#### COMMONWEALTH OF MASSACHUSETTS v. THE UNITED STATES

[No. B-123.

Decided December 12, 1927]

*On the Proofs*

*MoMUeation of National Q^uard; hire of horses incident thereto.—*Where in response to telephonic communication from the commanding general of the Eastern Department, United States Army, the State of Massachusetts orders the hire of horses for the purpose of mobilizing units of the National Guard that had been ordered to camp to be mustered into the service of the United States, the sum paid by the State for such hire, reasonable in amount, is recoverable.

*338
      *The BeportePs*statement of the case:

*Mr. Lewis Goldberg*for the plaintiff. *Messrs. Attorney General Arthwr K. Beading*and *Assistant Attorneys General F. Delano Putnam*and *B. Anvrrd*GvMer, of the Commonwealth of Massachusetts, were on the brief.

*Mr. Dan M. Jackson,*with whom was *Mr. Assistant Attorney General Herman J. Galloway,*for the defendant.

The court made special findings of fact, as follows:

I. On June 18,1916, Newton D. Baker, the then Secretary of War of the United States, acting under the authority of the President, sent a telegram to the Governor of the Commonwealth of Massachusetts directing him to forthwith assemble at Framingham, Massachusetts, or at places to be designated by the commanding general of the Eastern Department, certain units, including the Field Artillery and Cavalry of the Organized Militia and National Guard, for muster into the service of the United States.

The telegram is set forth in the petition as *“*Exhibit A” and is made a part hereof by reference.

II. Immediately after his receipt of the said telegram from the Secretary of War, the Governor of the Commonwealth of Massachusetts, acting through the adjutant general of that State, telegraphed orders to the commanding officers of the Organized Militia to begin mobilization. Those orders were subsequently confirmed by Mobilization Order No. 1, dated June 19, 1916, by which those units of the Organized Militia called into service were ordered to rendezvous at their respective armories at 9 o’clock a. m. June 19, 1916.

III. The troops of the National Guard of Massachusetts were quickly mobilized at their State armories, and Major General Leonard Wood, commanding general of the Eastern Department, was notified. Acting under telegraphic instructions from Major General Wood, Framingham and vicinity were selected as the mobilization camp, and orders were issued by the Governor of Massachusetts to the State troops to move from their armories to the mobilization camp. Major General Wood called the adjutant general of Massa*339chusetts over the telephone and instructed him to have his troops prepared to entrain for Mexico at the very earliest moment and to see to it that the Artillery, the Cavalry, the Field Hospital, the Ambulance Company, and the Signal Corps were properly equipped with horses.

IV. Upon their arrival at the mobilization camp, both the officers and the enlisted men of the National Guard were subjected to a physical examination. As soon as the physical examination of the regiment was completed, the regiment was mustered in in a body. All of the troops were mustered in between the 20th and 25th of June, 1916.

V. None of the units of the Massachusetts National Guard which were called into Federal service owned any horses prior to the call, nor had any horses been assigned to them. In order to mobilize.the troops at Framingham and to transport them with their field artillery equipment to Framing-ham, the Commonwealth of Massachusetts authorized and instructed the commanding officers of its National Guard to hire such horses as were authorized and allowed under the table of organizations for the Organized Militia (peace) at the' rate of $3.50 per day for 4 days in some cases and 6 days in .other cases, with an option for 10 days more in case they were wanted. That action was authorized by telephonic communication with either Major General Wood or his chief of. staff, either Colonel or Major Simpson.

Paragraph 456, section 1, of the Regulations of the Army of the United States for the year 1913 is as follows:

“When any portion of the Organized Militia is called into the service of the United States, the proper militia authorities of the State, Territory, or District of Columbia will arrange for the purchase of necessary fuel and forage in not to exceed authorized allowances and for the shoeing of the authorized animals pertaining to the militia called forth. Any wheel transportation that may be needed temporarily at company rendezvous or mobilization camps which can not be supplied from the equipment of the organization will be hired.

“ Vouchers for these local purchases will be paid by the local United States disbursing officer in the manner prescribed for paying such vouchers incident to summer camps of instruction. The department quartermaster of the proper territorial department of the Regular Army will furnish *340.local United States disbursing officers with the necessary-funds.”

The phrase “ wheel transportation ” as used in the Army-Regulations includes horses.

VI. All of the animals which were hired were used either-as draft horses or saddle horses for enlisted men until the troops entrained for Mexico, at which time they were returned to their owners. No horses were hired for the use of the officers. The total amount paid by the Commonwealth of Massachusetts for the hire of the said horses was $22,-867.70, and the money paid therefor was paid from the treasury of the Commonwealth of Massachusetts.

A claim for the amount so pa,id was presented to the War Department and was disallowed by the Auditor for the War-Department. On appeal to the Comptroller of the Treasury the disallowance was affirmed. The Commonwealth of Massachusetts has not received back nor has it been reimbursed for any part of the said $22,867.70 so expended.

YII. Paragraph 35, United States Mustering Regulations, Organized Militia, April 22, 1914, provides *inter alia:*

“ If such horses are owned by an organization mustered into the service of the United States they may be purchased by the Quartermaster Corps for the organization; otherwise horses will be supplied by the Quartermaster Corps" in the same manner as for troops of the permanent establishment. The use of private horses by enlisted men in the service is-unauthorized by law.”

The court decided that plaintiff was entitled to recover.

Gkaham, Judge,

delivered the opinion of the court:

Prior to the 21st of June, 1916, Francisco Villa, the Mexican revolutionist, plundered and burned the town of Columbus, N. Mex. This being an aggression upon territory of the United States and in view of possible further aggression the President of the United States, through the Secretary of War, proceeded to call into the service of the United States forthwith the units of the Organized Militia and National Guard of the State of Massachusetts, with directions to at once assemble at the State mobilization,. Framingham, Mass., or at places to be designated by the *341commanding general of the Eastern Department, who at the time was Gen. Leonard Wood, preparatory to muster .into the service of the United States, being-one brigade and regiment of Infantry, one squadron of Cavalry, one regiment of Field Artillery, one company of Signal Corps, one field hospital, and one ambulance company, and directing that the organization necessary to complete these units should be moved to the mobilization camp where their fitness would be determined prior to being mustered into the service of the Uifited States.

The governor promptly communicated with the adjutant general of the State, who communicated with the different units, ordering them to assemble at their respective armories, and General Wood was notified. Acting under his instructions, Framingham and vicinity were selected as the mobilization camp and orders were issued to move the troops from their armories to the camp. General Wood instructed the adjutant general of Massachusetts to have his troops prepared to entrain for Mexico at the earliest moment and to see to it that the Artillery, Cavalry, field hospital, ambulance company, and Signal Corps were properly equipped with horses.

None of the Massachusetts units owned any horses prior to the call into the service, nor had any horses been assigned to them. In order to mobilize the troops at Framingham and transport them with their Field Artillery equipment to that point, under authority from General Wood the proper Massachusetts officers hired such horses as were authorized and allowed under the table of organizations for the Organized Militia at the rate of $3.50 per day for 4 days in some cases and 6 days in others, with an option of 10 days more •in case they were wanted. There was paid for the hire of these horses out of its treasury by the Commonwealth of Massachusetts the sum of $22,867.70. It does not appear that the price paid was unreasonable.

The protection of the United States was involved, there was a public emergency, the expenditure was made under the authority of the President of the United States, through the immediate order and direction of the commanding eren-*342eral. It was made in good faith and has never been repaid. Why, it is difficult to understand from the record.

The expenditure was incident to the mobilization inaugurated and carried out for the protection of the United States against threatened aggression, and the United States in this sense received the benefit of the outlay. It is to be presumed that those who authorized and directed the expenditure were acting within their authority. It does not appear that they were not.

The plaintiff should have a recovery and is entitled to-judgment for the sum above named, and it is so ordered.

Moss, *Judge;*Booth, *Judge;*and Campbell, *Ghief*Justice,. concur.