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2d Session. S
JANUARY 30, 1855.
Mr. WALLEY, from the Committee of Claims, made the following
REPORT. The Committee of Claims, to whom was referred the petition of Surah Ir
ving, asking that she may receive, for the services of her late husband, the difference between the salary as clerk in the Census department and that of superintendent, for the time actually employed as such, have had the same under consideration, and beg leave to report :
That, by an order of the Secretary of the Interior, dated May 30, 1851, William Irving was appointed acting superintendent of the seventh census, during the absence of the superintendent, in accordance with which order he entered upon the discharge of such duties on the said 30th day of May, and continued to discharge the same until the 22d day of September following, to the entire satisfaction of the department.
It further appeared to your committee that the superintendent was absent from the country on the business of the department, and that the Secretary of the Interior was fully authorized by law to appoint officers from time to time, as might be necessary for the proper discharge of the duties of the Census department; and that he appointed a clerk, who was receiving one thousand dollars per annum, to discharge the duties of superintendent, whose salary was fixed at the rate of twenty-five hundred dollars per annum.
Your committee recommend that the prayer of the petitioner be granted, and therefore beg leave to report the accompanying bill.
2d Session. S
? No. 46.
LIEUTENANT JOHN CLARK.
January 30, 1855.–Laid on the table, and ordered to be printed.
Mr. Howe, from the Committee on Military Affairs, made the following
The Committee on Military Affairs, to whom was referred the petition of
Lieutenant John Clark, of Pennsylvania, for arreara.ges of pay on account of services as third lieutenant in the 22d regiment of United States infantry in the war of 1812, respectfully submit the following report:
The petitioner, John Clark, formerly a lieutenant of the 22d regiment of United States infantry, states that in May, 1814, he addressed to the Secretary of War a letter of resignation, which he transmitted to the colonel of his regiment, from whom he received in reply an order directing him to repair to his place of residence, there to remain till he should receive an answer from the Secretary of War. He complied with this order, and remained a long time waiting for instructions from the War Department, but never received any. Not receiving notice of the acceptance of his resignation, he considered himself as in the service, and subject to orders, and, in compliance with the orders of his colonel, did remain waiting orders from the War Department, and did not engage in other pursuits. That, having subsequently found it necessary to repair to the seat of government to adjust and settle his public accounts, he was informed that an order accepting his resignation was issued on the 18th of June, 1814; and the accounting officers admitted to his credit a charge for his service up to that date only. Upon investigation, it was found that the acceptance of his resignation had been directed to him at Brownsville, New York, and not at Brownsville, Pennsylvania, the place at which he was serving, and at which place his resignation was dated. That he never received said order, and did not know of its existence until the settlement aforesaid at the seat of government, and of course could have no influence upon his action, and therefore claims such allowance as would have been legally due to him, under the order of his said colonel, if said order accepting his resignation had never been issued—an account for which from June 18, 1814, to June 30, 1815, amounting to $792 44, accompanied his petition when presented to the Senate during the second session of the 21st Congress. Said petition was referred to the Committee on Military Affairs on the 3d
sign and there
of January, 1831; but there was not sufficient evidence at the time before said committee, and an adverse report was made and concurred in, with leave to withdraw, &c., February 9, 1831.
During the present month said claim was presented to the Third Auditor of the Treasury for his adjudication, accompanied by additional evidence in support of the same, which was disallowed for the reasons named in the report of the Auditor, and the decision of the Second Comptroller, which accompany his said petition.
The order of Colonel Hugh Brady is dated Pittsburg, June 3, 1814, in which he says: “I received your resignation, which I have forwarded to the War Department,'' &c.; and after directing him to deliver over his charge to Lieutenant Lawe, says: “You will then return to your place of residence, and there remain until you hear from the War Department.” Signed: “Hugh Brady, colonel 22d regiment infantry, commanding at Pittsburg;" directed to “John Clark, lieutenant 22d infantry, Brownsville, Pa.” A copy of said order is on file with the papers, sworn to be a true copy, before competent authority, by said Lieutenant Clark, on the 18th instant.
A certified copy of the order accepting his said resignation is filed with the papers, and is dated “Adjutant and Inspector General's Office, Washington, 18th June, 1814,” and states: “Your resignation as third lieutenant in the 22d regiment of infantry has been accepted, to take effect this day.” Signed: “J. R. Bell, assistant inspector general;' directed to “Lieutenant John Clark, 22d regiment infantry, Brownsville, New York.”
The Second Comptroller, in his decision, which accompanies the papers, states that there is no reason to doubt that he failed to receive it in consequence of an error in the Adjutant General's office;' but “I concur with the Auditor in opinion that Lieutenant Clark, after waiting a reasonable time without receiving notice or reply, should have applied to Colonel Brady or to the War Department for information in regard to the resignation he had tendered,” &c. He further says: “Meritorious as his case may be, however, the accounting officers are precluded, by long practice, by numerous decisions, and by opinions of the Attorney General, from taking jurisdiction of claims after their presentation to Congress. The Attorney General, in an opinion given on the 22d of August, 1845, held that “a party who prefers a claim against the government, which is not passed by the proper officers, and elects to resort to Congress for relief, must abide by his election, and fail or succeed in his application for redress before that body,' &c. Lieutenant Clark, having applied to Congress, must look to a legislative act for relief.”
John Clark, the claimant, in his affidavit, sworn to on the 22d instant, states that, "in obedience to Colonel Brady's order, I repaired to my residence, after having required the postmaster to send any communication that might come from the War Department to me without delay. I remained at home till November, when Colonel Brady came to my place on his way to Erie, accompanied by Adjutant Green. I told him I had not heard from the War Department yetcould I not engage in some business at which I could make something,” &c. He said: “Your resignation has gone to the War Department; therefore, I have no further business with it. You must have patience; you will probably hear from them shortly, but, as you were in the recruiting service, they may possibly not dismiss you till your accounts are settled.”
From the testimony accompanying the re-presentation of the petition of said Lieutenant Clark, of which the foregoing is an abstract, it appears that he, the said John Clark, was a third lieutenant in the 22d regiment of United States infantry, and in the recruiting service in the war of 1812; resigned his office by addressing the War Department, through his colonel, Hugh Brady, who had command of said regiment; that he was ordered by Colonel Brady to repair to his place of residence, and there remain until he heard from the War Department; that although his resignation was received and accepted by the department on the 18th of June, 1814, it was not received by him, for the reason that it was directed to Brownsville, New York, instead of Brownsville, Pennsylvania; that his said claim was disallowed by the Second Comptroller, because said Clark had not, after a reasonable time, applied to Colonel Brady or the War Department for information in regard to his resignation, and also for the reason that he had heretofore applied to Congress for the allowance of his said claim. It also appears, from the affidavit of said Lieutenant John Clark, prepared since the decision of the Second Comptroller, herein before referred to, that he had in the month of November, 1814, several months after his resignation was forwarded to the War Department, informed Colonel Brady that he had heard nothing from the department on the subject; and was told that he must have patience, he would probably hear from them shortly, &c., showing that he had in reality complied with the requirements of the Third Auditor and Second Comptroller.
The committee are of opinion that the acceptance of the resignation of Lieutenant Clark, having through the inadvertence of the War Department been addressed to him at Brownsville, New York, instead of Brownsville, Pennsylvania, was virtually no acceptance; and the said Clark having, in obedience to the order of Colonel Brady, remained at his residence, waiting orders or the acceptance of his resignation, from the 18th of June, 1814, to the 30th of June, 1815, without being at liberty to engage in other pursuits, that he is justly entitled to compensation.
The committee do not conceive that any additional legislation is required, and recommend that the matter be referred to the proper department for settlement; and that, for this purpose, the petitioner have leave to withdraw his papers; and that the committee be discharged from the further consideration of the subject.