The Court of Claims had no jurisdiction over this case, as the
claim of the defendant in error is a "War Claim," growing out of
the appropriation of property by the army while engaged in the
suppression of the rebellion.
This appeal brings up for review a judgment in favor of the
Winchester & Potomac Railroad Company, for the sum of $30,340,
the value of certain iron rails removed in 1862 from the track of
that railroad by the military authorities of the United States.
It seems necessary to a clear understanding of the questions
presented that the history of this claim and the circumstances
attending its prosecution against the United States should be fully
stated.
In 1862, and for many years prior thereto, the appellee, a
corporation of Virginia, owned and operated the railroad extending
from Harper's Ferry to Winchester, in the State of Virginia. Its
capital stock was largely owned by citizens of loyal states.
In March of that year, the military authorities of the United
States took possession of the road, which at the time was operated
by the company for the use and benefit of the Confederate States,
in the transportation of troops, munitions of war, and other
subjects under a contract made September 11, 1861, between an
officer of the Confederate States Army and the president of the
railroad company.
Page 163 U. S. 245
The possession of the United States covered substantially the
whole time from March, 1862, to the 20th day of January, 1866, and
during that period the government had the exclusive use of the road
for military purposes, receiving all tolls and revenues, and
applying the same to its benefit.
The United States, while in possession, repaired the road, and
removed from it a quantity of strap rails, and substituted T rails,
taken by it from the Manassas Gap Railroad Company. These T rails
were upon the Winchester and Potomac Railroad up to the time
possession was surrendered by the United States, in 1866. The strap
rails or iron so removed from the Winchester and Potomac Railroad
were stored at Alexandria, Virginia.
The United States has never paid or accounted to the claimant
for the revenues of its road which it collected and appropriated,
nor for the rails so removed.
Immediately upon the restoration of the roads of the above
companies to their respective owners, the Manassas Gap Railroad
Company brought suit against the Winchester and Potomac Railroad
Company for the iron taken from its own road, and put upon the
latter road, or its value, and obtained judgment, which was
compromised in 1873 or 1874 by the payment by the Winchester and
Potomac Railroad Company of $25,000.
The circumstances under which the appellee's road was
surrendered by the United States are fully disclosed in the
findings below, and, so far as pertinent to the present inquiry,
may be thus summarized:
On the 19th day of May, 1865, the Quartermaster General
submitted to the Secretary of War a scheme for the disposition of
the railroads in the states then lately in rebellion. That scheme
was as follows:
"1. The United States will, as soon as it can dispense with the
military occupation and control of any road of which the
Quartermaster's Department is now in charge, turn it over to the
parties asking to receive it who may appear to have the best claim,
and be able to operate it in such manner as to secure the speedy
movement of all military stores and troops;
Page 163 U. S. 246
the Quartermaster General, upon the advice of the military
commander of the department, to determine when this can be done,
subject to the approval of the Secretary of War. 2. No charge to be
made against the railroad for expense of material or expense of
operation. 3. All materials for permanent way used in the repair
and construction of the road, and all damaged material of this
class which may be left along its route, having been thrown there
during the operation of destruction or repair, to be considered as
part of the road, and given up with it. 4. No payment or credit to
be given to the railroad for its occupation or use by the United
States during the continuance of the military necessity which
compelled the United States to take possession of it by capture
from the public enemy. The recovery of the road from the public
enemy, and its return to loyal owners, and the vast expenditure of
defense and repair, are full equivalent, and more than an
equivalent, for its use. 5. All movable property, including rolling
stock of all kinds, the property of the United States, to be sold
at auction, after full public notice, to the highest bidder. 6. All
rolling stock and material, the property before the war of
railroads, and captured by the forces of the United States, to be
placed at the disposal of the roads which originally owned it, and
to be given up to these roads as soon as it can be spared, and they
appear by proper agents authorized to receive it. 7. When a state
has a board of public works able and willing to take charge of its
railroads, the railroads in the possession of the Quartermaster's
Department to be given up to this board of public works, leaving it
to the state authorities and the judicial tribunals to regulate all
questions of property between said boards, agents, or stockholders.
8. Roads not being operated by the United States Quartermaster's
Department not to be interfered with unless under military
necessity; such roads to be left in possession of such persons as
may now have possession, subject only to the removal of every
agent, director, President, superintendent, or operator who has not
taken the oath of allegiance to the United States, which rule
should be rigidly enforced. 9. When the superintendents in actual
possession decline to take
Page 163 U. S. 247
such oath, some competent person to be appointed as receiver of
the railroad, who shall administer the affairs of the road and
account for its receipts to the board of directors, who may be
formally recognized as the legal and loyal board of managers, this
receiver to be appointed, as in the case of other abandoned
property, by the Treasury Department. . . ."
The Secretary of War approved that scheme, and the Quartermaster
General was directed to turn over the roads.
Certain regulations were established by the War Department and
promulgated August 8, 1865, and October 14, 1865, for the guidance
of the military authorities in relinquishing the control of
railroads in the occupancy of the United States.
In reply to an oral application made November 16, 1865, by the
Winchester and Potomac Railroad Company to have its road restored
upon the terms accorded to other companies, the matter was referred
by the Secretary of War to the Quartermaster General for such
arrangement and recommendation as he deemed proper. The
Quartermaster General recommended that the application be granted,
and the officer in charge of military roads was directed to
surrender possession,
"all rolling stock and railroad materials upon that road which
the company may not elect to purchase to be sold, as soon as
preparation can be made, at public auction."
This order not having been immediately executed, the president
of the Winchester and Potomac Railroad Company, December 5, 1865,
made a request in writing that his company's road be delivered up
to its board of directors. Thereupon, on the 15th of December,
1865, an order for the surrender of the road was issued. That order
was executed by the delivering the road, on the 16th day of
January, 1866, to the Baltimore and Ohio Railroad Company, as
lessees of the Winchester and Potomac Railroad Company.
The facts in relation to the disposition of the iron removed by
the military authorities of the United States from the Winchester
and Potomac Railroad, and stored at Alexandria, are as follows:
On the same day on which the president of the Winchester
Page 163 U. S. 248
and Potomac Railroad Company made verbal application for the
restoration of the road to his company, he addressed to the
director and general manager of military railroads a communication
in which he said:
"We are informed that a quantity of the iron from our road-flat
or strap bar-is now in possession of your department at Alexandria,
Virginia, which we are anxious to recover, as we hope the road is
about to be returned to the company. We respectfully request that
the fact may be inquired into, and, if proper, an order made to
return the said iron to my order as president of the company."
No answer was returned to this application, nor were any
affidavits or other proof of the ownership or value of the iron
mentioned, nor of any of the other facts therein alleged, offered
to or filed in any executive department, prior to May 11, 1885, on
which day the Baltimore and Ohio Railroad Company made a written
application to which reference will be presently made. But at or
about the date of the above communication of November 16, 1865, the
president of the Winchester and Potomac Railroad Company made an
application to the Quartermaster General for this iron.
A large quantity of iron, stored at Alexandria and in the
possession of the United States and aggregating more than
$2,000,000 in value, was sold at public auction on December 13,
1865. The iron taken in 1862 from the appellee's road was part of
the iron so disposed of. It sold for $30,340, and was paid for
January 9, 1866, the proceeds being used, through the War
Department, for the benefit of the United States.
On the second day of December, 1875, the president of the
Baltimore and Ohio Railroad Company addressed to the Quartermaster
General a communication, saying:
"Subsequent to the termination of the late war, the United
States military railroad authorities sold a quantity of old rails
in Alexandria, Virginia, which had been taken from the line of the
Winchester and Potomac Railroad. I have the honor to request that
you will furnish me with the dates the said rails were sold, the
quantity sold, the price per ton, the amount realized from the sale
of the rails taken from the line of the Winchester and Potomac
Railroad, and the disposition made by the U.S.M.R. R'd
Page 163 U. S. 249
managers of the proceeds. You will further oblige me by stating
the date on which the Winchester and Potomac Railroad was
surrendered by the War Department to its owners."
The Quartermaster General replied, under date of December 11,
1875, giving him exact information touching all the matters about
which inquiry was made.
Nothing seems to have been done by the claimant, or by anyone in
its name, until May 11, 1885, when the Baltimore and Ohio Railroad
Company, by its president, made to the Quartermaster General a
written application or claim for the proceeds of the sale of said
iron, as follows:
"
The United States to the Baltimore and Ohio Railroad
Company, Lessee of the Winchester and Potomac Railroad Company,
Dr."
"For 507 tons 1,940 pounds (2,240 pounds to the ton) of iron
rails appertaining to the Winchester and Potomac Railroad Company,
and the property of that company, which once formed a part of the
superstructure of that road by the United States authorities, and
was subsequently sent to Alexandria, Virginia, and sold at auction
by the United States Military Railroad Department in December,
1865, for the sum of $30,340."
This application was forwarded to the Secretary of War, and was
by him returned to the Quartermaster General. The latter officer
made an elaborate report, under date of December 7, 1885, in which,
among other things, he said:
"The only reason which can be given for the failure of the
company to secure possession of its old iron is the fact that the
company was not in condition to receive it before its sale. If the
transfer of the road to the Winchester and Potomac Railroad Company
had been authorized and effected before the sale of the iron, it is
believed that the company would have been permitted to take
possession of it. A denial of this privilege or right would have
involved an unjust discrimination by the government between the
treatment of this company and that of all other companies whose
roads were used for military purposes during the war, and would
have been a marked departure from the policy and practice of the
government towards such companies upon the restoration of their
roads. . . .
Page 163 U. S. 250
But it is not believed to be in the power of the executive
department to afford relief at this time without the intervention
of Congress. . . . It is therefore respectfully recommended, if
this report be approved, that this claim, with the papers
accompanying it, be referred to the third auditor for adjudication
by the accounting officers of the Treasury, with recommendation for
such action as the law and facts of the case require."
The Secretary of War approved this report, and
"the accompanying papers in the claim of the Baltimore and Ohio
Railroad Company for the proceeds of railroad iron, stated by the
company at $30,340,"
were
"referred (through the office of the Quartermaster General) to
the third auditor of the Treasury, for settlement from the
appropriation 'transportation of the army and its supplies,' the
amount found due to be reported to Congress for appropriation."
On the 4th day of March, 1887, the third auditor reported
against the claim, but without expressing an opinion on its merits
if such claim should ever be presented by the Winchester and
Potomac Railroad Company.
Thereupon the Winchester and Potomac Railroad Company was
substituted as claimant in interest in place of the Baltimore and
Ohio Railroad Company, its lessee, claiming on its behalf.
On the 18th day of April, 1887, the third auditor again
recommended the disallowance of the claim, and certified the matter
to the Second Comptroller of the Treasury.
The Second Comptroller, March 9, 1889, sent the claim, with
accompanying papers, to the Secretary of the Treasury, as one
involving disputed facts and controverted questions of law, with a
recommendation that the case, vouchers, etc., be transmitted to the
Court of Claims for trial and adjudication. The Secretary, March
12, 1889, sent the claim, with the papers, to the Court of Claims,
under § 1063 of the Revised Statutes, for trial and adjudication,
expressing, however, doubt whether the department had jurisdiction
of it, but submitting that question to that court for its
determination.
Page 163 U. S. 251
MR. JUSTICE HARLAN, after stating the case as above, delivered
the opinion of the Court.
The United States contends that the claim in question is not one
of which the Court of Claims could take cognizance for purposes of
final adjudication, that the case is not one of implied contract,
and that the government is protected from any judgment against it
by the statutory limitation of six years. The first of these
questions does not seem to have been raised in the court below.
The Act of February 24, 1855, c. 122, by which the Court of
Claims was constituted, gave it jurisdiction to hear and determine
all claims against the United States
"founded upon
Page 163 U. S. 252
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."
10 Stat. 612. But by a subsequent act, passed July 4, 1864, c.
240, it was declared
"that the jurisdiction of the Court of Claims 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."
13 Stat. 381.
By the Act of February 21, 1867, c. 57, it was provided that the
act of 1864 should
"not be construed to authorize the settlement of any claim for
supplies or stores taken or furnished for the use of, or used by
the armies of the United States, nor for the occupation of, or
injury to, real estate, nor for the consumption, appropriation or
destruction of, or damage to, personal property, by the military
authorities or troops of the United States where such claim
originated during the war for the suppression of the Southern
rebellion in a state or part of a state declared in
insurrection."
14 Stat. 397.
The Revised Statutes omitted the provisions of the acts of 1864
and 1867. Whether that omission was intentional or not we need not
inquire, for by the Act of February 18, 1875, c. 80, which was
passed to correct errors and supply omissions in the Revised
Statutes, section 1059, enumerating the matters or cases of which
the Court of Claims could take cognizance, was amended by adding to
its fourth paragraph the following additional proviso:
"
Provided also that the jurisdiction of the Court of
Claims shall not extend to any claim against the United States
growing out of the destruction or appropriation of or damage to
property by the army or navy engaged in the suppression of the
Rebellion."
18 Stat. 318.
The Tucker Act, of March 3, 1887, c. 859, expressly withholds
from the Court of Claims and from the district and circuit courts
of the United States "jurisdiction to hear and determine claims
growing out of the late civil war and commonly known as
War
Claims.�" 24 Stat. 505.
Page 163 U. S.
253
It thus appears that at the time the appellee, by its president,
made application to the military authorities to have its road, as
well as the iron rails in question, restored to its possession, the
Court of Claims was without authority to adjudicate any claim
against the United States "growing out of" the destruction or
"appropriation" of or damage to property by the army or navy
engaged in the suppression of the Rebellion; further, that at the
time the appellee's claim was transmitted by the Secretary of the
Treasury to the Court of Claims for adjudication, that court was
without jurisdiction to hear and determine claims "growing out of
the late Civil War, and commonly known as
War Claims.�" Of
course, the "War Claims" to which the act of 1887 referred included
those described in the previous acts as claims growing out of the
destruction or appropriation or damage to property by the army or
navy engaged in the suppression of the Rebellion.
Is the claim of the appellee a "War Claim" within the meaning of
the act of 1887? Light will be thrown upon this question by the
decisions construing the act of 1864, which excluded from the
jurisdiction of the Court of Claims any claim "growing out of" the
destruction or "appropriation" of property by the army or navy
engaged in the suppression of the Rebellion.
In
Filor v. United
States, 9 Wall. 45,
75 U. S. 48-49,
it appeared that a certain wharf and its appurtenances at Key West,
Florida, were in the use and occupation of the United States during
the Civil War under an agreement as to rental between an acting
assistant quartermaster stationed at that place and the owner of
the property, but the agreement was not approved by the
Quartermaster General. This Court said:
"No lease of the premises for the use of the Quartermaster's
Department or any branch of it could be binding upon the government
until approved by the Quartermaster General. Until such approval,
the action of the officers at Key West was as ineffectual to fix
any liability upon the government as if they had been entirely
disconnected from the public service. The agreement or lease was,
so far as the government is concerned, the work of strangers. The
obligation
Page 163 U. S. 254
of the government for the use of the property is exactly what it
would have been if the possession had been taken and held without
the existence of the agreement. Any obligation of that character
cannot be considered by the Court of Claims."
Referring to the provisions of the above Act of July 4, 1864,
the court proceeded:
"The premises of the petitioners were thus appropriated by a
portion of the army. It matters not that the petitioners, supposing
that the officers at Key West could bind the government to pay a
stipulated rent for the premises, consented to such appropriation.
The manner of the appropriation, whether made by force or upon the
consent of the owner, does not affect the question of jurisdiction.
The consideration of any claim, whatever its character, growing out
of such appropriation is excluded. The term 'appropriation' is of
the broadest import. It includes all taking and use of property by
the army and navy in the course of the war not authorized by
contract with the government. . . . If the petitioners are entitled
to compensation for the use of the property, they must seek it from
Congress."
The case of
United States v.
Russell, 13 Wall. 623.
80 U. S. 632,
was somewhat different in its facts. That was a suit to recover for
the use of certain steamboats used in the public service by the
military authorities at St. Louis, Missouri, in 1863. It appeared
from the findings of the Court of Claims that the military officers
did not intend to "appropriate" the steamboats to the United
States, nor even their services, although they did intend to compel
the masters and crews, with the steamers, to perform the services
needed, and that the United States should pay a reasonable
compensation for such services; that such was the understanding of
the owner, and that the steamers, as soon as the services for which
they were required had been performed, were returned to the
exclusive possession and control of the owner. The steamers were
equipped, victualed, and manned by the owner, and he, or persons by
him appointed, continued in their command throughout the entire
period of the service. "He yielded at once," this Court said,
"to the military order, and entered into the service of
Page 163 U. S. 255
the government, and the court here fully concur with the Court
of Claims that there was not such an appropriation of the
steamboats or of the services of the masters and crews as
prohibited the court below from taking jurisdiction of the case. On
the contrary, the Court is of the opinion that the findings of the
Court of Claims show that the employment and use of the steamboats
were such as raise an implied promise on the part of the United
States to reimburse the owner for the services rendered and the
expenses incurred, as allowed by the Court of Claims. Valuable
services, it is conceded, were rendered by the appellee, and it is
not pretended that the amount allowed is excessive. Neither of the
steamers was destroyed, nor is anything claimed as damages, and
inasmuch as the findings show that an appropriation of the steamers
was not intended and that both parties understood that a reasonable
compensation for the services was to be paid by the United States,
the Court is of the opinion that the objection to the jurisdiction
of the Court of Claims cannot be sustained, as the claim is not for
'the destruction or appropriation of or damage to property by the
army or navy engaged in the suppression of the Rebellion.�"
Another case is that of
Pugh v. United
States, 13 Wall. 633,
80 U. S.
634-635. In the petition in that case, the claimant
averred
"that the United States, during the late Civil War, illegally,
violently, and forcibly took possession of his plantation in the
State of Louisiana on the false pretext that it had been abandoned
by the owner, and held it until January, 1866, during which time
the United States and the agents placed in charge of the plantation
destroyed and carried away the property of the petitioner, to the
value of $42,508, and that the United States, during the same
period, rented the plantation to sundry persons, who made large
crops, worth $15,000 or $30,000."
Chief Justice Chase, speaking for the Court, said:
"The destruction of the property complained of was during the
war, and in one of the states engaged in the Rebellion, and the
presumption, in the absence of inconsistent allegations, is that it
was by the military forces of the United States. It is clear that a
petition for compensation for injuries of this character
Page 163 U. S. 256
could not be sustained in the Court of Claims, for the demand
plainly grows 'out of the destruction or appropriation of or damage
to property by the army or navy engaged in the suppression of the
Rebellion,' and is excluded from the cognizance of that court by
the express terms of the Act of July 4, 1864. . . . It is plain,
therefore, that the petition does not state a case within the
jurisdiction of the Court of Claims. If the petitioner has any
claim upon the government, he must seek relief from Congress."
The present case in controlled by the decisions in
Filor v.
United States and
Pugh v. United States. It is not a
case, like that of
United States v. Russell, of the use of
property under a valid implied agreement that the owner should be
compensated, but is one of the actual appropriation by the military
authorities of the United States, engaged in the suppression of the
Rebellion, of property which, at the time of such appropriation,
was being employed by the Confederate government in hostility to
the Union. The transaction had no element of contract, but was
wholly military in character. In
Russell's Case, the owner
of the property acquiesced in its use by the government, and there
was such an understanding between the government and himself as
made it, in the opinion of this Court, the duty of the former,
under the Constitution, to make just compensation to the latter. In
the case now before us, the road and its appurtenances were seized
without regard to the assent of the owner and without any
understanding that compensation was to be made. Indeed, it would
not have been competent for the military authorities of the United
States to have bound the government to make compensation to the
appellee for the use or for the return of property which, when
seized, was being actively employed, under a contract with its
owner, to advance the cause of the Rebellion. If the appellee's
road and the iron upon it were not, under the circumstances which
attended their seizure, "appropriated" by the military authorities
engaged in the suppression of the Rebellion, it is difficult to
conceive of a case of an appropriation of property within the
meaning of the acts of 1864 and 1875. The road and its
appurtenances having
Page 163 U. S. 257
been thus seized and appropriated for military purposes during
the war, what was done by the military authorities of the United
States is to be regarded as an act of war, and the claim of the
appellee for the proceeds of the property appropriated must be
deemed a "War Claim" within the meaning of the act of 1887, and
therefore expressly excluded from the jurisdiction of the Court of
Claims at the time it was transmitted to that court for
adjudication. Jurisdiction could not attach by reason simply of the
claim's having been certified to that court by an executive
department under section 1063 as one involving controverted
questions of fact and law, for in
United States v. New
York, 160 U. S. 598,
160 U. S. 615,
the various statutes relating to the jurisdiction of the Court of
Claims were examined and it was held, upon full consideration, that
notwithstanding the passage of the Bowman and Tucker Acts, a claim
described in section 1063 of the Revised Statutes could be
transmitted to the Court of Claims for "final adjudication,"
provided
"such claim be not barred by limitation, and be one of which, by
reason of its subject matter and character, that court could take
judicial cognizance at the voluntary suit of the claimant."
The appellee insists that its claim is not a "War Claim," but is
one founded upon contract made after the civil war ended. But in
whatever light the matter be viewed, and even if it were held that
the military authorities of the United States, after actual
hostilities ceased, agreed to return the iron in question to the
appellee, its claim is one "growing out of" the appropriation of
property by the army engaged in the suppression of the Rebellion,
and therefore a "War Claim," within the meaning of the above Act of
March 3, 1887. It could not be divested of that character by
anything done or omitted to be done by any officer or department of
the government. After the suppression of the Rebellion, the
military authorities had no such relations to property appropriated
by them during the war as enabled them, by contract or otherwise,
to turn a claim growing out of such appropriation into a claim
based upon contract, and thereby give to the Court of Claims a
jurisdiction denied to it by Congress. We do not
Page 163 U. S. 258
mean to say that this claim might not have been allowed by the
proper executive department and paid out of moneys at its disposal
for such purposes. No such question is now presented, and we
therefore express no opinion upon it. We adjudge nothing more than
that the Court of Claims could not take judicial cognizance of this
claim, because it was and is a "War Claim" -- that is, one growing
out of the appropriation of property by the army while engaged in
the suppression of the Rebellion, and not one arising upon a valid
contract, express or implied, made when such appropriation
occurred.
These views render it unnecessary to consider any other question
in the case, and require a reversal of the judgment.
The judgment is reversed, and the cause remanded, with
directions to dismiss the action for want of jurisdiction in the
Court of Claims.
MR. JUSTICE SHIRAS dissents.
