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War rank, which you transmitted to the War Department under date of December 21, 1931, with a request for information and the views of the department relative thereto.
The pertinent provisions of existing law on this subject are contained in section 1 of the act of June 21, 1930 (46 Stat. 793) which reads in part as follows (italics ours):
"That all commissioned officers who served in the Army of the United States during the World War, and who have been or may be hereafter retired according to law, except those retired under the provisions of section 246 of the act of June 4, 1920, shall, on the date of the approval of this act or upon retirement in the case of those now on the active list of the Army, * ** be advanced in rank on the retired list to the highest grade held by them during the World War * * * "1
The purpose of the proposed amendment is to strike out the words which are italicized in the above quotation, thus extending the privilege of advancement to World War rank to those officers of the Army who have been or may be placed on the retired list as a result of class B procedure. The amendment would have no effect upon retired officers of the Navy, Marine Corps, or Coast Guard, as the provisions of section 24b of the act of June 4, 1920, are not applicable in those services.
The proposed legislation would immediately benefit those class B retired officers who
(a) Had 10 years or more of commissioned service prior to retirement.
(b) Were not placed in class B for reasons due to neglect, misconduct, or
(c) Held World War rank higher than the rank with which they were retired. The records of the War Department indicate that 28 retired officers fulfill these conditions at the present time. They are distributed as follows:
Grade now held on retired list
World War rank
It is not possible to predict with accuracy the number of officers who will be retired in the future by class B procedure with rank lower than that held in the World War, but the number will probably be small.
The enactment of this legislation will not involve any additional expenditure of public funds.
The War Department has previously reported unfavorably upon legislation of the character involved in the proposed amendment. However, upon further consideration it is felt that to deny advancement to World War rank to class B retired officers may give the impression that removal from the active list by class B procedure is being used as a means of punishment, which is not the case. The purpose of classification is to provide a means by which officers who for one reason or another are not deemed suitable for the military profession may be retired or discharged. Where, as in the case of the officers who would benefit by this amendment, removal from the active list has been under circumstances which are entirely honorable, the working of the process of classification should not be allowed to detract from any distinctions which the officers concerned may have gained in their previous service.
For the reasons set forth above, it is recommended that S. 461 be enacted into law.
A similar report upon an identical measure (H. R. 222) Seventy-second Congress, has this date been forwarded to the chairman of the Committee on Military Affairs, House of Representatives, at his request.
PATRICK J. HURLEY,
72D CONGRESS 1st Session
AUTHORIZING THE ASSESSOR OF THE DISTRICT OF COLUMBIA TO TESTIFY IN CONDEMNATION PROCEEDINGS
JANUARY 7 (calendar day, JANUARY 9), 1932.-Ordered to be printed
[To accompany S. 9]
Mr. KING, from the Committee on the District of Columbia, submitted the following
The Committee on the District of Columbia, to whom was referred the bill (S. 9) authorizing the assessor of the District of Columbia to testify in condemnation proceedings, having considered the same, reports favorably thereon with the recommendation that the bill do pass, with the following amendment:
In line 4, after the word "shall", strike out the remainder of the bill and insert in lieu thereof the following: "not be disqualified, by reason of the fact that he holds the office of assessor, from testifying as an expert witness to the market value of such lands, and as to benefits."
PURPOSE OF THE BILL
The object of this bill is clearly stated in the title. The necessity for legislation arises through the fact that the District Court of Appeals, in a recent action for condemnation of land for public use, held the assessor disqualified as an expert witness on land values because of his connection with the District government.
The commissioner's letter, appended hereto as part of this report, discusses in detail the objections of the court and the views of the District government.
In discussing this bill the committee received statements from the corporation counsel of the District, Mr. W. W. Bride, and the District assessor, Mr. William P. Richards. No objection to enactment of this bill is known to the committee.
COMMISSIONERS OF THE DISTRICT OF COLUMBIA,
Washington December 10, 1931. Hon. ARTHUR CAPPER, Chairman Committee on the District of Columbia,
United States Senate, Washington, D. C. Sir: The Commissioners of the District of Columbia have the honor to inclose herewith draft of a bill entitled “A bill to authorize the assessor of the District of Columbia to testify in condemnation proceedings,” and to request its introduction and enactment.
In the exercise of the power of eminent domain it is essential for the District of Columbia to have available, for the purpose of testifying as to values of land sought to be condemned, competent real-estate experts. In the majority of condemnation cases the District secures the services of two expert witnesses, but there are cases where three are required. Frequently in past years the assessor of the District has been called upon to testify and in every instance he was qualified as a real-estate expert and presented to condemnation jurors opinion evidence as to values.
In the case of Johnson & Wimsatt (Inc.) v. Luther H. Reichelderfer, Herbert B. Crosby, and John C. Gotwals, the Commissioners of the District of Columbia, the Court of Appeals of the District of Columbia considered the competency of the assessor as a witness in these condemnation cases, and after referring to the long-recognized doctrine and the usual instructions based thereon, that condemnation jurors are to give no consideration to tax assessments, stated as follows:
"The foregoing instructions, or the substance thereof, has long been used in such cases in this jurisdiction, as in many others, and while the assessor's testimony may differ from the assessor's assessments, it seems wholly impracticable to preserve the landowner's fundamental right of cross-examining him as a witness without violating the instruction of the judge to the jury.
“For if his testimony agrees with the assessment, then the jury is indirectly considering the assessment, and becoming informed in respect of the assessment.
“While if his testimony differs from the assessment, the difference can not be brought out on cross-examination without considering the assessment, and without informing the jury in respect to the assessment.
"In view of the widespread and growing distrust of expert witnesses in our courts, we can not view with approval the practice of calling a salaried officer of the District of Columbia to give opinion evidence in a cause where the district is a party litigant, and especially where the assessor of taxes testifies to a jury made up exclusively of the payers of taxes.
“For these reasons we are of opinion that it was error to receive the assessor's testimony in this case, though, of course, we do not mean to intimate any criticism of the assessor, whom we have long recognized as an industrious and efficient public servant.
It would appear that there is hardly anyone in a better position to know the actual value of real estate in the District of Columbia than the tax assessor, who is constantly dealing with real estate throughout the entire District and who is also ex officio chairman of the Board of Equalization and Review, consisting of the assessor and the six assistant assessors. (District of Columbia Code, title 20, secs. 694-702.)
It is widely recognized that appraisements by tax assessors for purposes of taxation are not admissible in evidence in condemnation proceedings, but, when the assessor is called upon to testify, his testimony is not based on tax assessments. He is called upon to give opinion evidence as to values regardless of tax assessments and as a real-estate expert. The fees of expert witnesses are fixed by the court, and although every effort is made to keep them within bounds they nevertheless add materially to our judicial expenses. The use of the tax assessor as a witness may result in the saving of quite a substantial amount in witness fees. Very truly yours,
L. H. REICHELDERFER, President Board of Commissioners of the District of Columbia.
JANUARY 7 (calendar day, JANUARY 9), 1932.-Ordered to be printed
Mr. HOWELL, from the Committee on Claims, submitted the following
[To accompany S. J. Res. 56)
The Committee on Claims, to whom was referred Senate Joint Resolution (S. J. Res. 25) having considered the same, report favorably thereon with the recommendation that the resolution do pass without amendment.
The facts are fully set forth in Senate Report No. 1594, Seventyfirst Congress, third session, which is appended hereto and made a part of this report.
(Senate Report No. 1594, Seventy-first Congress, third session)
The Committee on Claims, to whom was referred the resolution (S. J. Res. 119) authorizing the Comptroller General of the United States to consider, adjust, and settle the claim of the Indiana State Militia for military service on the Mexican border, having considered the same, report favorably thereon with the recommendation that the resolution do pass without amendment.
The purpose of the resolution is to authorize and direct the Comptroller General of the United States to consider, adjust, and settle the claim of the State of Indiana for mobilization expenses, subsistence, transportation, and supplies made to and for the use of the Indiana State Militia in the period of mobilization for Federal military service on the Mexican border under the call of the President of the United States of June 18, 1916, notwithstanding the disallowance of the claim by the Auditor for the War Department on August 19, 1918, because there was no law authorizing the reimbursement of any State for any expense incurred in mobilization of any militia under the call of the President, June 18, 1916.
The resolution has the favorable recommendation of the War Department, and the Comptroller General.
The facts are fully set forth in the following correspondence, which is appended hereto and made a part of this report:
Washington, February 13, 1930. Hon. R. B. HOWELL,
Chairman Committee on Claims, United States Senate. DEAR SENATOR HOWELL: Careful consideration has been given to S. J. Res. 119, authorizing the Comptroller General to settle the claim of the Indiana State Militia for service on the Mexican border, which you forwarded to the War Department under date of January 15, 1930, with request for pertinent papers on the subject and for an opinion as to the merits of the resolution.
The claim of the State of Indiana in the sum of $20,584.75 for supplies furnished and expenditures incurred in connection with the mobilization of the Indiana National Guard for Mexican border service in 1916, pursuant to the call of the President of June 18, 1916, was submitted to the Auditor for the War Department and was disallowed by him on August 19, 1918, on the ground that there was no law authorizing reimbursement of the State for expenditures incurred in connection with said mobilization.
The records of the department show that the claim in question was made up of the following items: Shoes.
$14, 242. 62 Subsistence.
1, 140. 95 Transportation
1, 824. 30 Mobilization..
3, 050. 65
20, 584. 75 The documentary evidence supporting the claim, i. e., statements, receipts, and so forth, are now on file in the General Accounting Office.
If this claim has not been settled it is the opinion of the department that it should be settled. However, there appears to be a question as to whether it has not already been settled in connection with the claims of Indiana for Stateowned property brought into Federal service by its National Guard when called into Federal service in 1917 for service in the World War. By letter dated October 10, 1925, the Adjutant General of Indiana requested the return of all papers relative to this claim. By third indorsement the General Accounting Office, claims division, January 7, 1926, to the Chief of Finance, it was stated as follows:
“It appears that the papers in question constitute a part of the records of this office in connection with certificate of settlement No. 93936 dated December 2, 1920, issued in favor of the State of Indiana in the amount of $34,303.34, and certificate of settlement No. 115524 dated July 9, 1921, in favor of the State of Indiana in the amount of $35,567.86.
“Since these papers were considered in connection with the above-mentioned settlements they are now a part of the permanent records of this office and can not be returned to the State."
In view of the above statement by the General Accounting Office it is believed that S. J. Res. 119 should be referred to that office by your committee.
In connection with this claim it should be stated that two of the States brought suit in the Court of Claims for reimbursement for expenditures incurred in connection with the 1916 National Guard mobilization for Mexican border service, and in each case the court held that the claimant was entitled to recovery, viz: State of New York v. The United States (61 Court of Claims, 737); Commonwealth of Massachusetts v. The United States (64 Court of Claims, 337).
In neither of these cases was there special legislation conferring upon the Court of Claims jurisdiction to pass upon the claim.
The War Department made a report on a similar resolution under date of March 7, 1928, to the chairman Committee on Military Affairs, United States Senate. A copy of that report is inclosed herewith for the information of your committee. Sincerely yours,
PATRICK J. HURLEY,
Secretary of War.
Washington, March 7, 1928. Hon. David A. REED, Chairman Committee on Military Affairs,
United States Senate. DEAR SENATOR REED: Please refer to my letter to you of January 18, 1928, relative to Senate Joint Resolution 39.
At the time this letter was written the information in the possession of the War Department was to the effect that the claim of the State of Indiana for reimbursement for money expended during the mobilization of its National Guard under the call of June 18, 1916, for Mexican border service, had been allowed by the Comptroller General and had been certified to the Congress for an