
    RUSSELL’S CASE. JOHN H. Russell v. The United States.
    
      On the Proofs.
    
    
      In August, 1863, a steamboat at St. Louis is impressed into the military service^ laden with government freight and dispatched to New Orleans. There she-talces on a cargo of private freight and returns to St. Louis, where she is again-seized, laden with military stores, and dispatched to New Orleans. Being overladen she grounds, and the owner is compelled topay for assistance in getting her afloat. Upon each seizure the boat remains in possession of the owner-, the ci-ew are retained, and the running expenses defrayed by him. She is also« 
      paid by the quartermaster on account of her services. But the quartermaster refuses to pay for the lighterage of the steamer.
    
    .it. Where a quartermaster impresses a steamboat to carry freight, and she does so remaining in the custody of her ovrner, he manning, coaling, and paying all her expenses, the quartermaster paying in part for her services and releasing her so soon as the exigency is passed, it is not an appropriation of property by the army engaged in the suppression of the rebellion within the meauing of the Act' 4ih July, 1864, (13 Stat. L., p. 381,) and the Court of Claims has jurisdiction of an action to recover the value of the steamboat’s services.
    II. Where a boat, impressed into the military service, grounds, by reason of being overladen by a qnartermaster, the defendants are liable for the lighterage paid by the owner in getting her afloat.
    III. The government is an insurer of a steamboat impressed into its military service by operation of the Acts 3d March,,-1849, (9 Stat. L., p. 414,) and 3d March, 1863, (13 id., p. 743.) Hence, in the assessment of damages for her service, a deduction should be made from ordinary rates.
    
      Messrs. Gooley & Glarlce and Mr. John J. Weed for the claimant:
    This suit is instituted in this court by original petition, and the claimant seeks to recover by it the sum of one hundred and eleven tlwtisand eight hundred and fifty-nine dollars and tlvirty-three cents.
    
    The claim is made up of several items of charge, which may be briefly stated as follows :
    1st. The value of the use of the steamboats J. H. Russell, Liberty, and Time and Tide, while used and employed by the United States, as stated in the claimant’s petition.
    2d. The expenses of said boats, paid by the claimant, while in the service of the United States.
    3d. The damage to said boats while used and employed b3r the United States.
    First: As to the claim for the use of the steamer J. H. Russell.
    1st. As to the service.
    
    The witness states the time that this vessel was in the service of the United States at eighty-one days.
    2d. As to the value of the use of the steamer.
    
    Upon this question the evidence is conclusive.
    3d. As to the injury and damage to this■ vessel tohile in the ser vice of the government.
    
    The evidence adduced in support of this branch of the claimant's case justifies tbe following statement of wliat tbe claimant ought to recover on account of this steamer:
    Value of use of tbe boat 81 days, at $750 per day, (less amount paid, being $5,094 G7).. $55, G55 33
    Damages to boat in consequence of overloading, taking tbe average of tbe estimate of tbe witnesses, Burke and Everett. 14,000 00
    Amount paid steamer David Tatum for helping steamer off said sand-bar, when overloaded- 2,700 00
    Total. 72,355 33
    If, however, tbe court should decide that it cannot pay tbe claimant tbe value of tbe service of bis steamer, but can pay him tbe actual disbursements made by him while said steamer was in tbe service of tbe government, then tbe claim, so far as it relates to this steamer, would stand as follows:
    Amount of running expenses of said steamer paid by claimant, 81 days, at $493 per day, tbe average of estimate of all the witnesses.. $34, 838 33
    Damage resulting from-overloading. 14,000 00
    AmountpaidsteamerDavidTatumasabovestated. 2, 700 00
    51,538 33
    Second : As to tbe claim for tbe use of tbe steamer Liberty.
    We ascertain from this evidence that tbe claimant is entitled to recover, on account of tbe third and fourth specifications of bis petition, as follows :
    Value of use of said steamer 26 days, from September 2,1864, at $500 per day. $13,000
    Value of use of said steamer from February 11,1865, to July 1G, 1865, at $150 per day. 23,100
    36,100
    Deduct amount paid, to wit: $1,800 and $20,120. 21,920
    14,180
    4,000 Damage to steamer by overloading
    18,180-
    
      If the court should only allow the expenses of this steamer paid by the claimant, and the balance due on her last service, and her damage by overloading, then the account would stand thus:
    Amount paid for expenses of steamer, 26 days, at |350 per day...’-• $9,100
    Balance deducted from second term of service, $65 per day for 76 days. 4,940
    Damage by overloading. 4,000
    18, 040
    Deduct amount paid on first service. 1, 800
    16,240
    Third: As to the claim for the use of the steamer Time and Tide.
    The claimant should recover the amount remaining unpaid on account of the service of this steamer. That amount the evidence shows is as follows:
    Amount due for 60 days’ service, at $175 per day.... $10, 500
    Deduct amount paid.. 3,000
    Balance due. •.. 7,500
    Fourth: As to the loj'alty of the claimant.
    The claimant’s loyalty to the United States during the late rebellion cannot be called in question.
    The legal questions which this record suggests are not numerous. The first and most important of these is that of jurisdiction.
    
    It was claimed by the United States, when this cause was heard upon demurrer, that the jurisdiction of this court to hear and determine this cause was taken away by the act of Congress approved July 4, 1864; so much of that act as affects this question is as follows:
    
      “ 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, appropriation of, or damage■ to, property T)y 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.”
    
    This case presents no question of “ destruction” or “damage” to property within the meaning of this act.
    There was a clear and distinct undertaking to pay. It is true that neither the time nor rate of service was agreed upon, but yet the officer took this steamer into the service with the understanding and agreement expressed that her owner should be paid what her services were worth — “fully indemnified” was the language of the officer who caused her to be used in the service of the government. These steamers were taken at a time of great public exigency, when a compliance with the law in regard to previous advertisement, and the making of formal written contracts, was, in the nature of things, inexpedient, if not impossible. There is another fact applicable to this case, which must have much force in determining the question as to whether the taking of these steamers was an .exercise by the ■officers taking them of the-right to take private property for public use, and that is, that the officers who were charged with the duty of obtaining these steamers made partial payments on account of the services rendered by them respectively. There were none of these but what were partially paid for the services rendered by them. If there was no agreement to pay by the officer engaging their services then why recognize the obligation of payment 1 If they were taken in the exercise of the unquestioned right of eminent domain, or public necessity, then why not hand the claimant over to the sovereign, to Congress or the courts for an adjudication of his claim1? This agreement to pay and subsequent payment in part are most significant indications that the officer did not assume to exercise the right to “ appropriate ” the property of this claimant in a constitutional sense.
    This court has well said in the case of Bogart vs. The United States, (2 O. Cl’s R., 159,) that the taking of private property under the right of eminent domain is the last means for acquiring property to be exercised by a sovereign or to be resorted to by a-court.”
    
    
      We submit, therefore, upon this question of jurisdiction, so far as it may affect this case, the following conclusions:
    I.1st. That there was no such appropriation of the claimant7» property as will exclude his case from the jurisdiction of this court, under the act of July 4, 1864.
    2d. That the court will presume, in the absence of evidence to the contrary, that the steamers of the claimant were in the service of the United States under an agreement to pay what they were reasonably worth, rather than that the officer took them in the exercise of the constitutional right to take private property for public use.
    3d. That the court will not presume the existence of such a public necessity or exigency as authorized the officer to appropriate the property of the claimant to the public use. The existence of such necessity must be established by evidence.
    4th. That even if there was no formal written contract for the use of the claimant’s steamers by-the United States, yet, if the claimant assented to such use, and they were used in pursuance of such assent, then the claimant is entitled to receive therefor such sum as their services are reasonably worth, and for a claim growing out of service so rendered this court has jurisdiction.
    5th. That by the act of February 9,1867, the Court of Claims has jurisdiction of the claims of the citizen for appropriation of. property where the claim for such appropriation did not originate in a State, or part of a State, declared to be in insurrection, or which, by an ordinance of secession, attempted to with-draw from the Union.
    II. The United States is liable to pay such expense as the claimant paid on account of his steamers while they were in the service of the government.
    It will hardly be insisted that the claimant was required to pay these expenses even if the United States might take his boats without providing compensation for them. The government might seize his boats j they had the power to do that if there was a necessity for it; but they could not rightfully require him to pay the expenses of their service while the government assumed to control them.
    III. The steamers were overloaded, and in consequence of such overloading the claimant was damaged as follows: To the steamer J. II. Bussell, fourteen thousand dollars; to the steamer Liberty, four thousand dollars. The claimant should also recover the amount paid by him to the steamer David, Tatum for assistance rendered while stuck on a sand bar in consequence of being overloaded. The claimant should therefore recover these items, amounting to twenty thousand seven, hundred dollars.
    IY. It may be objected on the part of the United States that the several sums the claimant admits he received on account of the services of his several steamers was a payment in full for such service. The evidence does not support the defence, or sustain this pretence.
    
      The Assistant Attorney General for the defendants:
    It is not deemed necessary to discuss the facts of this case-The statute law excludes all such cases from the jurisdiction of this court. — (Act of July 4, 1864, XIII Stat. at Large, p. 381.. Act of Febniary 19, 1867, XIY Stat. at Large, ¶. 390.)
    
    The learned counsel for the claimant, in discussing the hearing of these statutes upon the case, discuss the question of the claimant’s rights. This question, we apprehend, does not enter into this case. He may have (but we do not admit that he has) a just claim against the government ; but whether he has or not, does not affect the standing of this case in this court. The-court has not jurisdiction of all just claims, or all legal claims, against the United States.
    That the services of all the vessels named in the claimant’s petition were “ appropriated ” by the government, there can be no doubt; the petition itself shows this to have been the case. The claimant alleges over and over again, and makes oath to the fact, that his vessels were “ seized and impressed.” He may, as claimed, have practically remained in possession of the vessels themselves; but he certainly did not remain in possession or enjoyment of their services — and it is for their services that the suit is brought. He entered into no agreement in regard to the vessels. The strong hand of military authority, impelled by military necessity, took, u appropriated,” the services of his-vessels without his assent and against his will.
   Casey, Oh. J.,

delivered the opinion of the court:

The claim set up in this case is founded upon the services of several steamboats owned by the claimant, rendered to the-United States, at tbe times and under the circumstances hereafter detailed.

I. The claimant alleges and proves that he was the owner of the side-wheel steamer J. H. Russell, and that this steamer in the latter part of August, 1863, arrived at St. Louis, Missouri, from New Orleans. She was about to take on a cargo of private freight at rates varying from two dollars to three dollars per hundred-weight, with horses and cattle on foot at from ■forty to fifty dollars per head. Her capacity was about five hundred tons; but before she received her cargo she was seized or impressed into the service of the United States by the military authorities at St. Louis, laden with government freight, and dispatched thence to New Orleans. The government freight was unloaded there, and she took on a cargo of private freight and returned to St. Louis. There she was again seized by the government, laden with military stores and supplies, and once more dispatched to New Orleans. There was a full complement of hands on board the boat at the time she was impressed into the service, and they were retained and paid by the claimant; and the other expenses of the boat were also •defrayed by him while she was performing this government ■service. The boat’s papers appear to have been destroyed with her when she was afterward burned, and the dates of her seizures and 'the exact time of her detention are not very clearly and distinctly made out by the testimony. The petition states she was seized about the 8th of September, and the evidence shows she arrived at New Orleans on her second trip about the 18th or 20th of November. Owing to being very heavily laden, and the low stage of water, and being compelled to carry her fuel with her in two barges, the trips were prolonged to fourteen days in one instance and eighteen in the other. On «one of the trips she was grounded, and the claimant was compelled to pay $2,700 to another boat for assistance in getting her afloat. The claim is made for eighty-one days’ service of this boat, at $750 per day; and also $2,700 paid to the boat David Tatum for assistance and lighterage, as well as $14,000 for damages to the boat while she was in the government service. And he allows a credit of $5,094 67 received from'the quartermaster on account of the services.

We find that this steamer was seized at St. Louis, on the 8th September, 1863, and continued in government service until thé 25tb of the same month, a period of seventeen days; that she was again detained and impressed into the service of the United States on the 2d of October, and so continued until the 20th of November, 1863, a period of fifty days, making together sixty-seven days. During this time she was under steam, or engaged in making the two voyages from St. Louis to New Orleans — on the one trip fourteen, and the other trip eighteen days; or thirty two days in the whole, and detained at the wharves thirty-five days.

We find the expense of the boat as follows:

32 days running, at $400. $12,300 00

35 days at wharves, at $250. 8,750' 00

Paid for lighterage, and to boat D. Tatum. 2,700 00

Expenses for-67 days.■. 23,750 00

For pay of boat, at $150 per day. 10,050 00

33, 800 00

Deduct amount paid. 5, 094 67

28, 705 33

We find also that the steamer Liberty, owned by and belonging to the claimant, with her crew and equipments, was impressed into the government service by the following order:

“ Transportation Department,

St. Louis, Mo., September 2, 1864.

Captain of 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 receiving of freight, should the steamer be so doing.

“ Respectfully,

“ L. S. METCALF,

Captain and A. Q. M.”

Under this order she was loaded with military supplies and dispatched to Duvall’s Bluff, in Arkansas, and up White.River. She was so engaged for twenty-six days, and during which time the expenses of the boat were defrayed and her fuel found' by the claimant.

Tbe expenses and services we find to be as follows :

26 days’ wages of crew, fuel, and general expense ' of boat, at $300 per day. $7,800 00

Compensation for boat, at $100 per day. 2, 600 00

10,400 00

Amount paid by quartermaster. 1,800 00

Balance due. 8,600 00

The same boat was afterward impressed by Colonel Hola-bird, quartermaster United States Army at New Orleans, and detained in government services from the 11th of February, 1865, until the 16th of July, 1865 — a period of 155 days. Dim-ing this time her fuel was furnished and her crew paid by the United States. During this time the claimant 'for the first seventy-eight days was paid at the rate of $150 per day; and for the remaining time at the rate of $85 per day; amounting in the whole to $18,245, or at the rate of about $117 50 per day for the whole time. And which, under all the facts, we consider a fair compensation for the boat, and refuse to allow anything further.

The claimant also claims for the hire of the boat Time and Tide, impressed into the service under the circumstances stated in the following certificate of Colonel Holabird, chief quartermaster at New Orleans:

“ Office Chief Quabtebmasteb,

Depabtmetít oe the Gulf,

“New Orleans, Lotdsiana, Jmie 30,1865.

“ I certify, to the best of my knowledge and belief, that I was in an official position to know the facts of the case in the claim of the Time and Tide, and that the Time and Tide, a stern-wheel steamer, owned by J. BE. Russell, was seized on or about the 21st of March, 1864; relinquished on the 31st of March, and again seized on the 8th of April, by command of Major General Banks, commanding Department of the Gulf, for conveying troops and public stores up Red River.

This boat was not in public service by charter or otherwise when seized, but was owned by a loyal citizen of the United States.

“ The boat was detained and kept in the service of the United States for sixty days, and was paid by the quartermaster at tbe rate of $50 per day. Tbe claimant alleges ber services were worth to tbe United States from $150 to $175 per day, and be •claims to recover tbis difference, together with damages for injuries which tbe boat sustained while in government employ.”

We find that tbe services of tbe boat were worth $117 50 per day.

>60 days, at $117 50 .$7,050 00

Deduct amount paid. 3,000 00

Balance due. 4,050 00

recapitulation.

Amount due from steamers—

J. H. Russell.:.$28, 705 33

Liberty. 8,600 00

Time and Tide. 4,050 00

Amount due. 41,355 33

Tbe only defence set up by tbe Attorney General in tbis case, •on behalf of tbe United States, is tbe act of July 4th, 1864. It is insisted that it was an appropriation by the army of tbe property, within the meaning of tbe first section of tbe act, and therefore excluded from our jurisdiction. But we do not think tbe case falls within tbe letter or spirit of tbe act. That law was intended to embrace all those cases of direct and incidental destruction of, and damage to, property, which are inseparable from tbe operations of large land and naval forces carrying on active hostilities against an enemy, as well as tbe unlicensed predatory acts and pillage of tbe soldiery. Tbe act further excludes from our jurisdiction all authorized cases of seizure and appropriation of property by tbe army and navy engaged in tbe suppression of tbe rebellion. And where competent military or naval- authority has so seized and appropriated property, we have clearly no jmisdiction. Tbe right of tbe government, in times of peril or great public exigencies, to take and apply tbe property of any citizen to secure tbe safety or well-being of tbe government, is not disputed, but admitted to tbe full extent. But under'a just and free government like ours, such a procedure is only resorted to and can only be justified when tbe public necessities are pressing and tbe peril is imminent. And even in all snob cases, tbe obligation of tbe government to make, and tbe citizen to receive, just compensation for tbe property so taken, is complete and perfect. Here tbe services of tbe claimant’s vessels, bis own, and those of tbe crews sailing them, were not seized with a view of appropriating tbe property to tbe United States, within tbe meaning of this act.

Such an appropriation is not to be inferred when tbe facts are capable of a different application and solution, because a just and paternal government never resorts to this extraordinary mode of supplying its wants, except in great exigencies- and when all tbe usual methods have failed, or would be inefficient or unavailing. And because this is so, an arbitrary seizure and appropriation of tbe property of tbe citizens by tbe government will not be presumed, when its acts may reasonably be accounted for by a different conclusion. In tbe casein band there does not appear to have been any intention to-appropriate these boats to tbe United States, or even their services j but to compel tbe captains and crews to perform certain duties and to pay them a reasonable compensation for such services.

This is evidenced by tbe fact that tbe government has from time to time paid to tbe claimant certain sums on account of those services, both while tbe boats were rendering it and since. It is shown further that when such services were no longer-required tbe boats were discharged and delivered up to tbe owner; a proceeding entirely inconsistent with an appropriation of them to tbe United States. (Bogart v. The United States, 2 C. Cls. R., 159 ; Mitchell v. Harmony, 13 How., 115.)

"We think there was no appropriation of this property or services, but such an employment of them in tbe service of the-United States as raises an implied promise to reimburse tbe claimant for tbe money expended for tbe United States, and a fair and reasonable compensation for bis own services and those of bis vessels. .

This compensation we have fixed at tbe lowest points tbe evidence would authorize in each case, according to tbe statements and calculations above set forth.

Among other reasons, we have done so because tbe insurance- and risk of that kind of property is one of tbe matters for which a large compensation is usually allowed But all such property, by the act of Congress, while in the service of the United States, is at their risk. (Acts 3d March, 1849, 9 Stat. L., p. 414, and 3d March, 1863, 12 Stat. L., p. 743.) They are in effect the insurers, and where it perishes while in their employ, without the fault of the owner, they pay the value of :it, as of the time it was taken into the service. And on this .account we have reduced the per diem compensation of the ■boats lower than we would if they had been at the risk of the owner.

And from these facts and circumstances we find there is still due and owing from the United States to the claimant the sum of $41,355 33. And for this sum judgment is to be rendered in his favor.

Boring, J.,

dissenting:

In this case the vessels were impressed into the service of the United States.

Where one person takes from another, against his will, the control of his property and uses it for his own purposes, I think it is an appropriation of it, be it for a shorter or longer time. And I think the taking and use of the claimants property shown here was a taking of private property for public use, and would have entitled the claimant to his constitutional remedy of an indemnity and to judgment here for it, had not the Act ith July, 1864, (13 Stat. L., p. 381,) been passed.

And I understand that act to take away from this court the .jurisdiction of cases growing out of an appropriation by the army of the property of loyal citizens during the rebellion, and •of which we otherwise should have had jurisdiction, and to refer them to other tribunals: to the Quartermaster General for things belonging to his department, and to the Commissary General for things belonging to his department. The matter .here was the transportation of troops and. supplies. This may belong to the Quartermaster General, but I think this court is barred from its cognizance by the act cited above.  