George W. Foley: -- comment to make in closing. Before the recess, I was dealing with the Government's argument that the statute of limitations of the Court of Claims is a consent statute and so must be interpreted and construed differently from other statutes. The -- and our answer to that point is that there's absolutely no reason why a consent statute of limitations should be construed any differently than a -- an ordinary statute of limitations or statute that creates and limits new rights, and I pointed to the Osborne case of the Second Circuit which dealt with a consent statute. Now, this argument of the Government was put forward in a case in the Supreme Court of Oregon, Peters against McKay in 1951, and the Court considered the entire argument at length and held that consent statute or not, it was suspended by war. They said there that -- and pointed their argument there, they pointed out that where the State consents to be sued and then by recognition of its rules of international law and common law, closes its courts to the litigants, they thereby deny the privilege which they granted and that you must have some construction of the statute that avoids absurdity. And they felt that it was not conceivable that the same hand which gave the right to sue should with the other hand withhold it while -- and both be in operation at the same time. The comment of the -- the Court commented on the nursery rhyme. They said that the law does not follow the precedent of the nursery rhyme, “Hang your clothes on the hickory limb but don't go near the water.” And that's exactly the same -- the same situation here. We can't conceive --
Felix Frankfurter: That's a negative rule of statutory construction, right?
George W. Foley: [Laughs] I would say so, Mr. Justice, yes. That the State in consenting to be sued can't at the same time say that it shall not be sued. Thank you.
Earl Warren: Mr. Fisher.
Roger D. Fisher: May it please the Court. I would like at the outset to state the position of the Government on the two basic issues now before this Court in this case. I'll then take up each issue in turn in more detail. The first issue is the one on which certiorari was granted. The issue was raised in the petition whether members of the Philippine Army, who were recognized in certain ways, found in certain categories, were members of the armed forces of the United States for procurement purposes so at requisitioning of supplies could create debts of the United States. It's an issue of status and authority, whether the status of this group of people, the Philippine guerrillas, who were later recognized or who were recognized contemporaneously was such that they have authority to create direct obligation upon the United States Government by their procurement, their requisitioning. On this issue, our position is that they did not -- had no such authority. Although, the Philippine Government was not holding independent, prior to July 4th, 1946, they were a semi-sovereign or quasi-sovereign, had some independence. That was the position of United States from 1941 until 1946 when the Philippines required full independence to treat them with as much independence as was consistent with their position. The assistant -- financial assistance which United States gave to the Philippine Army was handled in such a way, it was handled in much the way that assistance to other governments was handled --
Earl Warren: Mr. Foley, may I -- or Mr. Fisher, may I ask you just one question. I hate to interrupt you but -- but how did we treat them in relation to such matters as this during that period between 1941 and 1946? You said as to some matters, we -- we treated them as sovereign.
Roger D. Fisher: As to the --
Earl Warren: Now, how do -- how did we treat them in matters of this kind?
Roger D. Fisher: As to the financial arrangements with respect to the army and the payment of the soldiers and their supply, their procurement, all that is the bulk of my argument. We handled that through the Philippine Government. The United States advanced several hundred million dollars about -- around $300 million to the Philippine Government to be used to meet those expenses of the Philippine Army with -- of which General MacArthur approved. He had a veto power on this military assistance as other aid missions have had and other military assistance. These funds were advanced to the Government, put in the Philippine Treasury with the agreement that they would be only used for those purposes of the army of which we -- we, that is General MacArthur which the American Army Commander, approved those funds. There are still funds in their -- in the Philippine Treasury beyond those required to meet the claims which have been approved and the return of these funds was the matter under discussion between the two governments right now.
Earl Warren: Did we -- did we assume the responsibility for the payment of those bills and merely make the Philippine Government our agent or did we limit the Philippine Government to the amount of money that we appropriated to them for that purpose? Do they have the right to -- to incur obligations irrespective of appropriations?
Roger D. Fisher: Precisely, they could incur obligations. A Philippine dispersing officer, a Filipino officer could procure without regard to the American appropriation. That procurement went directly against the Philippine Treasury. The -- the extent where those funds could be reimbursed or paid directly from the American funds that have been advanced to the Treasury with the question for approval of our military people in the field, where this military expenditure is appropriate.
Stanley Reed: But during -- during the occupation, during the Japanese occupation, the Philippine Government would not function.
Roger D. Fisher: That's right and there were no --
Stanley Reed: And no -- no money was -- was sent to the Government, I take it, to the payment of the soldiers that had been directed to surrender and then organized guerrilla bands.
Roger D. Fisher: No -- there was money appropriated every year by Congress. During the war, it was a token amount of $100 for two appropriations, after that went back up to $269 million or whatever, $100 million dollars more. The -- the funds were -- during the pre-period, from July of 1941 until the surrender in 1942, all procurement matters were handled as I've just outlined. As soon as any bills were met by any one after the reoccupation in 1944, the landings at Leyte and the recognition of the guerrillas, the meeting of those claims, both governments recognized that all those claims were handled in the same manner. The -- the thousands of guerrillas who were recognized and given back pay were paid by the Philippine Government through -- by Philippine dispersing officers. The question here is --
Stanley Reed: Well, were they --
Roger D. Fisher: -- one of procedure --
Stanley Reed: -- were there also any requisitions paid for by the Philippine --
Roger D. Fisher: Yes, there were some 400,000 claims for requisitioning against the Philippine Government which were screened for approval by the Army Claim Service which was screening this for approval, and I do not have the figure of how many were recognized that there were broad categories of them --
Stanley Reed: And they --
Roger D. Fisher: -- that were --
Stanley Reed: -- were paid out of the --
Roger D. Fisher: And they were paid. There remains about $30 million in this fund to meet such claims as on further study or further investigation should be paid.
William J. Brennan, Jr.: Well, was this claim processed and not (Voice Overlap) --
Roger D. Fisher: This claim was processed and found to be without merit.
William J. Brennan, Jr.: Found by whom to be without --
Roger D. Fisher: Found by the Army Claims Service, it was reviewed in the Army Claims Service, their reconsideration and was found that there was no merit in the claim. Our position is that one of procedure that the -- if he has a claim that is not against the United States but against the Philippine Government. Their -- United States has been generous to advance fund to meet all legitimate claims.
William J. Brennan, Jr.: Well, I gather you suggested there was still a balance.
Roger D. Fisher: There is about --
William J. Brennan, Jr.: (Voice Overlap) --
Roger D. Fisher: -- $30 million, roughly speaking $25 million to $30 million in the Philippine Treasury recognized to have been advanced by the United States for these purposes which has not been dispersed.
William J. Brennan, Jr.: Now, I gather this claim could not again be processed as a payment under that fund?
Roger D. Fisher: The -- I believe it could not. I believe it that if it were processed, it will be turned down on the same basis it was turned down before.
William J. Brennan, Jr.: You know what that basis is for?
Roger D. Fisher: The official reason was without merit. The record shows that --
Hugo L. Black: What does that mean, without merit?
Roger D. Fisher: It might mean any of a number of things, Mr. Justice Black.
Hugo L. Black: Well, I mean was it on this procedural point that we didn't know it, is this (Voice Overlap) --
Roger D. Fisher: No. No, this -- this claim was applied for against the funds in the Philippine Treasury. It was turned down as being either not a requisition, it was in fact made that the receipts were -- I noticed in the record, it shows that one of the affirmative defenses of the Government below is fraud, that the receipts were fraudulent. It is a matter of public record that the -- I wouldn't say the bulk, but I would say that there were hundreds of thousands of fraudulent claims filed at that time screened by in detail.
Speaker: Was this claim made to the Philippine authority?
Roger D. Fisher: This claim was under the procedure, it was a claim against the funds advanced to the Philippine Government. The claim was made, they applied to the Army Claims Service since the toughest hurdle in such claims was to get the U.S. Army to approve that this was a type of military expenditure of the Philippine Army for which Congress wanted funds to be spent.
Speaker: But it was turned down by United States authority.
Roger D. Fisher: We disapproved the claim and said it -- you should not meet this from the funds which we have advanced. The Philippine Government Treasury is tight and they have adopted the rule, if they will not pay anything that the United States Army says was not a proper --
Speaker: But we --
Roger D. Fisher: -- claim.
Speaker: -- control the fund.
Roger D. Fisher: We control the funds that were advanced. We have a right of approval or disapproval over the use of those funds as with our military systems program to other countries where they -- where you give them a program, an alloted sum of money and we consider which projects we will approve the use of our funds for.
Felix Frankfurter: Did I understand you to say that it was turned down by the army not on the merits, not substantively but suppose it was -- this was not a proper claim -- a claim with the pursuit against the United States, is that right?
Roger D. Fisher: No, I'm -- I'm afraid I've made -- failed to make that clear.
Felix Frankfurter: Was it turned down on the merits by the army?
Roger D. Fisher: It was turned down on the merits by the army. Now, the merits may have been, it was fraudulent. The merits may have been, the supplies were not necessities. The merits may have been that this $80,000 worth of rice, that two PFCs and sergeants and officers --
Felix Frankfurter: The case that comes before us, it doesn't turn on us, does it?
Roger D. Fisher: No, the -- the merits are not here involved. The question here involved is whether the members of the Philippine Army, as a class, had implied authority to create direct obligations against the United States.
Felix Frankfurter: Suppose it would turn -- suppose if it could turn down on the merits, what reviewing power is there of that determination?
Roger D. Fisher: No judicial reviewing power in this --
Felix Frankfurter: I don't --
Roger D. Fisher: -- by against this fund. There would -- there would be a reviewing --
Felix Frankfurter: It's a claim against this fund, is that right?
Roger D. Fisher: The --
Felix Frankfurter: What I was wondering, Mr. Fisher, if this claim was turned down on -- by a non-reviewable administrative decision, why are we called upon to enter upon this more complicated -- in the relationship between us and the Philippine affairs.
Roger D. Fisher: Because of petitioner's contention, Your Honor, that this was a taking by officers of the United States, that this was a Fifth Amendment taking that the army cannot interpose its own review and he is claiming, I might say, against funds in the Treasury here.
Felix Frankfurter: Well, then all his business, you told us that's irrelevant to this problem -- to our problem. In short, this is a claim that there was in fact a taking by those asking impliedly by -- by way of contract for the United States and therefore recoverable in the Court of Claims.
Roger D. Fisher: That's his contention. It is -- I believe that the --
Felix Frankfurter: And all the rest of it -- why do I have to bother whether this fund was restricted or wasn't restricted.
Roger D. Fisher: No, you -- you need not bother that --
Felix Frankfurter: All right.
Roger D. Fisher: -- with that except that --
Hugo L. Black: Well, why --
Roger D. Fisher: -- that indicates the manner in which the two governments, for 15 years, have considered their relations and the financial aid from one government to the military forces of the other. This demonstrates the procedure which the two governments have adopted for meeting this moral obligation to meet all or part of the cost.
Felix Frankfurter: I don't think it demonstrates it at all because what the two governments between themselves -- I won't say that and they -- suppose he started the facts and they have some bearing but you might have an interrelationship as between General MacArthur and the President -- but he then wasn't (Inaudible) which doesn't bear on whether or not in the contingencies and emergencies of war, this was in effect a seizure of property for which Uncle Sam could pay in view of the fact that this is a war which he was conducting and the people who received it were acting for him.
Roger D. Fisher: The -- my remarks go to the -- your -- your last phrase and that the people who did it and received the rice were acting for him. It is the -- our contention that they were members of the Philippine Army acting for the Philippine Government under arrangement between the two governments, and I like if I might --
Hugo L. Black: May I ask you why I -- I don't quite -- may be that that has no relevancy with our question. But what do you say to the idea that if the Government in making appropriation to go to the Filipino's guerrillas, were they limiting it by letting it to be paid by the Philippine Government after the Government agents acts on it. Why is that wholly irrelevant with reference to whether the Government only paid or not?
Roger D. Fisher: If this appropriation --
Hugo L. Black: Only -- only.
Roger D. Fisher: If the appropriation were made after these particular Filipino soldiers had already become agents of the United States or officers of the United States, we might be held liable on a taking by the United States whether or not other arrangements were made -- committed. The United States cannot meet -- I might now arguing petitioner's contention, you cannot meet an obligation, say, constitutional obligation by -- to -- for a constitutional taking by appropriating limited funds for limited purpose. We must first meet the question of whether this broad group of Philippine guerrillas, members of the Philippine Army had, from their status, authority to obligate the United States on procurement matters. Now --
William J. Brennan, Jr.: Well, may I ask, Mr. Fisher --
Roger D. Fisher: Yes, sir.
William J. Brennan, Jr.: -- I gather it's not part of the Government's position that this was, this arrangement between the two governments, the exclusive method which must be processed to recover on a claim of this kind?
Roger D. Fisher: It is our position.
William J. Brennan, Jr.: It is your --
Roger D. Fisher: It is our position that the only arrangement -- the only recovery against the United States would be against such -- against the United States would be against such funds that the United States had advanced for that purpose and left the military discretion to approve. Now, the only recovery, the Philippine Government as it was a -- and is now a wholly independent government, petitioner may well have a cause of action against the Philippine Government which he can process in their Court, he can in the Court of Claims and recover whether or not United States has agreed to meet this particular expense with a fund.
Hugo L. Black: But the Government would have met it out of the fund or directly to be met, would it not? It thought that he had really procured -- they had really procured these moneys for the use of the guerrillas.
Roger D. Fisher: I didn't get the subject to your question. Did you say who would have approved?
Hugo L. Black: I understood you to say by denying it on the merits. I understood this to follow or maybe I'm wrong that had this -- had the Government, army officer, whoever passed it reached the conclusion that this was an honest purchase or sale for the guerrillas, the Government would have directed to be paying, would have been paid out of the fund.
Roger D. Fisher: That's correct, $250 million worth of --
Hugo L. Black: So that they --
Roger D. Fisher: -- of funds were advanced --
Hugo L. Black: So that he is deprived of recovering from the Government, wholly by the Government's decision that his claim is not right and --
Roger D. Fisher: That's right.
Hugo L. Black: -- his claim on the administrative basis --
Roger D. Fisher: He -- he is --
Hugo L. Black: -- his claim is not just --
Roger D. Fisher: He is deprived of his recovery against the United States wholly on that ground. It is the first step in our argument that --
Stanley Reed: Really what -- am I correct in this that you -- you advance us to show that there was an arrangement, whereby the Philippine Army would be compensated for whatever they did and that that was to be compensated by the Philippine Government.
Roger D. Fisher: The expenditures --
Stanley Reed: And then that shows the difference between the American Army and the Philippine Army.
Roger D. Fisher: That's right. The financial arrangement between the two and I'd like to reply -- I might turn to the -- the critical stage. First, it's -- it's not --
Harold Burton: Mr. Fisher, I'd like ask you just to --
Roger D. Fisher: Yes, sir.
Harold Burton: -- make sure just that I understand the status of this. If we would hold with the petitioner here and reverse the Court of Claims, it's better not settling the matter with it, it then has to go back to the Court of Claims and be heard on the merits of whether these claims are good claims or not.
Roger D. Fisher: That's right, whether the -- the merits would again be tried. I take it the issue there, if you should reverse, would be a conclusion of this Court that as a matter of law, you could not say that this army did not have that authority. And that the question was one of fact to be tried out as to whether these particular guerrillas received particular cables from MacArthur to say they could go ahead and take these supplies.
Felix Frankfurter: Mr. Fisher, before we allow you to merely make the argument, I'd like to ask you so many question arising out of the question -- the answer you gave to Justice Brennan. Did I understand you to say that one of the contention of the Government is that even assuming there is a claim against the United States, show you one side of the question (Inaudible) that there are limitations as to the fund or the procedure by which -- in law against the limited (Inaudible) did you say something like that or what did you say?
Roger D. Fisher: What -- we would say that if there is a claim, a constitutional claim for taking because of a taking by authorized officers of the United States that we could not limit the recovery to discretion of the military officers.
Felix Frankfurter: Well, you couldn't --
Roger D. Fisher: We could not.
Felix Frankfurter: -- unless -- unless the right will resort to the Court of Claims, had been cut down that you well could be.
Roger D. Fisher: It could be. We -- we have not made that contention.
Felix Frankfurter: Have not made that?
Roger D. Fisher: We have not made that contention --
Felix Frankfurter: But what -- what were you saying on that point you're just explaining?
Roger D. Fisher: I was saying that the only way in which, as a matter of fact, under our view, petitioner could recover funds that had an American origin would have been by getting approval of the Army Claims Service for disbursement from the funds advanced to the Philippine Government.
Felix Frankfurter: And it -- suppose they had -- that would be the boundary to the implied jurisdiction as to -- under the Fifth Amendment --
Roger D. Fisher: No, we --
Felix Frankfurter: -- namely, if they turned you down, we can make -- go to the Court of Claims to say they turned it down improperly?
Roger D. Fisher: We have not made the contention that the Appropriation Act in the various orders -- legislation dealing with the appropriation limited the jurisdiction of the Court of Claims in this area. Well, our basic contention is that the -- we start from the agreed premise that the Philippine Army in 1941 had no authority to obligate the United States.
William J. Brennan, Jr.: Oh, let's see, Mr. Fisher. I'm sorry to interrupt you, but I don't follow this too well. Is there a distinction here as to -- of course to this special fund based upon whether the purchases were made for an American Army --
Roger D. Fisher: No, no.
William J. Brennan, Jr.: -- or for a Filipino Army?
Roger D. Fisher: No, no, no.
William J. Brennan, Jr.: In other words, if the purchase was made either as a purchase for the -- an authorized purchase for the American Army or for the Filipino Army, in both instances recourses to this fund?
Roger D. Fisher: The -- no, the fund was to be used for the expense of the Philippine Army.
William J. Brennan, Jr.: In other words that that -- the reason we have an issue here whether this expense was made for the American Army is that if it was for the American Army, resort to the Court of Claims procedure is proper --
Roger D. Fisher: That --
William J. Brennan, Jr.: -- but if it was not made for the American Army, whether or not it was made for the Filipino Army, the only resort would have to be to the fund that you mentioned?
Roger D. Fisher: That's right. It is our basic view that they have no cause of action against the United States for this taking. This was a taking by one -- picture the scene on the Island of Negros, one Filipino who was resisting the Japanese agrees with another Filipino who has been raising rice and said, “I will take the rice for our group here," and someone -- and now on the pleadings we say they agree that the United States Army will pay for this rice after the -- the war. We say that -- that whether this -- that there was no authority to this group being Philippine members of the Philippine Army as such. They got neither no authority to do -- to bind the United States and that whether we met that's -- that's our contention and that whether they -- whether the authority was -- was there or not depends upon what the act between the two governments were and whether this particular expense should be paid for as an expense of the Philippine Army is a matter for military discretion from funds appropriate for military assistance. I would like to start from page --
Earl Warren: (Voice Overlap) just one -- just one other question along those --
Roger D. Fisher: Not at all.
Earl Warren: -- lines please, to what extent did our Government process favorably any claims of American origin, as you used that term, of this character between the -- in the Philippines, between the date of the surrender in September 1942 and the -- and 1945 when the Japanese surrendered? Did they process any of them favorably?
Roger D. Fisher: During the period of the Japanese occupation, there was no Army Claim Service functioning and there was no processing of any claims arising at that time at all. The --
Earl Warren: During that entire period?
Roger D. Fisher: During the entire period. If I understand correctly, the Army Claims Service set up to approve expenditures from this fund for guerilla claims was given that authority in August of 1945. They --
William O. Douglas: Of course during the Japanese occupation, they could present a claim anywhere?
Roger D. Fisher: That's right, that -- that there's no doubt about that --
Earl Warren: I'm talking about for requisitions that -- that were issued during that period between the surrender in September 1942 and -- and the surrender of the Japanese in 1945, has our Government paid for any -- any claims like this that occurred during that period either through the --
Roger D. Fisher: Oh --
Earl Warren: -- Philippine Government or -- or (Voice Overlap) --
Roger D. Fisher: I -- I did misunderstand your question. Following their return, the United States Army Claims Service has approved claims of the Philippine Army for military expenditures, the bulk of which were guerilla -- of necessity, guerilla claims.
Earl Warren: Yes.
Roger D. Fisher: The order of $250 million worth have been met by the United States, $285 million were the funds that were advanced to the Philippine Government. There are about 30 or 25 to 30 million left and some 250 were used to meet all types of claims of the Philippine Army and of suppliers to the Philippine guerilla.
Earl Warren: Now, the only reason I -- I pursue this is because I understood you to -- to speak of -- of this claim as being one of American origin because they claimed that it sprang from the order of an American officer. Now, were any claims of that kind approved and paid by our Government during that period?
Roger D. Fisher: The contention made here is that the Philippine guerrillas, officers of the Philippine Army were, by that fact, American officers and their type requisitioning should be honored. Without -- the Court of Claims -- the -- the Army Claims Service did not have to decide whether a Philippine officer was an officer of the United States. He said if he was an officer of the Philippine Army and he requisitions supply to help their army, we will meet those claims from the funds which the Congress has appropriated and the United States has made available to Philippine Government and we did. We have met literally thousands of claims of this type but requisitions by members of guerilla forces who are allegedly members of the Philippine Army.
Stanley Reed: I don't understand why you say we met.
Roger D. Fisher: The -- the Philippine Government --
Stanley Reed: To what -- we furnished the money to the Philippine Government --
Roger D. Fisher: The Philippine Government --
Speaker: -- so that they could meet them if we approved that.
Roger D. Fisher: That's right. We approved the meeting of -- of --
Stanley Reed: Of the claim --
Roger D. Fisher: -- such claims with funds which the United States had advanced for that purpose.
Earl Warren: Were there any instances where American officers put in a claim of this kind for guerilla warfare during that period that I spoke of and were paid?
Roger D. Fisher: I assume there were that they -- that officers know. I think the order showed that the -- anyone who claimed as an American officer, his back pay for example, who was an escapee or POW that he was paid from a different appropriation. He was paid from the military appropriations, not from the expense of the Philippine Army.
Earl Warren: No, I don't mean pay but for requisition to goods.
Roger D. Fisher: No, his supplies would have been an expense of the Philippine Army since the whole guerilla activities were as Philippine Army expenses. I would like to start the -- and focus the question if I might as to where petitioner contend the Philippine Army got this authority, this general authority and deal with the legislation involved. He states -- petitioner states on -- it's in the yellow brief, reply brief on page 23. The Philippine Army was originally unquestionably a separate army. Many said at that time, 1934 to 1941, it is true that the Philippine Army had no authority to bind the United States. That's the agreed ground from which we start. Petitioner concedes the Philippine Government and its army was sufficiently separate from the United States that prior to the act -- the events of 1941, it had no authority to bind the United States on any requisition. Then he goes on in the middle of page 23, after the induction of the Philippine Army in 1941, the Philippine Army and its officers under the emergency conditions in the war against Japan had just as much authority to bind the United States as had any other American officer who was or was not part of the United States Army as defined by Congress. He is relying here on the induction of 1941 when the President ordered the military forces of the Philippines into the service of the Armed Forces of United States. As conferring that authority, I'd -- I'd like to deal with the -- the three key orders and -- one statute and two executive orders involved in their legislative history showing what were the intent at the time. Did the United States intend to confer authority? We also start, I might say parenthetically from the agreed premise that there is no authority unless it's been conferred expressly or impliedly. And indeed, there would be authority as to be transferred at this time by these events from the United States Government to the Philippine Army. The -- he refers to the Executive Order of July 26, 1941. This is the order which we interpreted one or we're interpreting, it's on -- from the blue -- from the petition for the writ on page 10A and this is President Roosevelt in July 26, 1941 under authority which he had under the Constitution of the Philippines and the Independence Act, "I hereby call an order into the service of the Armed Forces of the United States for the period of existing emergency and placed under the command of a General Officer, United States Army," skipping down, "All of the organized military forces of the Government of the Commonwealth of the Philippines." This order was to take effect from dates now specified by General Officer named by the Secretary of War. Now, this -- this order was issued and derived following a War Department memorandum recommending this procedure, this memorandum in turn was based on the recommendations of General Garner who was out in the Philippines and General MacArthur. On page --
Stanley Reed: What was behind this order?
Roger D. Fisher: I'm coming -- the authority behind it -- the authority behind it is contained in the Independence Act of 1934.
Stanley Reed: Where is that?
Roger D. Fisher: I'm in my head. The Independence Act of 1934 spurs authority upon -- allowed the President to call up --
Stanley Reed: Well, I thought I have seen that made sufficient?
Roger D. Fisher: It's -- it is -- it is in here. We applied --
Stanley Reed: Never mind. Go ahead.
Roger D. Fisher: It's -- it's clear that the -- this -- this language we take from the Executive Order --
Stanley Reed: It could mean when -- when the -- the Philippine Government is made independent that -- that authority was reserved by the United States.
Roger D. Fisher: The Philippine Government was -- the Philippines Islands were made independent in two stages. In 1935 under an Act of 1934 was the first stage. Ten years later, give or take, few months in July 4th, 1946, full independence was obtained. During this interim period between 1935 and 1946, the United States reserved this authority to call up the organized military forces into the service of whatever armed forces the United States happened to have in the Philippines. Now, we couldn't just call up the Philippine infantry or individual civilian. We couldn't call up the Philippine Army into the service of an army we had in Europe. We can only call them into the service of the organized military forces which the United States had in the Philippines. It was -- it's an in between situation. If we were defending the Philippines, we should have some authority to command their organized forces. We had responsibilities at that time. The -- in considering what they intended to do by this order, I'd like to look to the War Department memorandum quoted on pages 81 to 84, in fact, in appendix of our brief, the basic brief of the United States on this issue. On page 82, the memorandum recites the conditions and this was the one approved by the Secretary of War which went to the President when he signed that Executive Order. They quote General McArthur's view. General McArthur states, "The importance of having the Philippine Army retained its complete identity and operation under its own laws and regulations." In paragraph 4, skipping over to paragraph 8, "Any funds secured should be available to meet pertinent expenses of the Philippine Commonwealth." We believe this indicates that there was at least some doubts as to what -- they were not planning to put the army under -- merge it into the American Army and give all Filipino soldiers the emergency powers which an American officer might have.
Earl Warren: What language in there indicates that they didn't take "control and responsibility" for the Philippine Army?
Roger D. Fisher: We certainly intended to have military command and we had it. The language I'm looking at here is that the Philippine Army shall retain its complete identity reading on an operation under its own laws and regulations. If Philippines' officers were to procure under their own laws and regulations, we submit that they were not to create obligations on the United States thereby.
Felix Frankfurter: Mr. Fisher, I haven't read the brief so I don't know -- suggestion by the petitioner that documents can spell out this MacArthur or the guerrillas or does -- is the -- is that that way or is it rather that the circumstances that occurred after war and after the capitulation, after General MacArthur left that those events brought about a factual situation for which the authority must be implied, which is it? I'm not arguing, I'm asking.
Roger D. Fisher: They do not rely on any --
Felix Frankfurter: Is it the latter that I don't -- they adopted in the Philippines to be a very important -- I should describe very much that there were documents of this express authority.
Roger D. Fisher: They -- they do not rely on express authority. They do rely on the Acts of 1941 as changing the status of the Philippine Army, these documents, these laws and regulations and Executive Orders and they rely on the fact, they -- they keep referring to the word “in”, they were -- they were to be called “in the service of the Armed Forces of the United States” and not “with” and this -- thereby they're trying to construe these documents as indicating that the Philippine Army following these events had implied authority to obligate the United States on its supply.
Felix Frankfurter: The event won't matter, don't they?
Roger D. Fisher: If this were a tort --
Felix Frankfurter: (Voice Overlap) got away.
Roger D. Fisher: If this were a tort action in which the control of an instrumentality had done some harm, if we're being sued for depredations by -- committed by guerrillas under the command of MacArthur and there's a question of whether it was justified by the war or not. I would think we would not -- we could not defend on the grounds I'm suggesting here. These are constitutional -- these are takings by authorized officers, their contracts entered into, receipt is given, I'll pay you such and such a price for this rice.
Felix Frankfurter: But -- but the realm of contract is as you know a very separate one, what is taught and what an implied contract, it supports a case that was being showed to -- concerning on various delicate scenarios.
Roger D. Fisher: Well, the -- the problem of who is an authorized officer of the United States is not merely a theoretical one for interesting discussion, it is a very practical one --
Felix Frankfurter: Yes.
Roger D. Fisher: -- in a world which the American Army today is cooperating in joint military ventures in NATO.
Felix Frankfurter: If I -- if I don't find it in documents, it wouldn't conclude the inquiry?
Roger D. Fisher: No, it would not. I would like to show the documents that it was so clear that the events are -- could not show otherwise.
Felix Frankfurter: Perhaps you would have to show more than that. You have to show as a practical thing that all the military forces, regular, guerilla or whatnot who are operating aren't operating under the authority of the general testimony of MacArthur. Isn't that the real job you have? Because if you were -- if they were -- if they were part of this military force, then I don't have to have any documents, I wouldn't be expecting it --
Roger D. Fisher: The --
Felix Frankfurter: -- because the nature of war would preclude and the effective thing is were they part of his army?
Roger D. Fisher: If I may answer your question with another question. I believe -- indicating I disagree with your conclusion that if they were part of his army, we would be obligated. General Eisenhower had forces in his command on the landings in France.We communicated with the French underground. We urged them to resist and to fight. It is not enough to show that there were military commands and authority running to it. The detail of the arrangements that have been made between governments here that if -- between this quasi independent government and then a fully independent government, these arrangements have been respected for 15 years and assumed to be that way, over a million claimants have been satisfied with this procedure, some 35 have suggested they have direct suits against the United States and a filed suit in the Court of Claims. The -- it is simply on the theory you suggested that they're part of the military or army of MacArthur, the United States must be responsible for everything that happened. In Korea --
Felix Frankfurter: (Voice Overlap) loose language on my part, but I should think that one would have to disabuse himself of -- of stuff of which he can take judicial notice. Certainly, I can with myself but the merger of forces in the Philippine was a very different thing from what you suggested, about the resistance forces in France.
Roger D. Fisher: It was -- it was not treated so by the military personnel and particularly by the financial arrangements. I'd like to turn quickly to the --
Earl Warren: Well, did -- did they ever in -- in the -- in the French situation try to incorporate all those guerrilla forces or underground forces into the Armed Forces of the United States?
Roger D. Fisher: No, they did not.
Earl Warren: The President did here, didn't he?
Roger D. Fisher: The President of the Philippines here --
Earl Warren: No, the President of the United States did here.
Roger D. Fisher: Not to incorporate them, he called them into service under --
Earl Warren: (Voice Overlap) --
Roger D. Fisher: -- executive provision.
Earl Warren: -- July 26, 1941, I hereby call and order into the service of the Armed Forces of the United States for the period of the existing emergency, all of the organized military forces of the Government of the Commonwealth of the Philippines, but that isn't calling them into our armed forces and incorporating them into it, I don't know what language you would use.
Roger D. Fisher: The -- the language used there is taken almost verbatim from the Independence Act providing -- giving the authority --
Earl Warren: Yes.
Roger D. Fisher: -- but the -- the United States actually did, more clearly indicated by the Appropriations Act to appropriate the funds for this.
Earl Warren: I know, but -- but you -- you've got to face this as a condition, do you not and not a theory and -- and you can't show by some other documents that the President of the United States didn't mean what he said here.
Roger D. Fisher: No, I'm interpreting if I may, if it please Your Honor, the -- what was meant by into the service. They did not use the constitutional phrase into the Armed Forces of the United States (Voice Overlap) --
Earl Warren: Where is that --
Roger D. Fisher: -- used everytime heretofore. They used the phrase “into the service.” I don't get much help from that but at least I get the point that they have not used the same language they've used whenever they have called troops or National Guard into the armed -- they called them into the Armed Forces of the United States.
Earl Warren: Well --
Roger D. Fisher: Here, an organized force as such which could only be used in the Philippines as we read the statutes, only be called to those into the service of such of our forces as were actually in the Philippines.
Earl Warren: Well, if you don't get any comfort from -- from that, would you read me what you do get comfort from --
Roger D. Fisher: I would be delighted.
Earl Warren: -- that militates against this military order of July 26, 1941.
Speaker: That's what I'm close to.
Roger D. Fisher: Following that order, people went to -- the military went to Congress to request funds for appropriations to meet these expenses of the Philippine Army. It was first suggested that they should be met from excised tax funds that were being held entrust for the Philippine Government. This is after the order calling them up. It was assumed that the United States would not meet them from its funds but from excised funds that were to be held to be released in 1946. They went and asked Congress for authority to release these in a premature fashion, early. Congress said, "Why are you doing this, isn't this in expense of ours?" The testimony which I'm particularly interested in is on 104 in the appendix of our basic brief. Colonel Moore explained to the army on October 1941 what the arrangements were between the two forces. In the middle of page 104, Congressman Cole asked them why they're to be exempted from the General Accounting Office requirements. And the Colonel explains that the Army of the Philippines is organized, paid and administered in accordance with Philippine Commonwealth laws and regulations. What about the funds, said Congressman Cole? Colonel Moore, during the current emergency, every established agency of the Philippine Army should perform the functions prescribed by Philippine law for such agencies. It is impractical, I'm skipping a little few words, to disrupt, during the current emergency, present Philippine practice and procedure in order that the Philippine Army might comply with the strict procedures prescribed by General Accounting Office for the United States procurements. These were the procurements for the Philippine Army to be distinguished from the United States procurements. The purpose of this, I must say, was to keep the Philippine to respect the integrity and independence of a government which we were fostering at that time. This was not the poised -- poised responsibility on them except for the purposes of having them learn independence by the experience of responsibility. The United States has -- we -- had a few brief years interrupted by the wars in which to help the Philippine Government assume the burdens. The appropriations were handled in a way to give them the maximum chance to exercise that responsibility.
Felix Frankfurter: I -- I suggest the very important consideration of all the phrases, the formulas that were used during this period in part of the Act, would you regard the susceptibility of a nation (Inaudible) This is a statement I'm making on your side.
Roger D. Fisher: The -- the statute which was passed, the Appropriations Act of 1941 indicates clearly that whether the United States was to pay all or part of the military expense of the Philippine Army was to be left to the military discretion of General MacArthur. On page 41 of our -- again our basic brief -- no, excuse me back on page 40 it is. The Act starts on 39, the Appropriations Act provide that they should be made without --
Earl Warren: Well, now, before you get to the Act, you -- you're reading us some legislative history, is that all the legislative history you rely on?
Roger D. Fisher: No, I'd -- I would like -- my time is --
Earl Warren: Because you're not --
Roger D. Fisher: -- fast fading away.
Earl Warren: You're not (Voice Overlap) --
Roger D. Fisher: The other --
Earl Warren: -- Colonel Moore overruling the --
Roger D. Fisher: I'll quote --
Earl Warren: -- commander-in-chief, aren't you?
Roger D. Fisher: I'll quote General Marshal, Chief of Staff in November 1941 on this very bill.
Earl Warren: Where is that?
Roger D. Fisher: On page 29 of our brief, "This army, being an Army of the Philippine Commonwealth Government cannot, under existing law, be financed for military appropriated funds even though called in the service with the Armed Forces of the United States."
Earl Warren: Well, does that disprove anything in that other order?
Roger D. Fisher: The -- indicates that all financial arrangements between the two governments were to be made separately and not by regular military appropriated funds. It also indicates they regarded them as in the service with the Armed Forces of United States rather than apart of our army.
Earl Warren: Well, isn't that a matter of accounting -- isn't that only a matter of accounting you should talk about?
Roger D. Fisher: That's -- well, basically this question turns on accounting whether these claims were against the Philippine Government and we would provide them through the procedures adopted or whether they would be directly against the United States Government. The whole -- whether the army, this is an independent -- a quasi independent government, we had to decide what our relationships would be with it. The United States decided to keep this army as an army under its Government and that we would provide generous financial assistance to meet its military expenditures through the Philippine Government.
Hugo L. Black: Just assistance?
Roger D. Fisher: Assistance. And I turn on the Act indicating the intent of Congress when they got into this situation, this is on -- on page 40 that they had funds appropriated $269 million, disbursements could be made without regard to the provisions of laws regulating expenditure of accounting funds of the United States, these funds should be available for payment to the Government of the Commonwealth of the Philippines.
Hugo L. Black: What page is that?
Roger D. Fisher: Page 40 of our basic brief in the quotation on the left top page.
Hugo L. Black: I see it. Thank you.
Roger D. Fisher: For payment to the Government of the Commonwealth of the Philippines upon its written request, either advanced 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 expenditures for the purposes of war. We -- we believe that this -- there was no understanding in the part of anyone, General Marshal or the Congress that the United States had a new army of its own but they had called in a service and army under arrangements they have with the Philippine Government and that they should appropriate funds to meet all or part of those expenditures of that army as should be decided by a military manner.
Felix Frankfurter: Mr. Fisher --
William J. Brennan, Jr.: (Inaudible)
Roger D. Fisher: The language I believe has not been used either before or since. The language of National Guard unit is called up -- is called into the Armed Forces of the United States. When state -- when state guards -- state guard units --
William J. Brennan, Jr.: (Inaudible) the foreigners, do we have --
Roger D. Fisher: The --
William J. Brennan, Jr.: -- anything like that?
Roger D. Fisher: The military command which we had over the Philippine Army was no greater -- military command was no greater than that which General MacArthur later had over Australia and New Zealand forces in the same war or over South Korean troops in Korea.
William J. Brennan, Jr.: We never -- we never said anything that we'd indicate -- we were calling the troops of those nations into the Armed Forces of the United States?
Roger D. Fisher: Into the service of the armed forces if I may.
William J. Brennan, Jr.: All right, into the service of the United States.
Roger D. Fisher: A -- a distinction, which I think in the light of the documents, indicates it was not the intention of anybody that every Philippine soldier could -- well -- or any Philippine officer was an officer of the United States who had the same implied power that an American officer have.
William J. Brennan, Jr.: Well, I -- I gather your answer to my question is no.
Roger D. Fisher: I say we'd never use the same language. I think the NATO treaty arrangements, one can -- a government can call certain units in, has power to command them --
William J. Brennan, Jr.: Well, may call them into service but -- into the service --
Roger D. Fisher: Into the service --
William J. Brennan, Jr.: -- service of the Armed Forces of the United States that's --
Roger D. Fisher: Of the United States in the Philippines. It is supposed to be -- we -- we could not call them into service of the Armed Forces of the United States even, in general. We could not have called them over to Europe as we read the statute. We could only call them into the service of those units of ours which were in the Philippines defending the Philippine Army. I think it is a quite a different status, a status which has been recognized by -- say by --
William J. Brennan, Jr.: Well, what I'm really trying to get at, Mr. Fisher, whether necessarily a determination favorably to the petitioner on the merits here is going to have any outreaches into other arrangements that we may have made, NATO or otherwise.
Roger D. Fisher: It depends -- or you could make a holding that would be against us that would be narrow enough only to affect this case. I think that --
Felix Frankfurter: May I -- may I --
Roger D. Fisher: -- I think if base it on any -- any such broad principle as Justice Frankfurter suggested of the Arm -- the military arm -- you might get yourself where you would affect our other military arrangements.
Felix Frankfurter: I was talking about the military army in the Philippines. May I suggest, you have the best (Inaudible) of your time but at least for one member of the Court, the typical issue, the problems of this case arise after these documents, that is after Japan to hold -- and I hope you leave yourself enough time, you haven't got much time left to deal with those events, it seems to me the crucial aspect of this case. Others may not take seriously, just leave yourself enough time to deal what happened after the war broke out and after General MacArthur left and the circumstances under which he left and what was happening after that.
Roger D. Fisher: The -- if petitioner here were alleging express authority, communicated to him by any cable or radio or verbal contact and if that were the basis for his contention, I only suggest that's not the issue he raised on certiorari. Issue on certiorari is whether members of the Philippine Armed Forces, who fell in a certain broad category, have that authority not whether express authority was communicated to these --
Felix Frankfurter: I'm not talking about --
Roger D. Fisher: -- guerillas.
Felix Frankfurter: -- the express authority but authority derivably expressed by a force of circumstances and actions.
Roger D. Fisher: The --
Felix Frankfurter: I understand the patience of this Court dealing with the application of the Fifth Amendment, you don't have to have an order in turn that authorized by the Congress or President of the United States, I hereby seize these goods for which Uncle Sam under which to pay or has to. What I want to know is whether in the context of the circumstances, it isn't what you indicated earlier, an implied power of Uncle Sam.
Roger D. Fisher: The power that can be implied by emergency, can be applied by military necessity, can only be implied into an officer or into an agent who, in the normal course of events, had some agency relationship to the principal and who could -- but for the emergency have received, there would, but for the emergency have received the express authority. The emergency, no matter how -- in the brief they refer to a French soldier, no matter how desperate his emergency, he could not sign a contract on behalf of the United States. You have to find that prior to the emergency or during the time of the emergency, he had some such agency relationship that he could. He would have, he'd been given express authority if the communication had been open, they would have authorized these people to procure the documents -- idea within the executive order of January 1942 which after the war was started, spelling out this appropriation which is quoted in the brief, point out that with the explicit, that dispersing officers of Philippine Army shall draw against funds in the Philippine Treasury and that the United States would advance funds to the Philippine Treasury for to -- which with the approval of the Commanding General can be used for these purposes.
Hugo L. Black: All of the expenses, I believe your -- what you said, it's on page 39?
Roger D. Fisher: That's the -- this is the Appropriation Act. It starts for all expenses and reads over to the end which says, "For all or any part of the estimated or actual cost as --
Hugo L. Black: As I get -- as I get with -- I don't want to take your time. As I (Voice Overlap) --
Roger D. Fisher: (Voice Overlap) --
Hugo L. Black: -- what you said, you've got a situation in which the Government wanted to pay the soldiers but didn't want to do it directly, would want to pay them through the -- see if they will pay to the Philippine Government, they made appropriations for that purpose. You say that no legal liability as I'm -- this as what I understand up today, because the Government was trying to save the independence feeling of the -- sensitive -- sensitive feeling to the Philippine Government but that even sense of war, the Government paid every -- authorized a payment of every claim of procurement where it believed (Inaudible)
Roger D. Fisher: That's --
Hugo L. Black: That's what I understand the situation now.
Roger D. Fisher: That's right -- that's right. I think that the sensitive feeling is not quite was not --
Hugo L. Black: (Voice Overlap) --
Roger D. Fisher: -- was not the only reason, it was for the training of the -- of the Philippine personnels --
Hugo L. Black: Yes, I should not (Inaudible)
Roger D. Fisher: This is discussed in here. The Executive Order of January 1942, quote on page 41 of our brief, necessary expenditures from funds in the Philippine Treasury for purposes authorized by the Act of December 1941 will be made by dispersing officers of the army in the Philippines on the approval or authority of the Commanding General, United States Armed Forces and subject expenditures would be accounted for in the courts with procedures established by the Philippine Commonwealth laws and regulations.
Stanley Reed: After all this was -- it was over, Mr. Fisher, the guerrillas were operating, was there any recognition made of the operations of the guerrillas by the Commanding General of our armies in the Far East? I'm -- I'm thinking of what was called to our attention on page 63B of the brief of -- for petitioner, is that a recognition of guerrilla units?
Roger D. Fisher: Yes, they were recognized. The guerrilla units were recognized and it's the second leg perhaps that is argued.
Stanley Reed: As they (Voice Overlap) --
Roger D. Fisher: But there again, they are recognized --
Stanley Reed: -- of the armies.
Roger D. Fisher: The status of members of these units is that of officers and enlisted men of the Philippine Army, I'm reading from page 63B, it is further desired that payment -- as found at bottom of our paragraph 4, that same order to which he refer, it is further desired that payment of these units be facilitated by finance officers of the Philippine Army taxed to your commands.
Stanley Reed: 63B?
Roger D. Fisher: 63B of the brief. You have six briefs, I'm sorry that --
Stanley Reed: Well, I noticed on the 64B at the same brief, Section 2 is -- does that same separation of the Armies of the Philippines and the United States run all through these (Voice Overlap) --
Roger D. Fisher: Every -- every recognition order which we have found in which petitioners caught our attention stated specifically to avoid any confusion of the status of any units listed of -- listed or recognized as members of the Philippine Army and they were paid from these same funds. I would like if I might, just briefly on the fact, this is a question which is still under consideration with the -- I was -- the Government was suggesting we try to deprive this Court of jurisdiction over this matter by saying this is one for which you ought to give weight to the -- to the determinations of the executive branch. That was not our intention. Now, we think the Court -- the views of the executive branch to which we referred are those establishing -- setting up and operating under an arrangement, this arrangement between the two -- two armies, between the commanders which for 15 years have been considered by the United States Government and by the Philippine Government as far as I know, at least by the Philippine Army, the operating factor, they will operate as separate unit without liability directly against the United States with liability against the Philippine Treasury which the United States as intergovernmental matter, government to government with me. We suggest that this is a -- right now, pending -- and at the political level, between the two governments is the question of the return of the 25 or so million dollars which the United States have advanced which is above the cost of the Philippine Army as considered by the American military commanders. The -- this money was promised to be returned and it has not been returned in accordance with the Snyder-Romulo agreement of further discussions. The Philippine Government aren't going on. The Philippine Government has raised with the United States at the diplomatic level, the question of the pay level for all members of the Philippine Army. They had a different enlisted men who were paid at a rate for one peso instead of being the equivalent of half a dollar was considered as a dollar under Philippine Army law. They received the lower rate of pay. One of the claims pending is under various orders created in the Philippines, all members of the Philippine Army should receive the same pay to vadilify that they are officers in the American Armed Forces. Other matters relate to -- to housing, allowances, quarters allowances while they were guerrillas, all these questions are not in this case but a decision by the Court in this case would certainly have a bearing on petitioner in this -- the yellow brief, page 35 at the very end. How the payment of awards to Filipino's has been or will be made whether by direct payments to successful claimants or by payment to the Philippine Government for distribution is of no importance nor is it involved in this case. We submit it is involved in this case, if Your Honors determine that there's a direct liability against the United States, the petitioner we paid from funds in the Treasury here not in the funds which have been appropriated or advanced for this purpose and that you will have -- perhaps reduce the political claim. But the -- a Court of Claims judgement goes to the individual petitioner not to the Philippine Government.
William J. Brennan, Jr.: Well, I gather your argument must mean this that we had not appropriated this $269 million and paid out $250 million now that we have. There's been no obligation of the United States at all to meet any of these commands.
Roger D. Fisher: I think there would have certainly been a moral obligation, I think that the arrangements of 1941 by the --
William J. Brennan, Jr.: Yes, but you say they could not have come to the Court of Claims.
Roger D. Fisher: That's right, they could not --
William J. Brennan, Jr.: Well, then where else could they have come?
Roger D. Fisher: To the Philippine -- to the Philippine Government. We're -- we met -- in that case met the large portion of the expenditures of other military courses during the war. Other countries we gave great financial assistance. I would like to test the --
Hugo L. Black: (Voice Overlap) to pay -- excuse me. Were they free to pay unless the Army Claim Commission approved?
Roger D. Fisher: No, they -- yes, they were free to pay certainly from their own funds.
Hugo L. Black: From their own funds?
Roger D. Fisher: That's right.
Hugo L. Black: Not out of this fund?
Roger D. Fisher: That's right.
Hugo L. Black: And so you -- if they do -- and if this should go against -- may I skip, this is practical result that the Government wanted to pay up through the Philippine Army all the expenses of these people recognized of whatever moral of whatever obligation it is, instead of the Claim Commission, they passed on, they've given up the hearing on the merits when it disapproves that settles and as a practical result would be -- if this -- you should lose, they'll get a trial on the merits -- in the Court in addition to the trial --
Roger D. Fisher: And we would --
Hugo L. Black: -- on the merits before the Board?
Roger D. Fisher: We would be litigating in the Court of Claims, the questions of the status of these units. The United States can derecognize guerrillas as well as recognize them. They have derecognized 37,000 fraudulent guerrillas to whom they have paid. If the army chose to derecognize these guerrillas on some reasonable basis on further examination, I take it that will eliminate petitioner's case. The army does not do that but we go on to the question of whether this rice with a military necessity, whether these officers were carrying on military operations for the Philippine Government or were they're feeding their friends, those questions, now 15 years -- 10 years after the -- the events took place be litigated here in the Court of Claims.
Hugo L. Black: The question I asked -- may be I didn't make it quite clear (Voice Overlap) --
Roger D. Fisher: I'm sorry.
Hugo L. Black: They -- the Government wants to pay it all, wanted to pay every meritorious claim for procurement by the guerillas --
Roger D. Fisher: That's right.
Hugo L. Black: -- and provided an appropriation for that purpose. Turned it all to the Philippine Islands and your argument here is with the desire to let them -- it be paid through them but the Government has reserved -- is reserving for itself the right to approve on these payments that should be made out of their fund and it does so on the basis of the Board of Army Commissioner or whoever they are on the merits and the only thing that would happen here -- I'm not saying it should happen or whether that's a ground to decide. The thing that would happen would be that an addition to the trial on the merits before the Commission, they would get one for according.
Roger D. Fisher: That's right.
Hugo L. Black: And that's -- that's the end result.
Roger D. Fisher: And if you would allow a judgement against the United States beyond the funds appropriated by Congress for this purpose.
Earl Warren: Mr. Fisher, just one other thing, I understood you to say that although this was a responsibility of the Philippine Government to be in no instance have the Philippine Government ever honored a claim of this kind unless it had first been passed by our War Claims Commission, is that (Voice Overlap) --
Roger D. Fisher: I cannot state that categorically, Your Honor.
Earl Warren: Well, that --
Roger D. Fisher: The rule of thumb if the United States Army Claims Service disapproved the claim from the funds advanced to United States, the Philippine Government did not pay. As a -- as a general practical matter whether they say that some claims beyond that I do not know.
Felix Frankfurter: May I ask --
Roger D. Fisher: They were in financial states, most of the time after the war.
Felix Frankfurter: Would mind stating with more particularity than you have how -- how your view on the decision in this case may be restricted assuming this doesn't affirm entirely, how it may be restricted so as not to embarrass these other questions would you say are now being discussed on the political level?
Roger D. Fisher: If I suggested that to be accomplished, I did not mean too. I meant in answer to Mr. Justice Brennan's question to say it could not -- it could be resolved in this case without embarrassment to our relations with NATO, to our other military -- to other military -- joint military operations --
Felix Frankfurter: But as to --
Roger D. Fisher: -- or one command.
Felix Frankfurter: -- as to -- as to this other -- as to the other open questions which are now in -- in discussion between the Philippines and ourselves, a decision in this case adverse to the Government from necessarily cut into those problems.
Roger D. Fisher: The -- since the Philippine Government is now holding and has failed to return, despite request, funds advanced for this purpose beyond those which the United States Army has approved meeting -- no, funds advanced beyond the claim which the army approved meeting. Any recognition by this Court of a direct claim against the United States from Treasury --
Felix Frankfurter: Or for seizure as by way of eminent domain must be restricted. That's all that's involved in this case, isn't it?
Roger D. Fisher: Well, you -- that -- that's all that's alleged to be involved in this case and that you could -- you could certainly restrict it that way but that's the bulk of the -- of the 400,000 claims filed wherefore takings and requisitioning by guerrillas.
Felix Frankfurter: How many in number, how many claims would be affected by decision in this case if the Government will not sustain?
Roger D. Fisher: I believe there are 35 cases that are pending in the Court of Claims or have been dismissed within the last two years which could be reconsidered out of the several hundred thousands.
Felix Frankfurter: That's all, 75?
Roger D. Fisher: That's -- that's right.
Felix Frankfurter: So the damage doesn't look troublesome.
Harold Burton: Mr. Fisher, do you take any position on the statute of limitation?
Roger D. Fisher: I most certainly do and I welcome your question. The period -- the six-year period within which the United States was consented to be sued in the Court of Claims is a -- this is a statute of consent contrary to common law. At the time this statute was adopted -- first adopted in 1863, there was no common law rule tolling any statute of limitations for period of war. The -- that first case that we've found holding a statute of limitations suspended was hanging out of this Court several years after the Court of Claims statute was first adopted. The matter is one, as petitioners concede, of statutory construction of the language of the Court of Claims Act. It is our view that consent is only by statute and a statute of consent is strictly construed. The cases in this Court on that point need not decide. When Congress intended the statute to be suspended for war, it does so. It has adopted a number of statutes suspending a running of limitations during the period of war, that's done so from 1864 through 1948. They are cited in the brief. They have done it with -- in various ways. They neither said, “You shall have until two years after the date of this Act or the period of war shall be subtracted or you shall have six months until you're out of military service or you shall have a certain extension of a period, one year of -- from the end of the war.”
Felix Frankfurter: Is that a separate statute tolling, is that a limitation or a legislation in which rights are given or immunities conferred if there is that qualification, which is it?
Roger D. Fisher: The first one, March 21st, 1864, was in the Homestead Act and it was dealt with the Homestead Act. The second one --
Felix Frankfurter: (Inaudible)
Roger D. Fisher: The second -- the second one, Your Honor, in June 11th, 1864, the special -- I have -- reading some notes if I -- I'm sorry.
Felix Frankfurter: Go ahead.
Roger D. Fisher: Your Honor, the -- the second act -- the statutes are referred to on pages 40 and 41 of our supplemental brief dealing with the period -- the limitations question. The second Act of Congress during the civil war in June was a special act for persons who because of the civil war were beyond the reach of legal process and they tolled the war during the period when they -- they extended the period of all statutes of limitations, every kind over which Congress could -- could act, they would do it for all. They have been -- there have been various ones, if Your Honors are familiar with the questions of statute of limitations in criminal cases where fraud against the United States, the period within which frauds could be prosecuted or indicted was extended until three years after the war. Petitioner's contention here is that as a matter of statutory construction, you must construe every single statute of limitations everywhere. That's -- they -- they recognized this is one you have a hard time reaching unless you have such a broad proposition as including an implied exception because of the war. The -- in 1948, this very statute, Court of Claims statute on case three of our supplemental brief, was amended to change that if -- the amendments referred to in page 51 out of that brief, the -- this statute was amended to delete the specific disabilities which at that time prohibited suit, married women, infants, idiots, lunatics and various descriptions and they provided that a petition on the claim of a person under legal disability or beyond the ceased time and claim accrues maybe filed within three years after the disability ceases. The revisers note in explaining this, they -- the person's under legal disability could not sue, written in a footnote on page 51 and there's still should be barred until they become able to sue. The revised language will cover all legal disabilities actually barring suit. The petitioner here could not legally bring suit. He was barred from bringing suit during the war. He could not have brought suit until the war was over and the Trading with the Enemy Act was fixed and the common law disability was lifted. He failed to file suit until five-and-a-half years after the end of the war. As he filed suit in 1951, more than five-and-a-half years after the surrender of the Japanese on September 2, 1945 which is the date we will use, we will both agree on for this purpose as being the end of the --
Hugo L. Black: Why did you say an enemy?
Roger D. Fisher: An enemy under the Trading with the Enemy Act, a permanent resident of an area occupied by an enemy is an enemy of Mr. Soriano within Manila. He was not a guerrilla. He's -- he's a supplier. He's a farmer. He is a technical enemy and could not legally bring suit as they have argued at great length. He is prevented from bringing suit. The statute contains a special exception for anybody who is under disability which bars suit. This Court in the very cases of Hanger and Abbott in the civil war cases continue to refer to the inability of a hostile or a party who could not reach the courts as being a disability. These cases are referred to in the footnote on page 52. It is the position of the United States -- I'd like to make clear if I could because we do not support, we do not adopt the position adopted by the Court of Claims in the Maritima case. It is our position that the statute of limitations, the six-year statutory period in the Court of Claims is absolute as to everyone. It is not suspended during war by an implied exception for the benefit of anybody. There is a statutory exception for those who legally could not bring suit during the war and they have three years after the war within which to file suit. Petitioner did not file suit either within six years, the time his claim accrued or within three years of the end of the war. We believe that you cannot construe this statute as he asks without raising serious questions about all. Consent statutes, all the tax refund claim periods during war as among people already situated and of course hard to reach. He is asking a construction of this statute. He tries to make the statute seem inequitable so that you have to construe it as an implied exception. The statute is not absurd and it is not inequitable on its face. Everybody who is barred by war has three years after the war within which to file a suit. That's in the statute. That's a far easier exception to find than one which says that the whole period when the statute says six years, that means six years plus whatever time there is disability. The last requisitioning here occurred in January 1945. Manila was liberated in February 1945. The mail service -- commercial mail service of the United States opened on April 16, 1945. It was more than six years after the commercial mail service is opened that suit was here barred. We believe claim does not fall within the period of consent allowed by Congress and the process in each of the question decide than the -- one of our certiorari was granted. We believe in these phases, the petition must be dismissed.
Speaker: Could I ask you a question before you sit down? Do any of these papers contain the proceedings or any of the papers related to the claim that was made before the army?
Roger D. Fisher: The record below consists of the allegations in the -- of the petition in the Court of Claims. It sets forward the facts which we assume for the purpose of this litigation of the guerrilla status of the --
Speaker: No, one that the -- the proceeding as it -- you referred to earlier. You said this claim was presented originally to the army or to the branch of the army that's concerned with those matters.
Roger D. Fisher: That's right. Those -- those --
Speaker: Nothing in -- I couldn't find anything (Voice Overlap) --
Roger D. Fisher: No, those documents are not here. I had access to them but they're not before the Court.
Speaker: Would there be any objection to those being submitted to the Court? I'd like to see them.
Roger D. Fisher: None -- none that I know of, and I will see that you -- if -- it would either be submitted or we'll explain their -- their absence.
Speaker: I prefer to see them.[Laughter]
Earl Warren: All right. Thank you, Mr. Fisher. Mr. --
Prew Savoy: Your Honor, if you have any questions (Inaudible)
Earl Warren: Thank you, Mr -- Mr. Savoy, I think we'll have the case then.