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Opinion of the Court

compliance with subdivision (b) of section 2 of the Act, as there is an absolute failure to state the matters required by subdivision (c) and section 3 of the statute, or anything that would be the equivalent thereof. The statement in the pardon to the effect that it is granted in consideration of "divers other good and sufficient reasons me thereunto moving" in nowise complies with the statute.

No objection is made on the ground that a motion to dismiss is filed instead of a demurrer. Either way the objection to the cause of action is made, the result would be the same. The petition must be dismissed and it is so ordered.

The case is an unfortunate one and it may seem to the plaintiff that relief is denied him by reason of a technicality, but we have no discretion in the matter and must proceed in accordance with the law. Congress alone can relieve the plaintiff from the hardship of his situation, and to that body rather than the Court of Claims plaintiff should present his appeal.

WHITAKER, Judge; LITTLETON, Judge; and WHALEY, Chief Justice, concur.


[Departmental No. 174. Decided January 6, 1941]
On the Proofs

Property of Army officer lost during travel under orders.--Where baggage of Army officer was lost while being transported by the United States Army in an Army truck, manned by enlisted men, while said Army officer was traveling in a passenger car from one station to another pursuant to proper orders and in line of duty, it is held that the travel performed by claimant comes within the provisions of section 1 of paragraph 3 of the Act of March 4, 1921, providing for the replacement, or the recoupment of the value, of private property of officers lost "during travel under orders" and claimant is accordingly entitled to recover.

The facts sufficiently appear from the opinion of the court. WHITAKER, Judge, delivered the opinion of the court: On September 23, 1940, pursuant to section 148 of the Judicial Code (36 Stat. 1137, as amended, 42 Stat. 24).

Opinion of the Court

92 C. Cls.

the Secretary of War transmitted to this Court the claim of Major Eugene A. Regnier for loss of private property, accompanied by photostats of vouchers, papers, documents, and proof pertaining thereto, duly certified by the Judge Advocate General.

From these it appears that the claimant during the period in question was a commissioned officer on active duty in the Regular Army of the United States. While serving at the Cavalry School, Fort Riley, Kansas, he, with several other officers and enlisted men, was duly ordered to

proceed on 14 October, 1939, marching by motor convoy, from Fort Riley, Kansas, to Fort Knox, Kentucky, and return, on temporary duty for the period 14 October, 1939, to 22 October, 1939, inclusive.

Each officer was authorized to take one trunk locker for his baggage, which he was notified would be transported to Fort Knox by Army truck.

On October 13, 1939, after packing his trunk and attaching thereto an identification tag furnished for that purpose, claimant delivered the trunk to the motor transport pool at Fort Riley and placed it on one of the trucks designated by the orders.

The baggage truck was not unloaded until arrival at Fort Knox on October 15, 1939, where military personnel of that post unloaded the baggage and distributed it to the quarters assigned to the various owners. Claimant's trunk was not delivered at his quarters. On report thereof a thorough search was made, but the trunk has not since been found.

After placing the trunk on the designated Army truck, claimant had no authority or control over it or over the baggage truck, which traveled independently of the column of passenger cars in which claimant rode to Fort Knox. None of the articles lost by claimant were insured and there is no government property on hand from which they may be replaced in kind.

On October 31, 1939, in accordance with Army Regulations and within the time allowed by law, claimant filed a claim with the War Department for the lost trunk and the articles of wearing apparel contained therein. The claim


Opinion of the Court

was referred to a board of officers which recommended that the claim be paid in the amount of $281.17. Items contained in the trunk and values assigned thereto and recommended for reimbursement by the board of officers are as follows:

Blue Dress Coat_____.

Blue Dress Trousers__.

Blue Dress Cap------
Black Shoes

Brown Field Boots------
Breeches-- -


Spurs, etc‒‒‒‒‒
Shirt (wool) ––









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The claim was then transmitted to the Chief of Finance who approved payment thereof and so recommended to the Assistant Secretary of War. The Assistant Secretary of War, acting for the Secretary, held:

It is hereby certified that the articles of property, in the items and values as found by the Board were reasonable, useful, necessary, and proper for the claimant to have in his possession in the public service in the line of duty, while in quarters, or in the field, that the loss occurred under the circumstances ascertained and determined by the Board and without fault or negligence on the part of the claimant and that none of the items can be replaced in kind from Government property on hand. The value is hereby, under the provisions of the Act of Congress of March 4, 1921 (41 Stat. 1436), ascertained and determined in the amount recommended by the Chief of Finance, and the claim in such amount is approved.

Thereupon the Finance Officer, United States Army, Washington, D. C., requested an advance decision by the Comptroller General on payment of the claim. The Comptroller General advised that claimant was not entitled to reimbursement. By reason of this opinion the finance officer did not pay the claim and returned it to the Assistant Secretary of War for further consideration. At the time of this reference to this court the claim has neither been

Opinion of the Court

92 C. Cls.

paid nor disallowed and it is still pending within the jurisdiction of the Secretary of War.

Claimant has agreed in writing to accept $281.17 in full satisfaction and release of his claim and has consented to this reference in a letter addressed to the Secretary of War. Section 1, paragraph third, of the Act of March 4, 1921 (41 Stat. 1436, 1437), provides in part as follows:

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SECTION 1. That private property belonging to of ficers, * * of the Army, including all prescribed articles of equipment and clothing which they are required by law or regulation to own and use in the performance of their duties, and horses and equipment required by law or regulations to be provided by mounted officers, which since the 5th day of April 1917, has been or shall hereafter be lost, damaged, or destroyed in the military service, shall be replaced, or the damage thereto, or its value recouped to the owner as hereinafter provided, when such loss, damage, or destruction has occurred or shall hereafter occur without fault or negligence on the part of the owner in any of the following circumstances:

Third. When during travel under orders such private property, including the regulating [regulation] allowance of baggage, transferred by a common carrier, or otherwise transported by the proper agent or agency of the United States Government, is lost, damaged, or destroyed; but replacement, recoupment, or commutation in these circumstances, where the property was or shall be transported by a common carrier, shall be limited to the extent of such loss, damage, or destruction over and above the amount recoverable from said carrier.

The Comptroller General held (B-9231, April 15, 1940) that the travel performed by the claimant in this case did not come within the provisions of section 1, paragraph third, supra, providing for the replacement or the recoupment of the value of the private property of officers lost "during travel under orders." This seems to us patently erroneous. The act specifically allows such recoupment where the baggage is "transferred by a common carrier, or otherwise transported by the proper agent or agency of the United States Government." This baggage was being

Reporter's Statement of the Case

transported by the United States Army in an Army truck manned by enlisted men of the Army. The case comes squarely within the terms of the statute.

This appearing to be a case where under section 148 of the Judicial Code we are authorized to render judgment, the claimant having consented to this reference, judgment will be entered against the defendant for the sum of $281.17. The War Department will be so advised.

LITTLETON, Judge; GREEN, Judge; and WHALEY, Chief Justice, concur.



[No. 44000. Decided December 2, 1940. Defendant's motion to reform judgment overruled March 12, 1941]

On the Proofs

Capital stock tax; interest on overpayment.-Where plaintiff, a corporation contemplating dissolution, on July 29, 1936, requested an extension of time for filing its capital stock tax return, due to be filed on July 30, and where said corporation on July 30 made a payment of $30,000 on account of said tax liability, and where said extension of time for filing its return was duly granted, stipulating that the plaintiff should pay interest from July 31, and where on September 28 the plaintiff filed its capital stock tax return showing a tax of $15,000, which was thereupon assessed, and where the excess paid was thereafter refunded, without interest; it is held that plaintiff, under the provisions of section 614 (a) of the Revenue Act of 1928 is entitled to recover interest on the overpayment.

Same.-An "overpayment" is not a "deposit."
Same.-Payment was made "in respect of any internal revenue tax"

within the meaning of the statute.

The Reporter's statement of the case:

Mr. Warren W. Grimes for the plaintiff. Mr. H. B. McCawley was on the brief.

Mr. Hubert L. Will, with whom was Mr. Assistant Attorney General Samuel O. Clark, Jr., for the defendant. Messrs. Robert N. Anderson and Fred K. Dyar were on the brief.

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