WAS INTENDED THAT PROPERTY OF THE SAME GENERAL CHARACTER OF EQUAL VALUE PURCHASED FOR THE USE OF THE ARMY IS TO BE TRANSFERRED TO THE STATE WITH THE LEGAL TITLE THERETO.

THE PURPOSE OF THE CIRCULAR LETTER WAS APPARENTLY TO EXPLAIN THE MEANING OF UNITED STATES PROPERTY "PURCHASED BY THE STATE AUTHORITIES" AS REFERRED TO IN PARAGRAPH 37 OF SPECIAL REGULATIONS NO. 55. IN DOING SO, HOWEVER, TWO CLASSES OF STATE PROPERTY WERE INCLUDED IN THAT TERM.

THE FIRST CLASS, THAT PURCHASED FROM THE WAR DEPARTMENT, WAS COVERED BY PARAGRAPH 49 OF SAID REGULATIONS, WHICH PROVIDED THAT THIS CLASS OF PROPERTY SHOULD BE BROUGHT INTO THE SERVICE OF THE UNITED STATES IN THE SAME MANNER BUT NOT AS UNITED STATES PROPERTY. APPARENTLY PERMISSION WAS THUS GRANTED TO BRING INTO THE SERVICE OF THE UNITED STATES AS UNITED STATES PROPERTY SUCH STATE PROPERTY PURCHASED FROM SOURCES OTHER THAN THE WAR DEPARTMENT WHICH WAS IN THE POSSESSION OF ORGANIZATIONS OF THE NATIONAL GUARD, AND THERE WAS ADDED,"FOR SUCH PROPERTY BROUGHT INTO FEDERAL SERVICE WITH ORGANIZATIONS OF THE NATIONAL GUARD, THE STATE WILL RECEIVE REIMBURSEMENT IN KIND.'

AS STATED ABOVE, SECTION 67 OF THE NATIONAL DEFENSE ACT PROVIDES THAT THEREAFTER A SUM OF MONEY SHALL BE APPROPRIATED ANNUALLY FOR PROVIDING NECESSARY EQUIPMENT OF ALL KINDS FOR ISSUE TO THE NATIONAL GUARD, AND AMONG THE DUTIES OF THE CHIEF OF THE MILITIA BUREAU WAS THE APPROVAL OF REQUISITIONS BY THE GOVERNORS OF THE STATES FOR FUNDS AND EQUIPMENT AND SUPPLIES FROM APPROPRIATIONS FOR THE NATIONAL GUARD.

AS THERE WAS NO AUTHORITY OF LAW FOR MAKING REIMBURSEMENT BY TRANSFER OF PROPERTY TO THE STATE INDEPENDENT OF ITS NATIONAL GUARD, THE INTENTION MUST HAVE BEEN TO ACCOMPLISH THE REIMBURSEMENT BY EQUIPPING THE NATIONAL GUARD IN THE MANNER PROVIDED BY LAW.

BY PERMITTING THE ORGANIZATIONS OF THE NATIONAL GUARD TO BRING INTO THE SERVICE OF THE UNITED STATES THE STATE PROPERTY IN QUESTION THE STATE AUTHORITIES MUST BE PRESUMED TO HAVE CONSENTED TO THE AGREEMENT THAT REIMBURSEMENT IN KIND WOULD BE MADE IN ACCORDANCE WITH LAW.

THE CHIEF OF MILITIA BUREAU RECOMMENDED SUBSEQUENTLY THAT IN ORDER TO MAKE PROPER AND TIMELY PROVISION FOR EQUIPPING NATIONAL GUARD ORGANIZATIONS BEING ORGANIZED AND TO BE ORGANIZED AND RECOGNIZED AFTER THE ARMISTICE THERE BE ISSUED NECESSARY ORDNANCE, QUARTERMASTER, MEDICAL, SIGNAL, AND ENGINEER SUPPLIES FROM THE AVAILABLE SURPLUS STOCKS ACQUIRED FOR USE OF THE UNITED STATES ARMY DURING THE WAR, SUCH ISSUES TO BE TREATED AS REIMBURSEMENT IN KIND FOR THE SUPPLIES IN THE HANDS OF THE NATIONAL GUARD TAKEN INTO THE FEDERAL SERVICE IN 1917. THE QUESTION AS TO THE LEGALITY OF ADOPTING AND CARRYING OUT THIS RECOMMENDATION WAS SUBMITTED TO THE JUDGE ADVOCATE GENERAL OF THE ARMY, AND IN HIS OPINION OF DECEMBER 30, 1918 (VOL. 2, P. 1111), HE STATED:

IN THE OPINION OF THIS OFFICE IT WILL BE NECESSARY TO SECURE LEGISLATION TO AUTHORIZE THE SECRETARY OF WAR TO ISSUE TO THE STATES FOR NATIONAL GUARD PURPOSES PROPERTY NOT ACQUIRED FOR THAT SPECIFIC PURPOSE. THE AUTHORITY FOR ISSUING PROPERTY BY THE FEDERAL GOVERNMENT TO THE STATES FOR EQUIPPING THE NATIONAL GUARD IS CONTAINED IN SECTION 83, NATIONAL DEFENSE ACT OF JUNE 3, 1916 (39 STAT. 166, 203), WHICH PROVIDES FOR SUCH ISSUES "WITHIN THE LIMITS OF AVAILABLE APPROPRIATIONS MADE BY CONGRESS.' THE PROPERTY IN THE HANDS OF THE NATIONAL GUARD WHEN THE NATIONAL GUARD WAS DRAFTED INTO THE FEDERAL SERVICE IN AUGUST, 1917, WAS TRANSFERRED TO THE FEDERAL GOVERNMENT AND PRESUMABLY MUCH OF IT, IF NOT ALL, HAS BEEN USED UP IN THE FEDERAL SERVICE AND FOR THE ULTIMATE PURPOSES FOR WHICH IT WAS ACQUIRED AND ISSUED. IF THERE WAS A WAY LEGALLY TO RETURN NATIONAL GUARD ORGANIZATIONS TO THE STATES AS ORGANIZATIONS AFTER THE COMPLETION OF THEIR FEDERAL SERVICE, RESTORING THEM TO THE NATIONAL GUARD STATUS, IT WOULD BE BUT CONSISTENT AND LOGICAL THAT THEY BE RETURNED WITH PROPER EQUIPMENT, IN A MEASURABLE DEGREE, THE SAME AS THAT WITH WHICH THEY WERE EQUIPPED WHEN BROUGHT INTO THE FEDERAL SERVICE. BUT FORMER NATIONAL GUARD ORGANIZATIONS ARE NOT TO BE RETURNED AS SUCH TO THE STATES. THE MEMBERS ARE TO BE DISCHARGED INDIVIDUALLY FROM THE FEDERAL SERVICE, AND IT HAS BEEN HELD BY THIS OFFICE THAT THEY RETURN TO CIVIL LIFE AND NOT TO THEIR NATIONAL GUARD STATUS. THERE WILL, THEREFORE, BE NO NATIONAL GUARD ORGANIZATIONS RETURNED AS SUCH TO THE STATES FROM THE FEDERAL SERVICE, AND, THEREFORE NO PROPERTY CAN BE RETURNED AS EQUIPMENT FOR NATIONAL GUARD ORGANIZATIONS. THE PROPERTY WHICH IT IS PROPOSED BY THE CHIEF OF MILITIA BUREAU TO ISSUE TO THE STATES FOR NATIONAL GUARD SERVICE IS PROPERTY WHICH WAS NOT ACQUIRED FROM FUNDS APPROPRIATED FOR THAT PURPOSE, AND, AS STATED ABOVE, IT IS THE VIEW OF THIS OFFICE THAT THERE IS NO AUTHORITY IN EXISTING LEGISLATION FOR SO ISSUING SUCH PROPERTY IN THE ABSENCE OF NATIONAL GUARD APPROPRIATIONS ADEQUATE FOR THE ACQUIREMENT OF SUCH PROPERTY.

THE ACT OF JULY 11, 1919, 41 STAT. 126, 127, PROVIDES:

THE SECRETARY OF WAR IS HEREBY AUTHORIZED TO ISSUE FROM STORES NOW ON HAND AND PURCHASED FOR THE UNITED STATES ARMY SUCH ARTICLES OF CLOTHING AND EQUIPMENT MATERIAL AS MAY BE NEEDED BY THE NATIONAL GUARD ORGANIZED UNDER THE PROVISIONS OF THE ACT * * * APPROVED JUNE 3, 1916. THIS ISSUE SHALL BE MADE WITHOUT CHARGE AGAINST MILITIA APPROPRIATIONS AND SHALL BE REIMBURSED (REIMBURSEMENT) IN KIND FOR ALL FEDERAL PROPERTY BROUGHT INTO SERVICE BY STATE TROOPS: * * *.

THE ACT OF JUNE 5, 1920, 41 STAT. 973, UNDER THE HEAD OF "ARMS, UNIFORMS, EQUIPMENT, ETC., FOR FIELD SERVICE, NATIONAL GUARD," PROVIDES:

TO PROCURE BY PURCHASE OR MANUFACTURE AND ISSUE FROM TIME TO TIME TO THE NATIONAL GUARD UPON REQUISITION OF THE GOVERNORS OF THE SEVERAL STATES AND TERRITORIES, OR THE COMMANDING GENERAL, NATIONAL GUARD OF THE DISTRICT OF COLUMBIA, SUCH NUMBER OF UNITED STATES SERVICE ARMS WITH ALL ACCESSORIES, FIELD ARTILLERY AND COAST ARTILLERY MATERIAL, ENGINEER, SIGNAL, AND SANITARY MATERIAL, ACCOUTERMENTS, FIELD UNIFORMS, CLOTHING, EQUIPAGE, PUBLICATIONS, AND MILITARY STORES OF ALL KINDS, INCLUDING PUBLIC ANIMALS, AND A RESERVE SUPPLY OF SUCH ARMS, MATERIAL ACCOUTERMENTS, FIELD UNIFORMS, CLOTHING, EQUIPAGE, AND MILITARY STORES OF ALL KINDS, AS ARE NECESSARY TO ARM, UNIFORM, AND EQUIP FOR FIELD SERVICE THE NATIONAL GUARD OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA, $8,000,000: * * * AND PROVIDED FURTHER, THAT THE SECRETARY OF WAR IS HEREBY DIRECTED TO ISSUE FROM SURPLUS STORES AND MATERIAL NOW ON HAND AND PURCHASED FOR THE UNITED STATES ARMY SUCH ARTICLES OF CLOTHING AND EQUIPMENT AND FIELD ARTILLERY MATERIEL AND AMMUNITION AS MAY BE NEEDED BY THE NATIONAL GUARD ORGANIZED UNDER THE PROVISIONS OF THE ACT ENTITLED "AN ACT FOR MAKING FURTHER AND MORE EFFECTUAL PROVISIONS FOR THE NATIONAL DEFENSE, AND FOR OTHER RPOSES," APPROVED JUNE 3, 1916. THIS ISSUE SHALL BE MADE WITHOUT CHARGE AGAINST MILITIA APPROPRIATIONS.

SIMILAR PROVISIONS ARE CONTAINED IN EACH SUBSEQUENT ANNUAL APPROPRIATION ACT. SEE ACTS OF JUNE 30, 1921, JUNE 30, 1922, MARCH 2, 1923, 42 STAT. 93, 749-750, 1410-1411, RESPECTIVELY, AND ACTS OF JUNE 7, 1924, AND FEBRUARY 12, 1925, 43 STAT. 506, 920-921, RESPECTIVELY, AND ACT OF APRIL 15, 1926, 44 STAT. 282.

IT THUS APPEARS THAT PROVISION HAS BEEN MADE FOR THE COMPLETE EQUIPMENT OF THE NATIONAL GUARD FOR FIELD SERVICE, AND ALSO FOR A RESERVE SUPPLY OF SUCH EQUIPMENT.

IT APPEARS THAT THE PROVISION IN THE ACT OF JULY 11, 1919, QUOTED, WAS RECOMMENDED BY THE THEN ACTING CHIEF OF THE MILITIA BUREAU, BUT NOSPECIFIC MENTION WAS OF THE STATE PROPERTY HERE IN QUESTION HAVING BEEN BROUGHT INTO THE FEDERAL SERVICE. SEE HEARINGS ON ARMY APPROPRIATION BILL, 1920, PAGE 245. NOR DOES IT APPEAR THAT THE MATTER HAS BEEN PRESENTED TO THE CONGRESS WITH THE VIEW OF OBTAINING EXPRESS LEGISLATIVE AUTHORITY TO REIMBURSE THE STATES IN KIND BY TRANSFER OF MILITARY STORES AND EQUIPMENT TO THE STATES, INDEPENDENT OF AND IN ADDITION TO THE ISSUES AUTHORIZED FOR THE NATIONAL GUARD. IN 1919 AND 1920 THERE WAS A LARGE SURPLUS OF SUCH STORES AND EQUIPMENT ON HAND, WHICH, IF IT HAD BEEN CONSIDERED NECESSARY AND WITH LEGISLATIVE AUTHORITY, MIGHT HAVE BEEN USED WITHOUT ADDITIONAL EXPENSE, EXCEPT FOR TRANSPORTATION, TO EXTINGUISH SPECIFICALLY THIS ALLEGED OBLIGATION.

IN THE HEARINGS ON THE ARMY APPROPRIATION BILL, 1921, PAGE 242, THE MATTER WAS REFERRED TO AS FOLLOWS:

MR. GREENE. WITH THE RETURN OF THE FORMER NATIONAL GUARD UNITS THAT COMPOSED THE WAR ARMY TO THEIR HOME STATIONS, AND THEIR DEMOBILIZATION, WAS ANY CONSIDERABLE QUANTITY OF MILITARY SUPPLIES LEFT FOR STORAGE WITH STATES WHICH CAN BE NOW UTILIZED IN CONNECTION WITH REHABILITATING THE NATIONAL GUARD?

GEN. CARTER. NO, SIR: UNDER THE LAW THAT WAS ALL TURNED OVER TO THE FEDERAL GOVERNMENT WHEN THEY WERE CALLED INTO FEDERAL SERVICE AND WE HAVE HAD TO REEQUIP THE ENTIRE NATIONAL GUARD. SOME OF THE STATES HAD PROPERTY THAT HAD BEEN PURCHASED FROM STATE FUNDS, AND THEY TURNED THAT INTO THE FEDERAL GOVERNMENT, AND WE ARE NOW REIMBURSING THEM BY THE ISSUE OF PROPERTY OF LIKE KIND, OF AN EQUAL VALUE.

IN THE HEARINGS ON THE ARMY APPROPRIATION BILL, 1922, PAGE 1147, WITH RESPECT TO THE USE OF NATIONAL GUARD EQUIPMENT, IT WAS STATED:

GEN. CARTER. * * * IF THE STATES DESIRE TO USE THE NATIONAL GUARD, THEY ARE AUTHORIZED UNDER THE LAW TO DO SO AT ANY TIME. AS A MATTER OF FACT AT THE PRESENT TIME THE ENTIRE NATIONAL GUARD OF THE STATE OF ALABAMA IS ON DUTY IN THE MINE REGION DOWN THERE UNDER ACTUAL FIELD CONDITIONS, SO WE HAVE TO EQUIP THEM FOR THAT PURPOSE.

MR. CRAMTON. THAT BRINGS UP THIS QUESTION: IF THEY SHOULD BE ON CONSTANT DUTY DURING THE YEAR THERE WOULD BE A CONSEQUENT WEARING OUT OF EQUIPMENT, CLOTHING, ETC. IS THAT CONSTANTLY REPLACED BY THE FEDERAL GOVERNMENT?

GEN. CARTER. YES, SIR.

FOR CLOTHING AND EQUIPAGE

MR. CRAMTON. THE STATE GOVERNMENT WOULD STAND NO EXPENSE OF EQUIPMENT, CLOTHING, ETC., THAT WAS WORN OUT WHILE BEING USED IN A STRICTLY STATE SERVICE?

GEN. CARTER. THEY HAVE VOLUNTARILY REPLACED A GOOD DEAL OF IT; BUT WE FIGURE THAT SINCE THE LAW REQUIRES THAT THE NATIONAL GUARD SHALL BE EQUIPPED AT THE EXPENSE OF THE FEDERAL GOVERNMENT, WE SHOULD REPLACE THAT EQUIPMENT, EVEN THOUGH IT IS WORN OUT WHILE BEING USED IN STRICTLY STATE SERVICE.

FROM THE FOREGOING IT APPEARS THAT THE STATE PROPERTY IN QUESTION WAS PURCHASED WITH STATE FUNDS FROM SOURCES OTHER THAN THE WAR DEPARTMENT FOR THE USE OF THE NATIONAL GUARD OF THE STATE; THAT IT WAS IN THE POSSESSION OF THE ORGANIZATIONS OF THE NATIONAL GUARD OF THE STATE WHEN THE MEMBERS THEREOF WERE DRAFTED INTO THE FEDERAL SERVICE IN 1917; THAT IT WAS BROUGHT INTO THE FEDERAL SERVICE BY SAID ORGANIZATIONS; THAT UNDER THE ACT OF JULY 11, 1919, AND SUBSEQUENT ACTS, PROPERTY OF SIMILAR CHARACTER EXCEEDING IN VALUE THAT BROUGHT INTO THE FEDERAL SERVICE BY SAID ORGANIZATIONS, INCLUDING STATE AND FEDERAL PROPERTY, HAS BEEN RETURNED TO THE NATIONAL GUARD OF THE STATE FROM WHOM IT WAS RECEIVED IN 1917; THAT BY REASON OF SUCH RETURN THE STATE HAS BEEN RELIEVED OF THE EXPENSE OF REPLACING SUCH PROPERTY; AND THAT SUCH PROPERTY SO RETURNED HAS BEEN AVAILABLE FOR USE BY THE NATIONAL GUARD OF THE STATE IN STRICTLY STATE SERVICE. ALTHOUGH THE TITLE TO THE PROPERTY OR TO ANY PART THEREOF ISSUED OR RETURNED TO THE NATIONAL GUARD WAS NOT TRANSFERRED TO THE STATE, THERE BEING NO AUTHORITY OF LAW FOR SUCH TRANSFER OF TITLE, SUCH PHYSICAL RETURN, UNDER THE CIRCUMSTANCES, IS BELIEVED TO BE A SUBSTANTIAL COMPLIANCE WITH THE STATEMENT IN MILITIA BUREAU CIRCULAR LETTER NO. 1 THAT THE STATE WOULD RECEIVE REIMBURSEMENT IN KIND FOR THE PROPERTY IN QUESTION.

THE CLAIM THEREFORE, CONSIDERED AS ONE FOR REIMBURSEMENT IN CASH, IS DISALLOWED.