1 Ct. Cl. 41 | Ct. Cl. | 1863
delivered the opinion, of the Court.
The claim in this case is for private property destroyed and abandoned in Arizona on the 15th of July, 18G1, by order of Captain J. N. Moore, commanding United States troops in the vicinity of Tucson. Grant was a contractor with the government for furnishing commissary and quartermaster supplies for the forts and military posts in Arizona, and in furtherance of his contract had expended large sums of money in the repair and erection of flouring mills, dwelling-houses, storehouses, shops, and corrals. He had personal property also of considerable value, consisting in part of-flour, wheat, corn, barley, beans, merchandise, furniture, &e. In the mills and storehouses of Grant were valuable supplies belonging to the government.
The people of Tucson were lawless adventurers and intensely hostile to the government of the United States. Lieutenant Lord speaks of the citizens of the Territory as “traitors of the deepest die;” “that they openly talked secession long before the war commenced, especially those in the vicinity of Tucson.” Captain Chapin in his deposition says “ Tucson was full of gamblers and murderers. Large numbers of the white people were southerners in feeling, and ready to take up arms for the southern cause. Exceptions (o this rule were rare.” A
We do not doubt from this evidence, taken in connexion with the active participation of Lieutenant Lord in the destruction of the property, himself setting fire to the largo mill, and giving orders to his men to fire the other buildings and property, that he acted under and in accordance with the express orders of Captain Moore. Lord notified Mr. Grant half an hour before the fire was set of his intention to burn all his buildings and property, and requested him to secure at once such valuables and papers as he wished to preserve. The fact
Is the government legally and equitably bound to indemnify Mr. Grant for the loss of his property under such circumstances? Was there apparent to the commanding officer such a necessity as justified its destruction ? Was it taken for public use ? A proper application of legal principles to the facts of the case will give a solution to these inquiries.
Every civilized State recognizes its obligation to make compensation for private property taken under pressure of State necessity, and for the public good. The State is the transcendental proprietary of all the property, real and personal, of its citizens or subjects. This transcendental right — the eminent domain of the State in all countries where rights are regulated by law — is so exercised as to work no wrong, to inflict no private injury, without giving to the party aggrieved ample redress. This doctrine was not engrafted on the public law to give license to despotic and arbitrary sovereigns. It has its foundation in the organization of societies and States, and is as essential to a republic as to the most absolute despotism. It is of the very ■essence of sovereignty, and without it a State could not perform its first and highest- duty, its own preservation. Vital as is this high prerogative of States, it must be exercised in subordination to the clear principles of justice and right. Whenever, from necessity or policy, a State appropriates to public use the private property of an individual, it is obliged, by a law as imperative as that in virtue of which it makes the appropriation, to give to the party aggrieved redress commensurate with the injury he has sustained. Upon any other principle the social compact would work mischief and wrong. The State would have the right to impoverish the citizen it was established to protect; to trample on those rights of property, security for which was one of the great objects of its creation.
Every elementary writer of authority sustains the views here taken of the duty and obligation of States.
“ When a sovereign disposes of the possessions of a community oían individual the alienation will be valid. But justice requires that this community or this individual be indemnified at the public charge.” (Vattel, 112.)
“ Is the State bound to indemnify individuals for the damages they have sustained in war? We may learn from Grotius that authors are
“ We must observe this, that the king may in two ways deprive his subjects of their right, either by way of punishment or by virtue of his eminent power. But if he do so in' the last way, it must be for some public advantage, and then the subject ought to receive, if possible, a just satisfaction for the loss he suffers out of the common stock.” (Grotius, b. 2, ch. 14, sec. 7.)
“ The State has an eminent right of property over the goods of the subjects, so that the State or those that represent it may make use of them, and even destroy and alienate them, not only on extreme necessity, but for the public benefit, to which we must add that the State is obliged to repair the damages suffered by any subject on that account out of the public stock. Neither shall the State be absolved from this obligation, though for the present not able to satisfy it; but whenever the State is in a capacity, this suspended obligation shall resume its force.” (Grotius, b. 3, ch. 20, sec. 7.)
The authorities cited are direct and emphatic, and are supported by every writer of respectability upon public and national law. It may safely be assumed as the settled and fundamental law of Christian and civilized States that governments are bound to make just indemnity to the citizen or subject whenever private property is taken for the public good, convenience, or safety.
The limitation imposed on the government of the United States in the exercise of its right of eminent domain by the fifth article of the amendments of the Constitution is a solemn recognition of this settled and fundamental law of States, and binds the government to .the observance of the principles of justice and right in its dealings with the citizen with the force of organic law. In this article it is declared that “private property shall not be taken for public use without just compensation.”
Was the property for which compensation is now claimed taken in
“Whether or not a law authorizing the destruction of private property for public benefit or safety is to be esteemed a taking of it for public use, such a law is nevertheless an exercise of the right of eminent domain. The right to take or destroy private property by an individual in self-defence, or for the protection of life, liberty, or property, is of a widely different character. It does not appertain to sovereignty, but to individuals, considered as individuals; it is a natural right, of which government cannot deprive the citizen, and founded upon necessity, and not expediency. Lord Hale calls it the lex temporis et loci.”
“ The act of destroying the building by which the plaintiff lost his. goods was in the exercise of the right of eminent domain, and not by virtue of the law of overruling necessity. The distinction between these two rights, as laid down in the English books, is confused and somewhat contradictory, and not consonant with our notion of the rights of private property.”
“ The first case on the subject was the celebrated saltpetre case. The government asserted the arbitrary right to provide munitions of war from private property, under the pretext of overruling necessity; and all the justices sustained it. (12 Co., 12.) Mouse’s case was one of jettison, where, in a perilous storm at sea, the master of the barge threw overboard a part of the valuable cargo to save the lives of the passengers. (lb., 63.) This, too, was denominated a case of overruling necessity, and very justly, as it boro all the characteristic marks of that class of cases, while the other bore none of them. But in neither of these cases was the true distinction taken. In the first case, the saltpetre was taken by public authority, and for the general public good; while in the other, the property was destroyed by private authority and for individual benefit.”
The majority of the court do not controvert the soundness of the principles here laid down, but deny their application to the case under consideration. Indeed, their correctness is affirmed by Senator Porter in the opinion delivered by him, (page 484,) where he makes the following remarks by way of illustration, and the cases put by him bear a strong analogy to the one now before the court:
“A vessel may in time of war be taken from the owner when the interests of the government demand it; or it may be destroyed to prevent its falling into the hands of an enemy, and thereby increase its power of aggression or resistance; and the owner would be entitled under the Constitution to be paid a just compensation.”
Upon the authority of the cases cited, and others that might be adduced, as well as on the principles which distinguish a case of public necessity, utility, or good, from the overruling necessity which regulates the law-
The letter and spirit of the public law, and of the constitutional provision in this regard, require just compensation to be made in every case when private property is rightfully taken for public use, whether it b'e by legislative authority or under the powers necessarily exercised by those commanding our land and naval forces in time of war or imminent public danger. Hay private property be rightfully taken by a military officer, without legislative authority, for the public service, or destroyed to cripple and embarrass the enemy; or is he in every case, and under all circumstances, a trespasser % Every writer, and every judicial decision, gives an answer to these questions. Whenever the officer is justified, the liability of the public is established. Property is taken without legislative authority, but by official warrant, and under urgent necessity, and for the general good. Courts approve the conduct of the officer, and the Executive rewards him with promotion for faithful and efficient performance of duty. The exigencies of war forbid that the legislature should provide for the precise circumstances under which the eminent right of the State may be called into action. The fundamental law provides that private property shall not be taken for public use without just compensation. Is this provision of the Constitution answered when compensation is made for property taken under legislative authority, and denied when taken by military officers acting rightfully under the proper functions of their office % We think not. The obligation to make compensation is co-extensive with the right of the State to take private property for public use ; and whenever it is taken by competent- authority, the obligation of the State cannot be evaded.
We next come to consider the necessity under which this property was destroyed. It is necessity alone that gives the right to take private property for use or destruction. The clanger must be threatening — ■ such as demands immediate action, and when delay would work public injury. Unless the necessity is such as to justify the officer, he is a trespasser, and there is no liability on the part of the government. It is impossible to lay down with precision the degree of necessity, or imminence of the danger, that will furnish such justification. Each .case must stand on its own facts. The necessity must be urgent, but
In the case of Mitchell v. Harmony this whole subject was very fully and ably treated by Chief Justice Taney in delivering the opinion of the court. We present some extracts from that opinion bearing directly upon the ease in hand.
First, as to the liability of the government for the acts of a military officer, on page 134:
“ There are occasions in which private property may be lawfully taken or destroyed to prevent it from falling into the hands of the public enemy ; also where a military officer, charged with a particular duty, may impress private property into the public service, or take it for public use. Unquestionably, in such cases, the government is bound to make full compensation to the owner.”
Again, he speaks of the degree of necessity that will justify the officer, and, in deciding upon this, we must take our view from the stand-point occupied by the officer himself:
“ But we are clearly of opinion that, in such cases, the danger must be immediate and impending, or the necessity urgent for the public service, such as will not admit of delay, and when the action of the civil authority would be too late in providing the means which the occasion calls for.”
“ In deciding upon the necessity, howevei, the state of facts as they appeared to the officer at the time he acted must govern the decision,*49 for he must necessarily act upon the information of others, as well as on his own observation; and if, with such information as he had a right to rely upon, there is reasonable ground for believing that the peril is imminent and menacing or the necessity urgent, he is justified in acting upon it, and the discovery afterwards that it was false or erroneous will not make him a trespasser.”
We have heretofore adverted to the circumstances under which the property of the claimant was destroyed. It was in a distant Territory, six or eight hundred miles from permanent and loyal settlements. The United States garrison occupying Fort Breckinridge, sixty miles distant, had, by order of the commanding general of the department, burnt and abandoned that fort, and were en route for Fort Buchanan, ninety miles on the other side of Tucsou. Within a day or two after the abandonment of Fort Breckinridge, an express brings information that Fort Buchanan was also to be destroyed and abandoned. On learning this, Captain Moore, with an escort, leaves the main body of his command under Lieutenant Lord, and hastens to Fort Buchanan. Here he is informed that rebel forces from Texas occupy Fort Union, the key to Arizona, and are pushing into the Territory with a view to its occupation and the cutting off of the United States forces within it. The people of Tucson gave indubitable evidence of their hostility to the government, and of their readiness to co-operate with the rebel insurgents. In Tucson were valuable military stores, in part the property of claimant, and buildings erected by him at considerable cost, which would give essential aid and support to the enemy. The commanding officer must act at once — the property must be destroyed, or fall into the hands of open and avowed enemies. Organized and armed rebel forces were understood to be advancing into the Territory, and the supplies and property, if left behind, would materially contribute to their purpose of occupation. Under these circumstances, Captain Moore gave the order for its destruction. We cannot say that he acted rashly, and without sufficient cause. The necessity to us appears to have been urgent — the danger impending. Texas, adjoining New Mexico, of which Arizona was then a part, was in flagrant rebellion. A few days after the destruction of the property at Tucson, Captain Moore received information that Fort Fillmore, with ten companies, had surrendered to the rebels, when he took to the mountains, finally bringing his command safely into Fort Craig. We do not believe that any court would hold his conduct in the destruction of this property
Private property must not only be taken upon urgent necessity, but for public use, in order to fix the liability of the government to make compensation. Was the destruction of this property a taking of it for public use 1 It is almost of equal public importance that military supplies be kept from the use of the enemy, as that they minister to the support of our own armies. Writers on public law do not diserim-' inate between property destroyed to prevent it from falling into the hands of an enemy, and property taken for the actual sustenance of our own military forces. In both eases it is treated as a taking for public use. In the case of the American Print Works v. Lawrence, (Zabriskic,) the Supreme Court of Now Jersey affirm that “ the destruction of private property for public use is a taking of it .within the meaning of the Constitution.”
We hold, in this case, that the property was destroyed by the rightful order of the commanding officer, and upon an urgent and pressing necessity, and to prevent it from falling into the hands of the public enemy and those hostile to the United States; that it was a taking for public use; and that the government is bound under the Constitution to make just compensation to the owner. The legal duty to make compensation raises an implied promise to do so; and here is found the jurisdiction of this court to entertain this proceeding.
The damages remain to be considered. And here an objection is taken against the allowance of anything, on the ground that the property, in the circumstances in which it was placed, was without value to the owner; that the abandonment by the United States troops of the forts in the vicinity of Tucson was the inevitable loss to Grant of the entire property; and therefore its destruction did him no injury. This ground of objection, we believe, is without reason or law to support it. The claimant suffered great loss, Its immediate and direct cause was the burning of his property by order of Captain Moore; that the same loss would have befallen him in another way is an illiberal and, we think, illegal response to the claim for compensation. The property was of intrinsic value, and its worth to the enemy was the cause of its destruction. In a pecuniary point of view, it may have been a matter of indifference to the claimant whether his property was destroyed or fell into the hands of the enemy; but to the State it was of serious importance, and the government preferred to pay its fair value, rather than give its enemies the advantages of its possession.
The whole amount claimed is sixty-one thousand four hundred and eighteen dollars and forty-four cents.......................... $61,418 44
From this sum deduct eleven thousand two hundred and eighty dollars, property not destroyed......... $11,280 00
One per cent, on fifty thousand pounds of com and sixteen thousand pounds of heans, charged at five cents per pound................................ 660 00
Charge of transportation of 35,000 feet of lumber from the pineries.................................... 1,448 44
Value of mill site and privilege of old mill........... 2,500 00
Value of mill site and privilege of new mill.......... 4, 000 00
-- 19,888 44
41,530 00
These deductions from the total amount claimed leave the sum of forty-one thousand five hundred and thirty dollars as the damage that claimant is entitled to recover of the government.
Now, therefore, the court having considered the premises, it is ordered and adjudged that the said William S. Grant, the claimant, have and recover from the United States the sum of forty-one thousand five hundred and thirty dollars, to he paid in due course of law.
