
    GEORGE E. PAYNE v. THE UNITED STATES.
    [No. 10, Congressional.
    Decided March 14, 1887.]
    
      On the defendants’ Motion.
    
    In 1863 a plantation in Louisiana is under the control of the sequestration commission; in 1864 under a special agent of the Treasury; in 1865 under the Freedmen’s Bureau. The claims now set up are, for (1), stores and supplies taken and used hy the Army; (2), sugar from the plantation sold hy the sequestration commission; (3), use and occupation during 1863,1864, and 1865, less amount received by claimant as profits of an abandoned plantation; (4), destruction of buildings, &c., by lessees of the special agent of the Treasury and of the Freedmen’s Bureau.
    I. A claim within the jurisdiction of the Southern Claims Commission, but not presented to it, is barred within the meaning of the Bowman Act (§ 3).
    
      H. This court having had jurisdiction under the Abandoned or Captured Property Act of claims for the products of sequestered plantations sold by the sequestration commission in Louisiana, and of claims for the use and occupation of abandoned plantations by special agents of the Treasury, the same are barred within the meaning of the Bowman Act.
    III. This court is prohibited from entertaining jurisdiction under the Bowman Act of claims for injury to property by the Army or Navy during the war for the suppression of the rebellion.
    IY. This court is without jurisdiction under the Bowman Act of claims for the use and occupation of sequestered plantations in the excepted parishes of Louisiana by the sequestration commission, by special agents of the Treasury, or by the Freedmen’s Bureau, and of claims for damages thereto.
    
      The Reporters’ statment of the case:
    The following are the material allegations of the petition so far as it relates to the question of jurisdiction:
    That on the 5th day of November, 1862, the military lines of the United. States Army were extended so as to include the plantation of your petitioner, and that on the 9th day of November, 1862,' General Butler, then in command of the Department of the Gulf, issued his general order, No. 91, declaring that all property situate within the district to be known as the “District of La Fourche,” comprising all the territory in the State of Louisiana lying west of the Mississippi Elver, except the parishes of Plaquemine, and Jefferson, was sequestered and all transfers thereof were forbidden, and created a military board called the “ sequestration commission,” to take possession of and work plantations.
    That on the 5th day of December, 1862, John S. Woodward was empowered to work the plantation of your petitioner, by order of General Butler, for one-half of the sugar and molasses, for the United States, with authority to keep all other property of your petitioner on his plantation, and to finally turn over the same in as good order and condition as found.
    That there were 450 arpents of very heavy and fully ripe sugar-cane standing in the fields on said plantation at the time of its seizure as aforesaid; that from the said sugar-cane your petitioner could have made, had he been left unmolested by the agent of the defendants, about 500 hogsheads of sugar and 750 barrels of molasses, at a cost of about $3,000; that said sugar and molasses were worth from $45,000 to $48,000; that the said crop of sugar and molasses was worth in the field $30,000; that the said Woodward and his manager, on account of their ignorance of sugar-making, only made about one-third the amount of sugar and molasses which could have been made.
    
      That ill September, 1S63, Colonel Holabird, chief quartermaster of the Department of the Gulf, turned over to the possession and control of B. F. Flanders, supervising special agent of the Treasury Department, your petitioner’s plantation and other property thereon as “ captured and abandoned property”; that the said Flanders, although agent of the Treasury Department, took possession of your petitioner’s property as agent of the military authorities, and prior to the promulgation of general order of the War Department, turning over to the agents of the Treasury Department all abandoned or sequestered property; that the said general order of the War Department was issued on the 9th da.y of October, 1863.
    That the said Flanders and his assistants, in pursuance of said general order, took possession of your petitioner’» plantation and harvested the sugar crop of that year;, that they made 254 hogsheads of sugar and 351 barrels of molasses; that they shipped the said sugar and molasses to New Orleans and sold it for $36,929.46; that the expenses on the same were $3,108.97, netting the sum of $33,820.49, which was turned over to the Treasury of the United States by the said Flanders February 29,1864; that in another statement of the said crop of 1863, made by the said Flanders to the Secretary of the Treasury July 17, 1864, he adds the enormous sum of $16,809.66 as expenses for working.the said plantation, leaving only a net balance to the United States of the sum of $17,010.83, which amount your petitioner received from said Flanders under protest.
    That your petitioner avers that the said charge of $16,-809.66, as expenses for working said crop of 1863, was largely in excess of the amount expended; that he is therefore entitled to the additional sum of $8,809.66 on account of the proceeds of the crop of 1863.
    That on the 23d day of January, 1864, the said Flanders, supervising special agent of the Treasury Department, leased the plantation of your petitioner to one William Spear, of Ohio, for a term expiring January 1, 1865; that the said Spear was not known on said plantation as the lessee; that S. W. Oozzens was the plantation manager of the said Flanders; that he had entire control of said plantation, and he only was known to the employés as the lessee of the plantation; that in the spring of 1864 said lessee plowed up and destroyed nearly all of the ratoon cane in order to plant the ground with cotton; that the destruction of his said seed-cane, dwellings, shops, machinery, stables, fences, and bridges was the most serious damage that could have been done to his said plantation by the United States,' which damage was justly found by competent and experienced sugar planters to amount to the sum of $103,000.
    That at the expiration of the lease of the said Spear, January 1,1865, the said Special Agent Flanders refused to surrender to your petitioner his plantation and the personal property thereon, except upon the condition that he would give a receipt releasing the Government of the United States and all of its officers and agents from any claim he had or might have for damage growing out of the seizure and detention of his said property; that your petitioner declined to give such a receipt, whéreupon said Flanders turned over his plantation and all the personal property thereon to the Bureau of Befugees, Freedmen, and Abandoned Lands; thatthe said Bureau of Befu-gees, Freedmen, and Abandoned Lands retained possession by itself and reuaut until January 1, 1866.
    And your petitioner further prays the court to consider that the United States are bound to account or are indebted to your petitioner for the sum of $132,989.17 for the use and occupation of your petitioner’s property from the 8th day. of December, 18G2, to the 1st day of January, 1866, by the officers and agents of the United States aforesaid not engaged in the operations of any part of the military or naval forces of the United States Army during the'war for the suppression of the rebellion at the seat of war.
    
      Mr. E. M. Watson (with whom was Mr. Assistant Attorney-General Roteará) for the motion.
    
      Mr. T. II. R. McPherson for the claimant opposed. •
    This claim may be classified under three heads:
    I. For stores and supplies.
    II. For damages; being- for the sum of $103,000 for the destruction of his sugar-cane and other property by the United States in the year 1864.
    III. For use and occupation; being for the sum of $120,000, the net profits which the claimant could have made from the sugar crops raised ou his plantation during the years 1863, 1864, 1865, while the same was in possession of the United States, less the sum of $17,010.83, which he has received from the sale of sugar and molasses raised on his plantation by the United States in the year 1863.
    The claimant presented his claim for stores and supplies, use and occupation, and damage to his plantation to the consideration of Congress in the year 1866.
    According to the provisions of the act of March 3,1871, creating the Board of the Commissioners of Claims, it did not give that Commission any higher authority to consider such cases than a subcommittee of Congress. They made their report to the Speaker of the House of Representatives, and the House referred their report to the Committee on War Claims for action and report to the House. The act (16 Stat. L., 524) provides :
    “ Sec. 4. That said Commissioners shall make report of their proceeding's, and of each claim considered by them, at the commencement of each session of Congress, to the Speaker of the House of Representatives, who shall lay the samé before Congress for consideration.”
    This court, speaking through Judge Davis in the Dodd, Case (20 C. Cls. R.), say:
    “The powers of the Commission were not judicial, but advisory to Congress, and exercised in aid of that body; the Board could enter no judgment, and their conclusions were not binding upon the legislative branch of the Government. In legal effect their report was that of a special committee charged with preliminary investigation, the final decision remaining with Congress. * * * The Commissioners had no power of final adjudication.”
    Therefore, that part of this claim for stores and supplies which was not filed before the Southern Claims Commission cannot be barred, because that tribunal — Commission—did not have “final jurisdiction” of this case, which was subject to the final consideration of Congress, and especially as this claim was pending before Congress before, during, and after the dissolution of the said Commission. The statutory bar of the said Claims Commission Acts only applied to claims that were not filed before that Commission; and, furthermore, a reference of this claim by Congress to the Commission would have been a reference by Congress to itself.
    As to use and occupation of the plantation, St. Charles Parish was one of the parishes which came within the exception of the President’s proclamation of August 18, 1861, issued in pursuance of the fifth section of the Act of July 13, 1861, (12 Stat. L., 1262).
    Also, St. Charles Parish was one of the jiarisnes excepted in President Lincoln’s emancipation proclamation, issued January 1,1863 (Stat. L., 1269), as not being in rebellion.
    The situation, then, of St. Charles Parish, after its occupation by the military forces of the United States, was precisely the same as the occupation of the city and parish of New Orleans. (The Venice, 2 Wall., 258; Ouachita Cotton. 6 id., 521; The Planters’ Panic v. Union Banlc, 16 id., 483.)
    
      As the President and the courts agree that St. Charles Parish was national, and not hostile, it must follow that the use, occupation, and damage to the claimant’s plantation in St. Charles Parish by the United States was not the result of the operations of the military forces during the war at the seat of war within the meaning of the third section of the Bowman Act.
    As we have shown that the use and occupation, as well as the damage, to the claimant’s plantation was the result of the peaceful and permanent occupation of the same by military and civil forces of the United States, therefore this court is not prohibited from taking jurisdiction of this case under the third section of the Bowman Act.
    If Congress did not intend to give this court jurisdiction of claims against the United States growing out of the destruction or damage to property or for the use and occupation of real estate in territory that was national, and not hostile, as declared in the third section of the Bowman Act, why would Congress have prohibited this court, in the same section, from taking jurisdiction of cases arising in territory, that was hostile ? There would have been no necessity to forbid this court from taking jurisdiction of cases arising in hostile territory if it was not intended that the court should take jurisdiction of. cases arising in national territory. “ Why build a fence to divide nothing from nothing?” The very fact that this third section prohibits this court from taking jurisdiction of cases arising in hostile territory is an implied recognition of the jurisdiction of this court of cases arising in national, loyal territory.
    We maintain the second provision of the third section of the Bowman Act qualifies the first provision of the same section, it being one compound sentence. This court has also jurisdiction of claims growing out of the destruction or damage to property which was not the result of the operations of the military or naval forces during the said war at the seat of war.
    Now, as we have shown that the destruction or damage to the claimant’s plantation grew out of its use and occupation by the military and civil authorities of the United States under an implied contract, and was not “ incident to the ravages of war,” and was in a territory that was declared national — loyal— by the proclamations of the President and the decisions of the Supreme Court in the cases of The Venice, The Ouachita Cotton, and Planters’ Bank v. Union Bank, supra,' and as the object and purpose of the destruction or damage to the claimant’s plantation by the United States forces was to work a benefit, and did work a benefit, for the United States, “ from which a contract ought in equity and good conscience to be implied,” this court has jurisdiction of this part of the claim under the third section of the Bowman Act.
   Bichakdson, Ch. J.,

delivered the opinion of the court:

This case was referred to the court by the Committee on Claims of the Senate, January 26,1884, under the provisions, of the Act of March 3,1883, chapter 116 (22 Stat. L., 485).

On a preliminary inquiry the court found the claimant to have been loyal to the Government of the United States throughout the war.

The case was tried December 26, 1886, on a motion to dismiss for want of jurisdiction, by Edward M. Watson, esq., of the Attorney-General’s office, for the defendants,' and by T. H. N. McPherson, esq., for the claimant.

It appears by the petition that the following claims are presented :

1. For personal property, stores, and supplies taken from his plantation in St. Charles Parish, La., in 1862, and used by the Army of the United States. This claim was never presented to the Southern Claims Commission, which had jurisdiction of the same, and is therefore barred by the express provisions of the act creating that Commission. (Act of March 3, ch. 116, § 4,16 Stat. L., 525, and Act of March 3,1873, ch. 236,17 id., 577.)

2. Yalue of sugar-cane grown on said plantation in 1862, when the plantation was seized by the Army of the United States for its use, and said cane manufactured and sold by the sequestration commission appointed by General Butler in November, 1862.

3. For use and occupation of said plantation in 1863, 1864, and 1865, by a special agent of the Treasury Department, less amount received by claimant from said special agent on account of crop harvested.

Of these two claims (second and third) the Court of Claims-had jurisdictioh, in whole or in part, under the Captured and Abandoned Property Act, and those of which it had such jurisdiction are barred thereby, and those not so barred, if any, are for damage to property by the Army, and this court is excluded from jurisdiction by the section of the statute hereinafter cited. •(Minor’s Case, 6 C. Cls. R., 393; Terry’s Case, 8 id., 277; Moore’s Case, 10 id., 375.)

4. For damages by the destruction of seed-cane, buildings, &c., on said plantation in the years 1863,1864, and 1865.

By the following section-of the Act of 1883 (the Bowman Act) the court has no jurisdiction of these claims:

“Sec. 3. The jurisdiction of said court shall not extend or include any claim against the United States growing out of the destruction or damage to property by the Army or Navy during the war for the suppression of the rebellion, or for the use and occupation of real estate by any post 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. Nor shall the said court have jurisdiction of any claim against the United States which is now barred by virtue of the provisions of any law of the United States.”

The whole case is dismissed for want of jurisdiction, and the clerk will certify a copy of this opinion to the Committee on War Claims of the House of [Representatives.

Nott, J.:

As regards the principal claim in this case, I am of the opinion that this court never could have entertained jurisdiction of it, and consequently that it is not barred by the Abandoned or Captured Property Act; for the case is almost identical with that of Pugh (5 C. Cls. R., 113; 7 id., 284; 13 Wall., 633), concerning which this court held that the petition contained simply “ the elements of a declaration in trespass, quareclausum fregit — an entry violent, illegal, forcible by the defendants; ” and the Supreme Court that the action was really based “ on the unlawful appropriation and spoliation of the plantation.”

In other words, the gravamen of both cases is trespass, and the injuries set up are incident to the trespass, and the acts complained of are the alleged torts, negligences, mistakes, and illegal proceedings of public agents. Of such cases the court has no jurisdiction under any statute.

The forcible entry complained of in this case was by military authority, and of such cases the court is expressly prohibited from exercising jurisdiction by the third section of the Bowman Act. The only liability -which ever arose on the part of the United States was for moneys received as profits of the plantation ; those moneys have been paid over to the claimant, and his only legal claim was satisfied thereby and extinguished.  