United States v. Irwin Same v. Perry

• Decision Date: 23 April 1888
• Citation: 127 U.S. 125,8 S.Ct. 1033,32 L.Ed. 99
• Parties: UNITED STATES v. IRWIN et al. SAME v. PERRY et al
• Court: U.S. Supreme Court

8 S.Ct. 1033

127 U.S. 125

32 L.Ed. 99

UNITED STATES v. IRWIN et al.

SAME

v. PERRY et al.

April 23, 1888.

Atty. Gen. Garland and Asst. Atty. Gen. Howard, for appellants.

Wm. E. Earle and Jas. L. Pugh, Jr., for appellees.

MATTHEWS, J.

Congress passed an act, approved July 8, 1886, entitled 'An act referring to the court of claims the claims for property seized by General Johnston on the Utah expedition for examination and report,' which enacts 'that the claims of Joseph C. Irwin and Company, and C. A. Perry and Company, freighters, for property claimed to have been taken and impressed into the service of the United States in the year 1857, by orders of Colonel Albert Sidney Johnston, in command of the Utah expedition, as well as for property alleged to have been sold to the government, be, and the same are hereby, referred, with all the papers relating thereto, to the court of claims for adjudication, according to law, on the proofs heretofore presented, and such other proofs as may be adduced, and report the same to congress.' In pursuance of this act the parties named therein filed their respective petitions in the court of claims, stating the grounds and particulars of their demands for judgment. Judgments were rendered therein in the ordinary form in the case of J. C. Irwin & Co. for the recovery of the sum of $21,600, and in the case of Charles A. Perry & Co. for the sum of $44,025. From these judgments the United States prosecutes the present appeals. The facts in the two cases, as found by the court of claims, are substantially the same. The firm of J. C. Irwin & Co., at the time of the occurrences hereinafter set forth, were engaged in freighting across the plains by means of wagon trains, and in June, 1857, were under contract to transport from Atchison, Kan., to Salt Lake City, 75 wagon loads of merchandise, and late in the summer of that year started their trains on that journey. Charles A. Perry & Co., in August, 1857, were doing a general merchandise business at Salt Lake City, and in that month started three ox trains, two of 20 wagons each, and one of 18 wagons, with five wagons drawn by mules, from Fort Leavenworth, Kan., to Salt Lake City. All the trains of both parties reached Rocky Ridge early in October, 1857, and were progressing successfully on their journey. The animals were in good condition, and making from 18 to 20 miles per day. At this point they were met by United States troops, under command of Lieut. Col. Smith, who ordered the trains to proceed no further without his permission. Lieutenant Colonel Smith was under command of Colonel Albert Sidney Johnston. The latter, on joining the command, issued an order addressed to the parties in interest, as follows: 'HEADQUARTERS ARMY OF UTAH, SOUTH PASS, October 19, 1857. SIR: The colonel commanding directs me to inform you, in reply to your letter of to-day, that no goods or supplies of any kind will be permitted to pass this army for Salt Lake City, or other points occupied by the Mormons, so long as they maintain a hostile attitude to the government of the United States.' On the 24th of October an order was issued prescribing the order of the march, and designating the position to be maintained on the march and in the camp by the plaintiffs' trains. Plaintiffs did not seek or desire military protection, and requested Col. Johnston to be allowed to proceed on their journey, as they were not, in their opinion, in danger from the Mormons. This request was denied. Plaintiffs were required to have their teams yoked and ready by 10 in the morning, and they often had to stand for two hours in consequence of delay in the general movement. The teams always got into camp late, and consequently were grazed at great disadvantage. They were also limited to a defined and restricted space assigned them, and were not permitted by the military authorities to go beyond this space. The animals belonging to the army arrived first at camp, and were posted on the best grass. As a necessary result freighters' teams were insufficiently fed. Plaintiffs' animals were often used to aid in hauling the government trains, and thus did extra work on insufficient food. The orders requiring plaintiffs' trains to move with the army column necessarily impeded their progress, and held them back until the bad weather set in. For these reasons the plaintiffs' stock became greatly reduced in flesh, and many died from overwork and starvation. Plaintiffs' trains were loaded with goods and merchandise, notoriously intended for trade with the Mormon inhabitants of the territory of Utah, who were then in avowed rebellion and in threatened war with the government of the United States, but plaintiffs were ignorant of this state of affairs upon starting, and until arrival at Rocky Ridge. It is also found by the court of claims that R. H. and James Porter were also freighters like the plaintiffs, and were detained at the same time under substantially the same circumstances as those already set forth. An act for their relief, passed February 18, 1887, (24 St. 248,) appropriated the sum of $10,000, less the sum of $750 theretofore paid them 'in full for all claims for damages or compensation for property impressed by order of Colonel Johnston, in command of the United States troops en route for Utah in 1857.'

Two questions were presented on the part of the United States on the trial of the cases in the court of claims, and are renewed in argument here. They are: First, that the act of congress of July 8, 1886, referring these claims to the court of claims does not authorize a final judgment against the United States, but only such findings as, being reported to congress, shall serve as the basis in its discretion for future legislative action; and, second, that, supposing the judgments of the court of claims under the act to be final, they are erroneous, because founded on allowances for consequential damages to the property of the plaintiffs, by reason of detention and delay, not within the limitation prescribed by the act of congress, which authorized judgment only for property taken and impressed into the service of the United States. In support of the first proposition it is argued by the attorney general that the direction contained in the act addressed to the court of claims to 'report the same to congress,' taken in connection with the title, which describes it as 'An act referring to the court of claims the claims for property seized by General Johnston on the Utah expedition for examination and report,' sufficiently indicates the intention of congress that the conclusions of the court of claims should not be final, but subject to...