
    OREGON-WASHINGTON RAILROAD & NAVIGATION CO. v. THE UNITED STATES
    [No. D-12.
    Decided April 6, 1925]
    
      On the Proofs
    
    
      Railroad rates; National Guard; camps of instruction; status en route. — The National Guard units, organized under the act of June 3, 1916, are not in the service of the United States while traveling to and from camps of instruction provided by the United States for their training.
    
      Same; land-grant acts. — The direction for National Guard movements and payment for their transportation by the United States, do not make them while so traveling troops of the United States within the meaning of the land-grant acts.
    
      The Reporter's statement of the case:
    
      Mr. William R. Harr for the plaintiff. Mr. Charles H. Bates was, on the briefs.
    
      
      Mr. J. H. Sheppard, with whom was Mr. Assistant Attorney General Robert JEL. Lovett, for the defendant.
    The following are the facts as found by the court:
    I. Plaintiff is a corporation of the State of Oregon, and now is, and was during the times hereinafter referred to, engaged as a common carrier for hire of persons and property by railroad in said State and other States of the United States, and, either directly or in participation with other carriers, between the points hereinafter referred to.
    II. Under the acts of Congress granting lands in aid of certain railroads and regulating the expenditures of appropriations by the United States for Army transportation over such land-grant railroads, land-grant railroads were entitled to receive for the transportation of troops of the United States certain reduced fares, being less than those charged private parties for similar transportation. Plaintiff’s -own railroad is not a land-grant railroad.
    III. Some years ago, and prior to the times when the services hereinafter mentioned were performed, railroad companies of the United States generally, including plaintiff, severally agreed with the Quartermaster General of the United States Army (subject to certain exceptions not necessary here to be stated) to accept for transportation of persons for whom the United States Government is lawfully entitled to reduced fares over land-grant roads the lowest net fare and lowest net excess baggage rate lawfully available, as derived through deductions account land-grant distance via a usually traveled route for military traffic, from a lawful fare filed with the Interstate Commerce Commission as applying from point of origin to destination via such route at time of movement, when such movements were made under United States requests for such transportation of the issue of the War Department, Navy Department, or Marine Corps. These agreements, commonly known as. “ Land-grant equalization agreements,” were in force at the times of the transactions hereinafter referred to.
    IV. Between July 1. 1921, and June 30, 1923, plaintiff, upon transportation requests issued by the War Department, transported certain members of the National Guard organizations of the States of Oregon and Washington to and from camps of instruction, as authorized by the national defense act of June 3, 1916, 39 Stat. 166, as amended by the act of June 4, 1920, 41 Stat. 780, and the acts of Congress making appropriations for the support of the Army. (Act July 9, 1918, 40 Stat. 874; act June 30, 1921, 42 Stat. 92; act June 30, 1922, 42 Stat. 749.)
    Y. Said members of the National Guard organizations of the States of Oregon and Washington had subscribed to the dual oath or enlistment contract provided by said national defense act, and they and their organizations had been recognized by the Secretary of War as having fully complied with the provisions of said act as to organization, qualifications, and training.
    VI. At the times when the aforesaid transportation services were rendered said members of the National Guard organizations of Oregon and Washington had not been called as such into the service of the United States for the purposes mentioned in Article I, section 8, paragraph 15 of the Federal Constitution, namely, to execute the laws of the Union, suppress insurrections, or repel invasions, or drafted into the military service of the United States as authorized by section 111 of said national defense act.
    VII. The Secretary of War provided that the organizations in which the said members of the National Guard of Oregon and Washington were commissioned' or enlisted should participate in. the encampment and maneuvers for training purposes in accordance with the provisions of sections 92, 94, and 97 of said national defense act.
    VIII. For the transportation aforesaid plaintiff rendered its bills to the proper finance ofiicers of the War Department at full published tariff fares based upon the applicable tariffs on file with the Interstate Commerce Commission. Certain of said bills (Nos. 1706, 1702, 2657, 2684, 2700, 2639, 2713, and 2737) were paid by said finance officers of the War Department as rendered, but subsequently in settling bills rendered by plaintiff for other transportation the said finance officers deducted from said latter bills certain amounts on the ground that members of the National Guard as organized under the national defense act of June 3, 1916, 39 Stat. 166, as amended by the act of June 4, 1920, 41 Stat. 780, were “ troops of the United States ” within the meaning of the railroad land-grant acts, and paid plaintiff on said latter bills accordingly, against which action plaintiff duly protested in each instance in writing, expressly reserving its right to payment at full commercial fares for the aforesaid transportation.
    The protests made by plaintiff as aforesaid were in each instance in substantially the following form:
    “The Oregon-Washington Railroad & Navigation Company, for itself and connecting carriers, claims that it is entitled to full published tariff fares applicable to persons other than ‘troops of the United States’.; and payment in any less sum than the amount of full tariff fares is accepted under protest and as part payment only for the services rendered.”
    IX. Two other of plaintiff’s bills for the aforesaid transportation (Nos. 3716 and 3745), also rendered at published tariff fares, were returned by the finance officer, War Department, with a request that they be restated at land-grant fares, which was done by plaintiff, but protest against such requirement and payment on that basis was made on the face of such réstated bills. Said last-mentioned bills were paid by defendant on said restated and protested basis. Plaintiff afterwards filed supplemental bills with the finance officer, War Department, for the differences between the tariff and the land-grant fares in these instances, but payment thereof was refused.
    X. The schedule annexed to the petition is a correct statement in detail of the transportation services referred to herein and the dates thereof; the numbers of the Government transportation requests involved; the number of persons transported in each movement; the per capita published tariff fares; and the amount deducted on account of alleged land grant, aggregating $7,316.68.
    The court decided that plaintiff was entitled to recover.
   Hat, Judge,

delivered the opinion of the court:

The question which is presented for decision in this case is, are National Guard organizations while traveling to and from camps of instruction provided by the United States for the training of the National Guard organizations of the States in the service of the United States; and are they, by reason of the fact that their transportation is paid for and their movements directed by the United States while so traveling troops of the United States within the meaning of the railroad land-grant acts? If they are in the service of the United States, and if they are troops of the United States while so traveling, then land-grant roads must transport them as troops of the United States, and are liable for the deductions imposed by the accounting officers of the Government.

The defendant relies upon the act of June 3,1916, 39 Stat. 166, and in effect insists that under the provisions of that act the National Guard, or militia of the States, has become the National Guard of the United States, and that they are •therefore troops of the United States and come within the meaning of the reservation in the railroad land-grant acts.

The statement of this contention refutes it when we consider the power of Congress over the militia of the States.

The Constitution has two provisions dealing with the militia of the States, and it confers upon Congress certain powers with regard to it, as follows: “ To providé for calling forth the militia to execute the laws of the Union, suppress insurrection, and repel invasions. To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress..” Article I, section 8, of the Constitution.

It is manifestly beyond the power of Congress, under these provisions, to convert the militia of the States into a so-called National Guard of the United States. Congress can “ provide for calling forth the militia to execute the laws of the Union, suppress insurrection, and repel invasions,” and it can provide for the organization, the arming and disciplining of the militia, and it can, as it did' under the act of June 3, 1916, provide for the training of the militia according to the discipline prescribed by it. Section 111 qf the national defense act, 39 Stat. 211, is a clear and positive declaration by Congress that it could not convert the National Guard, or militia of the States, into United States troops without first severing them from their status as militia of the States. Congress recognized that it had power only to call for the National Guard for the specific purposes enumerated in the Constitution. In case of war against a foreign power it had not the power to call forth the militia for the purpose of sending them beyond the borders of the United States. In this section and throughout all the provisions of the act it recognized fully that the National Guard therein dealt with was militia, and not United States troops. In section 68 of the act, 39 Stat. 197, the National Guard is by Congress denominated “ enlisted militia.”

The whole purpose and intent of Congress, as may be seen by a careful study of the national defense act, was to exercise the powers conferred upon it by the Constitution, so that the National Guard should be organized, armed, and disciplined in the same manner as the Regular Army. Congress wanted to make the National Guard an efficient military force, ready for service when called forth under the Constitution, and trained and disciplined for war. Every provision of the act looked to the organizing and training of the militia and to their possible service as United States troops. With that in view it provided for every contingency which might arise or which experience had suggested might be necessary for the most efficient training of these State troops upon which the country would have to rely in large measure in cases of emergency and when it would become necessary to call them forth into the service of the United States.

With this end in view, Congress provided for the appropriation of money annually for the support of the National Guard, not as United States troops but as State militia; and in providing for this support it specifically included in it arms, ordnance stores, quartermaster stores, camp equipage, all other military supplies, and such other expenses pertaining to the National Guard as are now or may hereafter "be authorized by law. By section 67 (39 Stat. 199) and by section 94 of said act (89 Stat. 206) it provided that there may be set aside from the funds appropriated and allotted to any State, Territory, or the District of Columbia such portion of said funds as may be necessary for the payment, subsistence, transportation, and other expenses of such portion of the National Guard as shall participate in encampments or maneuvers. So that Congress provided by law that the National Guard should be transported to and from these encampments, not as troops in the service of the United States but as the National Guard — -the militia — of the States.

When the National Guard participates in encampments and maneuvers provided for them under the provisions of the national defense act they are not in the service of the United States; they are not called forth for any of the purposes specified in the Constitution; and not being so called forth, they are not troops in the service of the United States.

The requirements imposed upon the States in the training of their National Guard by- the national defense act are strictly within the provisions of the Constitution. These requirements are all part of the purpose of the act, which was to have the National Guard so trained and disciplined that they would be ready for service as United States troops in the event that they were called into the service of the United States. None of these requirements infringed upon the rights of the States, none of them changed the character of the National Guard, which in time of peace is militia and in time of war may become United States troops, and when “ called forth to execute the laws of the Union, to suppress insurrection, and repel invasions,” are then in the service of the United States, and while in such service are to all intents and purposes United States troops.

Enough has been said to show that all the parts of the national defense act dealing with the National Guard lead to but one conclusion, and that is that Congress meant in that act only to go as far as the Constitution would permit in organizing, arming, and training the militia, and that it never intended to convert the National Guard into United States troops.

It may be as well to point out that the National Guard can not be compelled to go into encampments provided by the United States for their training and maneuvers. If they did not go it would not in any wise change their character or have the effect to eliminate them. Federal aid, it is true, would be withdrawn, but that would, be the only result.

The Supreme Court of the State of Wisconsin in a very well considered opinion passed upon the meaning of the national defense act. Wisconsin v. Johnson et al., 202 N. W. 191.

The argument made by the defendant that the oath required to be taken upon enlistment in the National Guard, ipso facto, makes the man taking it a soldier in the service of the United States is not sound.

The National Guard has a dual character; it is militia in time of peace, and remains so after it is called forth for the purposes specified in the Constitution, but in the latter case is in the service of the United States instead of being in the service of the State, and the oath is prescribed so as to cover their service in both capacities, and also to prevent delay in inducting them into the service of the United States.

In the instant case we are of opinion that the National Guard of Oregon and Washington were not troops of the United States when being transported to and from an encampment for purposes of training. The fact that the United States paid for their transportation does not make them troops of the United States, and as they are not troops of the United States they do not come within the meaning of the railroad land-grant acts. Alabama Great Southern R. R. Co. v. United States, 49 C. Cls. 522.

Judgment will be entered for the plaintiff in the sum of $1,316.68. It is so ordered.

Geaham, Judge; DowNey, Judge; Booth, Judge; and Campbell, Ohief Justice, concur.  