1. Where the government, in emergencies, takes private property
into its use, a contract to reimburse the owner is implied.
2. The United States having, under a military emergency, during
the rebellion, taken into its service certain already officered and
Page 80 U. S. 624
of a citizen of the United States under circumstances which, on
a petition filed by the owner in the Court of Claims for
remuneration, led the court to find
"that when the same were respectively taken into the service of
the United States, the officers acting for the government did not
intend to 'appropriate'
them, nor even their services, but
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 that such was the understanding of the
and, the property having been returned to the exclusive
possession and control of its owner so soon as the emergency was
that there was no such "appropriation" as
brought the case within the act of July 4, 1864, which enacts
"That the jurisdiction of the Court of Claims shall not extend
to or include any claim against the United States growing out of .
. the appropriation
of property by the army or navy . .
engaged in the suppression of the rebellion."
By the act of Congress of 1855, [Footnote 1
] constituting the said court, jurisdiction is
given to it to hear and determine all claims against the United
"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 4, 1864, [Footnote 2
"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
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:
Page 80 U. S. 625
"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,"
"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
The second vessel was the steamer Liberty,
taken on the
"ST. LOUIS, MO., Sept. 2, 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 steamer 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,
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. "
Page 80 U. S. 626
"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 4, 1864, but that there was such an employment
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 4, 1864, the Court of Claims had no jurisdiction of the claim
of the appellee against the government.
Page 80 U. S. 627
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
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. [Footnote 4
] 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 defenses 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
Page 80 U. S. 628
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 rule is well settled that the officer
taking private property for such a purpose, if the emergency is
fully proved, is not a trespasser, and that the government is bound
to make full compensation to the owner. [Footnote 5
Three steamboats, owned by the appellee, during the rebellion
were employed as transports in the public service for the
respective periods mentioned in the record, without any agreement
fixing the compensation to which the owner should be entitled.
Certain payments for the services were made in each case by the
government to the owner, but he claimed a large sum, and the demand
being refused, he instituted the present suit. Prior to the orders
hereinafter mentioned, the steamboats were employed by the owner in
carrying private freights, and the findings of the court below show
that he quit that employment in each case and went into the public
service in obedience to the military order of an assistant
quartermaster of the army. Reference to one of the orders will be
sufficient, as the others are not
Page 80 U. S. 629
substantially different. Take the second, for example, which
reads as follows, as reported in the transcript:
"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."
Pursuant to that order or one of similar import in substance and
effect, the respective steamboats were impressed into the public
service and employed as transports for carrying government freight
for the several periods of time set forth in the findings of the
court. Throughout the whole time the steamboats were so employed in
the military service, they were in command of the owner as master
or of someone employed by him and under his pay and control, and
the findings of the court show that he manned and victualed the
steamboats and paid all the running expenses during the whole
period they were so employed. Unexplained and uncontradicted, the
findings of the court show a state of facts which plainly lead to
the conclusion that the emergency was such that it justified the
officers in each case in ordering the steamboat into the service of
the United States, as the orders purport to have been issued from
an imperative military necessity, and if so they show beyond all
doubt that the officers who issued them were not trespassers and
that the government of the United States is bound to make full
compensation to the owner for the services rendered.
Such a taking of private property by the government, when the
emergency of the public service in time of war or impending public
danger is too urgent to admit of delay, is everywhere regarded as
justified if the necessity for the use of the property is
imperative and immediate and the danger, as heretofore described,
is impending, and it is equally clear that the taking of such
property under such circumstances creates an obligation on the part
of the government to reimburse the owner to the full value of the
service. Private rights, under such extreme and imperious
circumstances, must give way for the time to the public good, but
the government must make full restitution for the sacrifice.
Page 80 U. S. 630
Beyond doubt, such an obligation raises an implied promise on
the part of the United States to reimburse the owner for the use of
the steamboats and for his own services and expenses, and for the
services of the crews during the period the steamboats were
employed in transporting government freight pursuant to those
orders. Indebitatus assumpsit
is founded upon what the law
terms an implied promise on the part of the defendant to pay what
in good conscience he is bound to pay to the plaintiff, but the law
will not imply a promise to pay unless some duty creates such an
obligation, and it never will sustain any such implication in a
case where the act of payment would be contrary to duty or contrary
to law. [Footnote 6
Tested by those rules, it is quite clear that the obligation in
this case to reimburse the owner of the steamboats was of a
character to raise an implied promise on the part of the United
States to pay a reasonable compensation for the service rendered,
and if so, then it follows that the decree was properly made in
favor of the plaintiff unless it appears that the adjustment of the
claim belonged to Congress or to the executive department, and not
to the Court of Claims.
Jurisdiction is vested in the Court of Claims by the Act of
Congress establishing the court to hear and determine all claims
founded upon 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, which may be suggested to it
by a petition regularly filed in the court. [Footnote 7
] Express authority therefore is given
to the court by that act to hear and determine claims founded upon
a contract with the government of the United States, whether
express or implied. Claims of the kind before the Court would
certainly be within the jurisdiction of that court were it not that
Congress has passed a later act restricting to some extent the
jurisdiction conferred by that provision. By the Act of July 4,
1864, it is provided that the jurisdiction of the Court of Claims
shall not extend to or include
Page 80 U. S. 631
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 thereof to the
close. [Footnote 8
Special reference is made in behalf of the appellants to that
provision, and the argument is that it is decisive to show that the
decree in this case is erroneous. Support to that proposition is
chiefly drawn from the signification attributed to the word
"appropriation" and from certain remarks of this Court in one of
its recent decisions. [Footnote
] Those remarks were made in respect to a claim where a
military order was issued for the seizure of certain real estate
for the purpose of compelling a lease of the premises, and the
findings of the court show that the agreement for the lease was
concluded under the pressure of that order. Apart from that, it
also appeared that the premises belonged to an insurgent in the
rebel army, and the Court of Claims also found that the contract
was void on that account. Applied as those remarks must be to the
case then under consideration, no doubt is entertained that they
were correct, but they cannot be applied to the case before the
Court, as the conclusion to which they would tend would contradict
the finding of the court below in matters of fact, which cannot be
reviewed in this Court.
Briefly stated, the findings of the court in that behalf are as
That the military officers did not intend to appropriate the
steamboats to the United States, nor even their services; that 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, and that such was the
understanding of the owner; 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. They
were equipped, victualed, and manned by the owner,
Page 80 U. S. 632
and he, or persons by him appointed, continued in their command
throughout the entire period of the service. He yielded at once to
the military order and entered into the service of 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, or any part of the army or navy, engaged in the
suppression of the rebellion."
Viewed in that light, the case is free of all difficulty, as the
jurisdiction of the court, by the express words of the act of
Congress, extends to claims founded upon an implied contract as
well as upon that which is express.
Certain other acts of Congress have been passed in respect to
property impressed or employed in the suppression of the rebellion,
but it is not necessary to refer to them, as they have no
application to any question presented in this record.
10 Stat. at Large 612.
This case was decided at the close of the last term, December
Term 1870, No. 220.
2 Kent, 11th ed. 339; 2 Story on the Constitution, 3d ed.
13 How. 134.
2 Black 478.
10 Stat. at Large 612.
13 Stat. at Large 381.
Filor v. United
9 Wall. 48.