Victorio v. United States, 49541.

• Decision Date: 10 July 1950
• Docket Number: No. 49541.,49541.
• Citation: 91 F. Supp. 748
• Parties: VICTORIO v. UNITED STATES.
• Court: U.S. Claims Court

91 F. Supp. 748

VICTORIO v. UNITED STATES.

No. 49541.

United States Court of Claims.

July 10, 1950.

No appearance for plaintiff.

Thomas O. Fleming, Washington, D. C., with whom was Acting Assistant Attorney General Newell A. Clapp, for the defendant. John B. Miller, Washington, D. C., was on the brief.

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

HOWELL, Judge.

The defendant has moved the court to dismiss plaintiff's petition on the grounds that it does not state a cause of action within our jurisdiction and further that it does not comply with certain rules of the court.

We need only to consider defendant's first ground for its motion as we consider that sufficient in itself to require a dismissal of the petition.

At the outset, it is well to emphasize that Title 28, § 1491, U.S.C.A., gives this court jurisdiction of claims only against the United States.

The petition in this case is entitled "Petition for Review and Reconsideration," and concerns itself with a claim filed by this petitioner with the Claims Service of Philrycom (Philippine Ryukyus Command) of the United States Army in the Philippines on March 27, 1948, 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 during the years 1942 to 1945, inclusive.

Further recitations of the petition disclose that the said Claims Service disapproved the claim and that error is assigned to the Claims Service in its act of disapproval.

An argument and brief in support of the allegation of error is set forth, after which the petition concludes with the prayer that "the entire records of the case be caused to be forwarded to that sic Honorable Court for review of the whole evidence and favorable reconsideration of the claim made."

From a consideration of the matters contained in the petition, and the character of the Hunters ROTC Guerrillas of Luzon as a recognized part of the Army of the Philippines, we are of the opinion that plaintiff's claim is against the Philippine Government and not against the United States.

The Constitution of the Philippine Commonwealth adopted February 8, 1935, provided, in article VII, section 11(2):

"The President of the Commonwealth shall be Commander-in-Chief of all armed forces of the Philippines and, whenever it becomes necessary, he may call out armed forces to prevent or suppress violence, invasion, insurrection, or rebellion. * * *" The Ordinance appended to the Constitution provided:

"Section 1. Notwithstanding the provisions of the foregoing Constitution, pending the final and complete withdrawal of the sovereignty of the United States over the Philippines

* * * * * *

"(12) The Philippines recognizes the right of the United States * * * upon order of the President of the United States, to call into the service of such armed forces all military forces organized by the Government of the Commonwealth of the Philippines. Italics supplied."

It must be noted from the italicized language of this section of the Ordinance that the Philippine Army might be called "into the service of such armed forces of the United States." We believe this clearly discloses that it was the intention of the framers of this Ordinance to maintain the identity of the Army of the Philippines as such even when it was properly in the service of the armed forces of the United States.

The Philippine Army was authorized by and created pursuant to Commonwealth Act No. 1 enacted by the Commonwealth's National Assembly on December 21, 1935. On July 26, 1941, President Roosevelt issued a Military Order, 6 Fed.Reg. 3825, by the terms of which, "* * * I hereby call and order into the service of the armed forces of the United States * * * all of the organized military forces of the Government of the Commonwealth of the Philippines * * *." On October 6, 1941, General MacArthur, by Special Orders No. 15, called the First Regiment of the Philippine Constabulary into the service of USAFFE, and on October 17, 1941 (Philippine time: October 18), General MacArthur, by Special Orders No. 46, called the remaining Philippine Army units on active duty into USAFFE.

The petition before us discloses that the Hunters ROTC Guerrillas were "organized" in the early part of 1942; hence, at the time of the issuance of the above orders by the President and General MacArthur, the Guerrillas were not a part of the organized military forces of the Philippines.

Shortly after Pearl Harbor, the Congress of the United States on December 17, 1941, made provisions for the "Army of the Philippines", 55 Stat. 813, as follows:

"For all expenses necessary for the mobilization, operation, and maintenance of the Army of the Philippines, including expenses connected with calling into the service of the armed forces of the United States the organized military forces of the Government of the Commonwealth of the Philippines, and expenditures incident to pay, allowances, operation, maintenance, and other activities of units and personnel of said organized military forces, and for the emergent mobilization and training of such forces, may be made without regard to the provisions of law regulating the expenditure of or accounting for funds of the United States but shall be expended and accounted for in a manner prescribed by the President of the United States, $269,000,000, to remain available until June 30, 1943, which shall be available for payment to the Government of the Commonwealth of the Philippines upon its written request, either in advance of or in reimbursement for all or any part of the estimated or actual cost, as authorized by the Commanding General, United States Army Forces in the Far East, of necessary expenses for the purposes aforesaid, * *."

If, then, we assume that the Hunters ROTC Guerrillas became a part of the organized forces of the Philippine Army in early 1942, it would appear that any claim for "pay, allowances, operation, maintenance, and other activities of units and personnel of said organized military forces" would be against the Government of the Commonwealth of the Philippines, which in turn would be reimbursed out of the funds so provided as "authorized by the Commanding General, United States Army Forces in the Far East."

Further evidence that the Philippine Army was regarded as a separate entity while in the "service of the Army of the United States" is found in the surrender order issued by General Wainwright on May 7, 1942 (Philippine time) addressed to Major General Sharp, Commanding Visayan-Minanao Forces, in pertinent part as follows:

"* * * I decided to accept in the name of humanity his General Homma's proposal and tendered at midnight, night 6-7 May 1942, to the senior Japanese officer on Corregidor, the formal surrender of all American and Philippine Army troops in the Philippine Islands. * * *."

On July 2, 1942, Congress enacted 56 Stat. 628, providing again for the "Army of the Philippines" in identical language as that previously used in 55 Stat. 813, supra, except that the amount of funds was reduced from $269,000,000 to $28,313,000.

Again, if we assume that the Hunters Guerrillas became a part of the organized forces of the Philippine Army in early 1942, their alleged claims would be directed against the Philippine Government which was to be reimbursed upon request as authorized by the Commanding General of the USAFFE.

On July 1, 1943, Congress again provided for the "Army of the Philippines" 57 Stat. 365, in identical language as before, except the amount of money was reduced to $100, and later, on June 28, 1944, 58 Stat. 591, and on July 3, 1945, 59 Stat. 401, appropriated the sum of $100 for the said Army.

In October of 1944, when General MacArthur and the American Forces retook the Philippines from the Japanese, President Osmena, who had returned with MacArthur, issued Executive Order No. 21 providing in part as follows:

"Now,...