UsT Congress, I SENATE. j Document 1st Session. \ ") No. 28. \rTi- MAIJVTAINING STATE MILITIA DURING THE CIVIL WAR. LETTER FROM THE ASSISTANT CLERK OF THE COURT OF CLAIMS TRANSMITTING A COPY OF THE FINDINGS OF THE COURT IN THE CASE OF THE STATE OF OREGON AGAINST THE UNITED STATES. May 4, 1909. — Referred to the Committee on Claims and ordered to be printed. \X'^ Court of Claims, Clerk's Office, Washington, April 30, 1909. Sir: Pursuant to the order of the court I transmit herewith a certi- fied copy of the findings of fact filed by the court in the aforesaid cause, which case was referred to this court by the resolution of the United States Senate, under the act of March 3, 1887, known as the Tucker Act. I am, very respectfully, yours, John Randolph, Assistant Cleric Court of Claims. Hon. James S. Sherman, President of the Senate. [Court of Claims of the United States. Congressional, No. 13852. The State of Oregon v. The United States.] STATEMENT OF CASE. This is a claim for money alleged to have been expended by the State of Oregon in recruiting and paying bounty to state volunteers in the United States service, and for recruiting, equipping, and maintaining state militia diu*ing the civil war. The claim was presented to the War Department and disallowed because the department had no jm-isdiction to consider claims of this nature. It was then presented to the Treasury Department in 1884 under the act of June 27, 1882 (22 Stat. L., 111). It was disallowed by the Third Auditor on March 10, 1888, on the ground that the act of July 27, 1861 (12 Stat. L., 276), made no provision to pay expenses of raising troops for state purposes and not called into service by the request or authority of the Sec- retary of War or the President. On May 29, 1908, the United States Senate, by resolution, referred to the court, under the act of March 3, 1887, known as the "Tucker Act," a bill in the following words: [S. 2951, Sixtieth Congress, second session.] "A BILL For the relief of the State of Oregon. "Be it enactedby the Senateand House of Representatives of the United States of America in Congress assembled, That the sum of three hundred and fifty-eight thousand two hundred and thirty-five dollars and sixty-one cents be, and the same is hereby, appro- priated, from any money in the Treasiu-y not otherwise appropriated, to pay the 2 MAIN rAIMN(; SI A IK AIIIJIIA DlHINli TIIK tMVIL WAH. State of Oregon, in full !^(Mtli'nu>nt of its claim lor raising, supplying, and t'fiuipping it,s volunteer troops and militia during the years eighteen hundred and sixty-one 'o eighteen hundred and sixly-five. inclusive.'' The claimants appeared and tiled their petition in this court July 1 1, 1908, in wh ch they make suhstantially the following allegations: That on the 14th day of Octoher, 18(ii. the Chief Executive, acting through iie agency of the Hon. William II. Seward, Secretary of State of the United States, addressed to the governor of the State of Oregon a letter, a copy of which is hereunto annexed, marked "Claimant's Exhibit No. 3," wherein attention was called to the necessity for the authorities of said State to place the same in a state of defense; to the fact that in previous wars the several States liad independently and by separate activity supported and aided the Federal Government in its responsibilities, and that "in view of this fact, and relying upon the increase and continuance of the same disposition on the part of the loyal States, the President has directed me to invite your consideration of the subject of the importance of perfecting the defenses of the State over which you preside, and ask you to submit tne subject to the con- sideration of the legislature when it shall have assembled. Such proceedings by the State would require only a temporary use of its means. The exi)enditures ought to be made the subject of conference with the Federal Government. Being thus made with the concurrence of the tiovernment for general defense, there is every reason to believe that Congress would sanction what the State should do, and would provide for its reiml)ursement." That in the month of October, 1861, by authority of the War Department, a call was made for the raising of a regiment of cavalry in the State of Oregon, to be mustered into the service of the United States for a term of three years. Six companies of said regiment were raised during the winter of 1861 and 1862, when, by order of the War Department, it was directed that recruiting should cease. On January 5, 1863, a requisition was made upon the governor of said State for the raising of additional companies to fill the regiment. On account of the conditions then existing in that country, as hereinafter more fully set forth, and the inadequacy of the pay of such troops under the federal laws then existing, it was found impossible to secure recruits to fill more than one company. One company was. however, raised and mustered into the service of the United States, under the command of Capt. H. C. Small. That, commencing with the act of September 28, 1850 (9 Stat. L., 504), Congress had j)rovided certain extra i)ay to the officers and enlisted men of the United States Army serving or enrolled in Oregon and California in recognition of the difference in the conditions existing in that section of the country By said act of September 28, 1850, it was provided that there should be allowed to each commissioned officer while serving in said States, in addition to their regular pay and allowances, a per diem of $2 each, and to each enlisted man a per diem, in addition to their regular pay and allowances, equal to the pay proper of each as established by existing laws, said extra pay to be retained until said enlisted men were honorably di.'jcharged . By the act of Congress of August 31, 1852, said appropriation was continued, but the amount of extra pay to be paid enlisted men was reduced to one-half; these appro- priations were not continued during the civil war, and there were no troops of the Regular Army within the State of Oregon after the summer of 1861. By the act of Congress of June 17, 1850 (9 Stat. L., 4;?8) the President was author- ized to enroll privates by volunteer enlistment in regiments of the Regular Army serving at the several military posts on the western frontier, and it was directed that whenever such enlistments were made at these posts a bounty equal to the cost of transporting and subsisting a soldier from the principal recruiting depot in the harbor of New York to the place of such enlistment should be allowed each recruit so enlisted. The amount so paid these recruits exceeded $150 per man. This provision was repealed by the act of August 3, 1861 (12 Stat. L., 288), although at the time of such repeal the conditions which had theretofore existed still obtained. In the act of (.'ongress authorizing the President to accept volunteers from the governors of the several States (act of July 22, 1861, 12 Stat. L., 268) and in the act of July 27, 1861, directing the refund to the governors of such States for expenses prop- erly incurred for recruiting, etc., there was no restriction imposed as to the character or amount of such proper expenditures to be incurred or reimbursed. No troops were raised or recruited by the federal authorities in the State of Oregon during the civil war. The pay provided by Congress for volunteers, $13 per month, was paid to the Oregon volunteers in legal-tender notes, notwithstanding that in Oregon and in the other Pacific coast States and Territories gold was maintained as to the standard of value, and such notes had in that section of the United States a commercial value of less than half of their face value. The wages of ordinary laborers in the State of Oregon at that time ranged from $2 to $5 per day, and the cost of living "^0 ■"'. ". MAINTAINING STATE MILITIA DURING THE CIVIL WAR. 6 and the prices of all commercial commodities was correspondingly high, so that it became and was impossible for the state authorities to furnish volunteers for service without offering certain premiums or inducements as a consideration for enlistment, and after consultation and conference with the federal officers in charge of the mili- tary department of the Pacific, said State, acting through its governor and legisla- ture and at the urgent solicitation of said federal officials, agreed to pay and did pay certain considerations for enlistment, as set forth in the succeeding paragraphs of this petition. On the 5th day of October, 1864, the governor of the State of Oregon addressed a communication to the general commanding the district of Oregon, Brig. Gen. Benjamin Alvord, stating that the question of passing a law giving bounty for recruits was under consideration, but the fact that when they consider that it will run the State in debt $150,000 to raise 1,000 men seems to make the legislature hesitate, and that "if a call is made for more men, I hope it will be made before the adjournment, so that the question will be fairly presented." In reply thereto General Alvord, on October 18, 1865, addressed a letter to the governor of Oregon, wherein he states: "1 feel that it is very important for the public service, as I have continually repre- sented to you for a long time, that the legislature of Oregon should pass a law giving bounty to volunteers." On October 20, 1864, the legislature having meanwhile done nothing in the execu- tion of these suggestions, Maj. Gen. Irwin McDowell, commanding the Department of the Pacific at San Francisco, Oal., telegraphed to the governor of Oregon that orders had been received from the War Department that a regiment of infantry be raised in the State of Oregon as soon as possible. Upon the receipt by the governor of Oregon of this call he acknowledged the receipt thereof as follows: " Your telegram requesting a regiment of infantry has just been received. " I will do all in my power to raise it, but fear I may not have as good success as desired. I recommend the legislature now in session to offer bounties, but now it is but one day to the time of adjournment, and I regret to say that I fear a bill introduced for that purpose will not pass." On the same day said governor advised the general commanding the district of Oregon, Brigadier-General Alvord, of the receipt of the call for the regiment of infantry, stating that although there has not been a general disposition in the legislature to offer bounties, the making of this call will, he thinks, occasion the passing of the bill. Upon the receipt by the general commanding the department, Maj. Gen. Irwin McDowell, of the letter of the governor of Oregon of October 20, 1864, above quoted, said general telegraphed to the governor of Oregon urging the passage of said bounty law, and in response to this telegram said governor, on October 28, 1864, addressed to General McDowell the following communication: 'State of Oregon, Executive Department, ''Salem, October 28, 1864- ■'General: Your telegram was duly received. I sent to the legislative assembly the inclosed message, and a law has been passed giving a bounty of $150 to each vol- unteer. Your telegram just in time. Without it the bounty bill would not have passed . "I have the honor to be, very respectfully, your obedient servant, "Addison C. Gibbs, "Maj. Gen. Irwin McDowell, " Commanding Dejmrtment oj the Pacifif." Your petitioner further states that, under stress of the foregoing facts, the legislature of Oregon, on October 24, 1864, passed two acts, granting in the first what was termed "extra pay," but which was, in reality, an amount equal to the difference between the value of coin and that of the currency paid to troops serving in the United States Army as volunteers from the State of Oregon, the gold standard being then maintained on the Pacific coast and currency being depreciated approximately 50 per cent, and the second, a bounty of S150 to each recruit thereafter voluntarily enlisting. There being at the time no available funds for the payment of ?uch extra pay and bounty, it was provided in said acts that, to carry out their provisions, bords of the State should be issued, and by section 6 of the first-named act it was provided that bond;- to the amount of $100,000 should be issued, redeemable on the 1st day of July, 1875, bearing interest at the rate of 7 per cent jaer annum from the date of their issue, payable semiannually, coupons for such interest to be attached to each bond. Bj section 8 of the second-named act it was provided that similar bonds bearing the same rate of interest should be issiied. redeemable on the l=t day of July. 1884. 4 MAINTAINING STATK MILITIA DURING THE CIVIL WAR. IJy anotluT aei, passed October 24, lS(i4, a copy of which is hereunto anuexed, marked "Claimant's Exhibit No. 9," an appropriation of $1,000 was made to pay the expenses of engraving and printing in connection with the two acts above named. On account of the inducements offered by the acts granting extra pay and bounty, as above set forth, the officers of said State were enabled to promptly and efficieritly comply with said third call for the raising of a regiment of infantry, made, as above stated, on the 20th day of October, 1S04, and did raise said regiment, which wai.- there- after mustered into the military service of the United States, and it served for the common defense of the United States until it was mustered out of service by compa- nies at different dates from October 31, 18(55, to July 19, 1867; and also, on account of such inducements offered for service in the United States Volunteer Army, said First Regiment of Oregon Volunteer Cavalry, recruited under the calls of October, 1861, and January, 1863, was continued in such service after the expiration of the original terms of service of its veteran volunteers, and, with recruits, continued in the military service of the United States until mustered out bv companies at different dates from May 26, 1866, to November 20, 1866. Your petitioner further states that the difficulties of recruiting troops to serve upon the established rates of army pay, after the repeal of the provisions of the acts of 1850 and 1851, was fully represented to and recognized by the military authorities of the United States commanding in that country, and was by the general commanding the department duly reported to the \\'ar Department; that on November 20, 1863, the general commanding advised the War Department that in the execution of the varied duties and responsibilities in that remote department it had frequently been neces- sary for him to act promptly and assume responsibilities which in time of peace he would have deferred for the action of the General in Chief and War Department; that he has done and will thereafter do what seems to be his duty, acknowledging his responsibility to the General in (^hief, the Secretary of War, and the President, in the concluding paragraph of his letter to the Missovu-i delegation of October 5, and that he recjuests of the Secretary of War an approval of all done by him in the matter of raising and organizing volunteer organizations in that department, necessary in view of the fact that objections may be made by the accounting officers in cases where the regulations of the department have not been followed. Inclosed in this communica- tion he forwarded a copy of his General Orders, No. 40, modifying the general orders relative to recruiting by transferring to the governors of the States and Territories the control exercised by commissaries of musters and superintendents of recruiting service. Your petitioner further stat-es that the passage of these acts granting extra pay were reported to the Secretary of War by the military authorities of said Department of the Pacific, and that the troops so recruited were called for and accepted with the knowl- edge of the conditions under which said States were requii'ed and did seciu-e their enrollment. The value to the United States of said bounty law in the State of Oregon and the interest of the military authorities of the United States therein is further shown by the following letter of the general commanding the district of Oregon: "Headquarters, District of Oregon, " Van Couver, Wash.. January 10, 1865. ■'Sir: I learn from Colonel ilaury on his return from Portland that the idea is enter- tained by some persons that the act of the Oregon legislature of 24th October, 1864, providing for payment of $150 l)Ounty ' to every soldier who shall hereafter enlist for three years or during the war in any regiment, battalion, or company now organized or hereafter to be organized or raised as part of the (juota of volunteers of this State, etc.,' was not intend(>d by the members of the Oregon legislature for any but the First Oregon Infantry. "I desire to sa> thai this must be a mistake, as at the first of the session I saw that a bill had been introduced by Mr. Doniiell, providing for bounties only to the Oregon cavalry. 1 instantly wrote to Mr. Donnell begging him to modify the language of the bill so as to apply to any troops which might be called for, as no one then knew what kind of troops would l)e called for. The hill passed so as clearly to include either cavalry or infantry. ■'It is essential in the new effort to raise the Oregon cavalry that the same bounties shall 1)0 promised as have been promised the Oregon infantry. The law clearly and unmistakably provides for them. ' 1 have the honor to be, very respectt'nlly, xour ol)edieni servant, "Benj. Alvoki), ''Brigadier-General, ['. S.' Vnlunterrs. ("nmmandivg Distrivt His Kxcellency A. C. Gibbs. "(iovemnr of Oregon , Port land, Oreo.'' MAINTAINING STATE MILITIA DURING THE CIVIL WAR. 5 That under said act of October 24, 1864, granting extra pay to the Oregon volunteers in the service of the United States, there was expended by your petitioner the sum of $90,392.99, the bonds to raise funds for payment to the amount thereof being issued on January 2, 1865, and during the period while said bonds were outstanding and unpaid, and until the maturity thereof, said State was required to pay and did pay interest thereon at the rate of 7 per cent per annum, amounting to the sum of $44,745.20, making the total expenditure of said State for extra pay under said act the sum of $135,138.19, as will more particularly appear by reference to the vouchers thereof filed in this case under the title of "Abstract K." Under said act of October 24, 1864, providing for the payment of bounty to volunteers thereafter enlisting, said State paid to such volunteers the sum of 1129,041.02, and, having no available funds to meet said expenditure, did, on January 2, 1865, issue bonds bearing interest at 7 per cent per annum, as therein provided, and did actually pay thereon, as interest, the sum of $62,466.45, making a total expenditure of said State on this account of the sum of $191,507.47, as will more fully appear by reference to the vouchers thereof filed in this cause under the title of "Abstract H." And your petitioner further incurred and paid certain expenses in connection with the office of the odjutant-general and the service and expenses of recruiting officers amounting to the sum of $9,731.33, as will more fully appear by reference to the vouchers thereof filed in this case under the title of "Abstract — ." Yovu" petitioner necessarily incnn'ed and paid certain expenses of the adjutant-gen- eral's office in connection with the recruiting of said troops for postal expenses, amount- ing to the sum of $121.72, vouchers for which have been filed in this case iinder the title of "Abstract F. " And your petitioner further paid certain expenses for services of said adjutant- general's office for clerk hire and miscellaneous items, amounting to the sum of $805.66, as will more fully appear by reference to the vouchers filed under the title of "Ab- stract E." And your petitioner further paid certain expenses for services rendered by various parties for supplies, printing, services, etc., amounting to the sum of $2,276.63, as will more fully appear by reference to the vouchers filed under the title of "Abstract D. " And your petitioner fm-ther states that it paid certain expenses of transportation, amounting to $724.42, as will more fully appear by reference to vouchers filed under the title of "Abstract C. " And yoiu" petitioner further states that it paid certain expenses for miscellaneous supplies, such as arms, ammunition, and camp equipage, forage, stationery, etc., amounting to the sum of $3,998.46, as will more fully appear by reference to vouchers filed under the title of "Abstract B. " Yom- petitioner further states that it was dmiug the years 1863 and 1864 called upon at various times for volunteers for temporary service for periods of a few months, and that troops were mustered into such temporary service, occasioning a part of the expenses hereinbefore set forth; that in order to be in readiness to meet such calls, acting with the full knowledge of the military officers appointed by the War Department and the commander of said military district and in the spirit of the letter of the Hon. William H. Seward to the governor of the State above referred to, it made certain provisions for a state militia, and in order to render such militia efficient it was necessary that the same be assembled at various times, and on this account the petitioner paid during the years 1863, 1864, and 1865 the sum of $9,907; that said militia was not as such mustered into service of the United States, but its organization and efficient condition was occasioned and maintained in order to comply with the request of the honorable Secretai'v of State, as above set foi'th, and was reasonable and necessary to that purpose. Your petitioner fmther states that it has been guilty of no laches or delay in the preparation or presentation of this claim, but that it duly presented the same to the Treasury Department and to the War Department; that said claim was disallowed by the War Department because said department had no jurisdiction over claims of this nature, and it was disallowed by the Treasury Department for the reason that under the construction of the acts of Congress adopted by that department such expenses could not be allowed. Your petitioner further states that by an act of Congress approved July 27, 1861, the Secretaiy of the Treasury was directed to reimburse the States for the costs, charges, and expenses properly incurred in enrolling, paying, etc., troops raised for service during the civil war, and that under the liberal construction of said act which the Supreme Court of the United States (160 U. S., 598) has decided should be applied, the foregoing disbm-sements of the State of Oregon should have been allowed and paid, in that they were necessary to accomplish the raising of troops for the common defense. 6 iMAfXTAINlXC; STATE AUILITIA ni'HlNG TH K (TVII, WAK. The case was brought to a hearing on lovaltv and merits on the 27th dav of Novem ber, A. D. 1908. Messrs. Ralston & Siddons and W. E. Richardson, esq., apjjeared f(»r the claim&nt, and the Attorney-General, by Clark McKercher, esq., his assistant, appearfti for the protection and defense of the interests of the United iStates. The court, upon the evidence adduced and after considering the argumentri and briefs of counsel on both sides, makes the following FINDINGS OF FACT. I. In the early part of the civil war the federal troops in the State of (Jregon wore withdrawn for service m the East, rendering it necessary for the state authoritien to raise troops for the protection and defense of the State and its citizens and the residents of adjoining Territories. Under various calls made by the War Depart- ment, the State raised seven companies of ca\alry and one regiment of iiifantr\ during said war, as hereinafter set forth, numbering in all about 1,810 men, which were mustered into the United States service and were engaged during the war and until the close of the year 1866 in operations against hostile Indians. II. In the winter of 1861-62 private citizens of Oregon, pursuant to calls made by the United States military authorities of the Pacific coast, raised six companies of cavalry, thereafter known as the ' ' First Oregon Cavalry," which were mustered into the United States service for the term of three years. On January 5, 1863, to meet the then existing demand for troops, a further call was made on the governor of Oregon for the raising of six additional companies to complete the regiment of First Oregon Cavalry. Efforts were made by the state authorities, assisted by United States ofh- cers, to raise these troops, and up to August 10, 1863, they had been successful in raising but one comi)any. The terms of enlistment of many of these men would expire in 1864, and on October 24 of that year the legislature of the State of Oregon passed an act entitled "An act for the relief of the commissioned oflicers and enlisted men of the Oregon volunteers in the service of the United States," granting to everj Oregon volunteer then in the service of the United States extra pay to the amount of $5 per month from date of enlistment to date of discharge. Said act provided for the issuance of bonds to the amount of §100,000, bearing interest, at the rate of 7 per cent per annum. In the redemption of these bonds the State expended for principal and interest the sum of .|135,279.72, and for advertising for the re- demption of the bonds before maturitv the sum of $354.10, making a total of $135,633.82. The amounts so expended under said soldiers' relief act were paid to volunteer^ whose terms of service had expired or were about to expire. The payment of same was a gratuity on the part of the State and was granted without any authority from the United States, ancl the State of Oregon has no claim, legal or equitable, against the United States on account of the expenses so incurred. III. On October 20, 1864, Major-General McDowell, commanding the Department of the Pacific, telegraphed the governor of Oregon that orders had been received by him from the War Department that a regiment of infantry be raised in the State of Oregon as soon as possible. Upon receipt of .said telegram the governor wrote General McDowell as follows: "Your telegram requesting a regiment of infantry has just been received. I will do all in my power to raise it, but fear I may not have as good success as desired. 1 recommend the legislature now in session to offer bounties, but now it is but one day to the time of adjournment, and I regret to say that I fear a bill intro■■'■.■. . ■ '»<•,.■•■■ Thereafter the claim was preHented to the Fiftieth and subsequent Congresses an ( fe-v .;•■ was transmitted to the court by resolution of the United States Senate, as hereinbeA~.re ?,■.'.;!''! set forth. f?:;':;- By THE Court |' !.•,;' Filed December 31, 1908. liiM A true copy . ^'.i.'y.y'. Test this 29th dav of April, 1909. zP^"i [seal.] John Randolph, XsV-v.: Assistant Clerk Court of Claims . ■-'';';:•;•. K^ LIBRARY OF CONGRESS ^^^^ 013 704 353 1 '■::'^'^S%>.., LIBRARY OF CONGRESS 013 704 353 1 peRmalipe* pHSJ