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Syllabus

118 C. Cls.

interest it had in the land, and if, because plaintiff's interest was not in fee but was for a definite duration, it made that interest less valuable, these adverse effects were incidents, not so much of Order L-208, as of the kind of ownership that plaintiff had. The Government is not liable for such effects.

Plaintiff was put to expense in complying with an order of the sovereign. But since the order did not, in our opinion, result in a taking of private property for public use, we must hold that plaintiff has no cause of action against the United States. Although Order L-208 imposed a restriction upon the use of private property, we hold that it was a regulation rather than a taking, a regulation which was permissible because the national safety demanded it, and which was valid under the war power. The United States cannot, therefore, be held liable to make compensation to one who was put to expense in complying with it. The defendant's demurrer is sustained and the petition is dismissed. It is so ordered.

HOWELL, Judge; MADDEN, Judge; WHITAKER, Judge; and JONES, Chief Judge, concur.

VICENTE MORENO v. THE UNITED STATES

[No. 48754. Decided November 7, 1950. Plaintiff's motion for new trial overruled January 9, 1951]*

On the Proofs

Suit under Missing Persons Act by officer of the Philippine Scouts captured by the Japanese and paroled.-In a suit under the Missing Persons Act of March 7, 1942 (50 U. S. C. App. 10011015), where it is shown that plaintiff, an officer in the Philippine Scouts, a part of the Army of the United States, was taken prisoner by the Japanese Army on April 9, 1942, and held as a prisoner of war until June 28, 1942, when he was released on parole; it is held that the final determination of the commanding general that the plaintiff was not in a casualty status during the period in question, October 1, 1942, to January 1, 1945, was conclusive, and plaintiff is not entitled to recover. Army and Navy — 13 (6)

*Plaintiff's petition for writ of certiorari pending.

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Findings of Fact

Same; departmental determination not arbitrary or capricious.—The departmental determination that the plaintiff was not in a casualty status during the period in question was not arbitrary or capricious.

Army and Navy 13 (6)

Same; statutory authority for enlistment of natives of Philippines.— Statutory authorization for the enlistment of natives of the Philippines in the Army of the United States is found in 10 U. S. C. 321. When so enlisted they do not form a unit which could be called a "Militia Corps," within the meaning of section 846 of Title 10, U. S. Code (3 Stat. 115; R. S. 1288). Section 846 of Title 10 is not a bar to the plaintiff's claim.

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Same; departmental determination as to entitlement to pay conclusive under Missing Persons Act.-The provision that determinations as to "entitlement to pay" under Section 1009 of the Missing Persons Act are to be made by the department "and all such determinations shall be conclusive" includes legal as well as factual elements. Congress intended that the troublesome questions arising under the Missing Persons Act were not to be the subject of litigation.

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The Reporter's statement of the case:

Mr. LaVern R. Dilweg for the plaintiff. Messrs. Robert H. McNeill and T. Bruce Fuller, were on the briefs.

Mr. Paris T. Houston, with whom was Mr. Assistant Attorney General H. G. Morison, for the defendant.

The court made special findings of fact as follows, upon the stipulation of facts and the report of Commissioner Ewart W. Hobbs:

1. Plaintiff was born in the Philippine Islands and is a naturalized citizen of the United States. He enlisted in the Philippine Scouts on March 3, 1924, and served continuously in that capacity until February 7, 1942, when he was discharged to accept active duty as a reserve officer in the Philippine Scouts. Plaintiff was appointed Second Lieutenant in the Field Artillery Reserve of the Philippine Scouts on May 28, 1936, and accepted the appointment on

Findings of Fact

118 C. Cls.

July 11, 1936. He was reappointed to the same position on May 28, 1941 and ordered to extended active duty as a Second Lieutenant, Field Artillery Reserve with the Philippine Scouts on February 8, 1942, during the siege of the Philippine Islands by the Japanese. A photostatic copy of plaintiff's orders to active duty by special orders No. 38, dated February 8, 1942, is attached to the stipulation of the parties as Exhibit A, and is made a part hereof by reference.

2. On April 9, 1942, plaintiff was taken prisoner by the Japanese Army and held as a prisoner of war until June 28, 1942, when he was released on parole after having signed an "oath" to his captors. This oath reads as follows:

OATH

TO HIS EXCELLENCY, The Commander-in-Chief of the Imperial Japanese Forces.

I, the undersigned, hereby solemnly pledge myself that I will strictly comply with the following:

1. I shall never in future resort to any hostile action against the Imperial Japanese Forces, and I will in no way make any utterance or commit any hostile conduct against Japan;

2. I will submit to the Japanese Military Administration and do my best to serve for the realization of the objective of the said administration;

3. I will in no way make any utterance or commit any conduct which may benefit Japan's enemies;

4. I will in no way make any utterance or commit any conduct which may be harmful to the tranquility, peace, and order, and economic stability of the country;

5. I will in no way employ or instigate others for the execution of any act which I have pledged myself not to commit in the preceding paragraphs; and

6. I will never fail to present myself at any appointed place when I shall be called up by the Japanese Army. Prisoner of War

Address: Angeles, Pampanga

Signature: Vicente Moreno (Sgd)

Guarantor of the above person:
Address: Angeles, Pampanga
Signature: Rosario Moreno (Sgd)

Signature

Governor, Mayor or
Municipal President

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Findings of Fact

3. Plaintiff contracted malaria and beriberi, and was what was known as a "walking patient" in late April 1942, while being held in captivity in the Philippine Islands. At that time he was treated for these diseases by a Philippine Army doctor. These diseases persisted and plaintiff continued to suffer from malaria and beriberi as a walking patient, and after the Japanese released him on parole he lived with his family while recuperating from his illness. In September 1942 he moved to Barrio Nagpandayam, Buimba, Nueva Ecija, where he lived with friends and worked at harvesting rice as soon as he was strong enough to do so. On April 10, 1943, he went to Victoria Taylac, P. I., where he entered into employment with the NARIC (National Rice and Corn Corporation), an organization set up by the Japanese, as chief watchman. At this time he joined a local guerrilla band which was on inactive status. This band was an unarmed organization. Later plaintiff was promoted in the NARIC from watchman to purchaser in charge of buying at the Victoria buying station and held this position until October 31, 1944. In April 1944 the guerrilla group to which he belonged was disbanded.

4. About October 31, 1944, plaintiff again joined an unarmed local guerrilla unit and served as an officer therein. This unit was engaged in intelligence work. Plaintiff remained associated with this unit until his return to military control on January 28, 1945.

The guerrilla units to which plaintiff belonged were of a local nature and were not authorized or approved by the authorities of the American Army. At no time, between the times of plaintiff's capture by the Japanese on April 9, 1942 and his return to military control on January 28, 1945, was plaintiff requested or authorized by a recognized guerrilla commander to accept employment with the Japanese controlled National Rice and Corn Corporation.

5. After plaintiff's return to military control on January 28, 1945, and on February 22, 1945, plaintiff executed an affidavit detailing his activities between the date of the Japanese attack of December 7, 1941 and the date of plaintiff's capture by the Japanese on April 9, 1942, and also his

Findings of Fact

118 C. Cls.

activities while in a prisoner of war status and after his release upon the oath taken as shown above. A photostatic copy of this affidavit is attached to the stipulation of the parties as Exhibit B, and is made a part hereof by reference.

On May 3, 1945, this affidavit was forwarded to the Adjutant General, Washington, D. C., with a statement of plaintiff's status between the dates of February 8, 1942 and January 27, 1945. A photostatic copy of this statement is attached to the stipulation of the parties as Exhibit C, and is made a part hereof by reference.

6. On about November 7, 1944, the War Department issued a "Plan for Casualty Administration Upon Reoccupation of Philippines", which became effective immediately upon issuance. The objectives of the plan were designated as follows: "To facilitate return to controllable jurisdiction and clarification of status of living members of the armed forces, and living United States Government employees in the Philippines or who have fallen into enemy hands therein." A mimeographed copy of this plan, together with Appendices 1 and 2 thereto, and changes No. 1 dated March 21, 1945, and No. 2 dated November 16, 1945, and a staff memorandum No. 14 of the Headquarters, United States Army Forces Western Pacific, entitled "Interpretation of Missing Persons Act" and dated December 27, 1945, are attached to the stipulation of the parties as Exhibit D and are made a part hereof by reference.

7. On December 7, 1945, Headquarters, United States Army, Forces Western Pacific, made a determination of plaintiff's status as to his loyalty during the war, in a letter to the Commanding Officer, 5th Military Police Battalion. This letter states in part as follows:

It is desired that Second Lieutenant VICENTE MORENO, O-346144, be advised that the recommendations made by the Board of Officers convened by authority of Letter Orders AGPO 3370, GHQ, AFPAC, dated 13 September 1945, that his activities during the Japanese occupation of the Philippines did not constitute an abandonment of loyalty to the United States and that he be retained in service, have been approved.

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