
    HENRY KETTLER v. THE UNITED STATES.
    [No. 14299.
    Decided March 1, 1886.]
    
      On the Proofs.
    
    In September, 1864, General Rosecrans calls out the militia of Missouri to repel the invasion of General Price. By his order an officer of the militia orders two steamboats to be taken charge of by a provost-marshal, and placed under the immediate direction of a person designated by him, the officer. The owners do not object, and the captains and crews remain on board fulfilling their usual duties, paid and subsisted by the owners. The use of the boats is a military necessity. They are thus in the service of the Government for some days.
    I. Where no appropriation of a vessel is intended, but a military necessity for instant use compels an officer to order her into service, the owners assenting and their captian and crew (paid and victualed by them) navigating her, there is no appropriation of property within the meaning of the AotitTi July, 1864 (13 Stat. L., 381), and no impressment within the meaning of the Joint Resolution 23d December, 1869 (16 id., 368), but an implied contract whereof the court has jurisdiction.
    II. Where private property was taken under military necessity by an officer in the State militia, but by order of a United States officer for Federal purposes, and the expenses of the militia were ultimately paid by the General Government, it must be“held]that the property was taken for public use and that an obligation therefor exists on the“part of the United States.
    
      The Reporters’ statement of the case:
    The following are the material facts of the case as found by the court:
    I. The following order was issued by command of William S. Rosecrans, major-general, U. S. Army, commanding the Department of the Missouri:
    
      “ [General Orders, No. 176.]
    “ Headquarters Department of the Missouri,
    “ Saint Louis, Mo., September 26, 1864.
    “ Missourians :
    “ 1. * * * After'two years of barbarous and harassing war, in which every citizen, directly or indirectly, suffered loss of property and many of life, you are now invaded by Price and the recreant Missourians, who, in defiance of professed principles, have been the chief cause of your sufferings and loss. They bring with them men from other States to plunder, murder, and destroy you for adhering to the Government of your interests and your choice. Prepare for them the reception they deserve. Make this raid fatal to the enemy, and you will insure peace. Let them succeed, and you almost ruin /our State.
    “ 5. * * # The governor of the State has been informed of the threatened raid and requested to call the militia to serve until the invaders are destroyed or driven from the State. I rely upon their courage and patriotism, and have only to say, let your assembling be prompt, and let the commissioned officers see that proper steps are at once taken to secure for their commands all needful supplies of arms, equipments, ammunition, camp and garrison equipage, and blankets.”
    The following orders were also issued by said Major-General Posecrans:
    “[Special Orders, No. 270.]
    “ Headquarters Department op the Missouri,
    < “ Saint Louis, Mo., September 29, 1864.
    #•######
    “11. The 54th and 55th Regiments E. M. M. haver'been consolidated and called into active service. Ool. Daniel >3. Gale is charged with their organization into a regiment] he will also call out all able-bodied arms-beariug men of Franklin County between the ages of eighteen and forty-five.
    “ 13. Col. Gale will make requisitions on the chief com’s’y of subsistence and on Brig. Gen. E. A. More, quartermaster-general of Mo., for arms, ammunition, clothing, camp and garrison equipage.”
    III. In accordance with the foregoing orders, Daniel S. Gale took command of the Fifty-fourth and Fifty-fifth Regiments Enrolled Missouri Militia, which entered into active service. Colonel Gale and said regiments were subsisted, armed, and clothed by the United States, and were paid by the State of Missouri, which has been reimbursed therefor by the United States. By order of General Rosecrans, said Colonel Gale ordered the claimant’s steamboats, Bright Star and Wide Awake, then at Washington, Mo., to be taken charge of by a provost-marshal appointed by him, and to be placed under the immediate direction of a person selected by said colonel. This was done, without objection on the part of the owners, and for some days the person so selected remained in general charge of the boats, and during the remainder of the period covered by the claim they were under the immediate direction of Colonel Cale. The captains and crews of the boats remained on board, fulfilling their usual duties, and were paid and subsisted by the owners of the boats. Colonel Gale’s action in taking charge of the boats was intended to save United States property, including' stores issued to him under pai’agraph 13, General Orders, 270, set forth in finding i, to move troops to prevent the invading forces from crossing the Missouri River; they were used primarily in furtherance of this intention; afterwards one was sent to Saint Louis with property of the United States and for provisions which it brought back, while the other boat, loaded with Government and State stores, was kept with steam up at Saint Charles for safety. Wheu the boats were taken charge of as aforesaid one was being used as a ferry-boat at Washington, Mo., and the other was “coasting” on the Missouri River. In this service, under Colonel Gale’s orders, the boats were employed ten days, and Colonel Gale’s action in the matter was an imperative military necessity.
    
      Mr. William B. King for the claimant.
    
      Mr. Lewis Corhran for the defendants.
   Dayis, J.,

delivered the opinion of the court:

Wheu General Price invaded Missouri in the autumn of 1864, General Rosecrans, commanding the United States forces in that State, called out the enrolled militia, an organization existing under State authority, and directed Colonel Gale, of the Fiity-fourth Militia Regiment, to take command of that and the Fifty-fifth Regiment, and to summon for duty all able-bodied arms-bearing men in Franklin County' between the ages of eighteen and forty-five years. Acting upon information given him by' General Rosecrans and by his orders, Colonel Gale immediately took charge of two steamers belonging to claimant, then at Washington, Mo., and used them during ten days for the transportation of troops and the removal of property, including munitions of war, and the safe and papers of the United States internal-revenue collector. Payment for the use of these boats is pray ed in this action.

It is contended by the defendants that “there was an appropriation of the steamboats mentioned, or of their services, within the meaning of the first section of the Act 4th July, 1864 (13 Stat. L., 381), or, if not an appropriation, that there was an impressment of the boats within the meaning of the Joint Resolution 23d December, 1869 (16 Stat. L., 368),” and that this court is without jurisdiction in the premises. We are referred to the case of Kimball, reported in 13 Wallace (p. 636), as supporting this view, while the claimant relies upon the case of Bussell in the same volume (p. 623).

In Kimball’s Case the vessel was under contract to carry a cargo to Port Koyal. Upon her arrival there she was ordered to Key West; the master protested, at first refused to go, and was told that if he did not comply with the order he would be taken out of the vessel and another master sent in command ; he requested delay, which was refused, and he was finally forced to put to sea-. In complying with these peremptory orders his vessel struck on the bar and was seriously damaged.

In Bussell’s Case the owners were notified that imperative military necessity required the services of the steamers; that the receipt of freight should be stopped, and the captain should report to the quartermaster. The steamers were equipped, victualed, and manned by the owners, to whom they were returned after the services for which they were required had been performed. The seizure being justified by military necessity, the court held that the facts showed not an appropriation by the authorities, but rather such use of the steamboats as raised an implied promise on the part of the United States to reimburse the owners for the services rendered and the expenses incurred.

In the case at bar Colonel Gale does not seem to have intended an appropriation of the boats. The pressing military necessity caused by the approach of Price’s troops forced him to remove his command, together with Government and State property, with the utmost dispatch. These boats being-available, he took charge of them for that purpose, without objection on the part of the owners, and after the service for which they were needed had been performed, they were returned to the owner’s exclusive control. During this service the captains and crews of the boats remained at their posts as usual and were paid and subsisted by the owners.

An imperative necessity for the instant use of the boats existed ; the services required for the public good were willingly performed at the expense of the claimant. We therefore conclude that the facts bring this case within the principle announced in that of Eussell, and that the one party did not intend nor did the other believe there was such a seizure of the vessels as amounted to an appropriation of them by the United States.

The “ 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.” [Russell v. The United States, 13 Wall., 629.)

It is further objected that the service performed was not for the United States. The findings show that while Colonel Gale was a militia officer, he was at the time in question acting under the direction of General Eosecrans. That what he did was by order of a United States officer for Federal and not for State purposes, and that the entire expense of calling out these troops was ultimately paid by the United States. The property transported was military stores, issued by the chief commissary of subsistence of the United States in Missouri, and the boats also transported Government property saved from the office of the internal-revenue collector. Under all these circumstances we are of the opinion that the boats were used for the United States, “ under the emergency of the public service in time of war,” in such manner as to create “an obligation on the part of the Government to reimburse the owners to the full value of the service.” Judgment for claimant in the sum of $1,000.  