
    STATE OF RHODE ISLAND v. THE UNITED STATES
    [No. E-355.
    Decided May 28, 1928]
    
      On the Proofs
    
    
      Special jurisdictional act of February 9J¡, 19SS; expenses of raising volunteer army in war with Spam; pay of volunteers; construction of State statute. — The statute of the State of Rhode Island, dealing with the pay of the militia in ease of “ insurrection, war, or imminent danger thereof,” construed to authorize payment to the militia called out by the governor of that State in aiding the United States to raise a volunteer army in the war with Spain, at the rate of $1.60 per day for the first ten days and for each day in excess of ten days, 62 cents, the rate established for the United States Army.
    
      The Reporter's statement of the case: ■
    
      Messrs. Henry M. Foote and V. B. Edwards for the plaintiff.
    
      Mr. Perey M. Cox, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant.
    The court made special findings of fact, as follows:
    I. Shortly after the declaration of war by the United States against the Spanish Government in 1898, the State of Ehode Island, under the direction of its governor, mobilized the Organized Militia of. said State and held the same in camp until most of its officers and enlisted men were mustered into the service of the United States.
    II. The act of Congress approved July 8, 1898 (30 Stat. 730, 731), as amended by the act of Congress approved March 3, 1899 (30 Stat. 1356-1358), authorized the Secretary of the Treasury, after settlement upon vouchers to be filed with and passed upon by the accounting officers of that department, to pay to the governor of any State or Territory the reasonable cost, charges, and expenses that had been incurred by him in aiding the United States to raise the volunteer army in the then existing war with Spain, for subsisting, clothing, supplying, equipping, paying, and transporting men of his said State or Territory, who were afterwards accepted into the volunteer army of the United States. Said acts were later amended by the act of Congress approved April 27, 1904 (33 Stat. 312), by enlarging the time in which the claim of any State might be preferred to January 1, 1906, and by authorizing the allowance of certain items of claim which had theretofore been disallowed by the accounting officers of the Treasury. Pursuant to the provisions of said acts, the State of Ehode Island presented a claim to the Comptroller of the Treasury in the total sum of $213,533.86, of which amount, upon consideration of the proofs submitted to him by said State, the comptroller allowed claims aggregating the sum of $129,047.97.
    III. Subsequent to such allowance, an act of Congress approved June 7, 1906 (34 Stat. 214), entitled “An act for the relief of the State of Ehode Island,” directed the Secretary of the Treasury to “ resettle and readjust the claim of the State.” Pursuant to the provisions of said act, the entire claim of the State of Ehode Island, including the items allowed and disallowed in said prior settlement, was again considered by the Comptroller of the Treasury and by decision dated February 12, 1907, as modified by decision dated November 8, 1907, further adjudication was made which allowed an additional sum of $32,022.88, making the total allowance to said State of $161,070.85.
    IY. The pending suit was instituted pursuant to the provisions of an act of Congress approved February 24, 1925 (43 Stat. 964), providing:
    “ That the items of the claim of the State of Ehode Island against the United States for expenses incurred and paid in aiding the United States to raise its volunteer army in the war with Spain, which items, either in whole or in part, were rejected by the accounting officers of the Treasury Department, be, and the same are hereby, referred to the Court of Claims for adjudication and report to Congress.”
    Y. The following certificate was executed by the Governor of Ehode Island, and made in connection with the supplemental claim of the State of Ehode Island for reimbursement under the act of June 7, 1906, 34 Stat. 214:
    “I, George H. Utter, Governor of the State of Ehode Island, do hereby certify that, from the official records of the State, and other evidence before me, I am able officially to state that the payments of money made by the State of Rhode Island, as explained, and for the purposes set forth in the foregoing vouchers and certificates attached thereto, viz: 81, 33, 55, 77, 78, 80, 89, 90, 93, 94, 95, 97, 98, 100, 168, 181, 185, 197, 186, 187, 191, 192, 193, 194, 367, 368, 369, 370, 198, 200, 201, 218, 226, 227, 231, 240, 250, 251, 252, 253, 261, 269, 274, 286, 294, 302, 303, 287, 288, 289, 291, 292, 293, 294, 295, 296, 297, 298, 304, 307, 309, 310, 811, 324, 330 to 357, 334, 359, 180, 184, 360, 501, 138, 363, 364, 373, 396, 479, 507, 508, 512, 604, 375, 380, 383, 399, 407, 408, 409, 410, 411, 414, 423, 424, 425, 432, 433, 444, 446, 455, 458,; 465, 474, 475, 396, 479, 507, 508, 512, 604, 501, 502, 503, 504, 506, 511, 515, 517, 522, 523, 531, 532, 539, 545, 547, 551, 553, 554, 565, 566, 567, 568, 571, 577, 578, 579, 580, 581, 582, 583, 585 (6), 588, 590, 595, 600, 601. 603, 605, 611, 612, 617, 618, 621, 624, 625 to 640, 41, 43, 372, 189, and in second installment, Nos. 2, 3, 4, 5, 6, 7, 8, 9, were for the reasonable and necessary costs, charges, and expenses incurred by the governor of said State in aiding the United States to raise the Volunteer Army in the war with Spain by subsisting, cl'othing, supplying, equipping, paying, and transporting men ox said State who were afterwards accepted into the Volunteer Army of the United States, and also for the comfort of said troops in camp or rendezvous, and for supplies which were used and equipments which were subsequent^ taken into the United States service by said volunteers, and for which no receipts were given; and also as payments to officers and men of the National Guard, or Militia, or Naval Reserves of the State who appeared at the rendezvous of the State for muster and were rejected by the medical examiner or mustering officer, and as further necessary, just, and reasonable payments for expenses incurred for the organization, maintenance, transportation, and comfort of troops raised by said governor and accepted into the service of the United States Army in said war with Spain, and which said items or parts thereof have been disallowed in the consideration of said claims for the reason that they appear to have been for stores furnished, or expenses incurred, or transportation furnished after the troops raised had been mustered into the service of the United States, and which expenses were incurred in good faith for the sole purpose of aiding the United States in the raising, organization, transportation, and equipment of troops so raised by said governor.
    “And I do hereby further certify from the information derived as aforesaid, that as to those items, or parts thereof, which have been disallowed, or to which objections to the payment thereof are now made by the United States, which are represented by the following vouchers viz, 77, 78, 93, 94, 95, 226, 227, 252, 334, 407, 408, 409, 410, 411, 465, 501, 504, 580, 581, 582, 583 and in second installment Nos. 25/26, and in the letter of the comptroller asking for explanation to certain vouchers, dated August 8, 1906, in vouchers Nos. 225, 26, 34, 47, 76, 103, 133, 209, 217, 229, 244, 262, 264, 331, 395, 406, 485, 490, 493, 503, 500, that the expenses represented by said vouchers were paid by the State of Rhode Island to the Organized Militia thereof, and to other persons, who under authority of the governor of said State, acted as his agents in aiding the United States to raise the Volunteer Army of the United States in the war with Spain, as hereinbefore set forth; and that inasmuch as two companies of said Volunteers of said State, after their muster into the service of the United States, remained at Camp Dyer, the State rendezvous, until the first day of August, 1898, before said rendezvous was turned over by the State to the United States, and thereafter till they were discharged, that any of said expenses paid subsequent to the muster of said troops into the service of the United States were for the organization, maintenance, and comfort of the same; that said expenses were necessary, just, and reasonable, and were incurred by said governor in good faith for the purposes aforesaid; the United States not having at the time any care or control of said camp, or of the supplies therein prior to said 1st day of August, 1898, and accepting said supplies furnished, and services by the State until said troops were mustered out of the service of the United States.
    “(Signed) Geo. H. Utter,
    
      “ Governor of the State of Rhode Island.”
    VI. Plaintiff’s amended petition specifies seven items in its claim. However, plaintiff has abandoned the one described as “ seventh item of the claim.” There are twenty-three vouchers to be considered in connection with the remaining six items of the claim, to wit, Nos. 77, 93, 226, 227, 231, 251, 252, 309, 310, 324, 407, 408, 409, 410, 411, 500, 501, 545, 580, 581, 582, 583, and 618. All of these vouchers, it will be seen, are included in and covered by the certificate of Governor Utter. (Finding V.)
    VII. Said twenty-three vouchers are hereinafter considered under five separate schedules, indicated as Schedule I, Schedule II, Schedule III, Schedule IV, and Schedule V. Schedule V includes two of plaintiff’s six claims.
    
      The plaintiff and the comptroller have made quite different calculations as to the vouchers listed under the first four schedules. (As to the fifth schedule, the comptroller made no calculation.) The differences in such calculations arise from the construction of the rates of pay allowed by the laws of Rhode Island to its militia. Plaintiff claims $1.50 a day for service up to and including ten days and thereafter at the Regular Army rate. The comptroller claims that for all periods exceeding ten days the Regular Army pay should govern, and for those who served ten days or less the rate of $1.50 a day is proper.
    VIII. Each of the first four schedules includes four columns, numbered, respectively, 1, 2, 8, and 4. Column 1 gives the number of and the amount claimed by each voucher; column 2 gives the result of the comptroller’s computation, by applying his construction; column 3 gives the several amounts of said vouchers that were disallowed by the comptroller; and column 4 gives the results of the plaintiff’s computation by applying its construction.
    IX. Schedule I. — Amounts paid to the State militia for services prior to date of muster of troops into Federal service:
    
      
    
    
      Schedule II. — Compensation paid to State troops for services from assembly to muster:
    
      
    
    
      
      Schedule III. — Compensation paid for services of rejected men from assembly to rejection:
    
      
    
    
      Schedule IV. — Payments made to band:
    
      
    
    
      Schedule V. — Payments to staff officers; also detail at hospitals:
    
      
    
    The grand totals of column 2 (comptroller’s computation) and column 4 (plaintiff’s computation) in Schedules I, II, III, and IV show a balance in favor of plaintiff of $7,198.16. This total of $7,198.16, when added to the total of the two items carried in Schedule V, results in a total of $11,983.74, which is the sum claimed by plaintiff on account of the six items relied on in its amended petition.
    X. The power of attorney under which the attorney for the State of Rhode Island is prosecuting the pending suit, purporting to have been signed by the general treasurer of the said State of Rhode Island on May 11, 1904, and purporting to have been authorized by a resolution of the general assembly of the said State, passed at the January session, 1904, as appears from the petition filed herein, reads in part as follows:
    
      “Resolved, That the general treasurer is hereby authorized and empowered to appoint and employ an agent or agents in behalf of this State, at such compensation as he may determine, payable without further appropriation only out of any sums that may be collected hereunder, and without any liability on behalf of the State for any costs or expenses, to present, prosecute, and recover before the Congress, any department, the Court of Claims, or the Supreme Court of the United States, the costs, charges, and expenses properly incurred by this State for enrolling, equipping, and transporting its troops in the said war with Spain during the years 1898 and 1899.
    “ I, Walter A. Read, general treasurer of sa,id State, have appointed H. M. Foote and Y. B. Edwards, of Washington, D. C., agents of said State and in behalf of said State to prosecute and recover in the courts, departments, and Congress of the United States the claim of said State against the United States for enrolling, supplying, equipping, and transporting troops of said State for service in the war with Spa,in.”
    XI. There has been adduced no evidence herein except that which had been filed with and was before the Comptroller of the Treasury when that officer made the settlements hereinbefore referred to.
    The court decided that plaintiff was entitled to recover.
   Geaham, Judge,

delivered the opinion of the court:

This case arose out of a claim for expenditures by the authorized representatives of the State of Rhode Island in aiding the United States to raise a volunteer army in the Spanish-American War. The amounts expended by the State of Rhode Island are not in dispute. The act of Congress, 43 Stat. 964, referring the claim to this court, provides:

“ That the items of the claim of the State of Rhode Island against the United States for expenses incurred and paid in aiding the United States to raise its volunteer army in the war with Spain, which items, either in whole or in part, were rejected by the accounting officers of the Treasury Department, be, and the same are hereby, referred to the Court of Claims for adjudication and report to Congress.”

The act of Congress of July 8, 1898, 30 Stat. 130, authorized the reimbursement of the said State for its reasonable costs and expenditures incurred in aiding the United States to raise a volunteer army. The act of March 3, 1899, 30 Stat. 1356, authorized reimbursement for the purposes named in the last act for expenses incurred as well after as before July 8, 1898, where the troops were accepted into the volunteer' army, the rate of compensation for services to be based upon the allowances made by the law of the State to its militia according to grade. It also provided for reimbursement for the purchase of supplies and equipment, and necessary expenses for the comfort of the men in camp and rendezvous.

The act of April 27, 1904, 33 Stat. 312, provides that where the governor of a State or Territory has furnished military transportation, purchased or authorized the purchase of supplies, or incurred expenses for services rendered, and which purchases of supplies and expenses for military transportation and services rendered have been certified by the governor as necessary, just, and reasonable for the organization, maintenance, transportation, and comfort of the troops raised by him and accepted into the service of the United States Army in the Spanish-American War, the Secretary of the Treasury is authorized to allow such items or parts thereof as have been disallowed; and the certificate of the governor that such expenses were incurred in good faith, for the sole purpose of aiding the United States in the raising, organizing, transporting, and equipping of troops, shall be held to be sufficient to authorize the final settlement and payment in full of such claims.

The State presented a claim for $213,533.86, and under authority of the foregoing acts the Treasury Department allowed the sum of $129,047.97. Thereafter, under the provisions of the act of June 7, 1906, 34 Stat. 214, entitled “An act for the relief of the State of Rhode Island,” and directing the Secretary to readjust the claim of the State, the Treasury Department reconsidered and readjusted the claim and allowed an additional sum of $32,022.88, making a total allowance of $161,070.85. This allowance was based upon a construction of the statute of Rhode Island dealing with the pay of the militia of that State, which is as follows:

“ In case the militia, or any part thereof, shall be ordered out by the commander in chief for escort or other duty, like payments shall be made for duty so performed, provided such duty is not required to exceed ten days at any one time. In case of insurrection, war, or imminent danger thereof, the, military forces of the State when in actual service to exceed ten days shall be entitled to the same pay, rations, and allowances as are or shall hereafter be established by law for the Army of the United States.

“ The like pay refers to $1.50 a day allowed for camp duty, pay to each member of a brigade, regiment, or company other than commissioned officers.”

The question was how the men called out and employed by the State in its effort to raise a volunteer army should be paid under the terms of that statute, the act authorizing the payment having provided that they should be paid as the statute of the State prescribed. The comptroller construed the act to mean that where men had been in the service 1Ó days or less they were entitled to pay at the rate of $1.50 a day, that where they had been in the service more than 10 days, say 11 days, they were entitled only to the pay established by law for the Army of the United States; that is, that if a man had served 4 days he was entitled to $6.00; if he served 11 days he was entitled to $5.72.

The plaintiff contends that under the act where the service was for 10 days or less, the men were entitled to $1.50 a day; that where the service was for more than 10 days, the men were entitled to $1.50 a day for 10 days, and for each day in excess of 10 days, 52 cents, the rate established for the United States Army.

Without attempting extended discussion, it is a fair construction of the act to say that it was not intended that it should bring about any such incongruous situation or inharmonious result as that a- man who served 4 days should receive more pay than a man who served 11 days. The act must be given a construction most conformable to reason and justice, and we are of opinion that the reasonable construction is that the State of Rhode Island should be compensated for payments made, on the basis of $1.50 a day for men serving 10 days or less, and where the service was more than 10 days, $1.50 a day for 10 days and 52 cents for each day in excess thereof.

This conclusion entitles the plaintiff to recover on the ground of said difference in pay a balance of $7,198.16.

The plaintiff should also be allowed to recover the further sum of $4,785.58 for payments to staff officers and details at hospitals, making a total of $11,983.74. All of the items embraced in these allowed balances were certified by the Governor of Rhode Island as necessary, just, and reasonable for the organization, maintenance, transportation, and comfort of the troops raised by him and accepted by the United States, and to have been incurred in good faith, for the sole purpose of aiding the United States, in raising, organizing, transporting, equipping, and caring for said troops.

Let judgment be entered in favor of plaintiff for $11,983.74.

GREEN, Judge; Moss, Judge; and Booth, Chief Justice, concur.  