A statute entitled "An act referring to the Court or Claims,"
etc., "for examination and report," and enacting that
"the claims be, and the same are hereby, referred 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"
confers upon that court full jurisdiction to proceed to final
judgment, as in the exercise of its ordinary jurisdiction.
A statute conferring upon the Court of Claims power to consider
and render judgment for claims
"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"
does not authorize that court to consider and give judgment for
losses consequent upon the refusal of Colonel Johnston to permit
the trains of the claimant to proceed upon their journey, arising
from the mere detention and delay occasioned thereby.
It appearing from the findings of the court below that
"plaintiff's animals were often used to aid in hauling government
trains, and thus did extra work on insufficient food," and this
being a possible ground for recovery to some extent for property
taken and impressed into the service of the United States, and it
not appearing in the findings what amount is properly allowable
therefor, the case is remanded for further proofs and findings in
that respect.
Page 127 U. S. 126
These were appeals from judgments rendered against the United
States in the Court of Claims. The case is stated in the
opinion.
MR. JUSTICE MATTHEWS delivered the opinion of the Court.
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 and Company
for the recovery of the sum of $21,600, and in the case of Charles
A. Perry and Company 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 and Company, 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
Page 127 U. S. 127
transport from Atchison, Kansas, to Salt Lake City 75 wagonloads
of merchandise, and late in the summer of that year started their
trains on that journey. Charles A. Perry and Company, 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, Kansas, 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 Lieutenant
Colonel 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 today, 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 Colonel
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 ten 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
Page 127 U. S. 128
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 Stat. 900,
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 1st, 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 2d, 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
Page 127 U. S. 129
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 revision at the discretion of Congress. But in our opinion the
controlling words of the act are those which declare that the
claims of the parties are thereby referred to the Court of Claims
"for adjudication according to law." The force of this phrase
cannot be satisfied by anything less than a formal, regular, and
final judgment of the judicial tribunal to which the matter is
submitted, acting upon the acknowledged principles of law
applicable to the circumstances of the case. All such judgments
were required by existing law to be reported to Congress, and the
addition of words to the same effect in this statute, while being
perhaps unnecessary, does not change the character of the judgments
to be reported.
On the second question, however, we are of the opinion that the
Court of Claims has erred. The reference made by the statute is
limited by its express language to a judgment
"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."
Of course, there would be no doubt as to the legality of so much
of the claims as arise upon sales proven to have been made by the
plaintiffs to the government of their property for its use, but in
point of fact no such sales are found to have been made. So far as
the judgments embrace allowances for losses consequent upon the
refusal of Colonel Johnston to permit the plaintiffs' trains to
proceed upon their journey, arising from the mere detention and
delay
Page 127 U. S. 130
occasioned thereby, they go beyond the intention of the act of
Congress. It was the clear dictate of military duty on the part of
Colonel Johnston to prevent information and supplies from going
forward to the public enemy. To effect this, he issued his
order
"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."
There is nothing in the terms of this order to require the
plaintiffs to keep with the troops; they were only forbidden to
pass them in advance. They might have remained at Rocky Ridge, or
they might have retraced their steps and returned. This, perhaps,
would also have involved loss in breaking up their venture, and
perhaps damage to the property constituting the trains, but it
would not have been taking and impressing the property into the
service of the United States. So far as appears from the finding of
the facts, it was the choice of the plaintiffs to remain with
Colonel Johnston's column and proceed with it. In making this
choice, they elected to submit to the necessary military orders
governing the march and the camp, and to any inconveniences and
losses necessarily resulting therefrom. The case in that respect
does not differ from what it would be on the supposition of their
having been ordered and compelled to remain at Rocky Ridge or to
return. Even if it be a just inference of fact that the plaintiffs
were under compulsion in keeping with the column of Colonel
Johnston, it by no means follows from that alone that their
property was taken and impressed into the service of the United
States in the sense of the Act of Congress of July 8, 1886. However
proper it might have been for the legislature to have provided
indemnity for the losses occurring by reason simply of the
detention thus occasioned, we cannot think it was the intention of
the act to go beyond payment for property actually used and
employed by the government in its service. To require the
plaintiffs' trains to remain with the military force in order to
ensure the success of the expedition by preventing the enemy from
obtaining information and supplies cannot be construed as a seizure
and impressment of their property into the public service.
Page 127 U. S. 131
In opposition to this conclusion, we are referred to the opinion
of Mr. Bates, while Attorney General (10 Opinions Attorney General
21), upon the case of the Porters, mentioned in the statement of
facts found by the Court of Claims. It seems their claim was
embraced, with those of the plaintiffs in these cases, in the
original draft of the Act of July 8, 1886, as it passed the Senate,
but before final passage was struck out because their claim was
pending before the Treasury Department. The accounting officers of
the Treasury allowed their claim, presumably upon the strength of
the opinion of the Attorney General, who held that they were
entitled to an allowance and payment under the provisions of the
Act of March 3, 1849, providing for the payment for horses and
other property lost or destroyed in the military service of the
United States. The Attorney General, it is true, expressed the
opinion that the order of Colonel Johnston reduced the train of the
claimants to military control, and thereby subjected it to the
losses proved, for the purpose of depriving the Mormons of any
benefit from it, and was therefore an impressment into the military
service, within the meaning of the Act of March 3, 1849. But it is
evident that he did not rest his recommendation for the payment of
the claimants on that consideration, for the opinion proceeds as
follows:
"But whatever may have been the legal result of the order of
General Johnston, the fact is well proved that the property of the
claimants was afterwards actually reduced to military service. The
loss of the army cattle compelled a resort to those of the trains,
and several witnesses, servants of the government and of the
claimants, state that the cattle of Messrs. Porter were used
indiscriminately with the army cattle to haul the army wagons. In
this service many of them died, and many were abandoned, exhausted
from overwork and want of forage; many were killed and eaten by the
army, and for these I understand the claimants have been already
paid under this law. I am unable to see any distinction between the
cattle that were eaten and those that were worked in the army
trains and lost, for both were certainly impressed within the
meaning of the statute. Nor do I see how any distinction
Page 127 U. S. 132
can be made between the cattle that actually died when in the
army trains and those that may have been lost between South Pass
and Fort Scott, for when they had been once used with the army
cattle to haul the trains, they were actually employed in the
service of the United States, being under military control and
liable to be applied to that work when needed. It is too rigid a
construction to say that 'actual service' means only the time
employed in labor. Possession and the power to use the animal,
Judge Black says in
Oldham's case (Man's Opinions No. 59)
is the test of employment within the meaning of the statute, and
these General Johnston undoubtedly had."
The amount found due to the Porters by the accounting officers
of the Treasury was appropriated by Congress by the Act of February
7, 1887, heretofore referred to. The facts relied upon by the
Attorney General as justifying the payment in their case, of actual
service in the employment of the United States, do not appear in
the present cases.
Neither does the conclusion of the Court of Claims derive
support from anything said or decided by this Court in the case of
Mitchell v.
Harmony, 13 How. 115. There, the plaintiff was
forced against his will to accompany the American troops with his
wagons, mules, and goods in a hazardous expedition, and for the
purpose of strengthening their military force. His wagons and mules
were used in the public service in the battle of Sacramento, and on
the march afterwards. When the place was evacuated, they were left
behind unavoidably, as nearly all of his mules had been lost in the
march and the battle, and when the Mexican authorities regained
possession of the place, his goods were seized and confiscated, and
totally lost to him. The jury found from the evidence that there
was an actual seizure of the plaintiff's property by the officer,
and in speaking to that point, the Court said, p.
54 U. S.
136:
"We do not see any evidence in the record from which the jury
could have found otherwise. From the moment they were taken
possession of at San Elisario, they were under the control of
Colonel Doniphan, and held subject to his order. They were no
longer in the possession or control of the
Page 127 U. S. 133
plaintiff, and the loss which happened was the immediate and
necessary consequence of the coercion which compelled him to
accompany the troops. It is true, the plaintiff remained with his
goods, and took care of them so far as he could during the march,
but whatever he did in that respect was by the orders or permission
of the military authorities. He had no independent control over
them."
As it appears from the findings of the Court of Claims that
"plaintiffs' animals were often used to aid in hauling government
trains, and thus did extra work on insufficient food," there is
perhaps ground for a recovery to some extent under the terms of the
act for property taken and impressed into the service of the United
States; but we are unable from the findings to determine the amount
properly allowable on that account. It becomes necessary,
therefore, to reverse the judgments in both cases and remand them
to the Court of Claims for more definite and specific findings, and
inasmuch as we have determined that the facts as found by the Court
of Claims in the present record do not enable us to determine what
property of the plaintiffs was taken and impressed into the service
of the United States by Colonel Johnston, the cases may be opened
for further proofs on that point.
The judgments are there fore reversed and the causes
remanded to the Court of Claims for further proceedings in
accordance with this opinion.