B-15568, APRIL 12, 1941, 20 COMP. GEN. 627

B-15568, APRIL 12, 1941, 20 COMP. GEN. 627

TRANSPORTATION - LAND GRANT - MILITARY PERSONNEL ON SELECTIVE SERVICE SYSTEM DUTIES TRAVEL OF MILITARY PERSONNEL IN CONNECTION WITH THE FUNCTIONING OF THE SELECTIVE SERVICE SYSTEM, WHETHER PERFORMED UNDER ORDERS ISSUED BY THE WAR DEPARTMENT OR BY THE DIRECTOR OF THE SELECTIVE SERVICE SYSTEM, AND WHETHER CHARGEABLE TO " SELECTIVE SERVICE APPROPRIATIONS" OR TO " SELECTIVE SERVICE APPROPRIATIONS TRANSFERRED TO THE WAR DEPARTMENT," MAY BE CONSIDERED MILITARY IN CHARACTER IN THE ABSENCE OF ANYTHING TO SHOW OTHERWISE, AND CHARGES FOR SUCH TRAVEL ARE SUBJECT TO APPROPRIATE DEDUCTION FOR LAND GRANT.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, APRIL 12, 1941:

YOUR LETTER DATED MARCH 13, 1941, IS AS FOLLOWS:

IT HAS COME TO MY ATTENTION THAT NOTWITHSTANDING YOUR DECISION OF NOVEMBER 25, 1940, B-13422, CERTAIN RAIL CARRIERS HAVE RAISED A QUESTION AS TO WHETHER LAND-GRANT DEDUCTION IS AUTHORIZED UNDER THE PROVISIONS OF SECTION 321, PART II, TITLE III OF THE TRANSPORTATION ACT OF 1940 ( PUBLIC NO. 785, APPROVED SEPTEMBER 18, 1940), FOR TRAVEL OF MILITARY PERSONNEL ON DUTY IN CONNECTION WITH SELECTIVE SERVICE CHARGEABLE TO EITHER SELECTIVE SERVICE APPROPRIATIONS OR SELECTIVE SERVICE APPROPRIATIONS TRANSFERRED TO THE WAR DEPARTMENT.

IT IS, THEREFORE, REQUESTED THAT DECISION BE RENDERED ON THE QUESTION WHETHER TRAVEL OF MILITARY PERSONNEL IN CONNECTION WITH THE SELECTIVE SERVICE IS TRAVEL ON OFFICIAL DUTY WITHIN THE MEANING OF SECTION 321 OF THE TRANSPORTATION ACT OF 1940, SUPRA, SO AS TO ENTITLE THE GOVERNMENT TO LAND-GRANT DEDUCTIONS IN THE FOLLOWING CASES:

A. WHERE MILITARY PERSONNEL TRAVEL IS PERFORMED UNDER COMPETENT ORDERS ISSUED BY THE DIRECTOR OF SELECTIVE SERVICE SYSTEM, OR HIS DULY AUTHORIZED REPRESENTATIVE, ON TRANSPORTATION REQUESTS CHARGEABLE TO SELECTIVE SERVICE APPROPRIATIONS.

B. WHERE MILITARY PERSONNEL TRAVEL IS PERFORMED UNDER COMPETENT MILITARY ORDERS ISSUED BY THE WAR DEPARTMENT IN CONNECTION WITH SELECTIVE SERVICE APPROPRIATIONS TRANSFERRED TO THE WAR DEPARTMENT.

THE DECISION OF NOVEMBER 25, 1940, PERTAINS TO DEDUCTIONS FOR LAND GRANT IN CONNECTION WITH THE TRANSPORTATION OF PROPERTY OF THE UNITED STATES IN THE LIGHT OF PROVISIONS OF THE CITED STATUTE IN PERTINENT PART AS FOLLOWS:

* * * THE FULL APPLICABLE COMMERCIAL RATES * * * OR CHARGES SHALL BE PAID FOR TRANSPORTATION * * * OF ANY * * * PROPERTY FOR THE UNITED STATES, OR ON ITS BEHALF, EXCEPT THAT THE FOREGOING PROVISION SHALL NOT APPLY TO THE TRANSPORTATION OF MILITARY OR NAVAL PROPERTY OF THE UNITED STATES MOVING FOR MILITARY OR NAVAL AND NOT FOR CIVIL USE * * *.

IN THIS CONNECTION THERE WAS CONSIDERED THE QUESTION WHETHER LAND GRANT DEDUCTIONS WOULD CONTINUE TO APPLY "WITH RESPECT TO PROPERTY OF THE SELECTIVE SERVICE SYSTEM TURNED OVER TO THE WAR DEPARTMENT FOR SHIPMENT" AND AS TO SUCH TRANSPORTATION THE DECISION SETS FORTH:

* * * THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, PUBLIC NO. 783, APPROVED SEPTEMBER 16, 1940, DECLARED IT TO BE "IMPERATIVE TO INCREASE AND TRAIN THE PERSONNEL OF THE ARMED FORCES OF THE UNITED STATES" AND WITH A VIEW TO MEETING THE NECESSITY, SO RECOGNIZED AS EXISTING, AUTHORIZED THE PRESIDENT, IN SECTION 10, TO CREATE AND ESTABLISH A SELECTIVE SERVICE SYSTEM AND TO OBTAIN BY PURCHASE, LOAN, OR GIFT, SUCH EQUIPMENT AND SUPPLIES FOR THE SELECTIVE SERVICE SYSTEM AS HE MIGHT DEEM NECESSARY TO CARRY OUT THE PROVISIONS OF SAID ACT. ASSUMING, THEREFORE, THAT THE TRANSPORTATION OF PROPERTY OF THE SELECTIVE SERVICE SYSTEM IS DIRECTED TO THE ACCOMPLISHMENT OF THE PURPOSES OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, IT IS APPARENT THAT THE PURPOSE OF THE TRANSPORTATION SO UNDERTAKEN IS MILITARY RATHER THAN CIVIL AND IN THE VIEW THAT WHATEVER PROPERTY IS NECESSARY TO INCREASE OR TRAIN THE PERSONNEL OF THE ARMED FORCES IS PROPERLY TO BE REGARDED AS MILITARY PROPERTY WHEN SO USED, NO REASON APPEARS WHY SUCH TRANSPORTATION IS NOT WITHIN THE DESCRIPTION OF "MILITARY OR NAVAL PROPERTY OF THE UNITED STATES MOVING FOR MILITARY OR NAVAL AND NOT FOR CIVIL USE.'

CONCERNING THE TRANSPORTATION OF PERSONS SECTION 321 (A), PART II, TITLE III, OF THE TRANSPORTATION ACT OF 1940, PROVIDES:

* * * THE FULL APPLICABLE COMMERCIAL RATES, FARE, OR CHARGES SHALL BE PAID FOR TRANSPORTATION * * * OF ANY PERSONS * * * FOR THE UNITED STATES, OR ON ITS BEHALF, EXCEPT THAT THE FOREGOING PROVISION SHALL NOT APPLY * * * TO THE TRANSPORTATION OF MEMBERS OF THE MILITARY OR NAVAL FORCES OF THE UNITED STATES (OR OF PROPERTY OF SUCH MEMBERS) WHEN SUCH MEMBERS ARE TRAVELING ON OFFICIAL DUTY; * * *.

THE EFFECT OF THE PROVISION EXCEPTING "THE TRANSPORTATION OF MEMBERS OF THE MILITARY OR NAVAL FORCES * * * WHEN SUCH MEMBERS ARE TRAVELING ON OFFICIAL DUTY" FROM THE REQUIREMENT IN SECTION 321 FOR PAYMENT OF FULL APPLICABLE COMMERCIAL FARES OR CHARGES WAS SIMPLY TO LEAVE THE MATTER OF THE CHARGES FOR SUCH TRANSPORTATION SUBJECT TO THE PROVISIONS OF LAW OPERATING INDEPENDENTLY OF SAID SECTION 321. SEE IN THIS CONNECTION DECISION OF NOVEMBER 1, 1940, B-13130, 20 COMP. GEN. 237, UPON YOUR REQUESTS RELATIVE TO CHARGES FOR THE TRANSPORTATION OF HOUSEHOLD GOODS OF AN OFFICER OF THE ARMY.

CONSIDERING YOUR PRESENT QUESTIONS THEREFORE IN THE LIGHT OF THE STATUTORY REQUIREMENTS OTHERWISE APPLICABLE, IT IS TO BE NOTED THAT MOST OF THE ACTS OF CONGRESS WHICH GRANTED LANDS IN AID OF RAILROADS PROVIDED THAT SAID RAILROADS SHOULD BE "FREE FROM TOLL OR OTHER CHARGE UPON THE TRANSPORTATION OF * * * TROOPS OF THE UNITED STATES.' THE WORD "TROOPS" HAS BEEN HELD TO HAVE AN ESTABLISHED MEANING, NAMELY,"SOLDIERS COLLECTIVELY--- A BODY OF SOLDIERS" WHO ARE PART OF THE MILITARY ESTABLISHMENT. UNITED STATES V. UNION PACIFIC RAILROAD COMPANY, 249 U.S. 354. THE REDUCED (OR LAND-GRANT) RATE IS APPLICABLE TO ONE OF SUCH A COLLECTIVE BODY OF SOLDIERS ALTHOUGH HE MAY NOT BE TRAVELING AS PART OF A DETACHMENT OR MOVING BODY OF MEN. ILLINOIS CENTRAL RAILROAD COMPANY V. THE UNITED STATES, 62 CT.1CLS. 61; CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY V. THE UNITED STATES, 58 CT.1CLS. 33.

HOWEVER, IT HAS BEEN HELD THAT ALTHOUGH CERTAIN PERSONS MAY BE PROPERLY CHARACTERIZED AS MEMBERS OF THE ARMY THEY COULD NOT BE CLASSIFIED AT THE TIME OF THEIR TRANSPORTATION, IN VIEW OF THE PURPOSE OF THE TRANSPORTATION, AS PART OF THE "TROOPS OF THE UNITED STATES" WITHIN THE MEANING OF THE PROVISION HERE CONCERNED. SEE IN THIS CONNECTION THE UNION PACIFIC CASE, SUPRA, AS TO THE TRANSPORTATION OF A FURLOUGHED SOLDIER RETURNING TO HIS STATION, THE TRAVEL BEING FOR HIS OWN PURPOSES. ALSO, IN SOUTHERN PACIFIC CO. V. UNITED STATES, 285 U.S. 240, IT WAS HELD THAT THE WORK OF ENGINEER OFFICERS OF THE ARMY IN CONNECTION WITH RIVER AND HARBOR IMPROVEMENT AND THE CALIFORNIA DEBRIS COMMISSION WAS OF A NONMILITARY NATURE, IN THE INTEREST OF COMMERCE AND NAVIGATION, AND THAT THE ACTIVITY OF SUCH OFFICERS IN CONNECTION THEREWITH WAS NONMILITARY IN CHARACTER, EXCLUDING THEM FROM CLASSIFICATION AS A PART OF "THE TROOPS OF THE UNITED STATES.'

YOUR PRESENT SUBMISSION PERTAINS TO TRAVEL OF "MILITARY" PERSONNEL "UNDER COMPETENT" ORDERS "IN CONNECTION WITH THE SELECTIVE SERVICE" AND APPARENTLY THERE IS NOT INVOLVED ANY TRAVEL OF SUCH PERSONNEL FOR THEIR OWN PURPOSES. THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, PUBLIC, NO. 783, APPROVED SEPTEMBER 16, 1940, IS ENTITLED:

AN ACT TO PROVIDE FOR THE COMMON DEFENSE BY INCREASING THE PERSONNEL OF THE ARMED FORCES OF THE UNITED STATES AND PROVIDING FOR ITS TRAINING.

UNDER THE PROVISIONS OF THIS ACT EVERY MALE CITIZEN OF THE UNITED STATES, BETWEEN GIVEN AGES AS OF CERTAIN DATES, IS REQUIRED TO PRESENT HIMSELF FOR REGISTRATION, AND IS LIABLE FOR TRAINING AND SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES. THE PRESIDENT IS AUTHORIZED TO SELECT AND INDUCT INTO SUCH FORCES FOR TRAINING AND SERVICE SUCH NUMBER OF ELIGIBLE MEN, NOT TO EXCEED THE NUMBER FOR WHICH CONGRESS MAKES SPECIFIC APPROPRIATION, AS IN HIS JUDGMENT IS REQUIRED FOR SUCH FORCES IN THE NATIONAL INTEREST. UPON COMPLETION OF THE PERIOD OF TRAINING, EACH MAN IS TO BE TRANSFERRED TO A RESERVE COMPONENT OF THE LAND OR NAVAL FORCES AND BE SUBJECT TO SUCH ADDITIONAL TRAINING OR SERVICE AS MAY BE PRESCRIBED BY LAW. THE ACT AUTHORIZES THE PRESIDENT TO CREATE AND ESTABLISH A SELECTIVE SERVICE SYSTEM AND PROVIDES:

* * * THAT ANY OFFICER ON THE ACTIVE OR RETIRED LIST OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD, OR OF ANY RESERVE COMPONENT THEREOF OR ANY OFFICER OR EMPLOYEE OF ANY DEPARTMENT OR AGENCY OF THE UNITED STATES WHO MAY BE ASSIGNED OR DETAILED TO ANY OFFICE OR POSITION ON LOCAL BOARDS, APPEAL BOARDS, OR AGENCIES OF APPEAL ESTABLISHED OR CREATED PURSUANT TO SECTION 10 (A) (2) MAY SERVE IN AND PERFORM THE FUNCTIONS OF SUCH OFFICE OR POSITION WITHOUT LOSS OF OR PREJUDICE TO HIS STATUS AS SUCH OFFICER IN THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD OR RESERVE COMPONENT THEREOF, OR AS SUCH OFFICER OR EMPLOYEE IN ANY DEPARTMENT OR AGENCY OF THE UNITED STATES: * * *

THESE PROVISIONS OBVIOUSLY ARE IN FURTHERANCE OF THE GENERAL PURPOSES STATED IN SECTION 1 OF THE ACT, NAMELY:

THAT (A) THE CONGRESS HEREBY DECLARES THAT IT IS IMPERATIVE TO INCREASE AND TRAIN THE PERSONNEL OF THE ARMED FORCES OF THE UNITED STATES.

(B) THE CONGRESS FURTHER DECLARES THAT IN A FREE SOCIETY THE OBLIGATIONS AND PRIVILEGES OF MILITARY TRAINING AND SERVICE SHOULD BE SHARED GENERALLY IN ACCORDANCE WITH A FAIR AND JUST SYSTEM OF SELECTIVE COMPULSORY MILITARY TRAINING AND SERVICE.

IT IS CLEAR, THEREFORE, THAT THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 RELATES PRIMARILY TO ACTIVITIES PURELY MILITARY IN THEIR OBJECTIVE, TO WIT: THE INCREASE OF THE PERSONNEL OF THE ARMED FORCES BY THE PROCESS OF SELECTION FROM REGISTERED ELIGIBLES, THEIR INDUCTION INTO THE LAND AND NAVAL FORCES, AND THEIR TRAINING FOR MILITARY PURPOSES OF DEFENSE. THIS CONNECTION IT IS NOTED THAT AN APPROPRIATION FOR THE "OPERATION AND MAINTENANCE OF THE SELECTIVE SERVICE SYSTEM AS AUTHORIZED BY THE SELECTIVE TRAINING AND SERVICE ACT OF 1940" WAS MADE IN THE " THIRD SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941," PUBLIC NO. 800, APPROVED OCTOBER 8, 1940," TITLE I" OF WHICH DEALS WITH " MILITARY ACTIVITIES," AND EXPENSES OF THE WAR DEPARTMENT INCIDENT THERETO, AND UNDER SECTION 101 PROVIDES--- " THIS TITLE MAY BE CITED AS " TITLE IV, MILITARY APPROPRIATION ACT, 1941.'" TITLE I OF THE ACT OF OCTOBER 8, 1940, MAKES APPROPRIATIONS "FOR THE MILITARY ESTABLISHMENT" AND IN CONNECTION WITH THE SELECTIVE SERVICE SYSTEM, PROVIDES---

* * * THAT THE TRAVEL OF PERSONS ENGAGED IN THE ADMINISTRATION OF THE SELECTIVE SERVICE SYSTEM, INCLUDING COMMISSIONED, WARRANT, OR ENLISTED PERSONNEL OF THE ARMY, NAVY, MARINE CORPS, OR THEIR RESERVE COMPONENTS, MAY BE ORDERED BY THE DIRECTOR OR BY SUCH PERSONS AS HE MAY AUTHORIZE, * * * COMPARE SOUTHERN PACIFIC CO. V. UNITED STATES, 285 U.S. 240 (246).

WHILE APPROPRIATION FOR THE SELECTIVE SERVICE SYSTEM FOR 1942 IS MADE IN THE INDEPENDENT OFFICES APPROPRIATION ACT, 1942, PUBLIC, NO. 28, SEVENTY- SEVENTH CONGRESS, APPROVED APRIL 5, 1941, IT IS OBVIOUS THAT THE GENERAL PURPOSES TO BE SERVED BY THE SELECTIVE SERVICE SYSTEM ARE NOT, MERELY BY REASON OF THAT CIRCUMSTANCE, TO BE REGARDED AS HAVING BEEN CHANGED IN CHARACTER FROM MILITARY TO NONMILITARY.

ACCORDINGLY, IT WOULD APPEAR THAT THE TRAVEL OF MILITARY PERSONNEL IN CONNECTION WITH THE FUNCTIONING OF THE SELECTIVE SERVICE SYSTEM IS NOT REQUIRED TO BE REGARDED AS NONMILITARY IN CHARACTER MERELY BECAUSE PERFORMED UNDER ORDERS ISSUED BY THE DIRECTOR OF THE SELECTIVE SERVICE SYSTEM ON TRANSPORTATION REQUESTS CHARGEABLE TO " SELECTIVE SERVICE APPROPRIATIONS" AND IN THE ABSENCE OF ANYTHING TO SHOW IN INDIVIDUAL INSTANCES THAT THE PURPOSE OF THE TRAVEL IS OTHERWISE THAN IN FURTHERANCE OF THE OBVIOUS MILITARY PURPOSES TO BE SUBSERVED BY THE SELECTIVE SERVICE SYSTEM THE TRAVEL OF SUCH PERSONNEL WHETHER PERFORMED UNDER ORDERS ISSUED BY THE WAR DEPARTMENT AND WHETHER CHARGEABLE TO " SELECTIVE SERVICE APPROPRIATIONS" OR TO " SELECTIVE SERVICE APPROPRIATIONS TRANSFERRED TO THE WAR DEPARTMENT" WOULD APPEAR TO BE PROPERLY SUBJECT, IN THE MATTER OF CHARGES, TO APPROPRIATE DEDUCTION FOR LAND GRANT.