The contract transmitted contains the following provision: "The engineer agrees to provide feed for said animals and otherwise exercise ordinary care while the same are in his possession; but it is expressly understood that the engineer will not be responsible for the loss of, or injury to, said animals caused by live-stock diseases."

Under the contract, and under the general law of bailments, it was the duty of the United States to have exercised ordinary care of the animals while in its possession. For lack of said ordinary care or for ordinary negligence it is liable thereunder to the contractor in damages. (45 MS. Comp. Dec., 592, 602, April 24, 1908; United States v. Bostwick, 94 U. S., 53, 66; United States v. Yukers, 60 Fed. Rep., 641; United States v. Campbell, 10 id., 816, 821; Cooke et al. v. United States, 91 U. S., 389, 396.)

The United States did not thereunder, however, become an insurer of the animals or liable for their loss by death if brought about by unforeseen or unexpected causes not naturally to be expected, and which could not have been guarded against by reasonable foresight. (Fairmont Coal Co. v. Jones & Adams Co., 134 Fed. Rep., 711, 713.)

In determining whether or not the United States exercised ordinary care it is material to know the manner in which the horse was tied, and whether there is anything to indicate that the manner of its tying contributed to its death; whether the stall in which it was placed had previously been used in stabling it; whether said stall had been used for a long period in stabling it or other horses; and whether it had proven adequately sufficient for the purpose of stabling other horses and this particular horse heretofore; the condition of the boards and manner in which they were fastened at the point it fell through the side of the barn; how the barn was constructed, and whether there was anything in manner of its construction or appearance that would lead a reasonably prudent man to suppose that this particular stall was an unsafe place in which to stable a horse; whether there is anything to indicate that the horse's death was caused by its vicious conduct; and whether there was any other place in which this horse could have been stabled on this particular night.

The facts stated are not sufficient to enable me to determine whether the Government is liable for the death of the horse. The question of what caused the death of the horse should, in my opinion, be investigated and the facts more particularly ascertained if possible. If, upon such investigation, it is ascertained that the Government did not take ordinary care of the horse, and because of that fact the death of the horse resulted, then I am of the opinion that the Government would be liable for the reasonable value of the horse, to be fixed and determined by an agreement by your department with the claimant.

If payment be made by a disbursing officer of your department, said officer becomes responsible for the correct ascertainment and sufficiency of the facts as to whether the United States did or did not take ordinary care of the horse. If he has any doubts in the premises, he may refuse to pay and let the owner of the horse present his claim to the auditor.

PAYMENT FOR TRANSPORTATION OF THE ORGANIZED MILITIA. The organized militia, when traveling for participation in the encampment, maneuvers, and field instruction of the Regular Army, is included in the term "troops" as used in the land-grant act of July 25, 1866 (14 Stat., 241), and similar acts, and payment by the United States for transportation of the members of such militia is subject to the same restrictions under said land-grant acts as the transportation of any other troops for or by the United States.

Decision by Comptroller Tracewell, August 3, 1909:

The Southern Pacific Company appealed, February 20, 1909, from the action of the Auditor for the War Department in settlement dated February 20, 1908.

The company claimed $391.40 for the transportation from Ashland, Oreg., to Portland, Oreg., and return of 38 men of Company B, First Separate Battalion of the Oregon National Guard.

The auditor disallowed the claim in accordance with my decision dated May 23, 1907 (41 MS. Comp. Dec., 927), the services rendered being over a free land-grant line.

The auditor's action was affirmed per my decision of June 22, 1909. The company, per letter dated July 28, 1909, applied for a reconsideration of said decision.

The transportation under consideration was rendered over the line of the Oregon and California Railroad, operated by the Southern Pacific Company, and is subject to the provision of section 5 of the act of July 25, 1866 (14 Stat., 241), that:

"And said railroad shall be and remain a public highway for the use of the Government of the United States, free of all toll or other charges upon the transportation of the property or troops of the United States; and the same shall be transported over said road at the cost, charge, and expense of the corporations or companies owning or operating the same when so required by the Government of the United States.”

The railroad company, in accepting the benefits of the said act, accepted the conditions thereof, which were that said railroad should be a public highway for the use of the United States, and services were to be rendered when required by the Government of the United States for the transportation of property and troops of the United States.

The property of the United States which is to be transported under the provisions of this and similar acts has been held to include not only the property owned by the United States, but that which may be temporarily in the control or custody of the United States as well as the authorized allowance of government officers when traveling on official business. In short, it may be said that when the transportation of any property is payable by the Government the property is considered as the property of the United States within the meaning of the land-grant acts.

It has been held that the term "troops" within the meaning of said acts comprehends the entire military, including naval, force of the United States-that is, the army and navy and all parties connected therewith, including their civilian employees and agents. (See 20 Op. Att. Gen., 14; 8 Comp. Dec., 852; 7 id., 880, and references therein cited.)

The claimant contends by a lengthy argument that the words "troops of the United States" can mean only those troops employed in the service of the United States, and that the Oregon State Militia was not in the service of the United

States; that the militia does not become troops of the United States until actually mustered into the service of the United States after being called forth by the President for the purpose of executing the laws of the Union, suppressing insurrections and repelling invasions. The entire argument, with decisions cited, is to show the difference between the militia and the Regular Army and that the militia has not the status of the Regular Army until mustered into the service of the United States.

The question for determination is not the distinction between the militia and the Regular Army, but whether the militia comes within the designation of troops as contemplated by the land-grant acts when called upon to participate and act with the Regular Army, as in this instance, under a law providing therefor.

It is not necessary that the troops referred to in the act be mustered into the service of the United States. If the United States should employ any foreign troops, it would certainly have the right to their transportation under the same conditions as its own.

The term "troops " does not exclude militia. "Troops " is defined as a body of soldiers of any or indefinite number, and of any or all branches of the service. The term "troops of the militia" is mentioned in section 21 of the militia act of January 21, 1903 (32 Stat., 779). The troops to be transported under the provisions of the land-grant acts must therefore refer to any troops for which the United States requests and pays for the transportation and for the time being have the status of regular troops.

Congress has the power to provide for organizing, arming, and disciplining the militia (Constitution, art. 1, sec. 8). In pursuance of this power Congress passed an "act to promote the efficiency of the militia" January 21, 1903 (32 Stat., 775). Section 15 of the aforesaid act authorizes the Secretary of War to provide for participation by any part of the organized militia in the encampment, maneuvers, and field instruction of any part of the Regular Army, and provides in such cases that the organized militia so participating shall receive the same pay, subsistence, and transportation as is provided by law for the officers and men of the Regular Army. (See also act of May 27, 1908, 35 Stat., 402.)

Section 21 of said act provides for furnishing troops of the militia so encamped ammunition for instruction in firing and target practice under direction of the proper officers of the army.

The act of June 12, 1906 (34 Stat., 240), provides for the payment of the members of the organized militia participating in the encampment, maneuvers, and field instruction of any part of the Regular Army from the date of leaving the home rendezvous to the date of return thereto.

The authorized expenses of the militia participating in maneuvers with the Regular Army, as set forth above, is payable from the appropriation for "Encampment and maneuvers, organized militia." The aforesaid appropriation is made for paying the expenses of the organized militia which may be authorized by the Secretary of War to participate in such encampment as may be established for the field instruction of the troops of the Regular Army. This appropriation differs from the appropriation for "Arming and equipping the militia," which is required by law to be apportioned among the several States and Territories, and is directly controlled by them within certain designated limitations (act of June 22, 1906, 34 Stat., 449).

The expenses under consideration were incurred under the orders of the Secretary of War, and are chargeable to and payable by the United States from an appropriation made specifically for training the militia to act with and as a part of the Regular Army in order that they may render more effective service as trained soldiers should they be called into the active service of the United States. The troops of the militia, though not at all times parts of the Regular Army, are at all times a part of the military establishment of the United States, and for all practical purposes a part of the Regular Army when called upon to participate in the maneuvers provided by law, and are transported and paid as such.

The travel required or provided under the rules of the War Department is therefore as troops of the United States within the meaning of the land-grant acts. The payment by the United States for the transportation of any members of the organized militia is subject to the same restrictions