Hoskin v. Resor

• Decision Date: 23 March 1971
• Docket Number: Civ. A. No. 3089-67.
• Citation: 324 F. Supp. 271
• Parties: Harry L. HOSKIN, individually and as president and representative of all the members of the Associated Veterans of the Russian Railway Service Corps, Plaintiffs, v. Stanley RESOR, Secretary of the Army, Defendant.
• Court: U.S. District Court — District of Columbia

324 F. Supp. 271

Harry L. HOSKIN, individually and as president and representative of all the members of the Associated Veterans of the Russian Railway Service Corps, Plaintiffs, v. Stanley RESOR, Secretary of the Army, Defendant.

Civ. A. No. 3089-67.

United States District Court, District of Columbia.

March 23, 1971.

Selma W. Samols, Washington, D. C., for plaintiffs.

Mary Folliard, Asst. U. S. Atty., Washington, D. C., for defendant.

MEMORANDUM OPINION

GASCH, District Judge.

This matter came on for hearing on cross motions for summary judgment. It has been thoroughly briefed, extensive exhibits were filed, and counsel have been heard in open Court. The Court agrees that there is no issue of material fact and concludes that plaintiffs are entitled to summary judgment as a matter of law. This suit raises the issue of whether the members of the Russian Railway Service Corps were members of the Army of the United States during World War I and whether as such they are entitled to an Honorable Discharge therefrom.

The Court takes judicial notice of the following historical facts: Plaintiffs are a group of railroad men who were recruited, mostly from the Great Northern Railroad, during the course of World War I for service in Siberia as part of a military organization officially designated as the American Expeditionary Force, Siberia.¹ The Czar's government had collapsed. The Kerensky provisional government had been recognized by the Allied Powers. Efforts were being expedited designed to maintain some semblance of pressure on the Central Powers on what was then called the Eastern Front in order to preclude the transfer of some two million German soldiers from that Front to the Western Front. One principal means of supply insofar as the Russian Forces were concerned was via the Trans-Siberian Railway. The Pacific port was Vladivostok. Connections utilizing the Chinese Eastern Railroad through Harbin, China, were also under consideration. Russian railroads, particularly the Trans-Siberian, were in a chaotic state of disrepair. The key to the contemplated operation was repair and maintenance, and if possible, improvement of this vital link.²

Mr. Daniel Willard, then President of the Baltimore & Ohio Railroad, was appointed a member of the Advisory Commission of the Council of National Defense by President Wilson. On March 3, 1917, he was elected Chairman of this important Commission. His statement, which is set forth in the affidavit of the plaintiff Hoskin, reflects that following a conference with Sir George Bury, President of the Canadian Pacific, and at the request of the British Prime Minister David Lloyd-George and with the concurrence of President Wilson and Secretary of War Newton D. Baker, Mr. Willard was requested to name a five-man committee to go immediately to Vladivostok for the purpose of evaluating the condition of the Trans-Siberian Railway and reporting thereon to the Allied Powers. Mr. John F. Stevens was named Chairman of this committee. Col. George H. Emerson, formerly general manager of the Great Northern Railroad, became the commanding officer of plaintiffs and those similarly situated.

From the papers filed by the Government in this case, the Court finds the following undisputed material facts: Mr. Daniel Willard's letter dated September 18, 1917, addressed to the Chief of Staff of the United States Army, Gen. Hugh L. Scott, reveals that he was authorized by the Secretary of War to raise and equip a force of approximately two hundred and fifty railroad officers to go to Russia at once for the purpose of acting as instructors of various divisions of the Russian Railroad. Mr. Willard's letter further revealed that the Secretary of War instructed Mr. S. M. Felton (The Director General of Railways, Corps of Engineers, United States Army), working in conjunction with the Chief of Engineers of the United States Army to arrange the details, such as furnishing these men with uniforms. Grades were provided for these railroad men from second lieutenant to colonel. Plaintiffs without exception are in the lower grades. They were given War Department forms on which to apply for commissions in the Officers Reserve Corps. They received direct commissions, photocopies of which are set forth as exhibits to plaintiff's affidavit on the stationery of the War Department, The Adjutant General's Office, which read individually as follows:

Harry Lester Hoskin,

Sir:

You are hereby informed that the President of the United States has appointed you, SECOND LIEUTENANT in the RUSSIAN RAILWAY SERVICE CORPS, organized under authority of the PRESIDENT OF THE UNITED STATES, to rank as such from November first, one thousand nine hundred and seventeen.

Immediately on receipt hereof, return the acceptance herewith enclosed, properly filled in, subscribed and attested.

/s/ Adjutant General.

Thereafter, on the 21st of January, 1920, following service in Siberia, the Adjutant General addressed the plaintiff

Lieutenant Harry L. Hoskin c/o Chief of Engineers Room 2709 Munitions Building Washington, D. C.

Subject: Resignation

The Secretary of War accepted your resignation as second lieutenant in the Russian Service Corps January 4, 1920.

/s/ Adjutant General.

From the Government's papers, the following additional material facts are found:

By letter dated October 6, 1917, Brig. Gen. Black, the Army's Chief of Engineers, set forth the authorized ranks of the Russian Railway Service Corps and indicated that they were to be paid by the Russian Government. The Russian Ambassador by letter dated October 10, 1917, addressed to the Assistant Secretary of the Treasury, authorized payment to these men from funds to the credit of the Russian Government. The compensation paid plaintiffs was slightly in excess of compensation paid Army ranks generally. Plaintiffs were issued regulation Army uniforms.³ United States Army insignia,⁴ including that specified for the Corps of Engineers was authorized and was worn. The initials R.R.S. (Russian Railway Service) were also worn. They were armed with regulation Army side-arms. Upon arrival in Siberia, they assisted in the movement of troops and supplies of the Allies and the provisional or Kolchak government. They also assisted in the evacuation of troops and refugees when the Kolchak government was driven back and in the transport of the Czech-Slovak contingent through Siberia. With the collapse of the Kolchak government, these plaintiffs were evacuated from Siberia with other American troops. The last American transport left Vladivostok April 1, 1920.

On these facts Government counsel contends that these plaintiffs were not members of the United States Army or any branch thereof. The Army has refused to grant these plaintiffs Honorable Discharges, with the rights appertaining thereto, to which they claim they are entitled. The Court finds it difficult under the admitted facts to agree with the Army's conclusion.

I. PAYMENT

The defendant relies heavily upon the assertion that these men were paid by the Russian Government. One of the documents on which reliance is placed is the communication from Ambassador Bakmeteff to which reference has heretofore been made, authorizing payment out of credits held by the Secretary of the Treasury for the Kerensky Government. As previously pointed out, the Kerensky or provisional Government, the Ambassador of which was Mr. Bakmeteff, ceased to exist before the first contingent of the Railway Service Corps arrived in Vladivostok. Payment to plaintiffs thereafter continued but by no stretch of the imagination could it be deemed to have been payment from a nonexistent, bankrupt government.

The Court, being concerned as to what the facts actually were with respect to the payment of these men during their service in Siberia, in the uniform of the United States Army, wearing insignia of the United States Army, and serving under commissions authorized by the President of the United States and issued by the Adjutant General of the United States Army, inquired of respective counsel as to the source of the pay.

The Government has responded that the credit to which Russian Ambassador Bakmeteff referred was for $100,000,000.00 and that this sum had been provided by the United States and was authorized under provisions of the Liberty Bond Act. Of this sum, the Government says, $1,500,000.00 was allocated for the Russian Railway Service Corps.⁵ The comparatively meager amounts supplied by Russian government sources, it appears, were thereafter the subject of reimbursement by the United States. The Kerensky government to which these amounts were credited ceased to exist on October 24, 1917 (November 6, 1917 New Style). The successor Bolshevist government has consistently denied responsibility for this obligation, and the file clearly reflects that no reimbursement has ever been effected.

The Government also relies upon the contention that the rate of pay for these men was slightly higher than that paid to corresponding grades in the National Army. This rate of pay, the file reflects, was fixed by Mr. Felton, Director General of the United States Railways under the Corps of Engineers, U. S. Army. It was designed to compensate those men more adequately for the pay they received in their previous civilian status working for railroads. It is noted that among the war powers conferred upon the President of the United States by the Act of May 18, 1917, H.R. 3545 of the 65th Cong., 40 Stat. 76 was authority to raise by voluntary enlistment special and technical troops as he may deem necessary (Sec. 2, p. 78). Service on courts martial by such specially selected men has been approved by the Supreme Court.⁶

Pay differentials insofar as military personnel are concerned are not unknown in the armed forces. Hazardous duty pay for airmen⁷ or submarine duty pay is well known to all persons with experience in the armed forces or even curiosity concerning the military...