Victorio v. United States, 49541.

• Decision Date: 15 July 1952
• Docket Number: No. 49541.,49541.
• Citation: 106 F. Supp. 182,122 Ct. Cl. 708
• Parties: VICTORIO v. UNITED STATES.
• Court: U.S. Claims Court

106 F. Supp. 182

122 Ct. Cl. 708

VICTORIO v. UNITED STATES.

No. 49541.

United States Court of Claims.

July 15, 1952.

Prew Savoy, Washington, D. C., George A. Nugent and H. H. Martin, Washington, D. C., on the brief, for plaintiff.

Thomas O. Fleming, Washington, D. C., Holmes Baldridge, Asst. Atty. Gen., John B. Miller, Washington, D. C., on the brief, for defendant.

Before JONES, Chief Judge, and LITTLETON, WHITAKER, MADDEN and HOWELL, Judges.

HOWELL, Judge.

On July 10, 1950, plaintiff's initial petition filed March 13, 1950, was dismissed on defendant's motion to dismiss. 91 F.Supp. 748. Plaintiff's claim was for reimbursement of the value of cattle allegedly furnished certain guerrilla forces known as Hunters ROTC Guerrillas of Luzon, during the Japanese occupation of the Philippine Islands from 1942 to 1945, inclusive. The ground of the court's opinion dismissing the petition was that the guerrilla band in question, although recognized and made a part of the Army of the Philippines, was not a part of the Army of the United States in spite of General MacArthur's order of January 31, 1945 recognizing Hunters ROTC Guerrillas, retroactive to May 7, 1942, as a "non-standard element of the Philippine Army serving with the armed forces of the United States," and that the requisitioning was not done by, for, or on behalf of the United States.

In reaching this conclusion, the court noted that the definition of the "Army of the United States" contained in 10 U.S.C.A. § 2 did not include, specifically or by implication, the Philippine Army even while that army was in the service of the United States; that for pay, allowances, operation, maintenance and other expenses, the Philippine Army was regarded as a separate entity by Congress in appropriating the necessary funds; and that both the surrender order of General Wainwright and the later recognition order of General MacArthur in 1945, emphasized the separate identity of the Philippine Army.

At the time of our decision in this case, the court had before it only a so-called "Petition for Review and Reconsideration" prepared by a Philippine attorney who had little knowledge of the English language or of Court of Claims procedure. The only discussion of the applicable law was contained in defendant's motion for dismissal and the memoranda in support thereof. Since that time the court has allowed plaintiff's motion to substitute American counsel as attorney of record and has permitted such counsel to file an amended motion for a new trial. The parties have now furnished the court with photostatic copies of numerous pertinent official documents and with exhaustive briefs, bearing directly upon the issue of whether or not the Philippine Army and the recognized guerrilla units incorporated therein were, when called "into the service of" the Army of the United States, a part of the United States Army so as to render the United States liable on claims of persons from whom supplies were requisitioned by such guerrilla units.

The factual basis of plaintiff's claim is that plaintiff, a citizen and resident of the Republic of the Philippines, and a resident of the Philippine Islands during the period from 1941 to date, was the owner of a herd of cattle. During the years 1942 through 1945, a Philippine guerrilla band known as Hunters ROTC Guerrillas, requisitioned from plaintiff's ranch in Tanay, Rizal, some 450 head of cattle alleged to have a total value of $75,200. It is alleged that at the time of requisitions, authorized commanding officers of the guerrilla unit agreed that plaintiff would be paid for the cattle at a later date by appropriate American Army authorities. On March 24, 1948, plaintiff filed a claim for the value of his cattle with the Claims Service of Philippine-Ryukus Command (Philrycom). The claim was disallowed on April 20, 1948, for lack of evidence and a subsequent request for reconsideration was denied in 1949.

It is defendant's position that upon a proper interpretation of the various laws, proclamations and orders applicable to the facts herein, the Philippine Army, including the recognized guerrilla units, was not a part of the Army of the United States but rather served with our Army in the same manner as did allied troops in Europe under the over-all command of General Eisenhower and that accordingly the United States is not liable for the requisitioning obligations incurred by such troops.

The definition of the "Army of the United States" as found in the Act of June 3, 1916, as amended¹ is as follows:

"The Army of the United States shall consist of the Regular Army, the National Guard of the United States, the National Guard while in the service of the United States, the Officers' Reserve Corps, the Organized Reserves, and the Enlisted Reserve Corps, and shall include persons inducted into the land forces of the United States under sections 301-318 of Appendix to Title 50 the Selective Training and Service Act of 1940, as amended."

Defendant urges first that the guerrilla unit in question, even as a recognized part of the Philippine Army, could not and did not fit into any of the categories laid down by Congress, and that therefore any recognition of such unit or attempt to classify it as a part of the Army of the United States by official proclamation or order of the President of the United States or General MacArthur was ineffective by virtue of Article I, Section 8, of the Constitution of the United States vesting in Congress the exclusive authority to raise and support armies for the common defense of the United States. From this defendant seems to argue that Section 2(a) (12) of the Philippine Independence Act of March 24, 1934, 48 Stat. 456, 48 U.S.C.A. § 1232, and the Ordinance later appended to the Philippine Constitution, could not have had the effect of making the Philippine Army a part of the Army of the United States when that Army was, as provided in such section and Constitution, called "into the service of" the armed forces of the United States.

The Philippine Independence Act of March 24, 1934, supra, is described in the preamble to the statute as an Act "to provide for the complete independence of the Philippine Islands, to provide for the adoption of a constitution and a form of government for the Philippine Islands, and for other purposes." Section 1 of that Act authorizes the Philippine Legislature to call a constitutional convention and to draft a constitution subject to certain conditions and qualifications prescribed by the United State Congress in the Act. Section 2 sets forth certain mandatory provisions to be included in the new constitution pending the final and complete withdrawal of the sovereignty of the United States. The mandatory provision contained in subsection (a) (12) is as follows:

"The Philippine Islands recognizes the right of the United States to expropriate property for public uses, to maintain military and other reservations and armed forces in the Philippines, and, upon order of the President, to call into the service of such armed forces all military forces organized by the Philippine government."

The Constitution of the Commonwealth of the Philippines was adopted February 8, 1935 and the Ordinance appended to that constitution contained a provision (12) substantially identical with the mandatory provision above quoted.

On July 26, 1941, President Roosevelt issued the following "Military Order," 6 Fed.Reg. 3825:

"Under and by virtue of the authority vested in me by the Constitution of the United States, by section 2(a) (12) of the Philippine Independence Act of March 24, 1934 (48 Stat. 457), and by the corresponding provision of the Ordinance appended to the Constitution of the Commonwealth of the Philippines, and as Commander-in-Chief of the Army and Navy of the United States, I hereby call and order into the service of the armed forces of the United States for the period of the existing emergency, and place under the command of a General Officer, United States Army, to be designated by the Secretary of War from time to time, all of the organized military forces of the Government of the Commonwealth of the Philippines: Provided, that all naval components thereof shall be placed under the command of the Commandant of the Sixteenth Naval District, United States Navy.

"This order shall take effect with relation to all units and personnel of the organized military forces of the Government of the Commonwealth of the Philippines, from and after the dates and hours, respectively, indicated in orders to be issued from time to time by the General Officer, United States Army, designated by the Secretary of War."

On the same day Douglas MacArthur was designated the Commanding General of the United States Army Forces in the Far East (USAFFE). Shortly thereafter General MacArthur issued a statement through his headquarters indicating the general plan for the integration of the organized armed forces of the Philippine Commonwealth into the service of the Army of the United States. On December 18, 1941, General MacArthur issued General Orders No. 46 providing:

"1. Pursuant to provisions of the Proclamation of the President of the United States, dated July 26, 1941, all personnel of the Philippine Army on active duty and all active units of the Philippine Army, less personnel and units already accepted for service with the United States Army Forces, are hereby called into the service of the armed forces of the United States in the Philippines, effective on the date of acceptance for the period of the existing emergency, and will be accepted for such service of officers in the service of the United States Army Forces in the Philippines.

"2. Personnel of the Philippine Army which may hereafter be called to active duty and units thereof which may hereafter be activated are hereby called into the service of the armed forces of the United States in the Philippines, effective on the date of acceptance,

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