
    C. R. ROYSE, ADMINISTRATOR, v. THE UNITED STATES.
    [Congressional, 11889-1749, etc.
    Decided April 1, 1912.]
    
      On the Proofs.
    
    These claims are familiarly known as the Kentucky draft cases. The numerous claimants seek to recover back the amount of $300 each which they paid to be relieved from military service during the Civil War. The claims are based upon the fact that it was subsequently found that the districts in which the claimants lived had furnished their full quota and therefore that no citizen was legally subject to draft. But the correction of the rolls and other records could not be made until after the draft had gone into full effect.
    I.The statutes authorizing military drafts during the Civil War were not directory but mandatory; and the drafts made under those statutes were neither void nor voidable, though the number of men in a district exceeded the number which the district was bound to supply, as ascertained by subsequent investigation.
    II.Where a military exigency existed, such as an invading army, a draft was a necessity; and it was the duty of the military officers to proceed with it and not to await investigation concerning the correctness of the number of men to be drafted in a district.
    III. From the time governments were instituted among men the arms-bearing part of the population have had to meet the call to arms in stress of war. The duty to respond rises above personal convenience or matters of money or business.
    IV. The provisions of law which allowed drafted men to evade military service by the payment of $300 were for their benefit and not for the benefit of the Government. The man who so evaded the service acquired thereby no legal right or equity, and should receive no greater consideration from the Government than the man who served.
    
      
      The Reporters’ statement of the case:
    This is a claim for the refund of $300 to each of the claimants named in Finding XV, being the amount paid by each of them or their decedents in order to secure exemption from personal service under the draft made by the military authorities of the United States in the State of Kentucky in the year 1864.
    The following bill was referred to the court on the 27th day of May, 1910, by resolution, under the Tucker Act:
    “ A BIXjIj For the reliei of Ludwell McKay and others.
    
      “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, out of any money' in the Treasury not otherwise appropriated, to pay the sum of three hundred dollars to each of the following persons, or, if deceased, to the party entitled thereto, who, having been illegally drafted during the Civil War, either paid commutation money or furnished a substitute to secure exemption from personal military service, namely, C. R. Royse, administrator, et al. The resolution covered more than 2,000 of such drafted men.
    The claimants appeared and filed their petitions in this court, in which they make the following allegations:
    That certain drafts were made by the military authorities of the United States under the provisions of the act of Congress approved March 3, 1863 (12 Stats., 731), and the act amendatory thereof approved February 24, 1864 (13 Stats., 6), and enforced in the State of Kentucky in the year 1864, but that at that time the quota of said State was full and complete, and therefore no citizen of said State was legally subject to draft, as was held by this court in the case of John Ii. Marshall (Congressional, 11532).
    That said claimants were drafted in the various counties named in their respective petitions, and that in order ,to secure exemption from the obligation to render personal service under said draft they either paid commutation money or furnished a substitute, as was provided by said acts of Congress and general orders of the War Department; and that under the provisions of the acts of Congress approved February 28,1867 (14 Stats., 417), and March 1,1869 (15 Stats., 282), refundment of a sum not to exceed $300 should be made by the United States to each of said claimants.
    That a test case involving rights to refundment in cases of Kentucky drafted men was filed with the Secretary of War under the last-mentioned acts of Congress, but that said claims were rejected and disallowed by him upon grounds which said officer has since held to have been wholly insufficient.
    The claimants further allege that the claims were subsequently presented to Congress and referred to this court under the act of Congress approved March 3, 1883, commonly called the Bowman Act; that said case or cases were known in this court as John II. Marshall v. The United States (Congressional, No. 106); that same was brought to a hearing in this court and dismissed for want of jurisdiction April 26, 1886 (21 C. Cls., 307); that they and each of them are the sole owners of their respective claims; and that they have exercised due diligence in the prosecution of the same.
    The following are the facts found by the court:
    I. The claimants herein named, or their decedents, were during the late Civil War citizens of the United States.
    II. Said claimants, or their decedents, then being citizens of and residing in the State of Kentucky and in the several counties as hereinafter set opposite their respective names, were drafted into the military service of the United States under the call of March 14, 1864, on the dates hereinafter named; and in order to secure exemption therefrom they were required to and did each pay to the Government of the United States the sum of three hundred dollars ($300), except Felix G. Eoyse, who furnished a substitute, under the provisions of the act of Congress approved February 24, 1864 (13 Stats., 6), as shown by report from the War Department in the case of J. IV. Olements v. The United States (Congressional, No. 11917-11), under date of August 1, 1907, as supplemented in a communication of the War Department under date of July 28, 1909, said supplement embodying Senate Document No. 142, Sixty-first Congress, first session, concerning the drafts in tbe State of Kentucky in the year 1864, and report from said department in each individual case, and a supplemental report of the War Department filed December 3, 1910, counsel on both sides having been notified of the filing of same.
    III. At the time of said drafts the counties from which said claimants or their decedents were drafted, to wit, Crittenden, Ohio, Grayson, Butler, Green, Adair, Taylor, Casey, Jefferson, Pendleton, Grant, Mercer, and Lincoln, had each, as appears from said reports from the War Department, already filled and exceeded its respective quota. The drafts so made of the claimants or their decedents herein were made because the system of readjustment of the credits of the State of Kentucky which had been ordered by the provost marshal general April 12, 1864, had not been carried out in the State.
    IV. In 1863 loyal States were divided into enrollment districts, which corresponded for the most part with the congressional districts of the State, in enrolling and calling-out the national forces, and each district was required to supply so many men, according to population. To facilitate the apportionment each district was divided into sub-districts, which in sparsely settled communities were sometimes composed of a number of counties. In designating the number of men to be raised in any district or subdistrict credit was always given to such district and subdistrict for men furnished under prior calls, based upon the numbers of voluntary enlistments and reenlistments as well as the number of drafted men held to service, so as to equalize the men according to districts. Credit was given to districts and subdistricts for men furnished by them, and the numbers so furnished were known as “ credits.”
    V. At the instance of the authorities of the State of Kentucky a redistribution of the credits of the State was suggested March 1, 1864, on the ground that due credit for men previously raised had not been properly given to various communities of the State. This suggestion of the State authorities resulted in an order for a readjustment to be made of the credits of the various subdistricts of the State April 12, 1864, but the same was not actually made until on or about July 21, 1864. The redistribution of credits thus made did not affect in any way the total number of men to the credit of the State as a whole, or to the credit of any district in the State, and at no time did the State or any district thereof have any excess of credits. The redistribution merely made a change in credits in the subdistricts.
    VI. March 14, 1864, the President called for 200,000 men for the military service, and it became necessary to resort- to a draft in Kentucky, the number of men drafted from each county being determined by the assignment under such call, taking into consideration the credits to which the various counties were entitled for men previously furnished. The draft under this call was made in the various districts froni May 10 to July 27, 1864, and as the redistribution of credits ordered by the military authorities April 12, 1864, was not actually made until about July 21, 1864, credit was given to the various counties of the State for men furnished as shown by the record of credits prior to the redistribution of credits. It thus resulted that some men were drafted from the 13 counties mentioned in Finding III under the call of March 14,1864, who would not have been drafted, and that each of said 13 counties furnished more than the quota it would have furnished under said call had the redistribution ordered April 12, 1864, been carried into effect prior to the draft: On the other hand had the redistribution of credits been made prior to the draft it would have been necessary in many of the counties of Kentucky to have drafted a much larger number of men than was actually drafted under the call in question.
    Because of the incompleteness of the records and of the methods employed in keeping these records the War Department certified that it is impossible to furnish a statement showing “the number of men drafted who furnished substitutes or paid commutation money from each county of the State;” but it is further certified that the records of Kentucky as a whole show 9,186 men drafted under the call of March 14,1864, and that of this number 421 were held to personal service, 531 furnished substitutes, and 3,241 paid commutation money; and that 16,805 men were drafted in the State under the call of July 18, 1864, of which 1,439 were held to personal service, 1,981 furnished substitutes, and 24 paid commutation money.
    VII. Redistribution of credits in the counties whence came the drafted men whose petitions are on file was not completed until after the draft had been carried into effect and could not be acted on until the proper credits had been ascertained. The military authorities were guided in making the draft by the quotas and credits of each district and subdistrict as they appeared to the State and Federal authorities at the time the drafts were made.
    ■ VIII. It was found not to be practicable to obtain the information and knowledge necessary to readjust the credits until July 21,1864, in consequence of which the terms of the act of February 24, 1864, could not be carried out.
    IX. Had the redistribution of credits ordered April 12, 1864, been made promptly it would have been necessary in those counties in which the readjustment resulted in a loss of credits to draft a larger number of men than was actually drafted under the conditions before readjustment. In counties in which there was a gain in credits by the readjustment the evidence leaves it in doubt that any fewer men would have been drafted had the readjustment been made promptly than were actually drafted before that readjustment. Under the call of March 14, 1864, only the actual number of men represented by the numerical deficiencies existing between quotas and credits was drafted. Many of the men so drafted, the percentage varying in different localities, were rejected for one cause or another or failed to report when notified so to do.
    X. The original drafts held in Kentucky under the call of March 14, 1864, were inadequate to produce the number of men required, and supplemental drafts were resorted to to supply these deficiencies. In some counties the readjustment resulted in a gain of credits, and the number of men actually drafted was in excess of the numerical deficiencies that existed after the credits were readjusted-; and it is certified from the War Department that that fact was not evidence to show that the draft was excessive or that there were any men drafted in those counties who would not have been drafted bad the readjustment ordered in April, 1864, been promptly made.
    Nor did any district in the State of Kentucky furnish any greater number of men than said district should have furnished under the call of the President, according to the system of credits then known to the War Department.
    XI. A formidable force under the command of Gen. Morgan, operating under Confederate authority, invaded the State of Kentucky from the east in the spring of 1864 so as to interfere with the work of mustering in men in the fourth, fifth, sixth, seventh, eighth, and ninth Kentucky districts. In consequence of this invasion and other raids into Kentucky, as well as uprisings in the State hostile to the Union after the President’s proclamation calling for troops, the work of apportionment providing for a redistribution of credits under the new law interfered with the work of mustering in men in the fourth, fifth, sixth, seventh, eighth, and ninth Kentucky congressional districts, which affected the quotas gathered from the other districts of the State.
    XII. Serious delay would have ensued in obtaining the necessary troops if the military authorities had been compelled to base their conscriptions for men upon the quotas provided by the new law; that is, by obtaining from each ward of a city, and each town, township, precinct, or election district, or each county the necessary number of men to fill out the State of Kentucky’s proportionate number under the proclamation.
    XIII. It was impracticable to make drafts in Kentucky according to population at the time when the drafts were made for the 13 counties mentioned in this cause.
    XIY. The sum of $300 paid by each of the claimants herein or their decedents as commutation or exemption money for release from military .service under the draft made in the 13 counties named in Finding III under the call of March 14, 1864, has never, nor has any part thereof ever, been refunded, and the same still remains unpaid; nor has $300 been paid to said Felix G. Eoyse for furnishing a substitute. The amount paid by said Eoyse to said substitute does not appear.
    
      XY. The claimants, or their decedents, who paid $300 each as commutation or exemption money for release from military service as stated in Finding II, together with the counties from which drafted and the date of draft as shown by the report from the War Department in each case, are as follows:
    Sub-number. Name. County drafted from. Date drafted.
    1749 O. R. Royse, administrator of Felix G. Royse, deceased. Adair.... May 19,1861
    630 W. J. Tucker, administrator of Ben. Y. Bennett, deceased. .do... Do.
    1716 John Blair_i_.____ _do.. June 18,1864
    1215 J. H. Read.... Butler, May 16,1864
    1126 Thomas W. Neel....■__ — _ .do. Do.
    1593 James M. Phelps______ _do. Do.
    682 Samuel L. Miller.___ Casey_ July 7,1864
    883 Micajah O. Branson___ _do_ Do.
    1486 Martha J. Clemens, widow of Richard Clemens_ _do_ May 19,1864
    27 Mary A. Beard, administratrix of William C. Beard, deceased. Crittenden.-June 10,1864
    457 Dempsey F. Kemp... — . -do.. Do.
    57 Thomas Gray___.......... Grant.. June
    304 Ferdinand Burch... _do.. Do.
    310 Willis Oheatman, or Chatman______ -do. Do.
    313 S. B. Fitch...... -do.. Do.
    315 William McGuyer...... -do.. Do.
    369 George W. Eales..... ,.do.. Do.
    389 Benjamin Lauter____ -do. July 11,1864
    390 J. H. Williams, administrator of William C. Williams, deceased. -do. June 7,1864
    391 Elizabeth Hicks, widow of Pleasant Hicks-—do.. July
    393 D. N. Baker....... —do.. June 7,1861
    505 W. R. B. Eales, under name of R. B. Ealo___ —do.. July 11,1864
    510 Brunetta Childers, widow of William H. Chil-ders, deceased. —do.. June 7,1864
    533 W. W. Rankin... ,-do. July
    784 William Forsyth..— -do_. June 7,1864
    790 Nellie O. White, administratrix of James F. -do.. July 11,1864
    791 Nellie O. White, administratrix - of William Hendrix, deceased. -do. June 7,1864
    793 Nellie O. White, administratrix of James Y. Jump, deceased. -do.. July 11,1864
    817 Francis M. Tucker--,_do. Do.
    818 Lucy Jane Vaughn, widow of Richard Vaughn. -do.. June 7,1864
    821 Anerrella Vaughn, widow of John Vaughn, deceased. -do.. Do.
    823 Joseph Wilson, under name of J. M. Wilson_ -do.. Do.
    1072 Thomas J. Anderson, under name of Thomas D. Anderson. -do.. Do.
    1073 Robert Plunkett-----do.. July 11,1864
    1085 Mary J. Bromley, widow of James S. Brom-ley, otherwise Brumley, deceased. -do. June 7,1864
    1215 Nellie C. White, administratrix of John H. Steers, deceased. .do. Do.
    1277 David Jemmison, -do.
    1359 R. A. Childers, administrator of William Harvey Childers, deceased. -do. July 11,1864
    1377 Nannie Kerr Wilson, widow of John M. Wilson_ .do. June 7,1864
    1406 William Carlton, alias William Colton.. —do_ July 11,1864
    1520 Joseph' Stone, administrator of Washington Osborne, deceased. -do. 7,1864
    1605 Nellie O. White, administratrix of Newton Hogan, deceased. -do., Do.
    1628 Nellie C. White, administratrix of Felix B. Abernathy, deceased. -do., Do.
    1717 Nellie O. White, administratrix of William Stroud, deceased. -do.. Do.
    
      Sub-number. Name. County drafted from. Date drafted.
    1740 Nellie C. White, administratrix of James W. Woodyard, deceased. Grant_ June 7,1864
    1741 Nellie C. White, administratrix of James F. _do. Do.
    1746 Nellie O. White, administratrix of W. D. Ecler, deceased. .do. Do.
    1774 Dorothy A. Mann, -widow of Richard Mann-_do_ July 11,1864
    1795 William H. Waller. _do_ Do.
    1434 Hardin W. Nelson_ Grayson_ May 16,1864
    1735 James W. Railey____ _do_ Do.
    412 Mrs. Lou E. Scudder, widow of John der, deceased. Jefferson__ May 11,1864
    678 Frank Bohe. — ... _do_ June 4,1864
    693 William Weir.-.-. _„do_ May
    695 Jacob 3?. Klumpp__-. _do.. Do.
    734 Henry Mittendorf, alias Middendorf-_do..._ Do.
    959 Commercial Bank & Trust Co., of Patrick Commerford, deceased. _do_-_ Do.
    963 Pamela D. Allen, widow of Joseph .do_ Do.
    969 Commercial Bank & Trust of Patrick Cooney, deceased. _do_ June
    986 D. L. Bedinger, administrator Shake, deceased. _do_ May 11,1864
    1202 Joseph Woods.-.-_do_ Do.
    1229 James Parsons.-.. _do_ Do.
    1230 Commercial Bank & Trust Co., of John Rider, deceased. .do_ July 2,1864
    1232 Andrew Krebs-_do_ June 16,1864
    1341 Commercial Bank & Trust of P. Xavier Metzmier, deceased. _do.. June 4,1864
    1352 Patrick Bohan.-.. _do_ May 11,1864
    1464 Commercial Bank & Trust of William Dumeyer, deceased. _.do_ July 2,1864
    1473 John J. Hempel.-. .do. May 11,1864
    1598 L. Wesley Craig.*... .do. June 16,1864
    1737 N. G. Rogers, administrator of John W. Bris-coe, deceased. May 11,1864
    77 William W. Withers, administrator Martin P. Withers, deceased. Lincoln. May 21,1864
    95 Samuel H. Shanks.-.. .do. Do.
    236 Morgan P. Smith. — .. .do. Do.
    1405 David R. Moore.- — .-. .do. Do.
    1479 H. P. Newland, executor deceased. Do.
    269 Mary E. Ellis, widow of Alexander O. Ohio-May 14,1864
    754 J. T. Shultz, administrator of Zebulon W. Shultz, deceased. __do.. — ——. Do.
    1159 John J. McHenry, Henry deceased. . — do_ Do.
    1310 Nancy Jane Fulkerson, Fulkerson, deceased. _do_ Do.
    1753 E. L. Boswell, administrator of Thomas Boswell, deceased. _do_ Do.
    1754 Susie B. Austin Stevens, sole heir of tin deceased _do_ Do.
    1763 O. P. Brunton, administrator T. Stewart, deceased. _do_
    3 Andrew J.
    4 John B. Kidwell.:..
    5 J. L. Highfill, administrator _do_ deceased.
    6 Joseph J. Brann..
    10 J. B. Winn, administrator Samuel trobus, deceased.
    12 B. K. Wigginton, Blackburn, deceased.
    15 John W. Monroe.-.--.
    17 George T. Keith.. .do_
    19 George Hines, administrator D.
    23 W. S. Clark, administrator of drum, deceased.
    
      Sub-number. Name. County drafted from. Date drafted.
    25 W. S. Clark, administrator of Jefferson Bush, deceased. Pendleton.... June 6,1864
    71 W. O. Carnes, administrator of James Gifford, _do_ Do.
    92 John E. Leach... Do.
    655 Martha Inglis, widow of James Inglis, deceased.--_do_ Do.
    799 Richard S. McNay.-.— _do_ Do.
    822 Nellie C. White, administratrix of James M. deceased. Do.
    904 Columbus Yelton............. Do.
    1402 Jonathan D. _do_ 11,1864
    1518 Charles Fletcher.-.. _do_ June 6,1864
    1519 A. F. Mills, administrator of John W. Mills, deceased _do_ Do.
    1626 Marie J. Cahill, widow of John Cahill, deceased... _do_ Do.
    1547 James Blackburn--_do_ Do.
    1549 Samuel Colcord, alias Coleard___ _do_... Do.
    1550 Alaüson D. Blackburn___ .do_ July
    1551 J. Henry Dahlenburg___ _do-6,1864
    1558 James M. Lummis_-____ _do_ July 11,1864
    1554 Benjamin F. Riggs..-. _do_.... June 6,1864
    1556 Joseph Colcord__ _do_ 11,1864
    1657 Martin Light, administrator of William S. deceased. .do. June 6,1864
    
    1664 Lewis O. Grimes, administrator of Edward Red-man, deceased. .do_ July 11,1864
    1665 James M. Mains, administrator of John C. Mains, deceased. -do_ June 6,1864
    1666 James 0. Dunn, administrator of George W. Dunn, deceased. _do.. Do.
    1667 Mary E. Wyatt, administratrix of John Wyatt, _do_
    1670 Jefferson Lovelace____ _do_ July 11,1864
    1671 Susan Browning, administratrix of Henry Browning, deceased. _do_ June 6,1864
    1672 Laban Woods, administrator of James Woods, deceased. -do_ Do.
    1676 James A. Shively...-. _do_ July 11,1864
    1676 Andrew Kennedy, administrator of Andrew Kennedy, deceased. .do.. June 6,1864
    1677 Augustus R. Colvin--_do_ Do.
    1678 Allie Whalen, administratrix of John P. Bishop, deceased. _do_ Do.
    1680 Benjamin F. McClanahan...
    1681 F. C. Clayton, administrator of Thomas O. Clayton deceased. Do.
    1682 Alexander I. McKenney--_do_ Do.
    1683 C. W. Carnes, administrator of Nimrod Mc-deceased. _do_ July 11,1864
    1684 Frank A. Cushman, administrator of Commodore D. Cushman, deceased. 6,1864
    1687 Lyda Hunter, administrator of David F. Hunter, deceased. _do_ Do.
    1688 C. W. Carnes, administrator
    1691 William L. Fookes, Fookes, deceased.
    1692 William L. Fookes..-.-_do_ Do.
    1695 Marion Downard.-. .do..
    1712 George King, administrator of James S. King, deceased. .do. Do.
    1733 John T. Wyatt. .do_ Do.
    1736 Harry M. Wolfe, administrator of Thomas J. McKee, deceased. .do-July 11,1864
    1768 Hugh M. Peters.-.. _do_ June 6,1864
    1777 John W. Thomas...... .do_ Do.
    479 William H. Peterson__ Taylor.
    1101 Mary E. Collins, administratrix of Joseph T. Collins, deceased. _do_
    1128 Mary L. Smith, widow
    1759 Robert H. Hubbard--- ..
    
      XYI. In 1869 a number of claims of men drafted from Pendleton County, Ky., including some of the claimants herein, was presented to the Secretary of War, under the acts of February 28,1861 (14 Stats., 411), and March 1,1869 (15 Stats., 282), for refund of money, not to exceed $300, paid for substitutes or as commutation money to secure discharge from the obligation to render personal service under the call of March 14,1864, and same were disallowed by that officer on the ground that the redistribution of credits had not been completed until after the draft has been carried into effect, and that the persons so drafted were accepted and Ijeld to service under the “ decisions and rules of the War Department governing at the time,” and that the subsequent passage of additional credits to Pendleton County in no way changed the status of claimants, said credits serving only to relieve said county under future calls.
    The claims of the persons hereinbefore named were after-wards presented to Congress and were referred by the Committee on War Claims of the House of Representatives to the Court of Claims under the provisions of the act of March 3, 1883, commonly known as the Bowman Act, and the petitions of claimants were dismissed for want of jurisdiction, upon the ground that the provision in the act of February 18, 1861, that the Secretary of War shall refund commutation money “whenever it shall appear that under the rules and decisions of the War Department governing at the time the said persons were entitled to discharge from the obligation to render personal service under the draft,” vested exclusive jurisdiction in the Secretary of War.
    
      Mr. Charles F. Carusi for the claimants.
    
      Mr. George M. Anderson (with whom was Mr. Assistant Attorney General Thompson) for the defendants.
   Howry, J.,

delivered the opinion of the court:

These cases are of a class numbering more than 2,000 involving claims for men drafted into the military service of the United States in the spring of 1864. The amount claimed in the cases as represented by all classes of the demands now being prosecuted in this court makes a total of over $646,800.

The claims are familiarly known as the Kentucky drafted cases. There are three classes: (1) Cases where a man was drafted and released from the obligation to render personal service upon payment of $300 commutation money; (2) cases where a man was drafted and was released upon furnishing a substitute on his own terms by private contract; (3) cases where a slave was drafted, but was released upon payment of $300, presumably by his master.

Refunds of commutation money estimated at'$300 in each case are asked of the United States. The findings are based upon the documentary evidence on file in the court from the War Department, some of which evidence appears in certain Senate reports. The final and suplemental report of the War Department filed December 3, 1910, has also been considered in connection with the original returns from the War Department in the case of J. W. Clements v. United States (Congressional, No. 11917-11), dated August 1, 1907, as supplemented in a communication of the War Department under date of July 28, 1909, embodied in Senate Document No. 142, Sixty-first Congress, first session, and report from said department in each individual case.

The findings are further based upon a supplemental report of the War Department filed December 3, 1910, which more fully explains the previous official reports and discloses more in detail the reasons why it was not practicable to defer the drafts under which 13 counties in Kentucky had to supply able-bodied men for the military service under those provisions of law in force previous to February 24, 1864. (Finding II.)

The evidence embodied in the final report of the War Department has been used by the court in making up the findings with the knowledge of counsel on both sides.

On March 14,1864, the President, by public proclamation, ordered a draft of 200,000 men, and the State of Kentucky was called upon to furnish its proportion of men for the military service. The authority of the call was neither disputed then nor can it be now. The number called from Kentucky was in proportion to the arms-bearing population of that State as compared with the other States.

But by an act approved February 24, 1864, 13 Stats., 6, it was provided that the quotas of each ward of a city, town, township, precinct, or election district, or of any county where the county was not then divided into wards, towns, townships, precincts, or election districts, should be, as nearly as possible, in proportion to the number of men resident therein liable to render military service, “ talcing into account as far as practicable ” the number which had been previously furnished therefrom. The act provided that no person should forcibly resist or oppose the enrollment; that all able-bodied male colored persons between the ages of 20 and 45 years should be enrolled and form part of the national force, and that the slave of a loyal master, if drafted and mustered into the military service, should become free. Bounties were likewise provided in special cases.

The statutory provisions authorizing the draft were not merely directory but mandatory. Eegardless of who was drafted, without reference to a strict adherence to the quota to be supplied from the distinct localities named, the drafts in all the counties were not void drafts if the number of men did not exceed the number called for by the proclamation of the President.

It was not until March 1, 1864, that the adjutant general of Kentucky suggested a redistribution of the credits of that State, on the ground that due credit for men previously raised had not been given to the various communities of the State. The military authorities of the United States, who had oversight of the matter and who always kept a careful account of the men raised in the various districts and sub-districts (under the former law), investigated the' matter of credits allowed in Kentucky and, as a result of an investigation ending April 12, 1864, ordered a readjustment to be made of the credits of the subdistricts in Kentucky.

But the proper quotas were not ascertained or actually made until on or about July 21, 1864. The findings show there was no delay in the endeavor to obtain the necessary information. But meantime the draft proceeded, to meet the requirements of the proclamation for men. The number drafted from each county was determined by the assignment under the call, taking into consideration the credits to which the various counties were entitled for men previously furnished. The military authorities had to be guided by the quotas and credits of each district and sub district as reported at the time the drafts were necessary to be made. Conditions varied considerably in the different counties of the State.

When 13 counties (including Pendleton County) were called upon to furnish their respective quotas under the call of March 14, 1864, it was found that the credits of those 13 counties as then recorded were insufficient. As a consequence, drafts were made in May, June, and early part of July, 1864, resulting in the draft of more men than under the act of February 24, 1864, supra, they would have supplied if another distribution of credits had been practicable and made the basis of action by the War Department. The redistribution of credits in these 13 counties was not completed until July 21,1864, and it was then found that these counties were entitled to a larger number of credits than under the former system. Had the power to carry out the order of April 12, 1864, directing a readjustment of the credits been practicable before the dates of the drafts under the proclamation of March 14, 1864, no drafts would have been made in May, June, or July, 1864, conflicting with the act adding to the number of said districts by making the subdivisions greater, as the counties affected would have supplied a lesser number of men than were really drafted for want of information and knowledge as to the number of men those counties should have supplied under the new law.

The findings show that there was nothing in the official records of the War Department to indicate that there was any unnecessary delay in the readjustment of credits in Kentucky, and that the military authorities had no means of knowing what was the true condition of quotas and credits when the drafts from the 13 counties mentioned were made.

By the law under which the War Department was enabled to act in obtaining recruits credits could only be given to the State and subdistricts. The findings show that it was impossible as to any change in the credits “ to adjust them for the present draft.” Provost Marshal Gen. Kep., p. 6. That is, for the draft then in progress under which these claimants were drafted.

The unequal character of apportionments whereby some counties supplied more than other counties arose under the law as originally enacted because little attention had been paid to the localities from which volunteers came, in consequence of which there were no records either in the office of the adjutant general of Kentucky or in the War Department to show that some localities in the State furnished more men than other localities.

There was a necessity for the draft to proceed without awaiting the slow and tedious methods of obtaining data for a redistribution of credits according to wards, towns, townships, precincts, and election districts. An invading army, under the command of Gen. Morgan of the opposing army, about that time went into Kentucky from the east (interfering with the work of mustering in men in the fourth, fifth, sixth, seventh, eighth, and ninth Kentucky districts), and there were other raids into the State, as well as local uprisings of people, which affected a part of Kentucky so much that the work of apportionment under the new law was not only materially interfered with but rendered any progress with the count of men subject to military duty in Kentucky according to localities impossible, because of the presence of these hostile forces and domestic turmoil and excitement.

Had the authorities awaited the result of investigations of complaints serious delay would have ensued in obtaining troops sufficient to enroll the requisite number from the State of Kentucky. Hence the military authorities were compelled to base their acts with regard to the matter of quotas upon such records as were in hand' at the time the draft ordered March 14, 1864, was in active progress.

The findings show that in conscripting men for the service the military authorities always took into account “ as far as practicable ” the quotas and credits of each county, but were compelled to depend upon the available data according to the records at the seat of government in executing the work and making effective the common defense.

Shortly after the passage of the act approved March 3, 1863, 12 Stats., 731, regulations were provided so that each congressional district was constituted one district. This first act definitely fixed the limits of each district from whence the men were to be gathered. In carrying out the first act the military authorities of the United States cooperated with the State authorities in arriving at any conclusion concerning drafts and the quotas to be gathered according to the population of the State and the subdistricts described in the act of March 3, 1863, 12 Stats., 731. For want of time the limits of such districts from whence the men were to be taken, as contemplated by the act of February 24, 1864, could not be diminished or so changed as to make the draft effective under the later act.

Congress never undertook to legislate in favor of these drafted men except according to the regulations and rules of the War Department. Congress did enact February 28, 1867, 14 Stat., 416, that the Secretary of War should refund to any person drafted who furnished a substitute or paid commutation money wherever it appeared that under the decisions and rules of the War Department governing at the time the said person was entitled to discharge from the obligation to render personal service under the draft for which he paid money or furnished a substitute, and to refund, in like manner, in all cases wherein it should appear that a person so having paid commutation money or furnished a substitute was not legally liable to draft. This provision applied only to claims received at the War Department prior to its passage.

Subsequently an amendatory act was passed March 1,1869, 15 Stat., 282, authorizing the filing of all claims under the act of 1867, ante, to be presented within,two years.

Under this amendment claims were presented to the Secretary of War, but were disallowed upon the ground that the redistribution of credits in the counties whence came the drafted men had not been completed until after the draft had been carried into effect. Upon a motion for a rehearing the Secretary of War, July 30, 1879, decided that inasmuch as no new evidence had been presented and no new legislation bad intervened by which the rights of the claimant were advanced or modified, the Secretary could not properly review the previous decision in the absence of new facts or law. The only action taken by Congress on the recommendation of the Secretary of War was to refer many such cases to this court under the act approved March 3, 1883, commonly known as the Bowman Act, 22 Stat.-, 485. Meantime a test case had been brought in the name of John H. Marshall v. The United States by way of appeal to the Court of Claims from the decision of the Secretary of War, but was dismissed by this court for want of jurisdiction April 26,1886, 21 C. Cls. R., 307.

The claims now being considered are here for investigation under the act of March 3, 1887, 24 Stat., -505, commonly known as the Tucker Act. Our conclusions are under the act of June 25, 1910, 36 Stat., 837.

As by the terms of the law drafts under which the refunds are claimed were neither void nor voidable, these drafted men would have had no right to indemnity or compensation of any kind (except for such bounties as the Government had authorized to be paid and except for soldiers’ pay for services rendered) had they entered the service in person and duly served under the draft which required their personal service. If, when drafted, they bought their way out of personal danger, the obligation of the Government to refund the amounts paid by them could rise no higher than if the drafted men had kept their money and rendered military service at the risk of life and limb. The payment of the sums back to the men who procured substitutes or who paid $300 to the Government to provide substitutes would be such a concession on the part of the Government as necessarily to imply that the draft was illegal and that the men who did service as substitutes were unlawfully taken into the military service.

The refunds would in effect mean that the drafts were at least voidable, if not void, thereby contradicting the terms-of the law which said they were neither.

It needs no argument to prove the legality of the drafts, because the statute establishes that much. The insertion of the provision in the statute directing the men to be con scripted without reference to future conditions shows clearh the intent of Congress. None of the drafted men from any part of Kentucky could under the terms of the statute have obtained his liberty by writ of habeas corpus had such drafted men undertaken to show that the draft from any one county was illegal. The personal service of sucii drafted men as were conscripted was the Government’s right. If the men preferred to provide substitutes and the Government extended to them that privilege, there is no ground left for argument that either a legal or an equitable claim arose.

If a master perferred to prevent his slave from becoming free when the draft operated upon slave property then in the master’s possession, the Government in a case like that could not have been called upon to refund anything unless we admit that the Government could be deprived of the means of defense where the wish of the able-bodied population was superior to the necessities as well as the power and lawful authority of the Government.

When we supplement to the terms of the law under which the drafts were made the findings of the court that it was not practicable to equalize the conscription except by districts until after the men were drafted we have a state of facts which completely meets the situation as to the nature of the legal and equitable conclusions. The facts as well as the law preclude any conclusions other than that the claims are neither legal nor equitable.

The court’s careful statement of the conclusions which are authorized by the act of June 25, 1910, 36 Stats., 837, is of moment because of the importance not only to the Government but to the people of the whole country with respect to the principles involved.

From the time governments were instituted among men the arms-bearing populations have had to meet the call of the nations in stress of war. The duty to respond rises above personal conveniences or matters of mere money or business.

All history shows that conscripts have generally obeyed orders and made good soldiers according to the measure of obedience to military discipline. But this affords no reason why drafted men should be given more consideration than volunteers or why those willing to pay to avoid a draft should have the money used by them to secure exemption from the service refunded. The bounties provided for volunteers were not as much as the bounties whieh substitutes obtained by reason of the permission of the' Government to men drafted for personal service to pay for these substitutes.

Once the principle be adopted that troops can not be raised by conscription without permitting the conscripts to pay their way out at a price not fixed by the Government or fixed higher in emergencies than original bounties, the system of voluntary enlistment would be much discouraged.

Eminent authorities hold that substitution for military service was originally permitted as a privilege to individuals and not for any benefit a government could derive from it. Being an act of grace and favor on the part of the Government and not a matter of contract which would preclude a government from again drafting the principal if his services were actually needed, the court is of opinion that the claims for a refund of the amounts paid to the substitutes are not claims, legal or equitable, against the United States.

The drafted men having received a consideration satisfactory to each of them in the privilege accorded to each to be exempt from military service, and their draft into the military service having been legal as well as necessary under conditions as they existed at the time of the drafts, there is no apparent reason why they should now complain because of the action of the Government in refusing to recognize their claims to have the amounts paid by them for substitutes refunded.

The conclusion of the court upon the whole case is that the claims of the respective claimants are not founded upon any obligation of the Government, legal or equitable; that the payments made by the respective claimants as set forth in the findings were made at their own requests and for their own benefit, and that the Government, by accepting the money in lien of the military service of the claimants, assumed no responsibility and incurred no liability.

The cases will be reported to the Senate, together with a copy of the findings and this opinion.  