United States v. Russell

• Citation: 80 U.S. 623,20 L.Ed. 474,13 Wall. 623
• Parties: UNITED STATES v. RUSSELL
• Decision Date: 01 December 1871
• Court: United States Supreme Court

80 U.S. 623

20 L.Ed. 474

13 Wall. 623

UNITED STATES v. RUSSELL.

December Term, 1871

APPEAL from the Court of Claims; the case being thus:

By the act of Congress of 1855,¹ constituting the said court, jurisdiction is given to it to hear and determine all claims against the United States, 'founded on any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the government of the United States.'

A subsequent act, however, the act of July 4th, 1864,² enacts:

'That the jurisdiction of the said court shall not extend to or include any claim against the United States, growing out of the destruction or appropriation of, or damage to property by the army or navy, or any part of the army or navy engaged in the suppression of the rebellion, from the commencement to the close thereof.'

In this state of the court's jurisdiction, one Russell filed a petition in that court for compensation for the seizure and use of three steamers belonging to him, by the military authorities. The first was the steamer J. H. Russell, which was taken by the Assistant Quartermaster of the United States army at St. Louis, on the 2d of October, 1863, under the following letter:-

'CAPTAIN OF THE STEAMER J. H. RUSSELL.

'SIR: Imperative military necessity requires that you make no arrangements for private freight without first consulting this office, and obtaining permission in writing so to do.

'Yours very respectfully,

'CHARLES PARSONS,

'Captain and Assistant Quartermaster.'

The steamer was detained in the service of the United States in pursuance to this order, being used in the transportation of government freight from the 2d of October until the 20th of November, 1863.

The second vessel was the steamer Liberty, taken on the following order:

'TRANSPORTATION DEPARTMENT,

'ST. LOUIS, MO., Sept. 2d, 1864.

'CAPTAIN OF THE STEAMER LIBERTY.

'SIR: Imperative military necessity requires the services of your steamer for a brief period. Your captain will report at this office at once, in person, first stopping the receipt of freight, should the steamer be so doing.

'L. S. METCALF,

'Captain and Assistant Quartermaster.'

In pursuance of this order the seamer was taken into the service of the United States, and was engaged in it for twenty-six days. The steamer was subsequently again taken into the service of the United States at New Orleans, under orders from an assistant quartermaster in the army.

The third steamer was the 'Time and Tide,' which was taken into the service of the United States, in pursuance of a military order issued by an assistant quartermaster in the United States army at New Orleans, on the 21st of March, 1864, and continued in the service of the United States in pursuance of such order for the period of sixty days.

The court found:

'That during the time each of said steamers was in the service of the United States, as hereinbefore stated, they were in command of the claimant, or of some person employed by him, subject to his control and under his pay.

'That in the case of each of these steamers, at the times when the same were respectively taken into the service of the United States, the officers acting for the United States, did not intend to 'appropriate' these steamers to the United States, nor even their services; but they did intend to compel the captains and crews with such steamers to perform the services needed, and to pay a reasonable compensation for such services, and such was the understanding of the claimant; and that each of said steamers, so soon as the services for which they were respectively required had been performed, were returned to the exclusive possession and control of the claimant.'

The court, upon these facts, decided, as a conclusion of law, that there was not such an 'appropriation' of the claimant's property as prohibited the court from taking jurisdiction of the case under the act of July 4th, 1864, but the there was such an employment and use of the claimant's property in the service of the United States as raises an implied promise on the part of the United States to reimburse the claimant for the money expended by him for and on behalf of the United States, and also a fair and reasonable compensation for the services of the claimant and for the services of said steamers.

Judgment was accordingly rendered against the United States for the sum of $41,355, and from that judgment the United States appealed, and assigned as error that, under the already quoted act of July 4th, 1864, the Court of Claims had no jurisdiction of the claim of the appellee against the government.

Mr. B. H. Bristow, Solicitor-General, and Mr. C. H. Hill, Assistant Attorney-General, for the United States, appellant:

The construction put upon the act of July 4th, by this court, in Filor v. United States,³ is decisive of the present question. 'The term 'appropriation," the court there says, 'is of the broadest import; it includes all taking and use of property by the army ar navy, in the cause of the war, not authorized by contract with the government.' That case was a temporary occupation of real property by the Quartermaster's Department, under a lease which was held to be invalid.

Messrs. Weed, Cooley, Clarke, and Corwine, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.⁴

Private property, the Constitution provides, shall not be taken for public use without just compensation, and it is clear that there are few safeguards ordained in the fundamental law against oppression and the exercise of arbitrary power of more ancient origin or of greater value to the citizen, as the provision for compensation, except in certain extreme cases, is a condition precedent annexed to the right of the government to deprive the owner of his property without his consent.⁵ Extraordinary and unforeseen occasions arise, however, beyond all doubt, in cases of extreme necessity in time of war or of immediate and impending public danger, in which private property may be impressed into the public service, or may be seized and appropriated to the public use, or may even be destroyed without the consent of the owner. Unquestionably such extreme cases may arise, as where the property taken is imperatively necessary in time of war to construct defences for the preservation of a military post at the moment of an impending attack by the enemy, or for food or medicine for a sick and famishing army utterly destitute and without other means of such supplies, or to transport troops, munitions of war, or clothing to reinforce or supply an army in a distant field, where the necessity for such reinforcement or supplies is extreme and imperative, to enable those in command of the post to maintain their position or to repel an impending attack, provided it appears that other means of transportation could not be obtained, and that the transports impressed for the purpose were imperatively required for such immediate use. Where such an extraordinary and unforeseen emergency occurs in the public service in time of war no doubt is entertained that the power of the government is ample to supply for the moment the public wants in that way to the extent of the immediate public exigency, but the public danger must be immediate, imminent, and impending, and the emergency in the public service must be extreme and imperative, and such as will not admit of delay or a resort to any other source of supply, and the circumstances must be such as imperatively require the exercise of that extreme power in respect to the particular property so impressed, appropriated, or destroyed. Exigencies of the kind do arise in time of war or impending public danger, but it is the emergency, as was said by a great magistrate, that gives the right, and it is clear that the emergency must be shown to exist before the taking can be justified. Such a justification may be shown, and when shown the...