(concurring in the result).
The plaintiff’s claim is barred in whole by the Statute of Limitations, and, in addition, is barred in part by the finality provisions of the Missing Persons Act. But instead of deciding -this simple case on those simple grounds, the case is made the vehicle for overruling our former decision in the case of Victorio v. United States, 106 F.Supp. 182, 122 Ct.Cl. 708. That decision was arrived at unanimously, • after normal deliberation. We have not been asked to overrule it. I think that decision was right and I cannot concur in the part of the instant opinion which overrules it.
The court is in error, I think, in saying that our conclusion in the Victorio case was reached “mainly because of the provisions of the Act of January 26, 1918, 40 Stat. 432, 32 U.S.C.A. § 84.” A reading of the opinion will show that it first treated of the right, reserved in subsection 2(a) (12) of the Philippine Independence Act- of March 24, 1934, authorizing the President to call into our armed forces all military forces of the Philippine Government; then of the President's call pursuant to the Act; then of the actions of General Mae-Arthur pursuant to the Act and the call.
The opinion then proceeded to consider a tenuous argument of the Government *405that, although these soldiers had been called into the service of our armed forces and had come in, in response to the call, they still were not in our armed forces, because, forsooth, Congress had in 1916 written a definition of “The Army of the United States” which did not include them. The argument never was of any validity and should have been ignored or answered with a sentence. But the opinion gave it undeserved attention and pointed out that, under a 1918 statute, the Philippine soldiers were called or could be drafted into our Army in the same way that our National Guard could be called or drafted. That discussion did show, quite unnecessarily, that a definition of our Army written in 1916 did not prevent Congress, in 1918, from putting into the Army persons not covered by its 1916 definition. If it could disregard its 1916 definition in 1918, it could disregard it in 1934. Hence if we assume, without deciding, that the 1918 statute had been repealed, or had fallen into disuse before 1934, the correctness of our former decision is not affected in the slightest degree.
Turning to the statutes and orders which were unquestionably in effect, we remember that Section 2(a) (12) of the Philippine Independence Act authorized the United States, upon order of the President, to call into the service of our armed forces all military - forces organized by the Philippine Government. The Constitution of the Commonwealth of the Philippines and the Ordinance appended thereto included the same provision. The President, on July 26, 1941, issued his order, expressly referring to Section 2(a) (12) and the Constitution of the Philippines, saying:
“I hereby call and order into the service of the armed forces of the United States for the period of the existing emergency, and placed under the command of a General Officer, United States Army, * * * all of the organized military forces of-the Government of the Commonwealth of the Philippines: * * *
“This order shall take effect with relation to all units and personnel of the organized military forces of the Government of the Commonwealth of the Philippines, * * * from and after the dates and hours, respectively, indicated in orders to be issued from time to time by the General Officer, United States Army, designated by the Secretary of War.”
General MacArthur was designated as the General Officer referred to in the Presidential Order. On December 18, 1941, he issued General Orders No. 46 calling all personnel of the Philippine Army on active duty and all active units of the Philippine Army “into the service of the armed forces of the United States in the Philippines,” and directing the officers of our army to accept them for such service. As we know, they came and fought, and were defeated, and surrendered just as the rest of our soldiers did. To say that they were not members of our armed forces seems to me to be impossible. I do not see how the law or the facts could be plainer.
On May 7, 1942, General Wainwright ordered the surrender of all American and Philippine Army troops in the Philippine Islands. The language used by the General is, of course, of no importance. He was responding to the demand of the Japanese commander that the order of surrender be made so plain and inclusive that it could not possibly be misunderstood by any soldier.
Sometime later in May an underground unit known as “Hunters ROTC Guerrillas of Luzon” was organized, consisting of 193 men and officers. By the middle Of 1945, the number had increased to several thousand.
On October 28, 1944, the President of the Philippines issued an Executive Order providing that all persons actively serving in recognized military forces in the Philippines were to be considered on active service in the Philippine Army, the date of entry into such active service *406being the date of joining a recognized military force; that a recognized military force was deemed to be a force under a commander appointed, designated or recognized by the Commander-in-Chief, Southwest Pacific Area.
On March 26, 1945, an order was issued by our Army providing for the recognition of certain guerrilla units as authorized elements of our Army, and saying that the status of members of these units was that of officers and men in the Philippine Army. That was, of course, the Army’s way of saying that they were included in General MacArthur’s order of December 18, 1941, calling all personnel of the Philippine Army into the armed forces of the United States.
With all of our organized troops being prisoners of the Japanese, and General MacArthur being in Australia, the paper work of the Army was, naturally, incomplete. But, in the opinion of General MacArthur when he was able to return to the Philippines, useful soldiering had been taking place in the meantime, of which we had had the benefit. He therefore issued the retroactive recognition orders dating them back to the times when the various guerrilla units began to fight. The President of the Philippines, who had also been away from the islands, made them members of the Philippine Army as of the date when they began to serve under a commander, recognized by General MacArthur. General MacArthur, after he returned and investigated, recognized them retroactively and thus brought them under the terms of his 1942 order. The paper work of the Army was again up to date.
In 1942 the Attorney General of the United States, 40 Op.Atty.Gen. 185, advised that personnel ©f the organized military forces of the Philippines, called into our armed forces pursuant to Section 2(a) (12) and the President’s Military Order were In active service in the land and naval forces of the United States and were entitled to benefits under the National Service Life Insurance ■ Act. In T943 he gave similar advice as to benefits under the Missing Persons Act. In the Act of February 18, 1946, 60 Stat. 14, Congress said:
“ * * * service in the organized military forces of the Government of the Commonwealth of the Philippines, while such forces were in the service of the armed forces of the United States pursuant to the military order of the President of the United States dated July 26, 1941, shall not be deemed to be or to have been service in the military or naval forces of the United States * * * for the purposes of any law of the United States conferring rights, privileges, or benefits, upon any person by reason of * * * (such service) * * * except benefits under (1) (the National Service Life Insurance Act) and (2) laws providing for the payment of pensions on account of service-connected disability or death).” (Italics added.)
By the Act of July 25, 1947, 61 Stat. 455, the benefits of the Missing Persons Act were added to those which Philippine'personnel should receive, the House Committee saying that they had been omitted from the 1946 Act by inadvertence.
This legislation shows a clear recog-'■ nition by Congress that Philippine Army personnel were members of our armed forces. The idea of paying National Service Life Insurance, pensions, and ■ benefits under the Missing Persons Act to soldiers or the widows of soldiers of our allies is absurd. . Congress denied, the other benefits such as payments for college education, loans for the purchase of homes or for going into business, etc., because it was not willing to extend those unusual benefits to these residents of a foreign country. Its saying that, for the purposes of the laws conferring these benefits, the service of these soldiers should not be deemed to have been *407service in the military forces of the United States was just a short-hand way of saying that they should not get the benefits. It says nothing, and was intended to say nothing, as to whether, in fact and in law, they were in the armed forces of the United States.
If these persons were not, legally and In the contemplation of Congress, in the armed forces of the United States, Congress wrote its law backward. Instead of saying that they should not, for the purposes of the laws conferring benefits which Congress did not wish to give them, be deemed to be in the armed forces of the United -States, Congress would have said that they should, for the purposes of the laws conferring the benefits which Congress wished to give them, be deemed to be in the armed forces of the United States.
If it is contended that the Philippine soldiers who were surrendered after some four months of fighting were in our armed forces, but that the guerrillas who took to the hills and harassed our enemy for three years were not, I can only say that I see nothing beyond the powers of General MacArthur in his recognizing, retroactively, the facts as they actually were during his absence. The Government has paid out large sums of money as pay to the guerrillas upon the basis of the General’s retroactive recognition. I find no legal flaw in it, and none has been pointed out to us.
If it be contended that the commander of a guerrilla unit in the Philippines, his commander-in-chief being in Australia and all the intermediate commanders being prisoners of war, did not have the authority of the Government to requisition food for his troops, I think the contention is wrong. The alternative might well have been to disband the troops and terminate the resistance. Our Government, when it learned of the resistance, applauded it. I think it is morally and legally bound to pay for what was done for its benefit.
I have discussed the Victorio case in ■detail because the opinion in this ease overrules it. The discussion of the 1918 statute in the Victorio case is a straw-man, set up in the instant opinion and, presumably, knocked down, but, assuming that it is vulnerable, it is irrelevant, and knocking down that part of the Victorio opinion is no reason for overruling the decision.