IN THE SENATE OF THE UNITED STATES.

DECEMBER 9, 1879.-Ordered to be printed.

Mr. MAXEY, from the Committee on Military Affairs, submitted the

following

REPORT:

[To accompany bill S. 105.]

The Committee on Military Affairs, to whom was referred the bill (S. 105) for the relief of John Gault, jr., late major of the Twenty-eighth Kentucky Volunteer Infantry, respectfully report as follows :

The bill provides for pay and allowances to said Gault as major of infantry from August 16, 1862, to April 15, 1863, deducting therefrom any moneys paid him for any other position held during that period. Major Gault presents a commission from the commonwealth of Kentucky as major Twenty-eighth Kentucky Volunteer Infantry, to take rank as such from November 6, 1861, yet it is quite clear that this was a floating commission, and the proceedings in respect to the commissions of Colonel Boone, Lieutenant-Colonel Johnson, and Major Gault were unusually irregular even in those days of conspicuous irregularity. (See communication of Adjutant-General Townsend, United States Army, on file in this case, dated March 23, 1872, viz:

Respectfully returned to the Secretary of War.

WAR DEPARTMENT, ADJUTANT-GENERAL'S OFFICE, March 23, 1872.

This case has been before the department several times. The facts, in Gault's own words, appear to be as follows:

"On October 6, 1861, a Colonel Boone was authorized by General Anderson to raise a regiment. On this authority Boone authorized A. Y. Johnson as lieutenant-colonel and myself as major. We proceeded at once to the duties, and on November 6, 1861, was ordered on active service by General Sherman. Remained in active service until January 7, 1862, when, at New Haven, Ky., we held an election for field-officers, which resulted in the election of Boone as colonel, Johnson as lieutenant-colonel, and myself as major; but when Boone went to Frankfort, Ky., they informed him that he could tot draw pay as colonel, and if he was commissioned colonel, Johnson and myself would get the pay, and he would get none until the regiment was full. They then issued commissions to Boone as lieutenant-colonel, and Johnson as major, and left me to fill up the regiment."

The official records do not show that he was engaged in recruiting and other services until a vacancy occurred for him as major, when, on April 15, 1863, he was mustered in that grade.

The records of this office show that no vacancy existed for Gault as major until March 14, 1863, the date of acceptance of the resignation of Maj. A. Y. Johnson, of that regiment; further, although Gault appears on the return of regiment for JanLary, 163 (the first which bears his name), his name is not borne on any roll of field and staff prior to March and April, 1863.

Copies of letters from this office giving adverse decisions in this case, dated Decemer 30, 1962, and March 27, 1863, together with indorsements of August 5 and Novemer 18, 162, are herewith.

The complications in the case have arisen from the contest for place, and such contests were numerous during the rebellion.

E. D. TOWNSEND,
Adjutant-General.)

This plan of making a man colonel if that suits, and lieutenant-colo nel if that don't suit, and so on, is revelation to the committee supposed to be conversant with the methods, regular and irregular, resorted to during the war.

It appears, however, that Lieutenant-Colonel Johnson was captured July 12, 1863, and Colonel Boone, August 12, 1862, and remained prisoners until exchanged in February, 1863, when, very shortly after, Johnson resigned.

It is also clear that Major Gault was put on duty as major by the general commanding United States forces in Kentucky, by an order dated August 16, 1862, and did perform those duties in command of the regiment, both field-officers being prisoners as aforesaid. The order of assignment is as follows:

Maj. John Gualt of the 28th Regt. Ky. Vols. is hereby ordered to report to Col. J. D. Bruce at Bowling Green. He will take command of the battalion of his regt. at that post.

By command of Brig. Gen'l Boyle.

H. C. MCDOWELL, A. A. G.

He continued thus to serve as a field-officer till his actual muster, April 15, 1863.

The committee has examined carefully the report of the House committee, as follows:

[House Report No. 477, Forty-fifth Congress, second session.]

Mr. BRAGG, from the Committee on Military Affairs, submitted the following report, to accompany bill H. R. 4287:

The Committee on Military Affairs, to whom was referred the memorial of John Gault, jr., asking pay for services as major in the volunteer service, submit the following report:

It appears from the memorial and evidence filed in its support that the Twentyeighth Regiment Kentucky Volunteer Infantry was organized in defense of the Union on the 8th day of October, 1861, under the authority of General Robert Anderson, then in command of the Department of the Cumberland.

That John Gault, jr., assisted in the raising and organizing such regiment, and was elected the major thereof; that the regiment, before it was filled up so as to entitle it to its full quota of field officers, went upon duty by command of Brig. Gen. W. T. Sherman, who had assumed command of that department on the 6th day of November, 1861.

That the claimant attended upon such regiment, assuming and performing voluntarily the duties of major of such regiment, and so continued to discharge the duties until his muster as major, which did not occur until April 15, 1863, and from which last date the claimant has received pay only.

That the claimant, though performing the duty voluntarily, did so upon the understanding and belief that the authority had been given by the War Department to muster a full quota of field and staff officers for the volunteer regiments in Kentucky, without regard to their being below the minimum.

The evidence in support of the claim does not show any recognition of Major Gault as an officer of the United States until August 16, 1862, when, by Special Orders No. 30, headquarters United States forces in Kentucky, by command of Brigadier-General Boyle, the claimant, John Gault, jr., as major of the Twenty-eighth Kentucky Volunteer Infantry, by name, was assigned to the command of the battalion of his regiment. All the prior services performed do not of themselves imply any knowledge on the part of government officers having authority that in issuing orders to or receiving the services of the regiment they were using, directing, or receiving service from Major Gault, but were incidental to orders issued to and service done by the regimental organization, irrespective of the person holding or claiming to hold the office of major. On the 7th of November, 1862, by Special Orders No. 77, headquarters United States forces, Bowling Green, Ky., Major Gault was detailed by name for duty on board of survey; and from thence until he was in fact mustered, April 15, 1863, he continued discharging his duties, recognized by the military authorities of the United States, and in good faith believing he was entitled to and would be recompensed therefor by the government.

That a portion of the time in which he was so serving the government he was in full command of his regiment, and the only field-officer with it; the colonel being detached and the lieutenant-colonel being a prisoner.

That the delay in his muster and the commencement of the allowance of pay to the claimant grew out of the fact that the regiment was below minimum strength, and when the claimant could have been mustered, the officer who nominally held the position the claimant in fact filled was in prison, and could not be mustered out so that Major Gault could be mustered in.

Your committee are of opinion, upon these facts, that in justice and equity, as well as upon principles governing common-law liability, from the date when the government knowingly accepted and availed itself of the services of Major Gault, he supposing in good faith that in the rendition of such service the government was bound to and would repay him, with the pay and allowances of the grade in which his service was rendered and accepted, the claimant is entitled to receive the pay and allowances of a major of infantry; and report herewith a bill allowing John Gault, jr., the pay and allowances of a major of infantry from August 16, 1862, to April 15, 1963, and recommend that the same do pass.

The

Whatever irregularity there may have been in the issuance of commissions, Gault is not responsible for it. He could not claim or exercise the rank of major while the duly-commissioned major was with the regiment, yet both Boone and Johnson, the proper field-officers, and, as the committee think, lieutenant-colonel and major, were captured. regiment or battalion, whichever it was, was without a field-officer. The commander of the United States forces then did, August 16, 1862, recognizing the fact that Gault held a commission as major, order him to duty in that capacity, and he did perform those duties, no one questioning his right.

It seems, therefore, in justice and equity, he should be paid for his services; and the committee therefore report back said bill without amendment, and recommend its passage.