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BOARD OF COMMISSIONERS TO EXAMINE AND ADJUST
CLAIMS AGAINST THE STATE.
COLUMBUS, Ohio, December 15, 1862. To his Excellency the Governor of the State of Ohio:
The act of the General Assembly passed May 1, 1862, constituted “the Auditor of State, the Secretary of State and the Comptroller of the Treasury" "a board of commissioners to examine and adjust claims against the State, the payment of which is not otherwise provided for, arising out of military transactions under" certain named acts of the General Assembly, namely :
First. An act to provide for the defense of the State, and for the support of the Federal Government against rebellion, passed April 18, 1861.
Second. An act to provide for the rapid organization of the militia of Ohio, enJisted under the requisition of the President of the United States, passed April 23, 1861.
Third. An act to provide more effectually for the defense of the State against invasion, paseed April 26, 1861.
Fourth. An act to amend sections two and three of the last-named act, passed May 8, 1861.
Fifth. An act relating to the organization of the militia volunteers called into the service under the acts secondly and thirdly above named, passed May 9, 1861.
Sixth. All other acts, and paris of then existing acts, passed by the General Assembly for the purpose of suppressing rebellion or resisting invasion, under the authority of this state or of the General Government.
In addition to the above reference to laws, the act specifies certain classes of claims to be examined by the Board, namely:
First. All claims against the State, the payment of which is not otherwise pro. vided for, arising out of said military transactions, under the acts aforesaid.
Second. Damages to property, arising out of the execution or attempted execution of any order, under the acts aforesaid, given by the Governor, or by any other military officer appointed or commissioned by him.
Third. Claims for pay of militia or volunteers, enlisted, ordered into camp, or detained in camp by order of the Governor, or officer acting under his autuority, under any of the acts aloresaid, although such militia or volunteers may have been discharged without being mustered into service.
Fourth. Claims for pay of persons serving as State militia or troops under any of the acts aforesaid, including commissioned and non-commissioned officers, surgeons, assistant surgeons, musicians and privates, while in the service of the State or United States, called into service, enlisted or appointed under either of said acts, for the time they are not entitled to receive pay from the United States, and computing from the date of enlistment or service.
Fifth. No claims were to be considered or allowed unless presented within six months after the passage of the act, and be clearly embraced in the foregoing enumeration of claims.
After the passage of the act of May 1, 1862, the commission met, and organized by the appointment of Mr. Kennon, Secretary of State, President of the Board, and Mr. N. A. Gray, of Cleveland, Clerk, and proceeded, at such times as a proper attention to the duties of their respective offices would permit, to examine the variu us claims presented to them. Before stating the action of the Board on the claims presented, it is proper
that we should state the substance of the several acts referred to, so far as regards the character of the claims submitted to our judgment by the General Assembly, and determine the extent of the powers conferred upon us.
First. The first act referred to in the law organizing the commission is the act to provide for the defense of the State, and for the support of the Federal Government against rebellion. This act appropriated $450 000 for the purcbase of arms and equipments for the militia of the State, $500,000 to be expended for carrying inio effect any requisition of the President of the United States to protect the Federal Government, and $50,000 as an extraordinary contingent fund to meet the emergencies arising out of the then condition of the country. Each of these sums was placed under the control of the Governor, for the purposes named.
Second. The act to provide for the rapid organization of the militia of Ohio, eplisted under ihe requisition of the President of the United States, established the same company and regimental organizations as in the Voited States army; provided for the election of company and regimental officers by the proper companies and regiments, and for the appointment of quartermasters and adjutants by the colonels elected by the regiments ; for the appointmen: of surgeons and of a major gt veral by the Governor; and for the desiguation by the Governor of brigadier 8 general, to command, from those tben in commission. The act also provided for the exam. ination of surgeons, and for the appointment of additional staff officers by the Gove ervor. It also provided that the militia accepted by the Governor, and all «fficers thereof, and staff officers in actual service, should be entitled to the pay and emoluments of the same grades of rank in the United States army, from the lime of the acceptance of the troops by the State, and from the time of tbe election and appoint. meni of officers of the line, or the calling into active service, and necessary for the defense of the State, and accepted by the Governor.
Third. The act to provide more effectually for the defense of the State against invasion, authorized the Guvernor, in case of invasion of the State, or danger thereof, to call out the militia to defend the State and repel such invasion; and to continue in service for a period oi three months the militia who bad iben volunteered under ibe requisition of the President, in excess of the number required, but not +xceeding pipe regiments of infantry and eight companies of cavalry and artillery. This act authorized the designation of two adoitional brigadiers-general, the transfer of the troops organized under it to tbe service of the United States, and appropriated $2,000,000 for the purposes named.
Fourth. The fourth act refeired to increased the number of troops that might be called into the service of the Stale, and authorized the appointment of brigadiers. general by the Governor; and, under the call for three years' troops, authorized ibe acceptance of ibe three months' men, then in the service, for three years.
Fifth. The fifth act referred to provided for the appointment of certain staff officers in the militia of the Slate, and one chief of engineers, one chief of artillery, and one medical director; and for the government of the militia, during actual service, by the military laws of the State, and the rules and articles of war of the United States.
Sixth. The sixth refereace to other laws is general, and of these the act relaling to the militia mustered into the service of the United States, passed April 17, 1862 provides that all companies of infantry, &c., organized to be mustered into the service of the United States, should consist of a certain number of men, and regiments of ten companies; should have certain officers, to be elected by themselves ; and that the militia accepted by the Governor, under the provisions of the act, should, from the time of such acceptance, draw the same pay as the like grades of rank in the army of the United States.
These are, in substance, the material parts of the laws referred to in the act creating the commission, and under the authority of which the claims referred to the commission arose ; and these laws, so far as they confer authority upon the Governor, in respect to any of the matters out of which claims might arise, refer in all instances to the militia of the State, except as to the appointment of certain staff officers, the appointment of a major-general, and certain brigadiers general, by the Governor. The election of general officers being vested by the Constitution in the militia themselves, the General Assembly could not confer the power upon the Gov. ernor. But as no claims have been presented to the commission by general officers thus appointed, no further observation is made upon the exercise of the appointing power in respect to them.
The claims, therefore, that might be examined and allowed must have been connected with the milita, called out, or accepted by the Governor, and militia ordered into or detained in camp, but not finally mustered into the service, and those of staff officers in the service of the State and acting under the orders of the Goverpor. Claims arising in the volunteer service, or for recruiting volunteers in the service of the United States, do not arise under the authority of any law of the State, but solely under the laws of the United States, and the orders of the War Department. It is true that volunteer officers are appointed by the Governor, but the power to make such appointments is not conferred by State laws, but by the laws of the United States and the orders of the President. By making such apo pointments, not authorized by the State, the State incurs no responsibility; over them the State has no control, nor has attempted the exercise of any control. The militia, at least until turned over to the United States, is under the control of the State, but it is not so with volunteers. The act of April 18, 1861, confers no authority on the Governor, except to purchase arms, and to expend money in meeting ihe requisitions of the President. These requisitions are necessarily for militia, and are compulsory in their character, wbich is not the case with calls for volunteers. The act fixed the amount the Governor might expend under it, and the act of April 23, 1862, appropriated an additional sum to meet the deficiency in the former appropriation, so that it is clear, that, by the law creating the commission, claims under the act of April 18, 1861, except so far as they were Dected with the militia, and irregular in their character, were not referred to the Board.
It is claimed by some that the act of April 23, 1861, for the rapid organization of the militia, provides for the payment of officers and men, of the volunteer force, but the provision in that act fixing the rate of pay is limited to militia “ necessary for the defense of the State and accepted by the Governor."
Under these views of the laws of the State, and of their own powers, the Board proceeded to examine the claims presented. Chese claims amounted in the aggregate to $136,972 84, and have been classified by Mr. Gray, as follows : Militia ordered into or detained in camp, but not mustered into service
842,573 32 Privales in same, omitted on rolls...
606 58 Officers in the recruiting service
25,758 39 Officers io other service....
16,219 60 Labor...
1.669 47 Commutation of quarters of officers.
Subsistence of troops..
1,469 05 22,622 00 2,823 18
These claims were disposed of as follows :
833,930 98 12,730 02
173 45 16,143 60 12,121 75 61,873 14
$136,972 84 About four-fifths of the amount allowed by the Board, was for claims of militia. The claims referred to the Quartermaster-General were for Quartermasters' stores of various kinds, transportation and subsistence, upon which it was competent for him to pass ; and so of the claims referred to the Adjutant-General, which were for actual service as militia of the State. The sum referred to the General As. sembly consists of two items; one the claim of the Muskingum County Agricultural Society, in amount $4,543 50 ; the other the claim of Thomas J. Stephens.
The State through Lieut. Thompson, Assistant Quartermaster, leased of the Muskingum County Agricultural Society, their fair grounds for a military camp, in May, 1861, the terms of which will appear in the statement of Lieut. Thompson, herewith reported. During the occupancy of these grounds as a camp, at first by some regiments of State militia, and subsequently by volunteers in the United States service, the buildings, fences, etc., which were quite valuable, were nearly destroyed by the soldiers, and the Society suffered large loss. The testi. mony on the subject presented to the Board is herewith reported. While the Board are satisfied that this property was destroyed by soldiers in the camp, they cannot find that the destruction arose “ out of the execution or attempted execution of any order given by the Governor or other officer.” Much of this destruction of property, was in mere wantonness, and suffered from the incompetency of officers, or their inability or unwillingness to control their men. This claim is reported to the General Assembly with a recommendation that an appropriation be made to pay it, but without an expression of opinion as to the sum that should be allowed.
Thomas J. Stephens was the owner, or in possession of a race course, or trotting park, in the neighborhood of Cincinnati
. In April, 1861, Brigadier-General Lytle, of the State militia, acting on behalf of the Governor, leased this property of Mr. Stephens for a military encampment, and it was occupied as such, and known as • Camp Harrison," until the removal of the troops to Camp Dennison. The contract or lease provided that the State should pay rent and all damages that should be sustained by Stephens, or occasioned by the occupancy of bis property as a military camp; the rent and damages to be determined by one person selected by the Governor, and one by Stephens, they two selecting a third or umpire in tho event they should not be able to agree. The property was occupied as a camp from April goth to June 3d, 1861. The papers herewith reported show that the rents and damages have been assessed at $11,600. The Board have not gone into an inquiry to ascertain, whether the use of the property, and the damages done to it would amount to that sum, for they do not regard this as one of the claims rub
mitted to them. The Board think the Governor was entrusted with power to make contracts relative to camps, at that time, and to allow and certify the sum due to parties owning property thus occupied, and therefore, that the claim of Mr. Stephens is one of the kind referred to in the act creating the Board, as "otherwise provided for."
The Board are informed that the Governor did not see fit to allow and certify this claim, and therefore it was presented to them ; but the non-allowance of a claim by the Governor, where he had authority to act, does not, in the judgment of the Commissioners give them jurisdiction. In view, however, of the inability of Mr. Stephens to obtain action on his claim, and because it involves a large amount of damage to property, which public officers may hesitate to pass upon, the Board respectfully refer it to the General Assembly.
Other claims for damages, have been small in amount ; not sustained by satisfactory proof, or those which will unavoidably arise in the neighborhood of camps, laying no just foundation for a claim upon the State.
The claims withdrawn were those properly chargeable to the United States, or evidently provided for and payable on presentation at the proper office.
Of the claims “not allowed,” the larger portion was by officers for recruiting volunteers for the United States service. Orders of the War Department authorized the Governor to appoint all regimental and company commissioned officers in the volunteer service. These orders authorized the appointment of company officers when the minimum number of mea had been ealisted and mus. tered into the service. They also authorized the mustering in of a Lieutenant Colo. nel when four companies had been mustered in, a Major when six companies had been mustered in, and a Colonel when the regiment was full. In almost every instance, however, the Colonel, Lieutenant Colonel and Major were designated when the order to make up a regiment was issued; but these officers were not mustered in, and did not draw pay until the condition fixed by the War Department had been complied with.
In other cases, authority was given to individuals to recruit men for the volunteer service, with a promise of a Lieutenant's commission, if a certain number were recruited within a stated time. These conditions were expressed upon the face of the appointment, but no commissions were issued until the condition had been complied with, and no provision was made for compensation to the appointee, nor any promise of compensation, until commissioned, after which he would receive the pay of his rank. Provision, however, was made in the orders of the War Depart. ment for the payment of subsistence and transportation of recruits, and of all legitimate expenses. In fact the appointment of all officers of volunteer regiments, was regulated and provided for by the War Department, and the Governor in making them acted under these orders.
Following the regulations of the War Department, almost every officer, in every volunteer regiment, was appointed by the Governor, before he could be mustered in, and in a position entitling him to pay. Regiments were from one month to six months in being filled up to the required number, and in some cases the officers were unable to complete their regiments, and these incomplete regiments were consolidated with others, thus depriving some of the eppointees of their positions. Officers who have been thus engaged in getting up companies and regiments, now present claims against the State for pay, for the time subsequent to their appointment, until mustered into the service of the United States. The Board are of the opinion that such appointment and service present no foundation for a claim against the State.
The appointments were not made under authority of State laws, but of the laws of the United States, and the orders of the proper Department at Washington. If the Governor made appointments before the appointees could under such laws and orders be mustered into service and receive pay from the United States, the State -the appointments not having been made uoder her authority-is not in any sense