#### THE STATE OF WEST VIRGINIA v. THE UNITED STATES.

[Congressional,

3221.

Decided November 21, 1910.]

*On the Proofs.*

In 1897 the legislature of West Virginia appropriates $19,159 for tlie payment of troops called for and furnished to and in the suppression of the rebellion. The money is subsequently paid to officers not commissioned and privates of certain companies, none of whom was ever in the service of the United States; and none of such officers and privates ever performed military service other than temporary and occasional service as home guards, and that without official connection with organized troops of the State. The appropriations of Congress are to reimburse the State for enrolling, equipping, and paying such forces of the State called into its service, excluding troops who did not perform actual military service *“in concert with the forces of the United*States.”

I.There are acts of Congress extending back to the foundation of the Government which provide for the payment of militia when called into the actual service of the General Government, but all require that the service must be military service rendered in concert with the troops of the Federal Government and under the authority of the United States.

*II.The Act*gist *June, 1S66*(14 Stat. L., p. 68), appropriating money to reimburse the State of West Virginia, excludes allowances for troops who did not perform actual military service “ *in concert with the forces of the United States,”*and in that agrees with all previous legislation. The history of this legislation and of the action and rules of the executive branch of the Government examined and stated.

III. The public policy of the Government as expressed in many acts of Congress has been that States should not be reimbursed for expenses incurred in arming and equipping state military organizations unless the troops were called out or the expenses were incurred by authority of the President. If provisional troops not mustered into state service have been paid, such payments were contrary to public policy.

IV. Where men who occasionally acted as home guards had not been enrolled by the State they were not subject either to state or to federal authority as troops.

*577Y. The report of three state officers who constituted a board to investigate military claims against ihe State was *ex parte,*with no opportunity on the part of the Government to cross-examine witnesses, and is incompetent as evidence against the defendants, though it may be used to show that such board existed by legislative authority, that the board made a report to the legislature, and that it indicated a liability on the part of the State. The proceedings of the board examined and reviewed.

VI.Demands against the United States can not be established through the agency of state officers. The report of a board of state officers, though accepted and approved by the legislature of the State, is not competent evidence against the United States.

VII.The Revised Statutes (§ 906) do not make an award or judgment which may be final against a State either binding in law or conclusive as evidence against the United States.

VIII.The Supreme Court has established the rule that where the ultimate fact, in the findings of a court, on which the judgment rests is founded on incompetent evidence there must be a reversal notwithstanding the terms of the finding. The same rule governs conclusions in this court, in Tucker Act cases.

IX.As a general rule exceptions to incompetent evidence may be waived by mutual consent. But this rule relates to private parties. In this court waivers to incompetent evidence can not be countenanced.

*The*Reporters’ statement of the case:

This is a claim for pay and subsistence of certain soldiers alleged to have been furnished to the United States during the war for the suppression of the rebellion.

On March 21, 1888, the United States Senate by resolution referred to the court a bill under the act of March 3, 1883, as amended by the act of March 3, 1887, in the following words:

“ [Fiftieth Congress, first session. S. 1158.]

“ To recognize and pay certain claims due by the State of West Yirginia to citizens thereof for service rendered the United States in the late war, and which are properly chargeable to the United States.

*578“ Whereas under and by virtue of an act. passed by the legislature of the State of West Virginia March third, eighteen hundred and sixty-nine, entitled ‘ An act creating a board for the examination of certain military claims,’ the said board audited and found justly due by said State to citizens thereof, for the enrolling, equipping, subsisting, and paying of forces of said State called into service after the twentieth day of June, 1861, to act in concert with the United States forces in the suppression of the late rebellion against the United States, the sum of $18,974.68; and

“ Whereas by an act of the legislature of said State passed February 25th, 1871, entitled ‘An act to provide for the payment of certain military claims,’ the sum of $19,-474.68 appropriated for the payment of the aforesaid sum, audited and 'found due as aforesaid, by said board, which last-mentioned sum included $500 for expenses of said board; and

“ Whereas the last-mentioned act contained a proviso that only such claims as are recognized by the United States Government should be paid out of the amount thereby appropriated; and

“ Whereas the sum found due the claimants has not been paid by the State, and if paid by the said State would constitute a proper charge and claim in behalf of said State against the United States: Therefore

“ *Be it enacted by the Senate and House of Representatives of the United States of America in Congress*assembled, That the Secretary of the Treasury be, and he is hereby, authorized and directed to pay, or cause to be paid, to the person or persons to whom the same may be due, as shown by the muster and pay rolls hereinafter mentioned, any and all proper claims due by the said State of West Virginia, and which, if paid by said State, would constitute on behalf of said State a proper charge and claim against the United States for enrolling, equipping, subsisting, and paying the state forces called into service in said State, or by the restored government of Virginia within the bounds of said State, after the 20th dajr of June, 1861, to act in concert with the United States forces in the suppression of the late rebellion against the United States.

“ Sec. 2. That said payments shall be made by the Secretary of the Treasury upon the principles and conditions agd under the limitations stated and provided in the act of Congress approved June 21, 1866, entitled ‘An act to reimburse the State of West Virginia for money expended for the United States in enrolling, equipping, and paying military *579forces to aid. in suppressing the rebellion,’ and of such sums only as were not examined, settled, and paid under said last-mentioned act:

*“Provided,*however, That the Secretary of the Treasury shall cause to be paid in accordance with the several muster and pay rolls hereinafter named the several amounts shown to be due to the persons whose names are found thereon, or to their or each of their agents or legal representatives, as follows, namely, Captain A. H. Reynold’s company, state troops, from Braxton County; Captain Thomas Godfrey’s company, One hundred and nineteenth West Virginia, from Wyoming County; Captain C. Harless’ company, 187th Regiment West Virginia Militia; supplemental muster and pay roll of Captain Cumberland Adkins’ company, State Guards; Captain N. Alltop’s company, independent State Scouts, from Marion County; supplemental muster and pay roll, Captain N. Jones’ Home Guards, from Pleasants County; claim of Adam Garrison, of New Martinsville, Wetzel County; and the sum of $500 for the expense of the board, as shown by the report of the board established by the act of the legislature of West Virginia, passed March third, 1869, entitled ‘An act creating a board for the examination of certain military claims,’ said muster and pay rolls being the vouchers and evidence accompanying said report, showing the justness and correctness of the said claims so examined and passed upon by the said board, whose action in passing upon said claims is hereby declared final.

“ Seo. 3. That the sum of $19,474.68, or so much thereof as is necessary, be, and the same is hereby, appropriated to pay such sums as are shown to be due under the provisions of this act to the parties entitled thereto or to their authorized agent or agents.”

A petition in this case was filed April 12, 1890, and on June 5, 1899, an amended petition was filed in which it is substantially averred that:

The petition of the Commonwealth of the State of West Virginia, by j. M. McWhorter, her agent for that purpose, duly commissioned, respectfully represents that she has a claim against the Government of the United States in the sum of $19,474.68, being for pay and subsistence on account of certain of her soldiers in the service of the United States during the war for the suppression of the rebellion, and for other expenses incurred in and about the examina*580tion and auditing said claim, as hereinafter more fully and specifically set forth, viz:

1. Supplemental muster and pay roll of Oapt. William N. Jones’ company of Home Guards, from Pleasants Oounty, containing the names of 1 captain, 2 lieutenants, and 39 men, and amounting in the aggregate to the sum of_ $423. 30

2. On account of muster and pay roll of Oapt. S. A. Rol-linson’s company of state troops, of Braxton County, containing the names of 61 men, for eight' months’ service, amounting in the aggregate to the sum of_ 7, 350. 00

3. On account of muster and pay roll of Oapt. Thomas Godfrey’s company, One hundred and ninetieth Virginia Regiment Militia, consisting of the names of 1 captain, 1 first lieutenant, and 79 privates, from Wyoming County, showing seven months’ continuous service, and amounting in the aggregate to the sum of_ 8, 274. 00

4. On account of muster and pay roll of Oapt. O. I-Iarless’ Company O, One hundred and eighty-seventh Regiment West Virginia Militia, from Boone Oounty, containing the names of 1 captain and 48 privates, amounting in the aggregate to the sum of_ 1, 593. 69

5. Supplemental muster and pay roll of Oapt. Cumberland Adkins’ company of State Guards, containing the names of 11 privates, and amounting in the aggregate to the sum of_ 845. 00

6. Muster and pay roll of Oapt. N. Alltop’s company of Independent State Scouts, of Marion County, containing the names of 1 captain and 18 privates, and amounting in the aggregate to the sum of_ 682. 09

7. Subsistence claim of Adam Garrison, of New Martins-ville, Wetzel Oounty, for subsisting Oapt. J. P. Boggs’ Company B, Eleventh West Virginia Infantry, amounting to the sum of_ 21. 60

8. Expenses of the board of audit, created under the act of the legislature of the State of West Virginia, entitled “An act creating a board for the examination of certain military claims,” etc. Approved March 3, 1869. For clerk hire_ 300. 00

For publishing notice of meeting of board in the Wheeling Intelligencer_ 7.50

For publishing notice of meeting of board in the West Virginia Journal while auditing claim herein set forth_ 7. 50

Total_ 19,474.68

That under and by virtue of an act of March 3, 1869, passed by the legislature of the State of West Virginia, entitled “ An act creating a board for the examination of certain military claims,” said act providing, among other things, that the auditor, adjutant-general, and treasurer of the State are hereby constituted a board of claims to examine, adjust, and audit such claims as in the opinion of said board are justly chargeable to this State, and not otherwise provided *581for, growing out of the military services of the following character:

I. Claims for services rendered by state troops since the 19th day of June, 1861.

II. Claims for subsistence and supplies furnished the state troops when called into service.

III. Claims for necessary transportation of state troops and for transportation of arms, supplies, etc., for their use.

IY. Claims for services rendered by officers organizing state troops under orders of the governor, and for necessary expenses incurred in publishing orders and notices, and for printing done upon the orders of such officers.

Y. Claims for subsisting and equipping volunteer recruits under order or by authority of the governor.

That under and by virtue of said act aforesaid said board so organized on January 24, 1871, made their report to the governor, as required by said act, certifying to him in duplicates all of said claims audited by them during the years 1870 and 1871, which they recommend for payment, and in which they report that these claims are properly certified and sworn to in the manner prescribed by the United States Government, and that they have not recommended the payment of any claim that was not of such a character and sustained by such vouchers as would justify the State in its future settlement with the United States to ask that it should be reimbursed; that in auditing these claims the board had continually had in mind their reimbursement by the General Government.

Duplicates of claims thus certified to the governor were filed in the office of the secretary of state, as required by said' law, under the provisions of which they had been so audited.

Thereupon the governor transmitted to the legislature the said report of said board, in order that provision might be made for the payment of said claims; and in February, 1871, the legislature passed an act (chapter 109) appropriating the sum of $19,474.68, and placed the same at the disposal of the governor to pay said claims — all of which constitute the same claims which are specifically set forth on the first and second pages and top of third page of this amended petition, *582and constitute the identical claim set forth in the original petition, and the claim referred to this honorable court by resolution of the United States Senate, to find the facts, under the acts of March 3, 1883, and of March 3,1887.

That under the provisions of the acts of Congress of February 28, 1795, chapter 36, volume 1, page 424; April 20, 1818, chapter 84, volume 3, page 444; March 19, 1836, chapter 44, volume 5, page 7; July 29, 1861, chapter 25, volume 12, page 282; July 17, 1862, chapter 201, volume 12, page 597, and other laws of the United States, it is provided, among other things, that the militia, when called into actual service of the United States, shall, during their time of said service, be entitled to the same pay, etc., as may be provided by law for the Army of the United States, which pay shall be deemed to commence from the day of their appearing at the place of rendezvous, etc.

That said military service, for which claim is here made, was called for by the proclamation of the President of the United States, in pursuance of law, and that in response to said call and requisition the governor of said Commonwealth caused the enrollment and organization of said troops, and that each and every soldier named in the said muster and pay rolls, and the said several commands, were absolutely on duty and doing duty in the service of the United States as part of the military forces of the United States, and subject to the rules and articles of war during the entire several periods, as shown by report of said board of claims to the governor; all of which constitutes a proper charge and claim in behalf of said State against the United States, being for money paid or secured to be paid by the State of West Virginia for troops called for and furnished, to aid in the suppression of the rebellion against the United States.

That by a joint resolution of the legislature of said State, passed February 9, 1872, the governor was authorized and directed to withdraw from the files of the secretary of state and from the adjutant-general’s office said military claims growing out of the late war, and to forward them to the Senators and Eepresentatives of said State in Congress, “ instructing and requiring them to use their influence to secure *583an appropriation from Congress to pay the same; ” that said claims were accordingly forwarded by the governor, and Senate bill 824, Forty-sixth Congress, second session, was introduced and this claim referred to the Committee on Claims, but that no final action was had.

That Senate bill 1158, Fiftieth Congress, was introduced and referred to said committee, and that finally, by resolution-of the Senate of the United States, dated March 21, 1888, said last bill, representing said claim, with all the papers relating thereto, were referred to the Court of Claims, to find the facts, under the provisions of the act of March 3, 1883, commonly called the Bowman Act, as amended by section 14 of the act of March 3, 1887.

That on February 19, 1897, the legislature of West Virginia passed an act (chapter 5) entitled “An act to amend and reenact chapter one hundred and nine of the acts of one thousand eight hundred and seventy-one, entitled ‘An act to provide for the payment of certain military claims,’ ” appropriating the sum of $19,159.68, the expenses of the board having been paid out of the fund appropriated by the first act, and placed the same at the disposal of the governor for the payment of the military claims in question; and thereupon, on the 27th day of March, 1897, the governor appointed one Louis E. McWhorter to receive and disburse the money so appropriated to the several persons entitled to receive the same and to take duplicate receipts of the parties, respectively, entitled to receive the same, or, in case of the death of such party, he shall take the receipts of the personal representative of such person, and the rolls, with the receipts,, shall be filed with the secretary of state.

sji & ‡ sj; ij:

amount oe claims audited.

' Chapter I.

Embraces claims for services rendered by the militia of the State since the 19th day of June, 1861.

This class amounts in the aggregate to $19,138.08.

*584Chapter II.

The claims under this class are for subsistence and supplies and amount to $21.60.

Several claims of this nature are still under consideration by the board or awaiting additional proof necessary to make them proper subjects to be audited.

Chapter III.

No claims have been audited under this head. However, several are before the board, which will, if sufficient evidence is produced to render them valid claims, be reported in due time.

Chapter IY.

The board has under consideration several claims coming under this head, and will after final action thereon communicate at once, if the claims should be such as deserve recommendation for payment.

Chapter Y.

No claims of this nature have been presented to the board for consideration.

EXPENSES OE THE BOABD.

Publishing notice of meeting of board, in Wheeling Intel-ligencer _ $7.50

Publishing a like notice in the West Virginia Journal_ 7. 50

Clerk hire under section 5 of act creating board_ 300. 00

Total amount of expenses_315. 00

STATEMENT OE CLAIMS ATJBITED.

Chapter I.

1. W. A. Jones’s company of Home Guards from Pleasants County, being properly certified and verified, amounting in the aggregate to $423.30.

2. Samuel A. Rollyson’s company of state troops from Braxton County, having been in actual service for a term of eight months, properly certified and verified, amounting in the aggregate to $7,350.

*5853. Thomas Godfrey’s company of state troops from Wyoming County for seven months’ continuous 'service, properly certified and verified, amounting to $8,274.

4. Supplemental roll of Capt. Columbus Harless’s company of state troops from Boone County for services rendered in 1861, properly certified and verified, amounting in the aggregate to $1,593.69.

5. Supplemental pay roll of Capt. Cumberland Adkins’s company of state troops for members of company not heretofore paid on prior rolls, properly certified and verified, amounting to $845.

6. Pay roll of Capt. N. Alltop’s company (in part not heretofore paid) from Marion County for services rendered, properly certified and verified, amounting in the aggregate to $682.09.

Chapter II.

Claim of Adam Garrison, from Wetzel County, for subsisting Capt. John P. Boggs’s company, of the Eleventh West Yirginia Infantry prior to their muster into service, properly certified and verified, amounting to $21.60.

RECAPITULATION.

Amount of all claims audited by board up to January 24, 1871:

Chapter I, amounting to-$19,138. 08

Chapter II, amounting to- 21. 60

Chapter III, amounting to-

Chapter IV, amounting to-

Chapter V, amounting to-

Expenses of board, including clerk hire- 315.00

Total_ 19, 474. 68

The board will present a supplemental report'of such cases now under consideration which in its opinion deserve recommendation for payment.

“ State oe West Virginia,

“ Oeeice oe Secretary oe State.

“ I, Henry S. Walker, secretary of state of the State of West Virginia, do hereby certify that the foregoing and annexed writing is a true and correct copy of the report of the board of military claims, appointed by act of the legislature of West Virginia of 1869, chapter 106, passed March 3, 1869.

“ And I do further certify that at the time said report was made, T. Bogess was auditor, James M. Ewing, jr., was adju*586tant-general, and James A. Macauley was treasurer of the State of West Virginia.

“ Given under my hand and the great seal of the said State at the city of Charleston, this 7th day of June, 1888.

“ [seal.] “ HeNry S. Waleer,

“ *Secretary of State?*

The case was brought to a hearing on loyalty and merits on the 16th day of December, 1908. Thereupon the court made findings of fact, which were filed December 20, 1909.

Thereupon and thereafter a motion for a new trial and to amend findings was considered, and thereupon the court made its order, November 21, 1910, withdrawing all former findings and made other findings.

The following are the facts of the case as now found by the court:

I. Congress, by an act approved June 21, 1866 (14 Stats., 68), entitled “An act to reimburse the State of West Virginia for moneys expended for the United States in enrolling, equipping, and paying the military forces to aid in suppressing the rebellion,” appropriated $368,548.37 to pay such state forces as had been called into the service in West Virginia since June 20, 1861, to act in concert with the United States forces in the suppression of the rebellion against the United States. Under said act commissioners were required to examine all expenditures made by West Virginia for the purposes named, *allowing only for disbursements made and amounts assumed by the State for the payment of such troops as were called into service by the governor of West Virginia at the reguest of the United States department*commander, *with no allowance for troops who did not perform actual military services in full concert and cooperation with the authorities of the United ^States and subject to their orders.*

II. Settlement was made between the United States and the State of West Virginia under the aforesaid act, and the account between the State and the United States was closed by and with actual payment from the United States to West Virginia, which included payments for all troops performing actual military services for the State of West Virginia in *587concert and cooperation with the authorities of the United States and subject to their orders.

III. Some years thereafter — March 3, 1869 — the legislature of the State of West Virginia passed “An act creating a board for the .examination of certain military claims,” viz:

*“Be it enacted by the legislature of West Virginia:*

“ 1. The auditor, adjutant-general, and treasurer of the State are hereby constituted a board of claims to examine, adjust, and audit such claims as *in the opinion*of said board are justly chargeable to this State, and not otherwise provided for, growing out of military services of the following character:

“ I. Claims for service rendered by state troops since the nineteenth day of June, eighteen hundred and sixty-one.

“ II. Claims for subsistence and supplies furnished the state troops when called into service.

“ III. Claims for necessary transportation of state troops and for transportation of arms, supplies, etc., for their use.

“ IV. Claims for services rendered by officers organizing state troops tinder orders of the governor, and for necessary expenses incurred in publishing orders and notices, and for printing done upon the orders of such officers.

“ V. Claims for subsisting and equipping volunteer recruits under the order or by the authority of the governor.

“ 2. The said board shall have power to require the attendance of witnesses and to examine them under path, which oath may be administered by any member of the board, to require the production of any books and papers deemed necessary to properly adjust any claim, and to decide upon all claims, fixing the amount from the evidence they may have before them, as shall seem just and equitable.

“ 3. Said board shall hold monthly meetings at the capitol building, of which due notice shall be given by publication in at least two newspapers published in this State, and shall make to the governor a report of their action at each meeting, certifying in duplicate to him all claims audited by them.

“4. Duplicates of claims thus certified to the governor • shall be filed in the office of the' secretary of state, with a view to having the amounts paid out refunded by the General Government.

“ 5. Said board is hereby authorized to employ a competent clerk whose duty it shall be to keep a full and correct record of all claims presented, and make true abstracts thereof for the use of the board, execute all orders of the board, and' *588receive as compensation such sum as the board may fix, which compensation, together with the necessary expenses of the board, shall be paid in the same manner that other claims are paid.

“ 6. The governor shall transmit to the next legislature the report of the said board, in order that provision may be made for the payment of said claims.

“ 7. This act shall expire two years from its passage.”

This board was composed of certain state officers who were at the time in the employ of the State, to wit, the auditor, adjutant-general, and treasurer. They were “ constituted a board of claims to examine, adjust, and audit such claims *as in the opinion*of said board were justly chargeable to this State and not otherwise provided for growing out of military services.”

On the 24th day of January, 1871, said board certified to the governor the list of claims audited by them during the years 1870 and 1871, which they recommended for payment, stating the classes involved as follows:

Amount of all claims audited by board up to January 24, 1871:

Class I, amounting to_$19,138. 08

Class II, amounting to_ 21. 60

Expenses of board, including elerli hire_ 315. 00

Total_ 19, 474. 68

IY. In 1897 the legislature of the State of West Virginia passed an act, which became a law without the governor’s approval, appropriating a sum of money *on account of the State*for the payment of the claims covered by the post-bellum lists of names which had been filed in the office of the secretary of state, but which on their face show that they were neither original nor authorized muster rolls. Under said act there was disbursed, in 1897, $18,629.69 by the State of West Virginia to the men in question, and expenses incurred by the agent of the State in paying the claims of the men for the alleged services.

V. The evidence does not establish the correctness of the report of the board as the basis of a claim against the United States. The testimony of no witnesses (duly sworn to) was submitted with the report of the board. There is nothing *589to show that the board acted upon those provisions of law requiring the production of original rolls, or of authenti-' cated lists of names of the men as a part of the militia of the State. There is nothing to show that the said board required the production of books and papers. The said board of state officers made up its report without original lists or original rolls showing that the men for whom military services were claimed were a part of the military forces of West Virginia. It was made up without any claim or contention that there ever had been anything of record containing the names of the alleged officers and enlisted men. No original rolls are yet produced and there is no claim or contention that any of the state records were at any time lost. There are no certificates that the report of the said state board was made from anything of an original character existing of record as of the time the alleged military services were claimed to have been rendered nor as contemporaneous with the war in progress during the years for which the services of the men were said to have been claimed. No vouchers were filed to sustain the board’s recommendation. The proceedings of the board were *ex parte*in character and without notice to the United States. No commissions of the State to the alleged captains and no enlistments of the men are shown by any evidence.

VI. There is no sufficient competent evidence to establish that the men of William N. Jones’ alleged company, Samuel A. Eollyson’s alleged company, or Thomas Godfrey’s alleged company, for whose services compensation is claimed by the State in the sum of $16,041.30, were ever organized into companies with officers in commission by authority of the State of West Virginia, as a part of the militia of said State subject to any military authority as troops of the State, at any time.

There is no sufficient competent evidence to establish that the men for whose service compensation is claimed by the State in the sum of $3,120.78 as enlisted men belonging to the company of Capt. Columbus Harless, the company of Capt. Cumberland Adkins, the company of Capt. N. Alltop were attached to said companies as a part of the militia of *590the State of West Virginia, subject to the military authority at any time of said State.

There is no sufficient competent evidence to establish that any of the persons described in the foregoing- two paragraphs were any part of the organized militia of West Virginia at any time acting in concert with the military forces of the United States or subject at any period during the times set forth in the petition to the orders of the military authorities of the United States.

VII. The evidence does establish that some few of the men, whom it is impossible to identify and for whom compensation is claimed and whose names appear on sheets of paper on file, denominated lists or supplemental rolls, rendered temporary and occasional service as guards in and around their homes as home guards, but without official connection with the duly organized state troops of West Virginia. The competent evidence in the case does not establish to the satisfaction of the court any definite time of actual service of any of these persons.

VIII. The evidence further establishes that those certain men whose names appear on the sheets of paper filed after settlement between the United States and the State of West Virginia, as belonging to the companies of Adkins, Alltop, and Harless, were nominally connected (if at all) with those companies; but none of these men were subject to the military orders of the officers commanding such companies during the time set forth in the petition.

IX. The evidence does not establish that the persons whose claims for military service were considered by the said board were any part of the militia of West Vriginia, acting in concert with the military forces of the United States or subject at any time during the periods claimed for to the orders of the civil or military authorities of the United States.

The report of the board does not establish (nor does it allege) that the men for whose service compensation is claimed by the State were organized into companies or regiments, with officers in commission by authority of the State of West Virginia, or were attached to companies or regiments as or of troops of the State of West Virginia or as *591militia of the State, subject to any civil or military authority at any time.

X. Under the West Virginia act of July 23, 1861, it was provided:

“ Sec. 1. That every volunteer company, whether infantry, riflemen, artillery, or cavalry, should consist of not less than 50 nor more than 100, rank and file. * * *

“ Sec. 3. Volunteer companies raised by volunteer enlistment for the term of not less than three years * * * £ persons proposing to form a volunteer company shall sign in duplicate an agreement to the following effect: “ We whose names are hereby subscribed agree to become members of a volunteer company for the county of-for the purpose of supporting and defending the Constitution of the United States and the state government as reorganized by the convention which assembled at Wheeling on the 11th day of June, 1861.” ’ ”

Sec. 4 provides for the election of officers.

“ Sec. 5. When the officers shall be elected as aforesaid the conductors of the election shall certify said selection, and it shall be the duty of the captain or some other person or persons appointed for the purpose by the company to transmit to the governor *a certificate of*election, *together with the duplicate of the agreement signed as*aforesaid by the members, and a proper certificate or certificates that the officers and privates of the company have taken the oath required by the ordinance for the reorganization of the state government.

“ Sec. 14. The captain of every volunteer company shall once at least during every three months *transmit to the adju-tantrgeneral a fair and accurate account of the number and condition of his*company.”

Section 4 of the ordinance for the reorganization of the state government, passed June 19, 1861, at Wheeling, provided that all “ officers and privates of the volunteer companies of the State not mustered into the service of the United States shall each take the following oath or affirmation before proceeding in the discharge of their several duties,” and prescribes the form of said oath.

XI. The evidence does not establish that the persons whose names appear upon the company lists and who were paid on the report of the state board by the State in 1897 and 1898, and whose claims form the subject-matter of the amended *592petition, took the oath required by the ordinance of June 19, 1861, and by section 5 of the aet of July 23, 1861. Nor does the evidence establish that they or any of them signed the agreement required by section 3 of said act which was necessary to establish that the said persons were mustered or became enrolled as members of any companies into the service of the state government as reorganized under the Wheeling convention, or into the service of West Virginia during and for the periods indicated and covered by said company lists. There is no proof in this record that any of them signed such agreement to make them a part of the state militia.

XII. The period covered by C. Adkins’s supplemental list, which is filed in this cause, and the period covered by his regular muster roll are the same; but none of the names upon the supplemental list are found upon the regular muster roll of his company, and his certificate to the regular roll of his company on which the State of West Virginia settled its war accounts with the United States under the act of 1866 says: “ It exhibits the true state of Capt. Cumberland Adkins’s company of Home Guards of Boone County, Va., for the period from August 8, 1861, to August 8, 1862,” according to the certified copy of said muster roll and certificate filed in this cause on May 20,1897.

XIII. Napoleon Alltop’s company of Marion County Scouts, state troops, was organized and enlisted on December 10, 1863, for the period of one year. Their term of service expired on December 9,1864, and the State of West Virginia paid them for that year’s service, according to a certified copy of muster roll for that company filed in this cause May 20, 1897. The period covered by Napoleon Alltop’s supplemental list on file in this cause is subsequent to said period for which the men on the regular muster rolls of his company were enlisted and mustered into service; the names upon the supplemental list are not the same as the names upon said regular rolls of his company, and there is nothing to show that these 18 men upon this supplemental list ever signed any agreement to make them a part of the state militia, as required by section 3 of the act of July 23, 1861, in order to form a new company; or that they were mustered *593and enrolled into the state service as members of such company for the period commencing on and subsequent to December 10, 1864.

The original regular muster roll of this company contained the certificate of Napoleon Alltop as captain similar in effect and verbiage to that stated by C. Atkins with reference to his company.

The period covered by Columbus Harless’ supplemental list 'which is filed in this cause and the period covered by his regular muster roll are the same; but none of the names upon the supplemental list are found upon the regular muster roll of the company of said Harless. The certificate to the sheets of paper or lists appears to have been made December 24, 1869, and states that the men whose names appear on said sheets of paper or supplemental lists were not paid on any former roll of said company, but that the men served the time stated in the supplemental lists.. No explanation is given as to this company of Columbus Harless why the men who were not paid were not on the original rolls as having been mustered into the service of the State of West Virginia and as a part of its militia.

NIV. Pending the progress of this cause the adjutant-general of the State of West Virginia officially certified, under date of March 13, 1897, that the records in his office were carefully examined and that he, *the said adjutant-gen*eral, *did not -find that any of the names on the rolls inclosed to him for examination (which were those in suit) were of record in his office.*

The rolls inclosed to him were sheets of paper denominated “ supplemental lists or rolls ” and were the same sheets of paper called rolls which were made the basis of this proceeding. They related to an alleged supplemental muster roll of Capt. William N. Jones’ company, N. Alltop’s company, Samuel A. Rollyson’s company, Capt. Thomas God-frey’s company, Capt. C. Harless’ company, and Capt. C. Adkins’ company. All of these alleged rolls, called supplemental rolls, were not muster rolls covering the names of any state troops of West Virginia or of any persons officially connected therewith either as officers or as enlisted men as *594a part of the militia, of the *State*of West Virginia, except as to Capt. Cumberland Adkins and Capt. Napoleon Alltop and Capt. C. Harless. (These captains with men properly and contemporaneously enlisted with said captains during the war were paid.)

XV. All the men whose names appeared upon the regular muster rolls of the State of West Virginia were paid under the act providing payment by Congress (14 Stats., 68). None of the eleven men covered by the alleged supplemental' roll of C. Adkins’ company were mustered into the state service or mustered in at all. None of the eighteen men covered by the alleged supplemental roll of N. Alltop’s company were mustered into the state service or mustered in at all. None of the alleged officers or enlisted men whose names appear upon the supplemental rolls of William N. Jones’ company, Samuel A. Eollyson’s company, Thomas Godfrey’s company, or C. Harless’ company were mustered into the state service or mustered in at all.

XVI. The evidence does not establish the existence of any contemporaneous original list's or muster rolls showing that any of the men for whom compensation is claimed by the State of West Virginia were ever mustered into the service of the State.

Under date of April 10, 1900, the. secretary of state of West Virginia indorsed on certain sheets of paper in evidence, styled “muster and pay rolls,” a statement to the effect that they were true copies of originals filed in the office of the secretary of state in 1899. These originals so filed in the office of the secretary of state in 1899 were prepared and filed as the basis of “ the certain military claims ” previously presented to the legislature of West Virginia, and were not made by any State authority, ,but by private individuals, and do not show any muster in of any of the officers or men whose names appear on said originals as officers or men forming a part of the militia of the State. Nor do these papers so certified by the secretary of state of West Virginia competently and sufficiently establish the actual service of the men as troops of the State of West Virginia acting in concert with the authorities of the United *595States for and during the period for which compensation was claimed to be due by the persons whose names appear on said original rolls.

*Mr. Raleigh Sherman*and *Mr. L. A. Pradt*for the claimant.

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

Howry, J.,

delivered the opinion of the court:

.Congress, by an act approved June 21, 1866 (14 Stats., 68), appropriated $368,548.37 to reimburse the State of West Virginia for enrolling, equipping, and paying such state forces as the State had called into its military service after June 20, 1861, for the prosecution of the war beginning just before that date. The act excluded allowances for troops who did not perform actual military service “ in concert with the forces of the United States.” Commissioners were provided by the act to be appointed, who, on oath, were to examine into the accounts and make settlements on proofs to be offered and taken by the respective governments. Settlement was had and payments made in full for West Virginia’s claim for services rendered by her militia, excluding allowances for those persons not within the act of 1866 and the previous acts of Congress relating to the payment of state troops by the United States.

The men for whom pay is now sought presented no claims to the board authorized to audit nor to the United States. West Virginia presented none for any of these men. Several years elapsed before the claims now. under consideration were presented to the legislature of that State. No muster rolls showing enrollment existed up to the time the claims were presented to the State in 1869. There is no pretense that there were ever 'any muster rolls contemporaneous with the alleged service showing that the men had been taken into the military service; and no claim that they were a part of the militia of the State appears by anything on file among the State’s archives during the war, nor is it contended that any papers showing any kind of a muster were at any time lost.

*596After twenty years and several hearings the cause must-now be considered closed on the findings now transmitted.’

.Under those acts of Congress which provide for the Court of Claims to render assistance to Congress in the matter of .claims presented against the United States a resolution of the Senate was adopted transmitting a bill to this court for that purpose. The bill alleges that the military services for which claim is here made was called for by the proclamation of the President in pursuance of law and that in response to such call and requisition the governor of West Virginia caused the enrollment and organization of the men whose names herein appear, and that each and every soldier named in the said muster and pay rolls and the said several commands were doing duty in the service of the United States as part of the military forces of the General Government and subject to the rules and articles of war during the entire several periods, and that the amount directed by the bill to be paid was for money paid' “ or secured to be paid ” by the State of West Virginia for troops called for and furnished.

The petition, as well as the bill, is correctly and properly predicated upon those acts of Congress providing for the payment of the militia of a State *called into actual service of the General Government.*These acts extend back to the foundation of the Government and continue to the present time. In effect they provide for militia of the respective States the same compensation provided by law for the Army of the United States. But all these acts require that the military services rendered by such militia, before payment can be made by the United States, must be military *service rendered in concert with the troops of the Federal Government and under the authority of the United States.*(Acts February 28, 1795, ch. 36, vol. 1, p. 424; April 20, 1818, ch. 84, vol. 3, p. 444; March 19, 1836, ch. 44, vol. 5, p. 7; July 29, 1861, ch. 25, vol. 12, p. 282; July 17, 1862, ch. 201, vol. 12, p. 597.)

The special act of June, 1866 (14 Stats., 68), making provision for the reimbursement of West Virginia for pay*597ments, was strictly in line with all previous acts; that is, for men only who having been in the state service became subject to the orders of the United States. And following all the legislation on the subject came a final act- — continuing the policy — approved January 21, 1903 (32 Stats., 775), excluding payment by the United States for any men rendering military service to such State where such men did not become subject to the authority of the United States.

The fundamental idea running through the legislation on the subject is that state militia can only be paid when subject to federal authority. Construing similar acts of Congress relating to claims for reimbursement of expenses properly incurred by the States during the civil war, rules were adopted by the proper departments requiring a showing as to the mustering in as well as actual employment of men in the service of the United States; that is, subject to military orders of the General Government. Organizations raised or attempted to be raised but not mustered and received into, nor actually employed in, the service of the United States were forbidden to be recognized or paid unless such troops were called out and such expenditures incurred under the authority of the President or the Secretary of War. This, under the law, excluded home guards.

By these same rules the proper authorities of each State' were required to certify over their official seals that the amounts claimed for refund had actually been paid by the State to men *as a part of the militia of the State.*

In a recent case in this court it was held that these rules of the War Department “ have from the beginning been applied by the accounting officers.” *(State of Nevada*v. *United*States, 45 C. Cls. R.) The Supreme Court has likewise approved payments to States only where expenses for arming and equipping state military organizations were “properly incurred.” *(New York*v. *United*States, 160 U. S., 598.) We know of no case where the court of last resort has disregarded the provisions respecting the reimbursement of state troops only. But if there have been cases where provisional troops not mustered into the state *598service have been paid then such payments were made contrary to public policy as expressed in numerous public , acts on the subject.

The case here is not proven.

The findings show that none of the men for whom pay is now claimed were amenable to the authority of the United States as militia or troops of West Virginia; that the men rendered no duty of a military character as a part of the forces of the General Government. None of these men, for instance, could have been court-martialed, because they were not enrolled as enlisted men by the State. They were not subject either to federal authority or state authority as troops and consequently they were not soldiers. If they were anything other than private citizens they were home guards. Some of them may have been allied as voluntary local associations of men around their homes, and, as said in the last motion to amend the findings, they may have performed some service as auxiliaries or even as guides; and, as further alleged in the motion, there possibly could have been without them no enforcement of the civil laws of the . State, though the proof is deficient on this point. But there is nothing in the record to justify the contention that they were ever in camp or that the service of any of these men was for a definite time. On the contrary, the most favorable showing made for them by the proof is that as home guards they would meet and disband; come together and go home again at will, all the time claiming the privileges and exercising the rights of citizens, but at no time subject to the military orders of the State or the United States. (These remarks, however, do not apply to the services of Captains Adkins, Alltop, and Harless. These three officers were a part of the state militia, and they and the mustered-in men of their respective companies were duly paid by the United States under the act of June 21, 1866, supra.)

The three state officers who were constituted a board to investigate claims, denominated military claims, and which were placed before the legislature of West Virginia some years after the alleged services were said to have been rendered, did not deal with authenticated muster rolls in the in*599vestigation of these claims or with rolls that ever had any authorized existence. As a local auditing board under the act of the legislature in question the said board did not deal with muster rolls in the place of authorized rolls claimed to have ever been lost. The local board in question did deal with names appearing on sheets of paper made years after the close of the war without authority. As to some of the so-called companies, the persons filing these sheets of paper in the office, of the secretary of state of West Virginia were not commissioned officers so far as any testimony before the court discloses. These alleged persons seem to have produced no commissions at the time and no commissions are now produced before this court.

As to the three captains who were in commission during the war, who subsequent to the war claimed compensation for certain men whose names never appeared as a part of the militia of West Virginia during the progress of the war, the court must accept as true their sworn statements disclosed on the original rolls made by them that the men subsequently attempted to be listed were not members of their companies or of any companies rendering military service whilst the war was in progress.

The report of the board of state officers was an ex parte proceeding, with no opportunity for cross-examination on the part of the United States. For that reason alone the report is incompetent as evidence to support a claim against the United States. It is deficient in another respect in that it does not disclose the vital fact necessary to make the claims proper demands against the United States. That is, it does not disclose that the men for whose services pay is now claimed were ever at any time subject to the military orders of any officer of the United States. The record evidence overthrows the allegations of the report that the men whose services were recommended for payment were any part of the militia of the State.

This board seems to have relied upon parol evidence; and though they refer, as set forth in the petition, to “ vouchers,” no vouchers have been produced here. Considering that the board had authority under the act of the legislature which ere-*600ated it to ascertain who *in its op inion*should be paid, the recommendation of the board must be deemed the result merely of opinion. Predicated upon oral testimony as it is, and that, too, without notice to the' United States, and that it likewise proceeded upon the idea that lists of names appearing on sheets of paper long after the war closed (miscalled “ muster and pay rolls ”) constituted persons whose names appear thereon a part of the militia of the State, the court can not’ deem the particulars of its report competent. The only competent parts of its report (which appear in the findings) are facts disclosing that it was appointed by an act of the state legislature to make up a report on opinion; that it examined into certain claims, and that these claims should be paid by the State.

Notwithstanding there are no objections to any part of the report, this court must deal with competent proof in making its findings in all cases. Demands can not be established xvhere predicated upon incompetent testimony without doing xdolence to the object of the court’s creation. If the court permitted claimant here to prox^e its demands against the United States by the agencies of state officers in the manner set forth, it would not only be a dereliction of duty but a precedent which the court can not afford to establish. The report of an ex parte board of state officers making up a claim for the citizens of the State and then for the State itself long after the alleged services of the citizens in question were rendered (if rendered at all) without notice to the party from whom pay is ultimately sought outside of the State, meantime ignoring the original records, which fail to' establish the most material issue in the case, can not be received as competent evidence except for the legislative act itself, the amount audited, and a recommendation for payment as the result of opinion only.

Section 906 of the Revised Statutes does not make aii axvard or judgment which may be final against a State either binding in law or conclusive as evidence against the United States. *(Williams*v. *United*States, 22 C. Cls. R., 116.) The full faith and credit clause of the Constitution does not extend the effect of a decision against a State to the United States.

*601There is greater reason for excluding as incompetent state* ments resulting *from opinion merely*of a local auditing board acting by state authority in the effort of the State to establish a claim against the United States under the circumstances set forth in this cause.

The Supreme Court of the United States has held that when this court has presented as part of its findings an essential ultimate fact on which judgment rests the appellate court must reverse if the testimony offered to sustain the conclusion be not competent evidence. *(United States*v. *Clark,*96 U. S., 37.) Conclusions under Tucker Act references are governed by the same rule applied to judgments.

It is true that there is high authority for saying that parties to a litigation may admit evidence of almost any character by agreement. In *Shaw*v. *Stone*(1 Cush., 228), Chief Justice Shaw declared that “ as the rules of evidence are made for the security and benefit of the parties, all except-tions may be waived by mutual consent.” The rule stated by the judge who made this decision may apply to private parties, because in such cases it has well, been said judges to a large extent sit quiet and let parties try their cases with as loose an application of the rules of evidence as they themselves may wish. But no such waivers of incompetent testimony can be safely countenanced here where claims of long standing are very frequently sought to be established by incompetent evidence. The Court of Claims of the United States must reserve the right to judge for itself that Avhich is competent and that which is not competent in making findings in the nature of a special verdict, no matter whether exceptions are taken to the testimony or not.

Atkinson, J., having been the governor of West Virginia who failed to approve the act making the appropriations set forth in the findings, took no part in making this report.