#### JAMES D. GILMAN v. THE UNITED STATES.

[Congressional 15289.

Decided April 28, 1913.]

*On the Proofs.*

The Governor of Kentucky authorizes a person to recruit a regiment of soldiers, with the assurance that when the regiment is mustered in he will be commissioned colonel thereof. The colonel authorizes another person to enlist a company for service in the regiment, with the assurance that when the company is mustered in he will be commissioned captain. Only 47 men are so enlisted,' and the company not being formed, these men are distributed among other companies and mustered into the service of the United States. The person appointed captain has been at the cost of subsisting and transporting these men.

Where one person was authorized by the Governor of the State to enlist a regiment, and he authorized another person to enlist a company, and this person at serious cost to himself enlisted a number insufficient to form a company, but they were turned over to the regiment and mustered into the service of the United States, the claim for reimbursement is not a “ *legal ”*one within the meaning of the *Twclcer Act*(see. 14), and is an “ *equitable*’ one only so far as the Government received the benefit of the men so mustered into its service.

*The*Reporters’ statement of the case*:

On February *21,*1911, Senate bill 10033, Sixty-first Congress, was referred to this court by resolution of the United States Senate for findings of fact under the terms of the act approved March 3, 1887. Said billheads as follows:

*“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, out of any money in the Treasury not otherwise appropriated, to James D. Gilman the sum of two thousand dollars, in full payment and compensation for recruiting thirty-nine men for the Fifteenth Kentucky Volunteer Infantry during the Civil War and furnishing subsistence to them.”

*392The claimant in his petition makes the following allegations :

1. That he is a citizen of the United States, residing in the county of Jefferson, State of Kentucky, and that during the late Civil War he resided in said county and State, except while in the employ of the United States.

2. That in the year 1861, by authority of Col. Curran Pope, petitioner undertook to recruit a company of troops for the Fifteenth Kentucky (United States) Infantry, of which company he was to be commissioned captain; that in performing such service petitioner traveled through Jefferson and adjoining counties of Kentucky for a period of 60 days, during which time he employed and personally paid for a team and musicians, the daily average expense thus incurred and paid by him being not less than $13, or $780 for said period; that he also subsisted said recruits at his own expense for a period of three months, the average number being 30 men per day, with an average expenditure of 50 cents per day per man, making the sum of $1,350; that after incurring and paying said expenses and serving as captain of said company for a period of three months said organization was ordered from its camp at Louisville, Ky., to New Haven, Ky., where all of the troops so recruited by petitioner, 47 in number, were taken from his company, against the protest of petitioner and said troops, and placed in companies which were smaller in number than that which petitioner had recruited, for the purpose of completing said smaller companies; that the reasonable value of petitioner’s services for the three months that he so served as captain was, at the rate of $150 per month, the sum of $450; and that he has never received any compensation for said services, nor has he ever been reimbursed for any of said expenditures.

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

I. Claimant, James D. Gilman, was loyal to the Government of the United States throughout the late Civil War.

II. It appears that in the month of September, 1861, one Curran Pope had received authority from the governor of *393the State of Kentucky to recruit a regiment of volunteer soldiers to be known as the Fifteenth Kentucky Volunteers, with the assurance that he (Pope) should be commissioned as colonel thereof when said regiment had attained the minimum of enlisted men required by the regulations of the War Department; and it further appears that said Pope entered into an agreement with the claimant in this case to the effect that if he (claimant) would enlist a company of not fewer than 84 men he should be made captain thereof.

It further appears that the claimant, by direction of said Curran Pope, who had been authorized to raise a regiment of troops for the United States service, as aforesaid, undertook to recruit a company for said regiment, which subsequently became the Fifteenth Kentucky Infantry, of which company, when organized, he was to be commissioned captain. In performing this service he traveled through several counties of Kentucky with a conveyance, driver, and three musicians, paying personally for the hire thereof, for a period of 60 days, and he enlisted a total of 21 men for said company. While said recruits were in camp near Louisville, Ky., for a period of nearly three months they were subsisted at the expense of the claimant, the average number thereof being about 20 men per day. The claimant served as captain of said recruits until the men comprising the same were taken therefrom, against his and some of their protests, and placed into other companies of said regiment and mustered into the United States service, covering a period of about three months.

The expense incurred and paid by the claimant in obtaining said recruits was approximately $300, the expense incurred and paid by him in subsisting them was about $250, making a total of five hundred and fifty dollars ($550), no part of which appears to have been paid.

TTT. The claim herein was never presented to any officer or department of the Government prior to its presentation to the Sixty-first Congress and reference to this court by resolution of the United States Senate, as hereinbefore set forth in the statement of the case, and no reason is shown why the same was not earlier presented.

*394
      *Mr. C.. O. Odlhoun*for the claimant.

*Mr. George E. Boren*(with whom was the *Acting Assistant Attorney General F. De O. Faust)*for the defendants.

AtkiNSON, J.,

delivered the opinion of the court:

It appears that one Curran Pope had been authorized by the governor of the State of Kentucky in September, 1861, to recruit a regiment of volunteer soldiers for the United States Army, with the assurance that when the regiment was ready to be mustered into the service he (Pope) would be commissioned colonel thereof. It further appears that said Pope entered into an agreement with the claimant herein that if he (claimant) would recruit a company of 84 men he should be made the captain thereof. In compliance with this arrangement claimant entered upon the undertaking, and spent the larger part of three months traveling over three or more Kentucky counties inducing men to agree to enlist in the Federal Army; that he hired a wagon, a team of horses, and a drum corps of three colored men to travel with him; that he was successful in enrolling 21 men, as shown by the records of the War Department; that his recruits were rendezvoused at the fair ground a few miles from Louisville, Ky.; that he subsisted said volunteers until the regiment (which thereafter became the Fifteenth Kentucky- Infantry) was mustered into the United States service at New. Haven, Ky., the latter part of December of that year; that claimant’s 21 men were not enough to form a company — the regulations requiring a minimum of 84 men to the company — and his 21 men were thereafter necessarily divided among other companies, and he thereby failed in being commissioned captain as he had hoped to be.

In looking further into the merits of this case, we fail to find that Col. Curran Pope had any authority to bind the United States to pay claimant’s expenses in the recruiting service in 1861, or to guarantee to him a commission of captain in the volunteer service of the United States. Any arrangements made by either or both of them as to enlisting men in the United States Volunteer Army were purely personal between them, and necessarily had no binding effect upon the Government.

*395From what has been said above, the conclusion of the court is that this is not in any sense a legal claim against the United States, and is equitable only in so far as the Government received the benefits resulting from the services of the men who were enlisted by claimant to become volunteer soldiers in the United States Army.

It is ordered that the findings herein, together with a copy of this opinion, be certified to the Congress.