
    ARTHUR Z. BLANCHARD, Administrator, v. THE UNITED STATES.
    [Congressional, 5072.
    Decided June 14, 1897.]
    
      On the defendants’ Motion.
    
    The suit is for the use and occupation of a building in Thibodaux— one of the excepted parishes in the Emancipation Proclamation. The whole question relating to the term “seat of war” in the Bowman Act and the jurisdiction of the conrt in such cases is reargued by counsel and reexamined by the court.
    I.The decisions in JSefelbower and Neal (21 C. Cls. R., 228,240) did not determine any legal right; they related merely to jurisdiction, and left Congress free to grant or refuse relief as might seem best in the exercise of the legislative discretion.
    II.Congress having accepted the decisions of the court, and having for many years acted on its reports in such cases, the question should not be reopened. A refusal to hear such cases now would be an interference with an established legislative policy declared in repeated instances and by successive Congresses.
    III.The Emancipation Proclamation has been regarded as decisive as to what was and was not deemed the “seat of war” by the President, because it was a military measure — an exercise of the war power against private property. After the proclamation the war existed in Tennessee and the excepted parishes of Louisiana as it did in Pennsylvania and Ohio, but not to the extent of requiring a forfeiture of private property such as might be enforced within the seat of war.
    
      IV. The Proclamation 2d April, 1S6S (13 Stat. L.; 730), did not affect the military status of any part of the country. It was simply a modification and extension of the previous proclamation regulating trade and commercial intercourse between the North and the South.
    V. A question whether the excepted parishes of Louisiana, like Tennessee, were not within the seat of war after the Emancipation Proclamation has been settled conclusively by legislative action.
    
      The Reporters' statement of the ease:
    In this case the question was raised by the Attorney-General whether the excepted parishes in Louisiana were or were not within the “seat of war” within the intent and meaning of the Bowman Act. The court also directed argument to be had on the effect, if any, of the proclamation of April 2,1863, in which the President does not declare an exception in favor of Tennessee or the excepted parishes in Louisiana and declares that the States of Tennessee, Louisiana, etc., are in a state of insurrection.
    
      Mr. Charles G. Binney (with whom was Mr. Assistant Attorney-General Dodge) for the motion:
    The proclamation of April 29,1865 (13 Stats., 776), removed commercial restrictions in “ so much of Louisiana as lies east of the Mississippi Elver as shall be embraced within the lines of national military occupation.”' These restrictions were not removed in Lafourche Parish, which lies west of the Mississippi) and hence Lafourche Parish was even more clearly the seat of war at that time than was Tennessee, where the restrictions were, by the same proclamation, removed.
    Although the proclamation of June 24,1865 (13 Stats., 769), removed most of the commercial restrictions in the States and parts of States west of the Mississippi (the latter expression including Lafourche Parish), the transportation, on private account, of “ arms, ammunition, all articles from which ammunition is made, gray uniforms, and gray cloth” continued to be forbidden there.
    The citizens of all Louisiana having been treated both by Congress and the President as in a condition of rebellion for some time after the use and occupation of the building concerned in the present case began, and those of Lafourche Parish in particular having then been under commercial restrictions, and later, even after they had been removed in other parts of tbe State, the condition of that parish was certainly not its normal condition, and it may fairly be held to have been the seat of war. If Tennessee was the seat of war after January 1, 1863, a fortiori was this the case with Lafourche Parish, since commercial restrictions, imposed in consequence o£ its being in a state of hostility, were continued later than in Tennessee, and the loyal citizens of Lafourche Parish were never granted the right to present claims to the Quartermaster-General and Commissary-General, as was done in the case of Tennessee.
    
      Mr. John G. Chaney and Mr. 0. IP. Dorsey opposed.
    The Executive proclamation of January .1, 1863, was a war measure, pure and simple.
    In that proclamation President Lincoln declared what territory in the United States was insurrectionary, the people in which, as a body politic, had rebelled against the legally constituted authorities of the Government of the United States.
    The fact that he named the States and parts of States in rebellion excluded all States and parts of States not mentioned as in rebellion from the insurrectionary class, by the well known rule of law — expressio uníus reí est exclusio alterius.
    That proclamation excluded, by express mention, the parish of La Fourche, in the State of Louisiana, where Blanchard lived, and excluded the State of Tennessee, where Heath resided, by not naming it as insurrectionary.
    The Bowman Act provides for the consideration of claims to pay for the use and occupation of real estate unless the real estate lay “ in the operation of the military and naval forces at the seat of war.”
    The question what was the “ seat of war” was fully discussed and examined by the court in the case of Hefelbower (210. Cls., 228), and the court there practically decided that the President fixed the seat of war within the insurrectionary districts mentioned in the emancipation proclamation.
    That decision of the court must stand unless the internal commerce proclamation of April 2,1863 (13 Stat. L., 730), extended the insurrectionary territory. The last-named proclamation referred solely to commerce between the North and South. There was nothing military in it. It left the military status undisturbed, and only sought to aid the Secretary of the Treasury in collecting revenues.
    
      The Secretary of War was not consulted, advised, or directed. His operations were in nowise affected thereby.
    There is a wide difference in the purpose of the two proclamations. The one was a war measure, intended to guide and control the military operations of the Government; the other a commercial matter, intended to aid the collection of the revenues of the Government. The latter proclamation could not therefore have extended the war limits.
    The question of the seat of war having been heretofore “fully discussed and examined” by the court, and its decision rendered therein after “full discussion and examination,” locating the seat of war within the insurrectionary district named in the emancipation proclamation, it is respectfully submitted that it should not again be reopened.
    Stare decisis, et non quieta movere, Congress has acted affirmatively on the court’s decision, by appropriating money to pay allowances made in the findings of the court. It is now too late to reopen the question. There must be an end of the controversy. It should be the policy of this court, as it is the policy of courts generally, to refuse to consider again that which has been fully considered and disposed of deliberately. If this is not done, every new philosopher of the law will exploit his theories until the court will be unable to set at rest any question which has at any time received its consideration and action.
   Nott, Ch. J.,

delivered the opinion of the court:

The recent elaborate arguments in this court, in this and other cases, on the interpretation to be given to the term “the seat of war” in the Bowman Act, has raised no point and presented no question which was not presented and considered eleven years ago, when the cases of Hefelbower and Neal (21 C. Cls. R., pp. 228-240) were before the court.

Those cases, moreover, were decided after the court had heard a number of counsel interested in other cases upon that question, and the subject was carefully considered, and the court reached its final conclusion after unusual deliberation. The decisions were then certified to Congress, where the question involved was again the subject of consideration both in committees and in each of the Houses of Congress. By Congress the conclusions of the court were deliberately, and with substantial unanimity, affirmed. The construction given to the statute in those cases did not determine any legal right j. it related merely to the jurisdiction of the comt; and the decisions left Congress absolutely free to grant or refuse relief as might seem best in the exercise of the legislative discretion. Nevertheless, Congress, in the exercise of that discretion, proceeded to give relief in this class of cases, and in no instance during these eleven years has it been withheld. The court, therefore, does not feel at liberty to reopen the question; for, in the first place, it would be an overthrow of the restful principle of stare decisis, which should govern courts; and, in the second place, if the court should refuse to hear such cases now, it Avould be an interference with an established legislative policy, as declared in repeated instances and by successive Congresses.

Two questions, however, are before the court, which were not determined in the cases of Hefelbower and Neal, and those we will now consider.

This term, “the seat of war,” at first seems simplicity itself. But the moment we pass to the practical application of it — to the varied military and political conditions of thecountryduring the civil war — the novel term becomes one of many perplexities. ■Moreover, it is coupled with another ambiguous term, “the operations ” of the military forces. The language of the statute imports that the jurisdiction of the court shall not extend to two classes of claims; to claims “growing out of the destruction or damage to property by the Army or Navy during the war for the suppression of the rebellion,” to claims “for the use and occupation of real estate by any part of the military or naval forces of the United States in the operations of said forces during the said war at the seat of war.” What were “the operations” intended? When a surgeon procured a commodious and well-ventilated building as a hospital for the sick, was that an “operation” by a “part of the military forces of the United States” within the intent of the statute? When a commissary procured a well-watered farm as a grazing ground for a herd of cattle which he had bought, was that an “operation” by a part of the military forces? And, with this term “ the operations” of the military forces so uncertain and undefined, what does the other term “the seat of war7? mean? It .can not mean the scene of the actual conflict of armies, the. place where a battle was fought, or where the occupation of the military forces was an inevitable incident to military movements, for that was provided for by the other provision — the one withholding jurisdiction of claims “growing out of the destruction or damage to property by the Army or' Navy.” It can not mean the ordinary occupation of property for governmental purposes, for its immediate context restricts the restriction to cases where the use and occupation was that of the military or naval forces “ in the operation of said forces.” It can not mean the whole territory of the seceded States, for every statute and proclamation had designated them as “ States in insurrection;” and it was manifest on the face of the Bowman Act that it did contemplate a use and occupation of real property as a subject of jurisdiction within the insurrectionary States, and even within the seat of war, provided the use and occupancy were not by the military and naval forces “in the operations of said forces.” In a word, it is manifest that the “seat of war” was something less than the territory of the seceded States.

When we turn to the military and political history of the civil Avar, the reason for the use of this restricted term of the statute becomes apparent. From the first there were parts of the seceded States which were never declared to be in insurrection. At different times and in various ways the exceptional character of these parts of the country was recognized, sometimes by the Executive, sometimes by Congress, sometimes by both. (See Hefelbower Case (supra), where the statutes and proclamations and the action of the Executive and Congress are set forth.) The recognition varied, and the political character of the excepted territory was so mingled with the changing circumstances of the war that it can not be uniformly defined; but the manifest purpose of both the Executive and Congress was to relieve the unfortunate inhabitants of the excepted districts, so far as that could be done consistently with a vigorous prosecution of the war, from the sufferings and penalties and forfeitures of war.

First of these excepted parts of the insurrectionary States were the thirty-nine counties which subsequently became, with some others, the State of West Virginia; next in importance, if not in time, was the State of Tennessee. Both were placed by Congress, in the matter of private property taken for military use, in the class of States which had never been in insurrection — that is to say, the citizens of both might present their claims to the Quartermaster-General for jiayment under the provisions of the Act 4th July, 1864 (13 Stat. L., 381), precisely as the citizens might do of those States which had never been declared in insurrection.

For the reasons given in the Hefelbower Case the court deemed the question as to what was and what was not the seat of war a matter which must have been determined by the President, and not an issue to be tried in every case and determined by the judiciary. The reason why the court took the Emancipation Proclamation as decisive was because that proclamation was confessedly a military measure — au exercise of the war power. Moreover, it was an exercise of the war power directed against private property. By it the President in effect declared that the war was still flagrant in the insurrec-tionary States, with the exception of Tennessee and parts of Virginia and Louisiana. In the excepted States and parts of States the war existed as it did in Pennsylvania and Maryland and Ohio, but it did not exist to the extent of requiring a forfeiture of private property pursuant to the terms of the prior proclamation, September 22,1862. Battles might be fought in Tennessee as in Pennsylvania, and troops might be needed to protect New Orleans as they were needed to protect the city of Washington, but the seat of war, so far as it affected private property, had receded to the insurrectionary States and parts of States on which the war measure of the Emancipation Proclamation fell.

Out of abundant caution the court has desired arguments on the effect, if any, of the proclamation of April 2,1863 (13 Stat. L., 730), in which the President declares no exception in favor of Tennessee or in favor of the parishes in Louisiana, but revokes the exceptions in a former proclamation (the first under the nonintercourse act) and declares that the inhabitants of the States of Tennessee, Louisiana, Virginia, and the others, except the 48 counties of Virginia designated as West Virginia, and the ports of New Orleans, Key West, Port Boyal and Beaufort, N. C., are in a state of insurrection, and that all commercial intercourse, unless licensed and conducted as provided in said act, shall be unlawful. The court is of the opinion that this proclamation did not affect the military status of any part of tbe country and that it was not intended to, but that it was simply a modification and extension of the previous proclamation regulating trade and commercial intercourse between the North and South. The strictly commercial character of this proclamation seems to be unquestionable when the fact is noted that it allows unrestricted commercial intercourse with “ the ports ” of Key West, Port Boyal, and Beaufort. They were situated in States which had been declared in insurrection, and they had not been excepted from the operation of the Emancipation Proclamation; but they were marts of commerce with which unrestricted trade and intercourse might be allowed, though their legal status was that of enemy’s territory held by military force.

Though no formal decision set forth in an opinion of the court has been made relative to other territory than that of the State of Tennessee, there have been a number of cases acted upon and reported to Congress, in all of which the seat of war has been treated as hereinbefore indicated and in all of which Congress has acted affirmatively and favorably upon the reported cases. We therefore regard the question as having been settled as conclusively by legislative action as if the excepted parts of Virginia and Louisiana had been the subject of an express decision in the reported cases.

The petition of the claimant in this case sets up in effect two causes of action — one for the use and occupation of the premises 11 from September 1,1864, to May 27,1865, as a storehouse the other, for its destruction “by fire.” The petition also 'alleges that “the troops occupying and destroying said property were those under General Weitzel.” If the destruction by fire was accidental, the court is aware of no rule of law in Louisiana which would hold the tenant responsible for the loss in the absence of an express covenant to restore the same; if the destruction was by the troops, as the allegation quoted states it to have been, the court is inhibited from exercising jurisdiction by the express terms of the Bowman Act.

The order of the court is that the motion of the defendants to dismiss for want of jurisdiction be overruled.  