
    ACTION FOR. RECOVERY OF SOLDIERS’ BOUNTY.
    Circuit Court of Lake County.
    State of Ohio, ex rel Wm. Snyder, v. Horace Abbey et al; and State of Ohio, ex rel John C. Bellman, v. Horace Abbey et al.
    Decided, September Term, 1911.
    
      Military Affairs — Provision for Bounties for Re-enlisted Veteran Volunteers — Mandamus to Compel Payment of — Section 3107-1, Revised Statutes.
    
    1. Under favor of the proviso to Section 3107, Bates’ Statutes, no presumption of payment of the bounty for re-enlisted veteran volunteer soldiers provided for in that section is raised by lapse of time in making application for the same, nor does the delay of the party entitled to such bounty in making demand therefor make a case of stale equity.
    2. The statute of limitations does not apply.
    
      3. The interest on sucb bounty should be computed from the date of making the demand.
    
      Kelly & Ranch and Alvord <& Blakely, for relator.
    
      Homer Harper, contra.
    Norris, J.;, Pollock, J., and Metcalf, J., concur.
   Tbe eases of The State of Ohio, on relation of William Snyder, against Horace Abbey et al, trustees of Leroy township, and the State of Ohio, on relation of John C. Bellman, against the same parties, were submitted together; the petitions in each of the cases are identical and the cases involve the same facts.

The relators, in their petitions, for their cause of action against the defendants say that in July, 1861, they duly enlisted in the 39th Regiment Ohio Volunteer Infantry for the term of three years; that on the 22d day of December, 1863, while in the field and at Prospect, Tennessee, they reinlisted, ¡and that they were credited on their reinlistmemfc to Leroy township, in this county; that by virtue of such reinlistment under the laws of Ohio they are each entitled, or were entitled, at that time, to a bounty of one hundred dollars from Leroy township, and they allege that they have never received that bounty, and that they have never received a bond in lieu thereof, which is said to be provided for by statute that the trustees might issue for the payment of the money, and they ask for a writ of mandamus requiring the trustees of this township to pay them the one hundred dollars or instead thereof issue a bond for that 'amount payable within one year.

The defendants for answer admit they are the trustees, and deny the other allegations of the petition, and further, by way of answer allege a payment of this hundred dollars, and set out the manner in which they claim it was paid; that is, that they paid $1,700 for seventeen men by the hand of William T. Shepherd, through the Adjutant General’s office of this state, and said Shepherd received a receipt now on file in the Adjutant General’s office for said $1,700, and that each of these relators got one hundred dollars of this money; and for a second defense they say the writ ought not to be allowed because the statute under wbieb the relators claim payment is in conflict witb the Constitution of the state of Ohio.

Testimony is offered by the relators which clearly sustains the allegations of their petitions, that they did enlist in the 39th Regiment of Ohio Volunteer Infantry in July, 1861, and served until 1863, and at Prospect, Tenn., they reinlisted in the 39th Ohio Veteran Volunteer Infantry and served until the close of the war, in July, 1865; and they each testify under oath that they never have received any bounty for reinlistment from Leroy township or from any other Section of the state.

A receipt is offered in evidence by the defendant coming from the Adjutant General’s office in connection with the seventeen men and a certificate showing the muster roll of these men, which is in words as follows:

“$1,700. Received of the trustees of Leroy township, Lake county, Eighteenth District, Ohio, per William D. Shepherd, the sum of seventeen hundred dollars ($1,700) as township bounty, to be equally divided amongst the above named veteran volunteers. ’ ’

And above, on this page, are the names of seventeen men, stating that they enlisted and reinlisted in 1863, and among these names are William Snyder and John C. Bellman; and it is claimed in connection with this receipt by the defendant that by virtue of the long lapse of time from 1863 to 1905 when the first demand was made by the relators for this bounty, that such a presumption should arise as to overcome the testimony of the relators that they were not paid, but the court ought to find that now, after the lapse of this length of time, that they ought not to have the relief prayed for.

Counsel for both sides cite a case in the 32d O. S., the case of Chinn v. Trustees, at page 236. The first proposition of the syllabus is that, ‘ ‘ The limitation of the code of civil procedure as to the time of commencing civil actions are applicable as a bar only to suits comprehended within the civil action of the code,” holding that there is no limitation in the statute as to mandamus. But they go on furthér and say that the court may in granting or refusing to grant the writ, consider the lapse of time before the commencement of the proceedings. And in discussing it, Judge Scott says that the court in determining the right of the relator to have such relief, should consider the lapse of time and whether any other intervening equities occurred, if the parties had so changed position that the granting of that particular relief at that time would be unjust.

And it is urged here that from this long lapse of time, that there is no equity in this application and that we ought to refuse the relief.

What the court might consider, if this case was governed by the ordinary rules of law, we have not determined, but this ease comes under an entirely different provision of law.

The statute referred to, Bates’ last statutes, 3107-1, providing for the payment of such bounties, contains in part the following provisions:

“The commissioners of the several counties, the trustees of the several townships, and the city council of the several cities of this state, are hereby authorized and required to issue to each re-enlisted veteran volunteer who has heretofore been credited as shown by the muster and descriptive rolls or otherwise, upon the quota of such county, township, or city, or any ward of such city, under any requisition of the president of the United States for volunteers during the late rebellion, and who has not received any local bounty upon said enlistment, a warrant for the sum of one hundred dollars, or a bond for a like sum bearing six per cent, interest, redeemable at the pleasure of such commissioners, trustees, city council, one year after the date thereof.”

And then goes on and provides in what manner they shall be credited; and further provides that if they have received any such sum or if they have received a part of it, that shall be credited on his one hundred dollars; but if they have not received any such bounty for such reinlistment, then they shall be entitled to it; and then contains in closing, this proviso;

‘ ‘ Provided that this act shall not be construed so as to allow any such reinlisted veteran volunteer who has already received the bounty provided for by the act to which this is amendatory, or who has received one hundred dollars bounty from the state or any county, township, or city under any prior act; nor shall lapse of time or state equities (and I think this court once beforé held that this is a misprint and should be ‘stale equities,’ which it should be) be set up as a defense to any claim made under this act, or of any act to which this is' amendatory, or any act relating to this subject, and where said trustees of townships, city council or county commissioners have not issued said bonds, certificate or promise in writing to such reinlisted veteran volunteer, they are hereby required to do so.”

Now what effect shall the court give to that statute except to give it the effect required by the reading thereof — that lapse of time shall have no effect upon cases of this kind, nor shall stale equities affect cases'of this kind; so that if we are to give this language effect, it matters not how long a soldier may have waited before applying for this bounty. The only question before the court is whether he comes under the provision of this act; the only question for the court to determine is whether or not he has received it; and in considering the evidence as to whether or not he has received it, under this act we are' required to treat that testimony as though there had been no long lapse of time, as though he had applied for it right after he was entitled to it.

To give this act any effect whatever, we must treat the testimony, we must treat the whole case as though there was no lapse of time or stale equities in the case. It was evidently the purpose of the Legislature, in this act, that soldiers applying for this bounty which they were entitled to in the war, shall have different consideration in the courts than in applying for other and different relief. I think that is the manifest intention of this act, and in considering that in connection with this testimony, we have no difficulty in arriving at a conclusion.

The only question of fact in the case is whether these relators have been paid this one hundred dollars bounty. It is to be borne in mind further, in considering this testimony, that these men lived in Cincinnati; they enlisted in Cincinnati, both of them; I think one of them resided perhaps not in Cincinnati but outside of that city. So far as the testimony shows they were never in this county, and they both testify that they did not know to what county they had been credited; and at least one of them, and I think both, say that while they knew they were entitled to government bounty, as they called it, it does not appear by the testimony that they knew that they were entitled to one hundred dollars from Leroy township. One of them, I think Mr. Snyder, testifies that he had his claim in the hands of a comrade, Mr. Burner, twenty-five years ago, who did perhaps make some effort to collect it without suit, but never succeeded until his death, and it finally went into the hands of other attorneys and this suit was brought. Mr. Bellman testifies positively that he did not know to what township he had been credited on his reinlistment. The testimony does not show in what way these seventeen men were credited to this township; they both lived there, and both testify, as I said before, that their recollection is clear that they never received this bounty.

There is nothing in the record indicating when this $1,700 was paid to Major Lathrop; there is nothing in the testimony showing any authority on his part to collect this money for these men —that he was their agent in any way, or that the law required him to receive this bounty, and we are unable to say whether he received it or how it overcomes the testimony of these relators who testify positively that they never have received it, considered in connection with this statute.

So' the order of the court will be that a writ issue to these defendants, requiring them to pay this money.

One other question before I am through. The constitutionality of this statute is attacked in the answer, upon what ground the court is' not advised; but these bounty statutes have been before the Supreme Court a number of times, commencing back in 1864, and perhaps the leading case is the case of Cass Township v. Dillox, 16 O. S., 38, where in its opinion the court reviews every possible objection that could be raised to- paying bounties for saving the nation in time of war; considered every phase of the objection to that class of payments made when they say the country was in danger. Anyway, we should not want to be the first court to declare this class of legislation in conflict with the Constitution of Ohio.

The question of interest is to be considered, and we do not think the trustees were required to hunt these men up and pay them, and we think the relators are conly entitled to interest after demand, and the decree of the court will be accordingly.  