Clark v. Mitchell

• Citation: 64 Mo. 564
• Parties: WM. G. CLARK, Appellant, v. ROBERT MITCHELL, et al., Respondents.
• Decision Date: 30 April 1877
• Court: United States State Supreme Court of Missouri

64 Mo. 564

WM. G. CLARK, Appellant,

v.ROBERT MITCHELL, et al., Respondents.

Supreme Court of Missouri.

April Term, 1877.

Appeal from St. Louis Circuit Court.

Trusten Polk, for Appellant.

George P. Strong, for Respondents, cited: Brown vs. United States, 8 Cr. 110; 1 Kent, pp. 59, 62, 64; Vattel, pp. 322, 323; 3 Grot. De Jure, &c. Chap. 8, § 4, et seq. 610; Hall. Intern'l Law, pp. 365, 447, 457; 6 Grot. Chap. 6, p. 580; Hall. Int. Law, 788, § 11; Cross vs. Harrison, 16 How. [U. S.] 164; 12 U. S. Stat. at Large [1863], 757, § 7; Const. Mo. art. 11, § 4; Drehman vs. Stifel, 41 Mo. 184, 202; Same case, 8 Wall. [U. S.] Supl. 595; Clark vs. Tichnor, 49 Mo. 144; State vs. Gutzweiler, 49 Mo. 17; Clark vs. Dick, 1 Dill. 8.

SHERWOOD, C. J., delivered the opinion of the court.

On the first day of February, 1859, plaintiff leased to the defendants for the term of seven years, two stores in block 96 on 4th street in the city of St. Louis, at a yearly rental of $7,000 payable in monthly instalments of $583.33. The rents for August, September, and October, 1862, were not paid in accordance with the covenants in the lease contained, and this suit was brought in January, 1868, to recover those sums with interest.

The defendants answered, setting up four defenses to the action, and the plaintiff demurred; but inasmuch as the demurrant was successful respecting all the pleas except the fourth one, that alone is subject here to revision and discussion.

The plea thus held sufficient is as follows:

“And for a further defense to said action, defendants say that the cause of action in plaintiff's petition alleged, if any such does or ever did exist, arose out of certain acts done and certain acts omitted to be done, that is to say, out of and from an alleged failure or omission to pay the rent reserved in said lease for the months of August, September and October, A. D., 1862, to the said plaintiff, and from a payment thereof made for and on account of plaintiff by defendant to the provost marshal of said district of Missouri for the public use, under and by virtue of the order and command of General J. M. Schofield, who was then in military command of the military district of Missouri, which embraced the State of Missouri; that said payment was omitted to be made to the plaintiff, and was in fact made for and on account of the plaintiff, for the public use as aforesaid, as a necessary means of carrying on the military operations of the government of the United States, against the insurgents who were then seeking to overthrow said government in said State of Missouri, by virtue or under color of authority derived from and exercised under the president of the United States; and said cause of action, if any such there be, or ever was, arose more than two years before the commencement of this action, and said action was commenced more than two years after the passage of an act by the congress of the United States, entitled an act relating to habeas corpus and regulating judicial proceedings in certain cases approved March 3d, 1863, and defendants set up and plead the limitations contained in said statute, in bar of said action and pray judgment, &c.”

The demurrer in substance alleged that the answer stated no facts sufficient to constitute a defense to the action.

It will be observed at the outset of our intended examination into the sufficiency of the plea, that it fails to set forth the order relied on either in hæc verba, or in substance. Without this were done, it would be impossible to traverse the special matter thus pleaded.

The plea on its face shows that which, if true, amounts to a wrong at common law; shows that the tenants of a lessor were compelled to attorn to a stranger, by paying him rent; but such a wrong, in order to be justified, must needs have the authority for its commission so pleaded as to tender a traversible issue; thus at once apprising the plaintiff of its nature, and allowing the court to determine its sufficiency. And no difficulty could be experienced in this regard, if the authority claimed really existed. (Pean vs. Beckwith, 18 Wall. 510.)

The above is not the sole objection to be urged to the plea.

There are doubtless cases in which a military officer may take, or destroy, private property, but this is only allowable under circumstances of imminent and overpowering necessity as, ex. gr.; where in time of flagrant war, forage or provisions are taken for troops, or a dwelling house used for the erection of bulwarks against an advancing enemy. But in such case, neither the officer who commands, nor those who obey, are liable to an action, nor to be regarded as trespassers, and therefore stand in no need of legislative protection. (Mitchell vs Harmony, 13 How. 115; Parham vs. Justices, &c., 9 Geo. 341, and cas. cit.)

That class of cases is, however, obviously distinguishable from those where a commander, influenced by motives of mere expediency, or ideas of general necessity, seizes and appropriates the property of individuals.

Thus in Mitchell vs. Harmony, supra, where it was pleaded that the property was taken to prevent it from falling into the hands of the enemy, and that it was taken for public use, Chief Justice Taney, in delivering the opinion of the court inter alia remarked: “The only subject for inquiry in this court is, whether the law was correctly stated in the instruction of the court; and whether anything short of an immediate and impending danger from the public enemy, or an urgent necessity for the public service, can justify the taking of private property by a military commander to prevent it from falling into the hands of the enemy, or for the purpose of converting it to the use of the public.”

“The instruction is objected to on the ground, that it restricts the power of the officer within narrower limits than the law will justify. And that when troops are employed in an expedition into the enemy's country, where the dangers that meet them cannot always be foreseen, and where they are cut off from aid from their own government, the commanding officer must necessarily be intrusted with some discretionary power as to the measures he should adopt; and if he acts honestly and to the best of his judgment, the law will protect him. But it must be remembered that the question here, is not as to the discretion he may exercise in his military operations or in relation to those who are under his command. His distance from home, and the duties in which he is engaged, cannot enlarge his power over the property of a citizen, nor give to him, in that respect, any authority which he would not, under similar circumstances, possess at home. And where the owner has done nothing to forfeit his rights, every public officer is bound to respect them, whether he finds the property in a foreign or hostile country or in his own. There are, without doubt, occasions in which private property may lawfully be taken possession of or destroyed to prevent it from falling into the hands of the public enemy; and 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; but the officer is not a trespasser.”

“But we are clearly of opinion that in all of these cases the danger must be immediate and impending, or the necessity urgent for the public service, such as will not admit of delay, and where the action of the civil authority would be too late in providing the means which the occasion calls for. It is impossible to define the particular circumstances of danger or necessity in which this power may be lawfully exercised. Every case must depend on its own circumstances. It is the emergency that gives the right, and the emergency must be shown to exist before the taking can be justified. In deciding upon this necessity, however, the state of the facts, as they appeared to the officer at the time he acted, must govern the decision; for he must necessarily act upon the information of others, as well as 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 immediate 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.”

“But it is not sufficient to show that he exercised an honest judgment and took the property to promote the public service; he must show, by proofs, the nature and character of the emergency, such as he had reasonable grounds to believe it to be, and it is then for the jury to say whether it was so pressing as not to admit of delay; and the occasion such, according to the information upon which he acted, that private rights must, for the time, give way to the common and public good.”

“But it is not alleged that Colonel Doniphan was deceived by false intelligence as to the movements or strength of the enemy at the time the property was taken. His camp at San Elisario was not threatened. He was well informed upon the state of affairs in his rear, as well as the dangers before him. And the property was seized, not to defend his position, nor to place his troops in a safe one, nor to anticipate the attack of an approaching enemy, but to insure the success of a distant and hazardous expedition, upon which he was about to march. The movement upon Chihuahua was undoubtedly undertaken from high and patriotic motives. It was boldly planned and gallantly executed, and contributed to the successful issue of the war. But it is not for the court to say what protection or indemnity is due from the public to an officer, who, in his zeal for the honor and interest of his country, and in the excitement of military operations has trespassed on private rights. * * * * Our duty is to determine under what circumstances private property may be taken from...