temporarily in a reasonable form of recreation or exercise not required as a part of his regular duty.

It appears to have been the practice of the auditor in the settlement of claims for benefits under the act of 1882 to construe the phrase "in line of duty" along the lines of the interpretation given by direction of Congress to said phrase in the bounty law, supra, and the interpretation placed upon pension laws by the Department of the Interior. Some cases have been found of claims allowed by the auditor to beneficiaries when the employees were killed by accident while returning from temporary leave or when they were otherwise not actually in the performance of the duties required of them.

In the present case it appears that Strom lost his life as the result of an accident. He was in the service more than twenty years with a record marked "excellent" for proficiency, attention to duty, sobriety, ability, and in every other particular. In the circumstances there can be no presumption that his death was due to misconduct.

The fact of his proficiency in handling a boat is well established, and his conduct in leaving his vessel for but a few hours was in accordance with the usual custom of the service. His intention was to engage in a harmless amusement or recreation very properly connected with his service, tending to increase his efficiency in the service, and to keep himself in good physical condition. For a man of his occupation, training, and experience there was nothing hazardous or unusual in going alone in a skiff.

In view of the practice hereinbefore referred to, I believe this claim should be allowed. It is true that there may be many cases. not coming within the phrase "in line of duty," but it is unnecessary and will serve no useful purpose now to discuss hypothetical cases. Such discussion does not prove of great value when an actual case with its attendant facts and circumstances is presented for decision. It is sufficient to hold that the present case comes within the law.

The papers in this claim bear the following indorsement by direction of the Captain Commandant of the Coast Guard:

"Referred to the Surgeon General, Public Health Service, with the request that he will state hereon whether, in his opinion, the inclosed evidence of death, and that it resulted from disease contracted in the line of duty in the Coast Guard, should be considered sufficient."

The next indorsement is by direction of the Surgeon General of the Public Health Service, and reads as follows:

"Returned to the Captain Commandant Coast Guard with the opinion that the evidence of death herewith submitted, and that it resulted from disease contracted in the line of duty in the Coast Guard, should be considered sufficient."

In view of the fact that there is no evidence with the claim indicating that the deceased suffered from any disease, it is not understood why the claim was referred to the Surgeon General, nor why the latter expressed the opinion as to disease shown in the indorsement. Indorsements on other claims for sudden death by accident. appear in the same form. Such a pro forma printed indorsement used indiscriminately weakens the value of any opinion upon a real case of death from disease.

From an examination of a list of cases which have been allowed by the Auditor for the Treasury Department where the death was found to be due to disease, it would appear that the question of whether in each case the disease was contracted in line of duty was determined by the auditor largely, if not entirely, upon the opinion of the Public Health Service.

The opinion of a medical officer is of value and is usually to be accepted, but it does not relieve the auditor of responsibility when he allows or disallows a claim if the evidence before him makes it uncertain whether or not the disease was contracted in line of duty or was the cause of death. This responsibility is shared by the Comptroller of the Treasury if he approves the action of the auditor on revision or fails to revise accounts upon his own motion.

The action of the auditor in disallowing this claim is reversed,

*

TRANSPORTATION OF MOUNTS BELONGING TO OFFICERS OF THE NATIONAL GUARD.

Officers of the National Guard are not entitled to have their authorized private mounts transported at Federal expense from the mobilization camp to their home rendezvous when mustered out of the Federal service at said mobilization camps.

Comptroller Warwick to the Secretary of War, February 13, 1917:

By your reference of the 2d instant of papers forwarded to you by the Judge Advocate General, you request my decision of the question whether W. S. Metcalf, colonel First Infantry, Kansas National Guard, who was mustered out of the Federal service at State mobilization camp, is entitled to have his authorized private mount transported at Federal expense from the mobilization camp to home rendezvous.

The inclosed bill of lading, No. 333, shows that on October 30, 1916, there were transported over the Union Pacific Railway from Fort Riley, Kans., to Lawrence, Kans., a distance of 97 miles, certain articles of property, including one horse, the private mount of Col. Metcalf, First Infantry, Kansas National Guard, and one horse, the private mount of Maj. Means, of same organization.

On October 31, 1916, The Adjutant General of the Ariny notified the commanding general of the Southern Department that

"Private mounts of National Guard officers mustered out of Federal service at State mobilization camps can not legally be transported at Federal expense from State mobilization camps to their home rendezvous."

By indorsement dated January 2, 1917, the depot quartermaster at Chicago, Ill., forwarded the inclosed bill of lading to the adjutant general of Kansas with request that

"Col. Metcalf and Maj. Means, First Infantry, Kansas National Guard, be called upon to make remittance of $8.75 each to cover transportation of private mounts, as shown on the inclosed bill of lading. Remittance should be in favor of the depot quartermaster, Chicago, Ill."

The papers were returned January 15, 1917, with Col. Metcalf's statement of facts as follows:

"I am a field officer of the National Guard and as such required to provide myself with suitable mounts. On the call of the President in June, 1916, I proceeded to Fort Riley with my authorized mount on Government transportation. On relief from Federal duty in October, 1916, I proceeded to my home in Lawrence, Kans., with my authorized mount, being still a field officer of the National Guard required to own a suitable mount and subject to call by the President for Federal duty at any time. I think the mount as much entitled to Government transportation as I was myself.

* *

The following is a copy of an opinion of the Judge Advocate General of the Army October 28, 1916, on this subject:

"2. Section 4 of paragraph 1098, Army Regulations, 1913, provides that

"The horses of deceased or retired officers or officers ordered to their homes to await retirement, or of officers effecting a voluntary transfer, will not be transported at public expense.'

"In an opinion of this office dated May 28, 1912 (J. A. G. O., C24629), with respect to the shipment of two horses of a deceased soldier to his home, it was stated in part that

66.6 * * ** the possession and use of a horse is an incident to duty. The allowances in connection with the personally owned horses of mounted officers accrue when an officer whose duties require him to be mounted becomes the owner of a horse for use in the performance of those duties. If the officer's station is changed, the transportation of his horse becomes a charge against the Quartermaster's Department, within certain limits, because his duties as a mounted officer continue. On the other hand, when the mounted status ceases, as upon transfer to the class of officers not required to be mounted, at retirement from active service or by death the expense of maintaining and transporting the horse ceases to be a charge against the public.'

"And held, that the transportation at public expense of the horse of the deceased officer was not warranted by the regulations.

"3. In the present case the officer was mustered out of the military service of the United States at the mobilization camp, and then and there ceased to be an officer in said service and the need for his mount to enable him to perform the duties as said officer thereupon ceased at that place. I think this is analogous to the case of a mounted officer transferred to the class of officers not required to be mounted, supra, and as there is no law or regulation provided for the transportation of the private mounts of officers mustered out of the military service of the United States to their homes, it is the opinion of this office that the private mounts of National Guard officers mustered out of the Federal service at State mobilization camps can not legally be transported at Federal expense from State mobilization camps to their home rendezvous."

I do not find any law or regulation now in force which in specific terms provides for the transportation of the private mounts of officers from their place of muster out of the military service of the United States to their homes.

Section 220 of the Revised Statutes provides:

"The transportation of troops, munitions of war, equipments, military property, and stores throughout the United States shall be under the immediate control and supervision of the Secretary of War and such agents as he may appoint."

Prior to March 23, 1910, the question of the transportation of an officer's horses from place to place seems to have been left entirely to department orders and regulations (6 Comp. Dec., 826). The act of March 23, 1910 (36 Stat., 255), provides:

* hereafter transportation may be furnished for the owned horses of an officer, not exceeding the number authorized by law, from point of purchase to his station, when he would have been entitled to and did not have his authorized number of owned horses shipped upon his last change of station, and when the cost of shipment does not exceed that from his old to his new station."

Paragraph 2, War Department General Orders, No. 26, of February 9, 1899, is as follows:

"By direction of the Secretary of War, the following is published for the information and guidance of all concerned: The Quartermaster's Department will furnish transportation for the private horses of officers of Volunteers who may be mustered out of the service on account of the muster out of their organizations, or by reason of their services being no longer required, from the places where they are mustered out to the places where they were enrolled or entered the volunteer service, respectively, provided it be shown that such private horses were obtained at the latter places."

Said Order No. 26 has not been carried into the Army Regulations. In the act of August 29, 1916, making appropriations for the support of the Army for the fiscal year ending June 30, 1917, under the

heading "Transportation of the Army and its supplies" (39 Stat., 633), are provisions as follows:

"For transportation of the Army and its supplies, including transportation of the troops when moving either by land or water, and of their baggage, including the cost of packing and crating; for transportation of recruits and recruiting parties; of applicants for enlistment between recruiting stations and recruiting depots; for travel allowance to enlisted men on discharge, and members of the National Guard who have been mustered into the service of the United States and are discharged for physical disabilities: Provided, That hereafter when an enlisted man having ten or more years' service in the Army is discharged on account of disability incurred in the line of duty, transportation of his authorized change of station allowance of baggage from his last duty station to his home, in addition to other travel allowances fixed by law, may be authorized by the Secretary of War: Provided further, That when members of the National Guard, who have been mustered into the service of the United States, have been discharged under the order of the War Department which provides that members of the National Guard with dependent families may be mustered out, transportation from their position on the Mexican border to their homes may be authorized by the Secretary of War;

* 99

The law of August 29, 1916, supra, appropriates funds for the payment of transportation of the troops and of their baggage, etc. Automobiles have been included in the term "baggage" (22 Comp. Dec., 558 and 679), but the utmost extent of meaning given said term would hardly include horses (18 Comp. Dec., 494).

The following is an extract from the decision of the Court of Claims January 15, 1917, in the case of Illinois Central Railway Company v. The United States:

"The act approved April 27, 1914, contains this provision: 'Hereafter private mounts of officers in excess of the authorized mounts may be shipped on Government bill of lading with authorized mounts and reimbursement collected for transportation charges on such excess mounts.'

"This statute by its terms applies to mounts in excess of the authorized mounts of officers and plainly applies to officers who are changing stations, and has no relation to authorized mounts being shipped by officers who are ordered over the seas,' to their homes, or to any other place in the United States. Indeed, the enactment of this law goes to show that it was necessary to have the authority of law for the transportation of excess mounts on change of station, and that such transportation could not legally be provided for by regulation. If that was necessary, then certainly it would appear that the transportation of privately owned horses to points in the United States must be provided for by law, and that no regulation with respect to such transportation is legal.

"It is true that paragraph 1098 of the Army Regulations does provide as follows: 6. Officers ordered for extended service over the seas, or to Alaska, if they so desire, may have their authorized mounts

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