#### HENRY A. LAUGHLIN ET AL. v. THE UNITED STATES.

[Congressional,

11812.

Decided February 1, 1909.]

*On the Proofs.*

These are the Pittsburg defense eases reported in 42 C. Cls. R., 178. The principal fact continues to be that the War Department notified the citizens of Pittsburg before the work was done that fortifications around the city were no part of the plan of the department and that if temporary defenses were to be thrown up the citizens must do the work themselves at their own cost. The Senate refers under the Tucker Act a bill providing for payment to the claimants of the amounts expended by them for labor and material furnished by them “ *to General Broolcs on the fortifications around Pittsburg for the benefit of the United States."*

I.The *allowances*made by the court in Congressional cases are not allowances in the sense in which the term is used in judicial tribunals, but are merely ancillary and advisory to Congress.

II.In these cases the findings do not imply that the claims are payable at law or in equity. On the contrary, they were never actionable. The history of the claims stated.

III.There may be claims recognized by Congress as equitable which appeal to the public conscience, claims not of legal right, but in the nature of a gratuity.

IY. The fact that the expenses for which reimbursement is sought were incurred by citizens for their own protection and were unnecessary in the opinion of the military authority, and were so held to be by the Secretary of War, compels the court to hold that the expenditures were voluntary and not for the benefit of the United States.

*The Reporters'*statement of the case:

The following are the preliminary statement and. facts of the case as found by the court:

The following bill was referred to the court on the 3d day of March, 1905, by resolution of the United States Senate under an act of Congress approved March 3, 1887, known as the Tucker Act:

“A BILL For the relief of Jones and Laughlins (Limited) and others.

*“Be it enacted by the Senate and House of Representatives of the United States of America in Congress*assembled, That *225the Secretary of the Treasury be, and he is hereby, authorized and directed to pay, out-of any money in the Treasury not otherwise appropriated, to the following-named persons, or their legal representatives, respectively, the sums of money expended and paid by them, or by the firms they respectively represent, for labor and materials furnished in eighteen hundred and sixty-three to General Brooks, on the .fortifications around Pittsburg, Pennsylvania, for the benefit of the United States; that is to say, Jones and Laughlins, three thousand eight hundred and sixty-two dollars and eighty-three cents; Hussey, Wells and Company, two thousand one hundred and forty-four dollars and eighty-seven cents; Lloyd and Black, one thousand eight hundred and twenty-three dollars and fifty cents; James Millinger, one thousand four hundred and seventy-one dollars and eighteen cents; Bobinson, Minnis and Company, one thousand three hundred and eighty-two dollars and seventy-two cents; Smith, Parks and Company, one thousand three hundred and twenty-six dollars and twenty-five cents; Pittsburg, Fort Wayne and Chicago Bailway Company, five thousand and fifty-eight dollars and eighty-seven cents; Singer, Nimmick and Company, one thousand two hundred and ninety-nine dollars and thirty-one cents; Lyon, Short and Company, one thousand eight hundred and sixteen dollars and fifty cents; James Wood and Company, three thousand and sixty-two dollars and ninety-two cents; King and Pennock, three hundred and eighty-three dollars and forty-four cents.”

The claimants herein appeared and filed their respective amended petitions in this court on the 23d of April, 1907, in which they make substantially the following allegations:

I. That they are residents of the city of Pittsburg, State of Pennsylvania, and citizens of the United States of America.

II. That neither your petitioners, nor any member of the firms aforesaid, gave any aid or comfort to the rebellion, but were throughout the war loyal to the Government of the United States.

.III. That.Maj. Gen. W. T. Brooks, of the United States Army, now deceased, was in the year 1863 in command of thé Department of the Monongahela, with headquarters at Pittsburg, Pa., by order of the Secretary of War, issued June 8, 1863.

IV. That on his arrival in Pittsburg two days later he found a telegram from the War Department awaiting him, *226to the effect that he could not be too early or too busily at work, as Pittsburg would certainly be the point aimed at by Stuart’s raid which was daily expected, and that he should frankly inform the people of Pittsburg that they should be at work.

V. That on June 14, 1863, he received a telegram from General Halleck informing him that Lee’s army was in motion toward the Shenandoah Valley, and that Pittsburg should be put in a defensible condition as rapidly as possible; that immediately upon the receipt of the dispatches aforesaid, General Brooks called together as many of the leading manufacturers and business men of Pittsburg as he could reach, to meet him Sunday night, June 14, 1863, at the Monongahela Plouse in said city for a conference. At that meeting General Brooks explained the military exigency which existed, and the necessity for immediately fortifying* the city; that he had neither men nor money to erect fortifications, and appealed to them to close their factories and workshops, and early next morning furnish him the needed men. He also stated that he would issue vouchers which would be paid by the Government at the rate of $1.25 a day, for the wages which he desired them to advance to the men whom they would furnish; that thereupon the citizens present adopted a resolution to “ close their establishments at once and obtain and place at the disposal of General Brooks all the men they could from their workshops, for the purpose of fortifying the city.” They further pledged themselves to the men engaged at their respective establishments “ that they would keep an account of their time, and pay at' the rate of $1.25 per day for their labor on said fortifications.”

VI. That promptly the next morning, at the time and place agreed upon, the men required were so furnished, as were also horses and carts; that upon the completion of the fortifications General Brooks reported toithe War Department that in answer to the call for labor on the defensive works the whole community responded in the most gratifying manner. Mills, factories, and workshops of various kinds had been closed; that rifle pits had been made by miles, and batteries and forts constructed sufficient to mount guns by the hundred.

*227VII. That soon after the fortifications were so completed the claimants furnished General Brooks a sworn account of the labor and materials furnished by them, together with the amount of wages paid by them to the men, whereupon General Brooks, in compliance with his promise made at the conference aforesaid that the vouchers would be paid by the Government, attached to said account a voucher certifying to the correctness of the account, and that the labor was furnished on appeal from him to the citizens of Pittsburg to put the place in a state of defense, and that the labor was necessary for the public service.

VIII. That about the same time other vouchers issued to other persons by the quartermaster of the 'Department of the Monongahela, for work done by General Brooks’ order in connection with said fortifications, were paid by the United States on presentation, and by public act of Congress, No. 99, approved February 24, 1905, pages 23 and 24, identical vouchers issued by General Brooks for work done at about the same time on said fortifications have been paid, but the vouchers issued to claimants have not been paid.

IX. That at the time of the appeal aforesaid General Brooks was without men or means to erect such fortifications; that the erection of the fortifications was rendered necessary for the protection of Pittsburg and Allegheny City, as these cities were at the time important military depots, with large depositories of army supplies belonging to the United States, and also the principal line of railroad communication between the Eastern and the Western States.

X. That these claims were presented to the War Department for payment in March, 1866, where they remained under xrarious adverse rulings as to the legal liability of the Government to pay, when in June, 1875, they were sent to the accounting officers of the Treasury Department, and in August, 1875, the Third Auditor advised the allowance of these claims, but his decision was overruled by the Comptroller, and the latter on June 29,. 1876, advised that they be sent to this court, as the accounting officers had no jurisdiction of them, and in May, 1890, the Secretary of the Treasury referred them to this court under section 1063 of the Bevised Statutes, whereupon petitions were filed in this court Janu*228ary 20, 1892, praying judgment, but the petitions were dismissed March 5, 1894, on the ground that the reference did not give the court jurisdiction; no decision was had on the merits of the claims.

Thereafter the papers at the request of claimants were returned to the Treasury Department, where various unsuccessful efforts were made, running over several years, to have these claims reopened and allowed, and finally the claimants made repeated applications to Congress for relief, in the Fifty-fourth, Fifty-fifth, Fifty-sixth, Fifty-seventh, and Fifty-eighth Congresses, and while Senate bill 1360 was pending in the Fifty-eighth Congress it was by resolution of the United States Senate, on the 3d day of March, 1905, referred to this court for a finding of facts under the act of Congress approved March 3, 1887, commonly known as the Tucker Act.

XI. During the whole period from the time these claims were first presented to the War Department, in 1866, to the present time they have been prosecuted with reasonable diligence. The petitioners, as aforesaid, are the sole owners of said claims, and that no assignment or any part thereof, or interest therein has been made, and that the claimants as aforesaid, are justly entitled to the amount claimed from the United States, after allowing all just credits and offsets, and they request that a finding of facts be made and certified to Congress as required by the act of Congress approved March 3, 1887, known as the Tucker Act.

The cases were brought to a hearing on the 19th day of October, 1908.

Mr. Vedantus B. Edwards appeared for the claimants, and the Attorney-General, by S. S. Ashbaugh, his assistant and under his direction, appeared for the defense of the interests of the United States.

The court, upon the evidence and after considering the briefs and arguments of counsel on both sides, made the following findings of fact:

I. The claimants herein were loyal to the Government of the United States throughout the late civil war.

II. On or about the month of May or early in June, 1863, the citizens of Pittsburg, Pa., became alarmed for the safety *229of the place because the Confederate forces were invading Pennsylvania, West Virginia, and southern Ohio. They appointed a committee of their number to wait on the Secretary of War and General Halleck, and *requested that shillful engineer officers be detailed to superintend the construction of fortifications around the*city, *which was done. The committee were at the time informed by the Secretary of War that the fortifications around the city of Pittsburg constituted no part of the plan or purpose of the War Department; that the men and money at the disposal of the Department were needed to carry out other purposes of the Govern*ment.i *and that neither men nor money could be furnished*them, *but that the citizens must do the worh themselves at their own expense.*

III. Thereafter, pursuant to the request made by the citi.zens of Pittsburg, Pa., upon the United States to cooperate with said citizens in the defense of Pittsburg, an order was issued assigning Major-General Brooks to the command of the Department of the Monongahela, with headquarters at Pittsburg, to embrace that portion of Pennsylvania west of Johnstown and Laurel Hill range of mountains, and Hancock, Brooke, and Ohio counties in the State of Virginia, and Columbiana, Jefferson, and Belmont counties in the State of Ohio. Volunteer infantry, artillery, and cavalry were ordered enrolled and organized for the protection and defense of public property there. On June 11, 1863, General Brooks assumed command, and ivas told by the general in chief of the army that Pittsburg and Wheeling should be put in a defensible condition. The Secretary of War likewise informed General Brooks that Pittsburg would be a point aimed at by Stuart’s raid, which might be daily expected, and that General Brooks should frankly inform the people of Pittsburg that they must be at work. Whether General Brooks informed the people of Pittsburg does not appear.

IV. Thereupon General Brooks notified leading manufacturers and business men of Pittsburg as to the necessity for a conference and immediate action, and thereupon the following resolutions were adopted by the citizens present, to wit:

*230“At a meeting of the manufacturers and business men of the city, assembled at the Monongahela House Sunday evening, Thomas Bakewell, esq., was called to the chair, and G. PI. Thurston was requested to act as secretary. The object of the meeting having been stated, it was then

*“*1. Resolved, Whereas Maj. Gen. Brooks has informed a meeting of manufacturers and business men, held on Sunday evening, that there is an imperative necessity for 2,000 men to commence work upon the fortifications of the city at 8 o’clock to-morrow (Monday) morning: Whereupon be it unanimously

“ *2. Resolved,*That all business be temporarily suspended, so that there may be a general rally of all able-bodied men in front of the Monongahela House at 8 o’clock on to-morrow (Monday) morning, for the purpose of placing the city and neighborhood in a proper state of defense against an invasion of thq enemy now hourly imminent.

“ 3. *Resolved,*That Thomas Bakewell, Gen. Thomas M. Howe, S. F. Vanbinhorst, and John FI. Harper, esqrs;, be a committee to urge the President to instruct Maj. Gen. Brooks to declare martial law forthwith.

“ 4. Resolved, That the manufacturers and business men hereby pledge themselves to stop their establishments tomorrow (Monday), and that they will obtain and place at the disposal of Maj. Gen. Brooks all the men they can from their differenent establishments for the purpose of fortifying the city; and, further, that they pledge themselves to the persons engaged at their respective establishments that they will keep an account of their time and pay at the rate of $1.25 per day for said labor.

“5. Resolved, That the directors of the Pittsburg, Steuben-ville and Pennsylvania and other railroads be requested to transfer their laborers and implements to the orders of the commandant of the department.

“ 6. Resolved, That the manufacturers present inform those not present to-night of the action of the meeting, and that they be requested to conform to the resolutions adopted.

“ *T.*Resolved, That the proceedings of the meeting be published in the morning papers.”

Y. The whole community responded to the call for labor on defensive works and intrenchments. Mills, factories, and works of various kinds were closed, and their employees sent to the intrenchments. Stores, wholesale and retail, were closed and represented on the works. Liquor dealers, miners, builders, and others, including the colored population, were well represented and did their share in fortifying their city. Every class of people or business was represented.

*231VI. Some time after the completion of the work certificates were issued for work on the fortifications and intrenchments around Pittsburg. General Brooks attached his certificate to the effect that he believed the account as shown by the •certificate was correct and just, and that the labor was furnished on an appeal from him to the citizens of Pittsburg to put the place in a state of defense, and that the labor was necessary for the public service.

VII. Before any of this work was done the general in ■chief addressed a letter of instructions to Brigadier-General Barnard (an engineer ofiicer assigned to duty at Pitts-burg), under date of June 8, 1863, stating to him that it was not anticipated that any hostile demonstration would be made against Pittsburg other than a mere raid, and as any projected works must be constructed by the voluntary labor of the citizens, the projected defenses should be of limited extent and of the most simple character — mere earth batteries- and rifle pits. This letter of instructions was accompanied with the following statement from General in Chief H. W. Halleck, in words and figures following, to wit:

“ I would also suggest the propriety of your calling on and ■consulting the mayor and municipal authorities.

“ It should be distinctly understood that there is no appropriation for fortifying Pittsburg, and no troops which can probably be spared for garrisoning that place. The sole object of your mission and that of Capt. Comstock, at the present time, is to give to the citizens of Pittsburg such assistance and instruction as may be practicable in preparing themselves against a possible rebel raid.”

Brigadier-General Barnard remained in Pittsburg but four days, and by the act of then leaving under orders dissolved all official connection with the defenses of Pittsburg. His official report shows that certain employees were ordered from Washington to aid in the defenses. Whether General' Barnard informed the people of Pittsburg of the order given to him by General Halleck does not appear.

VIII. June 14, 1863, Major-General Brooks issued an order directing that the requisite transportation be furnished to supply subsistence to the troops in the different camps and working parties employed on the fortification or in the *232vicinity. In compliance witli the instructions, teams, carts, and drivers were employed and rendered service, for which, certificates were made out and *were paid.*

IX. After the completion of the work there was presented an account by Jones & Laughlins for money alleged by them to have been disbursed for labor and materials on the fortifications around Pittsburg, from June 16 to July 3, 1863, as per statement below:

June 16 450 men performed 300 days’ labor, at $1.25-$437. 50

“ 17 375 “ “ 345 “ “ “ 1.25-431.25

“ 18 472 “ “ 272 “ “ “ 1.25-340. 00

“ 19 450 “ “ 450 “ “ “ 1.25- ' 262. 50

“ 20 428 “ “ 428 “ “ “ 1.25-535. 00

, “ 22 320 “ “ 320 “ “ “ 1.25-400. 00

“ 23 293 “ “ 293 “ “ “ 1.25-366.25

“ 24 182 “ “ 182 “ “ “ 1.25-227. 50

“ 25 76 “ “ 76 “ “ “ 1.25-95. 00

“ 26 24 “ “ 24 “ “ “ 1.25-30. 00

“ 27 15 “ “ 15 “ “ “ 1.25-18.75

“ 29 11 “ “ 11 “ “ “ 1.25-13. 75-

“ 30 8 “ “ 8 “ “ “ 1.25-10. 00

July 1 16 “ “ 16 “ “ “ 1.25-20.00

“26“ “ 6 “ “ “ 1.25-7. 50

“37“ “ 7 “ “ “ 1.25— 8. 75

For -2 four-borse teams 11 days, at $8 each_ 176. 00

“ 2 “ “ “ 11 “ “ 5 “ _ 110. 00

Tin cups, buckets, and nails_ 49. 97

Blacksmith work_ 10.00

Hauling lumber_ 13. 00

Total- 3,862.82

The foregoing- account is sustained by an ex parte affidavit only, made before a notary public in Pittsburg in 1864 “ with the intention of making it a claim against the United States.”

W. T. H. Brooks attached a printed certificate in words and figures following, to wit:

“ I hereby certify that *I believe*the above account is correct and just; that the labor was furnished on an appeal from me to the citizens of Pittsburg to put the place in a state of defense when the State was being invaded, and that the labor was necessary for the public service..

A(Signed) W. T. H. BROoks.”

W. T. H. Brook's was the major-general who was sent to Pittsburg to cooperate with the citizens, as set forth.

*233X. The claim of Jones & Laughlins was presented to the War Department in March, 1866, and referred with the other claimants herein to the Chief of Engineers of the United States Army April 17, 1866. The Chief of Engineers, United States Army, made an adverse report on the ground that the claims were not presented in the names of the parties who actually performed the work, but in those of their employers, and that Captain Craighill, who supervised the construction of the work, had no funds to pay, which the citizens knew, and that the only expense to which the Government was to be put was for involuntary work; that much of the work was voluntary, and such as was not was claimed to be paid by individual citizens whose property was threatened; that so far as the Government was concerned, all the Avork was voluntary, since it had made no demand or request for the same, and it was only asked to furnish scientific minds to direct the proper labor, and that this was readily furnished by the Government; that there having been no requisition made upon the Government to meet these contemplated outlays and no authority having been given to conduct this work for the Government, nothing could be done Avithout special legislation upon the subject; that from the statements of the engineer officers who superintended the construction of the defensive works, these works were built and the outlays made by and at the desire of the citizens of Pittsburg to save their property, their workshops, and their foundries from threatened destruction and without the thought or object of defending any other portion of the State, and Avhich Avorks were unconnected Avith any other system of government defenses. That these claims Avere parallel to the cases of the cities of New York and Philadelphia in the war of 1812, when those cities were threatened by the British, when men of every trade, occupation, and profession left their daily avocations and rushed to the heights surrounding those cities and threw up works necessary to defend them.

September 3, 1866, the claims were referred by the Secretary of War to the claims commission of the War Department, and on October 17, 1866, that commission decided against their validity on the ground that the expenses were incurred by the citizens of Pittsburg for their personal pro*234tection and that of their property, and formed no part of the plans adopted by the United States for the defense of the State of Pennsylvania and the expulsion of the invaders; that it was an independent and spontaneous movement on the part of the citizens, entered into without reference to the plans and arrangements of the federal authorities, and to forward which they asked the aid and supervision‘of skillful officers and nothing more; that the whole affair was a private enterprise on the part of the citizens of Pittsburg, not needed in the opinion of the military authorities or embraced in their plan of operations, but which they were willing to further in the manner proposed by the citizens, in order to allay public excitement and induce a greater feeling of security.

October 25, 1866, Secretary of War Stanton approved and confirmed the decision of the claims commission rejecting the claims of a large number of the claimants, Avhich included Jones & Laughlins and the other claimants herein.

June, 1872, one of the claimants, who alleged that he had expended money in defending his city, resubmitted his claim to the Secretary of War, and it was referred to the Chief of Engineers, United States Army, who reported that he could see “ no good reason for payment of this claim or of the remaining 158 * * * of similar character,” and on July 5, 1872, the Secretary of War decided to adhere to the original decision of Hon. Edwin M. Stanton, rendered in October, 1866, who, as Secretary of War, held that the claims were not properly payable from the public treasury.

NI. November 24, 1872, another one of the claimants who alleged that he had expended money in the defense of his city asked to have the Chief of Engineers reconsider his claim, and on November 26, 1872, that officer again stated his objections to it and declined to entertain it.

XII. May 11, 1875, the Assistant Judge-Advocate-General of the Army made a report to the Secretary of War stating that—

*“*There is nothing in the papers now filed to justify a reversal of the opinion heretofore expressed, that no liability exists on the part of the War Department, it appearing that *235tbe labor and expenditures were voluntary acts on the part of the claimants.”

XIII. June 22, 1875, the Secretary of War made the following indorsement on the opinion of the Assistant Judge-Advocate-General :

“All the papers, including this report, will be sent to the accounting officers of the Treasury. On the application of the attorney for the claimants attention is called to the certificate' of Gen. Brooks (the commanding general of the department) on the'vouchers filed.”

The certificate of General Brooks above referred to is set forth in finding IX.

XIY. September 23, 1875, the second comptroller, at the request of the Secretary of War, sent the claims and papers to the latter officer.

XY. Subsequently they were investigated by the Quartermaster-General by direction of the Secretary of War, and on November 8, 1875, adverse report was made to the Secretary — that is, against the payment of the claims.

XYI. Afterwards claimants’ counsel asked the Secretary of War to refer the case to the Attorney-General on the question of the power of the commanding general of the department, General Brooks, to make a contract with the citizens of Pittsburg for the construction of the fortifications in question; and thereupon the Secretary of War, on the advice of the judge-advocate of the army, denied the request and returned the papers to the second comptroller. Thereupon a third auditor in the Treasury recommended that the claims be allowed, and thereupon the second comptroller recommended that the claims with all proofs be transmitted to the Court of Claims, under section 1063 of the Revised Statutes.

XVII. July 27, 1876, the Comptroller of the Treasury delivered an opinion in the case of Armstrong and 158 other citizens of Pittsburg, Pa., to be reimbursed for expenses incurred and labor furnished under the circumstances here-inbefore set forth in the defense of their city, stating substantially as follows:

“ I have carefully examined and now reexamined all the papers and proofs in the case, and am clearly of opinion that the claims are not such as can be allowed or paid by the accounting officers.” * * *

*236XYIII. Additional evidence was thereupon presented to the Secretary of the Treasury with a petition that the claims be reopened for further consideration, and thereupon, on May 21, 1890, the claims were transmitted, pursuant to the provisions of section 1063 of the Revised Statutes, to the Court of Claims for investigation. On March 5, 1894, said cause was heard by the Court of Claims, and upon the findings of fact made by the court and specifically set forth in the case of *Armstrong et al.*v. *United States*(29 C. Cls. R., 148) the court made the following conclusion:

“ Upon the foregoing findings of fact the court decides, as a conclusion of law, that the case was *res judicata*in the Treasury Department at the time of its transmission here, and the Secretary therefore had no authority to transmit the case to the court for trial and adjudication under Revised Statutes, section 1063, and the petition is dismissed.”

XIX. When the accounts disclosing the sums claimed on account of expenditures for certain citizens of Pittsburg Avere transmitted from the Treasury Department to the Court of. Claims of the United States the several amounts disclosed by the accounts and accompanying papers were not brought into question, because the Government relied upon the executive rule *res judicata;*and this court did not take into consideration the amount of said accounts nor accept the same as final on the merits, for the reason that the court did not have jurisdiction of the merits of the cause including the accounts so transmitted to the court from the department, stating that the court had “ reached conclusions ad-Arerse to the claimants on other grounds ”• — -which other grounds were then and there stated to be that the court was Avithout jurisdiction to consider the matter at all.

XX. The claimants herein furnished the labor and materials and expended the money for the purposes aforesaid, and vouchers were given by General Brooks to said claimants, or their predecessors in interest, in the form as set out in Finding IX, being the same in all cases except as to amounts, names, and dates, viz:

Henry A. Laughlin, surviving partner of Jones & Laugh-lin, to whom such a voucher was given in the amount of *237three thousand eight hundred and sixty-two dollars and eighty-two cents ($3,862.82).

Calvin Wells, surviving partner of Hussey, Wells & Co., to whom such a voucher was given in the amount of eighteen hundred and sixty-five dollars and fifty cents ($1,865.50).

Wilson Miller, surviving partner of Eobinson, Minis & Millers, to whom such a voucher was given in the amount of one thousand three hundred and eiglity-two dollars and seventy-two cents ($1,382.72).

Henry Millingar, Charlotte Wilson, and Elizabeth Bid-well, deceased, heirs at law of James Millingar, deceased; Howard, Clinton and Henry Bidwell, heirs of Elizabeth Bidwell, deceased, to whom two such vouchers were given amounting to one thousand four hundred and seventy-one dollars and eighteen cents ($1,471.18).

Pittsburg, Fort Wayne and Chicago Eailway Company, to whom such a voucher was given in the amount of five thousand and fifty-eight dollars and eighty-seven cents ($5,058.87).

David McIL Lloyd, administrator of Henry Lloyd, deceased, last surviving partner of Lloyd & Black, to whom such a voucher was given in the amount of eighteen hundred and twenty-three dollars and fifty cents ($1,823.50).

Albert G. Colvin, assignee in bankruptcy of William Smith, deceased, surviving partner of Smith, Park & Co., to whom sutíh a voucher was given in the amount of thirteen hundred and twenty-six dollars and twenty-five cents ($1,326.25).

No payments appear to have been made these claimants for the money thus expended by them and each of them originating in the request for the defense of their property interests in Pittsburg, Pa., by the citizens thereof.

XXI. The competent evidence in the case does not establish the payment of the amounts set forth in the account to James Wood & Co. and Lyon, Shorb & Co., and the court is unable to report from the evidence that the amounts set forth in ‘the accounts of said claimants were actually expended by these claimants for the purposes therein set forth, as claimed in the petition, or that the persons to whom the money was paid actually rendered the services alleged.

*238■ XXII. The claims on behalf of the firms of Singer, Nim-mick & Co. and King & Pennock have been abandoned by the claimants.

*Mr. V. B. Edwards*for the claimant.

*Mr. S. S. Ashbaugh*(with whom was *Mr. Assistant Attorney-General John Q.*Thompson) for the defendants.

Howry, Judge,

delivered the opinion of the court:

The 11 different interests appearing here were united fohearing at the same time to obtain reports together to the Congress under the fourteenth section of the act of March 3, 1887 (24 Stat., 505, c. 359). After the cases were consolidated, by consent, they were remanded with leave to all the claimants to amend and take testimony. It had not been shown that the payments for the expenses alleged to have been incurred had been made, but the allegation on that point rested in each case entirely upon *the belief*of an army officer, which was insufficient to prove a material fact. *(Jones & Laughlins et al.*v. *United States,*42 C. Cls. R., 178.)

The findings now show payment in 7 of the original petitions, but the competent evidence does not establish the payment of any amount in the claims of James Wood & Co. and Lyon, Shorb & Co. The claim set forth in the petition of Singer, Nimmick & Co., has been abandoned because the principal party in interest deemed it better to discontinue on account of the number of heirs and the smallness of the share of each and from the fact that he was too busy to give the matter attention. The claim of King & Pennock has likewise been abandoned by the claimants because the facts could not be proved.

Bills for the relief of the parties directed the Secretary of the Treasury to pay out of any money not otherwise appropriated the sums of money expended and paid by the claimants, or by the firms respectively represented by them, “ for labor and materials furnished in eighteen hundred and sixty-three to General Brooks and the fortifications around Pittsburg, Pennsylvania, *for the benefit of the United*States.”

*239The reference of these bills with the accompanying papers creates no cause of action and no legal right save that of making the Government defendant in a judicial tribunal, and of having the facts found with an amount. Because it is sometimes erroneously stated that the reports transmitting our findings of fact under the fourteenth section' of the statute cited are “ allowances ” in the full sense in which the term is employed as applied to the action of judicial tribunals, the court takes occasion to show that references of the kind here mentioned are merely ancillary and advisory to Congress.

This is entirely plain from the language of the section, but is adverted to because of the confusion created by the frequent repetition of the statement that the action of the court in finding facts has the same effect as in cases under the general jurisdiction, where judgment may be rendered against the Government with the right of appeal to the Supreme Court in all cases where the judgment is against the United States. In finding and reporting facts in cases strictly congressional there is no implication that any claim referred under the fourteenth section of the Tucker Act is well founded in law.

The findings on these particular claims which show payments for certain expenses incurred do not mean that the court “ allows ” the amounts or recommends payment. Nor do the findings raise any implication that the claims were ever payable at law or in equity. On the contrary, they were never actionable under any rule or statute.

But it is alleged in the respective petitions that the claims were presented to the War Department for payment in 1866. That is true. In 1815 the claims appear to have been sent to the accounting- officers of the Treasury, and upon the suggestion of the third auditor were allowed. But this officer’s decision was overruled, and in 1890 the Secretary of the Treasury referred the claims to this court under section 1063 of the Revised Statutes. As the reference did not give the court jurisdiction the claims were returned to the Secretary of the Treasury with the statement that the cases were *res judicata*in the department; that is, against payment. *(Arm**240*strong et al.*v. *United*States, 29 C. Cls. R., 148.) Applications were subsequently made to Congress for payment.

The claims are of a class. They all originated early in June, 1863, when the citizens of Pittsburg, Pa., became alarmed for the safety of the place because the military forces under command of General Lee were invading Pennsylvania and West Virginia, 155 miles east. The citizens of Pittsburg appointed a committee of their number to wait on the Secretary of War and General Halleck and request that skillful engineer officers be detailed to superintend the construction of fortifications around their city. The committee was informed by the Secretary of War that the fortifications around Pittsburg constituted no part of the plan or purpose of the War Department to defend, and that the men and money at the disposal of the department were needed to carry out other purposes, and that neither men nor money could be furnished, but that the citizens must do the work themselves at their own expense.

Pursuant to the request made by the citizens aforesaid upon the United States to cooperate with them, an order was issued assigning General Brooks to command.in that region with instructions to put Pittsburg and Wheeling in a defensible condition, inasmuch as Pittsburg would be a point aimed at by the possible raid of a cavalry command under General Stuart. General Brooks was directed to inform the people of Pittsburg that they must be at work, and the business men of Pittsburg under information from that officer responded to the call for labor on defensive works and in-trenchments. Before any of the work was done, however, General Halleck addressed a letter of instruction to Brigadier-General Barnard, the U. S. engineer officer who was sent by the Government to Pittsburg, under date of June 8, 1863, stating that it was not anticipated that any hostile demonstrations would be made against Pittsburg other than a mere raid, and as any projected works must be constructed *by the voluntary labor of the citizens*the defenses should be of limited extent and of the most simple character. General Halleck also stated that the mayor and municipal authorities of Pittsburg should be consulted, and that it should be distinctly understood that there was no appropriation for *241fortifying Pittsburg, and “ to give to the citizens of Pitts-burg such assistance and instruction as might be practicable in preparing themselves against a possible raid.” Certificates as to these claims were given in which the principal officer on duty there certified that he *believed*the amounts were paid.

When payment was asked of the Government the demands were referred to the claims commission of the War Department, which decided against their validity on the ground that the expenses were incurred by the citizens for their personal protection and that of their property; that it was an independent and spontaneous movement on the part of the citizens entered into without reference to the plans and arrangements of the authorities; and that the whole affair was a private enterprise on the part of the citizens not needed in the opinion of the military authorities or embraced in their plan of operations, but which the department was willing to further in the manner proposed by the citizens in order to allay public excitement and induce a greater feeling of security. The Secretary of War (Stanton) approved and affirmed the decision of the claims commission, and upon a resubmission in 1872 the claims were referred to the Chief of Engineers of the United States Army, who reported that he could see no good reason for the payment of these or of the remaining 158 claims of similar character. May 11,1875, the Assistant Judge-Advocate-General of the Army'' made a report to the Secretary of War stating that no liability existed on the part of the War Department, because it appeared that the labor and expenditures were voluntary acts on the part of the claimants.

. Whether the claimants are entitled or not entitled to an appropriation on the findings is not a question before the court. If the power which holds the purse strings of the nation shall in the exercise of its discretion apply public money to the payment of these claims that is the right of the Congress. But that right can not be made to rest upon the existence of a claim in the sense of the law.

There are circumstances where the Government may recognize as equitable matters that appeal to the public conscience. It has been pointed out by the Supreme Court that some of *242the acts directing payment have been based upon considerations “ of pure charity ” — payments not of right but in the nature of gratuities. The claims at bar may come within this category; but none of them depend upon any such right as to make them legal claims to reimbursement. In so far as they depend upon equitable considerations the court can not ignore the ruling of the Secretary of War. Congress only can do that with full knowledge of the facts.

As to these claims, the effect that may be given to the contentions of the claimants that their demands are equitable must depend upon whatever view the Congress may assert with respect to the right of the petitioners to recover from the Public Treasury expenditures made for the supposed defense of their locality as a part of the whole country under the circumstances attending the voluntary disbursement of money from their own private means.

The status of the claims being given, it is for Congress to take such action as may be deemed proper in the discretion of those bodies.