the entire number used by, the 29th Military Police Company in the discharge of their official duties, in the maintenance of a provost guard at Virginia Beach, Va., during the period of the field-training encampment of the National Guard of the District of Columbia, August 16 to 30, 1925.

This transportation was purchased without requests in view of the reduced rate at which it could be secured in this manner, .088 cents a round trip against the regular rate of 24 cents, which would have been the rate if purchased on transportation requests.

This transportation was furnished over an electric-car line running from the camp site to Virginia Beach, a distance of about three miles, and was in the nature of street-car fare.

There appears to be no specific provision of law for the payment of an expense of this nature; section 67 of the national defense act as amended by section 3 of the act of September 22, 1922, 42 Stat. 1034, concerning the appropriation, apportionment, and disbursement of funds for the National Guard, provides for "other incidental expenses in connection with lawfully authorized encampments, maneuvers, and field instruction," and section 94 of the same act, 39 Stat. 206, pertaining to encampments and maneuvers, provides for payment of "other proper expenses," but in each case the expenditure is subject to such regulations as may be prescribed by the President and Secretary of War. 1 Comp. Gen. 642.

The discipline of the National Guard, under section 91 of the national defense act, 39 Stat. 206, which includes training, is covered by National Guard Regulations No. 36, dated December 31, 1924, but no provision is made for the maintenance of a provost guard either at or away from the camp of instruction.

The Twenty-ninth Military Police Company, District of Columbia National Guard, was one of the organizations authorized to participate in the annual encampment at Virginia Beach, Va., from August 16 to 30, 1925, and it is stated that the expense in question for transportation was incurred in the discharge of their official duties in the maintenance of a provost guard at Virginia Beach proper, a distance stated to be 3 miles from the authorized camp of· instruction. Members of the National Guard attending encampments under section 94 of the national defense act are not in the Federal service. 2 Comp. Gen. 189. They are civilians belonging to a State military force, see case of State v. Johnson, 202 N. W. 191. Any expense in connection with the maintenance of order among members of such force while away from the camp, and to secure their return thereto upon expiration of pass or permission to be temporarily absent therefrom is an expense properly devolving upon the State, Territory, or District to which the militia or National Guard belongs. Neither the basic law nor the annual appropriation under "Arming, equipping, and training the National Guard," provides for such an expense to be borne by the United States. As has been frequently stated, the National Guard is a State force and it is only

expenses in connection with its maintenance and training which are specifically authorized by law that may be paid under the appropriations "Arming, equipping, and training the National Guard." 1 Comp. Gen. 257, 553; 2 id. 189, 274; 4 id. 243; 5 id. 883.

You are advised that payment on the voucher is not authorized.

(A-21260)

PROPERTY, PRIVATE-LOST, DAMAGED, ETC., IN THE MILITARY SERVICE

Sections 3 and 4 of the act of March 4, 1921, 41 Stat. 1436, require the personal action of the Secretary of War or of an Assistant Secretary of War by his direction. Action on claims filed under said act by any other officer or employee "by direction of the Assistant Secretary of War" is not a determination under the statute and is not authority to the disbursing officer to pay the claim.

Where the basis of a claim for damage to the personal property of an officer of the Army during shipment under orders is an unsupported statement of the claimant that the shipment was improperly packed and the evidence shows it was for personal reasons in storage a period of over eight months in two different places and handled by commercial truck between such places of storage, damage during shipment is not proven with sufficient certainty to authorize payment of the damage under the act of March 4, 1921, 41 Stat. 1436.

Comptroller General McCarl to Maj. E. T. Comegys, United States Army, February 24, 1928:

There has been received your letter of January 6, 1928, submitting with request for decision thereon voucher for $35 in favor of Capt. Calvert H. Arnold, Signal Corps, United States Army, representing the ascertained damage to a victrola, a part of his change of station baggage allowance which occurred between date of shipment June 28, 1926, and date of unpacking March 16, 1927.

By paragraph 57, Special Orders No. 96, dated War Department, Washington, April 23, 1926, Captain Arnold was relieved from duty at Fort Monmouth, N. J., on or about August 20, 1926, and directed to report to the Chief Signal Officer, Washington, for duty. On or about June 15, 1926, Captain Arnold turned over to the quartermaster at Fort Monmouth his household goods for packing, crating, and shipment and on June 28, 1926, they were shipped on Government bill of lading via the New York & Long Branch Railroad, to the quartermaster, General Intermediate Depot, Washington, D. C., for Capt. Calvert H. Arnold. The date of receipt of the shipment in Washington is not shown, but when received was placed in storage, part of the shipment was withdrawn from storage in August, 1926,· and the remainder, including the package containing the damaged victrola, January 31, 1927, delivery being made on the order of claimant to the Smith Storage Co. of Washington, delivery being

made to his residence February 1, 1927, when it was unpacked March 16, 1927. The claimant describes the conditions found as follows:

The box in which it had been packed had suffered no damage, and suggested nothing of what was to be disclosed upon its being opened. It was strong, well nailed, and intact in every detail. However, it developed upon unpacking that the victrola had become almost demolished, due to it not having been braced in this box, considerably larger in every dimension. The shocks and falls thereby sustained by the instrument during handling in shipment resulted in the collapse of the top, the fracture of the edges, the unwedging of the sound walls and motor housing, and damages to the mechanical apparatus.

Claim was made against the transportation company, the damage and its cause being described substantially as above, which was declined, the damage, if any, sustained during shipment not having been due to improper handling on the part of the carriers.

The officer, then being on duty in the office of the Assistant Secretary of War, made claim for the amount of the damage under the provisions of the act of March 4, 1921, 41 Stat. 1436, and a board of officers convened at the headquarters District of Washington found among other facts:

(5) That the damage was due wholly to the negligence of one Mr. Conrow, civilian employee of the quartermaster, Fort Monmouth, N. J., the said Mr. Conrow, having since been discharged and his present address unknown, in that the said Mr. Conrow crated claimant's Victrola in an improper manner.

The board thereupon recommended payment of $35 in full and complete settlement of the claim. The board of review in the office of the Chief of Finance, recommended rejection of the claim in view of decisions of this office that when damage occurs to the change of station baggage of an officer which before or after shipment (or both) was in storage for a substantial period, there is no presumption that the damage occurred during shipment, the condition fixed in the law, and that in such case payment is authorized only if it can be shown with reasonable certainty that the damage in fact occurred during shipment. The claimant was advised accordingly.

Thereupon, by indorsement of December 5, 1927, the claimant, pursuant to Army regulations, requested that his claim be forwarded to the Secretary of War for the action to be taken by him where the award by the Chief of Finance is declined. The Chief of Finance, by second indorsement of December 10, 1927, forwarded the file stating in part:

2. The present statement of claimant that evidence showing the method in which the instrument was packed tends to indicate that it would be a physical impossibility for said instrument to undergo shipment without considerable, if not total damage, is not borne out by the evidence submitted in these papers. Claimant stated before the local board that considered his claim that the Victrola was improperly packed, which statement is substantiated only by a person who saw the instrument unpacked about 9 or 10 months after it had arrived at its destination in Washington. On the other hand, the evidence furnished from the records of the quartermaster, Fort Monmouth, New Jersey, all points conclusively to the fact that this Victrola, together with all other property of claimant, was properly packed and inspected before shipment. There

is no positive evidence that the damage in question did not occur either in storage, in delivery to claimant by commercial truck, or after its receipt by claimant, February 1, 1927, between that date and March 16, 1927, when it was unpacked. It is further noted that the railroad declined all responsibility for the damage in question, there being no evidence of rough handling. The papers by informal reference on Form No. 1"

as follows:

66

were referred

OFFICE OF THE ASSISTANT SECRETARY OF WAR,
(Date) December 15, 1927.

Subject: 2nd Ind. from Chief of Finance 12/10 re the
Fin. claim of Capt. Calvert H. Arnold.

To the JUDGE ADVOCATE GENERAL.

The Judge Advocate General, by memorandum to the Assistant Secretary of War, December 29, 1927, reviewed the facts and reached the following conclusion:

6. There is no direct evidence in the instant case as to the time, place, and manner of damage. There is evidence showing with reasonable certainty, however, that the Victrola was packed so negligently by the quartermaster at Fort Monmouth that damage was to be expected in the ordinary course of events with the first movement of the property from the place where it was packed and would in all probability continue throughout the time when the property should be in a transportation status. The evidence indicates that the conditions of storage were excellent after the arrival of the property in Washington; that it was not moved while in storage; and that it would have been virtually impossible for the damage to have occurred while it was in storage in the Washington general depot. The only subsequent opportunity for the damage to have occurred was while the Victrola was being delivered to claimant by commercial truck or while in storage at his apartment. It is highly improbable, to say the least, that the Victrola, packed loosely in the container as it was, could have escaped damage in the journey from Fort Monmouth, New Jersey, to Washington, D. C., to suffer it only when being delivered in Washington or while at claimant's apartment.

7. It is, therefore, the opinion of this office that an inference is justly and with reasonable certainty to be deduced from the established circumstances of the case to the effect that the damage resulted from, and occurred during the transportation of the Victrola from Fort Monmouth, New Jersey, to Washington, D. C.

* *

This memorandum, although bearing the receiving stamp of the "Asst. Secys. Office-War Dept.," December 29, 1927, bears no evidence of action thereon in that office, nor is there other evidence in the file that the matter was submitted to or acted upon by the Secretary or the Assistant Secretary of War. The next document in the file is a letter from the office of the Chief of Finance to you, dated January 3, 1928, transmitting voucher and papers with the following statement:

2. This claim has been determined and approved by the Secretary of War under authority of the act of Congress approved March 4, 1921, as construed by the Comptroller General in his decision dated September 29, 1921, and there

is attached a certificate signed by the direction of the Assistant Secretary of War approving the recommendation of the Judge Advocate General, hereto attached, approving the claim with respect to both amount and facts of the loss.

As heretofore stated, if such a certificate exists it was not included in the file transmitted by you to this office. Sections 3 and 4 of the act of March 4, 1921, provide:

SEC. 3. That the Secretary of War is authorized and directed to examine into, ascertain, and determine the value of such property lost, destroyed, captured, or abandoned as specified in the foregoing paragraphs, or the amount of damage thereto, as the case may be; and the amount of such value or damage so ascertained and determined shall be paid by disbursing officers of the Army, or such property lost, destroyed, captured, or abandoned, or so damaged as to be unfit for service may be replaced in kind from Government property on hand when the Secretary of War shall so direct.

SEC. 4. That the tender of replacement or of commutation or the determination made by the Secretary of War upon a claim presented, as provided for in the foregoing section, shall constitute a final determination of any claim cognizable under this chapter, and such claim shall not thereafter be reopened or considered.

It is to be noted the duty of making a determination of a claim is reposed in the Secretary of War, that it is the action of the Secretary of War that is a final determination and a bar to further consideration. The duty is judicial in nature and is for exercise in person by the Secretary of War or by his direction by one of the Assistant Secretaries of War. Parrish v. United States, 100 U. S. 500. An approval "by the direction of the Assistant Secretary of War" is not a determination under the statute warranting payment of a claim by a disbursing officer, but apparently would permit delegation of the authority ad infinitum. For this reason, you are not authorized to pay the voucher in its present form. That objection is mainly formal, however, and leaves undetermined the legality of payment should the informalities be corrected, which question will now be also considered.

The basis for the view that the victrola was not properly packed is the statement of claimant alone. There is no evidence from the packer. The purport of the evidence is that a person employed as a packer and working as a packer without supervision neglected his duties as to this one package. No other package in the shipment is reported to have been damaged, and no suggestion is made that other shipments packed by the same employee were damaged during shipment. Claimant states there was no packing or bracing whatever, and he is the only witness on this point, as the janitor was called to examine the damage after it was discovered; he also states the container was of larger dimensions than the victrola. If there had been any substantial difference in dimensions such a condition would have resulted in movement of the contents within the container every time the package was handled from the time of loading on truck at the quartermaster's storehouse at Fort Monmouth until placed in