
    GUTTMAN AND STUART’S CASE. Adolph Guttman et al., appellant, v. The United States, appellees.
    (6 Court of Claims R., p. III; 18 Wallace R., p. —.)
    
      On the claimants' Appeal.
    
    
      An army transportation contract provides that the claimant shall he “furnished ■with a suitable escort for tlie protection of the supplies,” when they do not exceed 125,000pounds. If more than 125,000 pounds, “no escort shall he furnished.” The claimants bring their action, and after setting up the contract, allege that in July, 1864, a train “ of wagons from Fort Leavenworth to Fort Union, in the vicinity of Cow Creek, Kansas, was attacked ky a hand of hostile Indiaus,” whereby, without fault of the claimant, their oxen employed in moving the train were captured and lost. The petition does not allege whether the train was transporting more or less than 125,000 pounds. 
      
      The court below decides that this omission must be taken against the pleaders, the defendants having demurred. Iudgment on the demurrer for the defendants. The claimants appeal.
    
    I. An allegation in apstitiou that an army transportation train “ was attacked by a band of hostile Indians,” and the claimants’ oxen “ ittere captured by the said band of hostile Indians,” does not entitle a party to relief under the Act 3d March, 1849, (9 Stat. L., p. 415, § 2,) which provides that “ any person who has sustained damage by the capture by an enemy” shall bo paid therefor. The Indian tribes and individuals are subject to the laws of the United States, and it cannot be inferred generally that they constitute a public enemy. The words “ a hostile band ” may imply merely marauders and plunderers, and not a tribe at war with the United States.
    II. The transportation from post to post of military stores remote from the seat of actual war, not forming a portion of an advancing or retreating army, gives to the contractor merely the character of a carrier. He is not in the military service of the United States within the meaning of the Act 3d March, 1849, (9 Stat. L., p. 415, § 2,) which provides that “ any person who has sustained damage by the capture by an enemy of any ox," cfe., “while such property was in the military servios of the United States, either by impressment or contract," $-c., shall be allowed and paid the value thereof attlie time of entering the service.
    III. A provision in an army transportation contract that the contractor shall bo “furnished with a suitable escort for the protection of the supplies," does not entitle the contractor to recover for the loss of his train in a case where no escort was furnisLed.
    
      The Reporters' statement of the case:
    The allegations of the petition, which are the subject of the demurrer, are fully set forth iu the opinion of the court.
    
      Mr. Thomas J. Durant for claimants, appellants:
    The act of Congress, stripped of portions immaterial to this case, reads as follows: “Any person who has sustained damage by the capture by an enemy of any os, &c., while such property was in the military service of the United States, either by im-pressment or contract, * * ■ * an(j any person who has lost or had destroyed by .unavoidable accident any ox,” &c., “while such property was in the service aforesaid, shall be allowed and paid the value thereof at the time he entered the service: Provided1, It shall appear that such loss, capture, abandonment, destruction, or death, was without any fault or negligence on the part of the owner, and while it was actually employed in the service of the United States.” (9 Stat. L., p. 415.) The title of this act is “to provide for the payment of horses and other property lost or destroyed in the military service of the United States.” And by Act of 3d March, 18C3, [12 Stat. L., p. 743,) the provisions of the quoted section were extended to steamboats and other vessels, and railroad engines and cars. Both acts are evidently in pari materia. The Government has endeavored, in its legislation, to remove from its contracts with its own citizens one disorganizing and hazardous element, which, if permitted to continue, would entirely destroy all equality between the contracting parties. Its language is: “Deal with us not at arms’ length, but in entire confidence that against the unknown risks of destruction of your property by the foe wé will fully insure you, provided you submit beforehand the examination, approval, and acceptance of your property to our duly-authorized officers.”
    The meaning of the word “service” is “military duty, by land or sea, as military or naval service.” (Campbell’s Mil. Diet., quoted in Webster, verbo Service.) Every one who employs a common carrier has the carrier in service. It is the well-known contract in law — locatio operis mercium vehenda-rum; and is a branch of the letting out of labor or industry. The United States in this case had the plaintiffs as much in their'employ, by virtue of the contract made part of the petition, as if they had hired them to do work in the office of the Third Auditor of the Treasury Department.
    “Military : Engaged in the service of soldiers or arms.” — Webster. The services are not only “military,” but no army and no arms can be wielded without them. They are indispensably necessary. The things transported are “military stores and supplies.” All service to the Government is divided into military ” and “civil.” And if it be admitted that he was in the service of the United States he could not manifestly have been punished for any crime or misdemeanor under article 2, section 4, of the Constitution; and it is yet clearer that, under a drum-head court-martial, he might be hung or shot in the most summary manner. (Story’s Comm, on Const., §§ 790, 791; see sec. 16, act 17th July, 1862,12 Stat. L., p. 596.) “ But when did he enter the service ? ” The very moment the contract was signed by both parties and the service began; just as in the case of a hired servant. (See 12 Stat. L., pp. 411, 597; Gill v. United States, 7 C. Cls. B., p. 528.) Both the Aets of 3d March, 1849, (9 Stat. L., p. 415,) and 3d March, 1863, (12 Stat. L., p. 743,) entered into and formed a part of plaintiffs’ contract.
    “By the two sections” of the act “it is manifest. that Congress intended to pay for all such property which might be lost or destroyed in the actual service of the United States.” (Poiv-' ell v. United States, 1 C. Ols. R., p. 401.) But the demurrer is sustained on the ground that by the express terms of the tenth article of the contract the risk is to be borne by the claimant. Tour honors will notice that this is the only point really decided by the lower court in this case. (6 O. Cls. R., p. 111.) The language of the tenth article is as follows : “That the said Andrew Stuart shall be furnished with a suitable escort for the protection of the supplies, should he be required to transport in any one train a less quantity than 125,000 pounds; but whenever required to transport 125,000 pounds, or more, then no escort shall be furnished.” The Third Auditor of the Treasury, it will be observed, placed his decision on grounds entirely different from those of-the court. The singularity of the provisions of the tenth article will strike an inquisitive mind at oncé. Why should supplies of a less weight than 125,000 pounds require an escort, whilst more than that weight should require none? The court below thought that this provision was introduced for the protection of the Government; and that in all cases when claimants were required to transport 125,000 pounds, or more, the claimants to ole the risle, (of loss by the enemy,) by the express terms of .the contract as above quoted. An ordinary mind, in striving for the true meaning of the contract, would probably interpret it thus: “ When the wagon-train is transporting less than 125,000 pounds, there will probably be an insufficient number of men attached to the train to protect it from the savages; but where the train is to carry over that weight, there will be an ample quantity of defendants for any reasonable emergency.”
    But it is by no means necessary to resort to interpretation for the true meaning of this contract. The language of it is plain. The escort, in all cases, is “ for the protection of the supplies.” Now, whether the terms of the contract be construed extensively, and thus made to cover the military supplies, with the wagons, harness, cattle, &c., or closely, and confined strictly to the supplies, is immaterial, if the provision was inserted for the protection of the United States. It is altogether a forced and unnatural construction to fasten upon tbe claimants a liability -for an unusual and extraordinary risk for amounts over 125,000 pounds, when for a smaller risk they required an escort. Why they should assume a greater and avoid a smaller risk is unaccountable to us, unless the contract be construed to mean the rislc, inappreciable in money, to life and limb of the transporters, and not the risk to the animals carrying the supplies. No doubt the provisions of the acts (9 Stat. L., p. 415; 12 Stat. L., p. 473) entered into the contract between claimant and the United States, and formed a part thereof; and while this is admitted by all parties, it is contended that the benefit afforded by these acts to this claimant has been renounced by him in this tenth article of his contract. But if this be so, it should not be left to construction, but appear in clear, unmistakable language of the contract.
    Of course, we do not mean to exclude from your cog’nizance that, in point of fact, the supplies on the occasion in question did actually exceed 125,000 pounds. We desire to meet the demurrer in the directest way. The act of March 3, 1849, (9 Stat. L., p. 415, sec. 2,) expressly provides for cases “where the risk to which the property would be exposed was agreed to be incurred by the owner.” In such cases the United States pays no damages. But the act of Congress puts it in the shape of an exception; and exceptions are all strieti juris. To bring the claimant here under the operation of the exception, there should be no doubt about the fact that he actually agreed to talce the rislc; but this, as we have shown, cannot be found in the language of the contract, nor does it necessarily result from the intention of the parties, as the contract stands.
    
      Mr. Assistant Attorney-General Sill for the United States, appellees:
    It is submitted that there are several decisive answers to the claimants’ suit:
    1. The case does not come within the statute, inasmuch as this was not a destruction by an -enemy. From all that appears, the destruction was by a party of mere marauders, who, although sufficient to render the transportation dangerous, and consequently making it proper that provision should be made for an escort, were not, either in a technical or popular sense, enemies of the United States. The peculiar relation of the Indian tribes to the United States has been so often discussed, that it is unnecessary now to enlarge upon it. (See the Gher-olcee Tobacco, 11 Wall., 616, and cases cited on p. 619.) If this statute can be so extended as to cover a party of Indian marauders, it might be so extended as to make the Government insurers against all seizures by marauders or highwaymen of wagons belonging to contractors transporting supplies to the western forts. It is apparent from the entire statute, taken together, that the losses for which the Government provides an indemnity are those which occur in war.
    2. Be this as it may, it is submitted that the case does not come within the statute, because the claimants were not in the military service of the United States. The statute of 1849 is entitled, An act to provide for the payment of horses and other property lost or destroyed in the military service of the United States.” The first section provides for payment for horses which have been used by officers, militia-men, volunteers, rangers, or cavalry, and which have been killed in battle, or wounded in battle and died afterwards, or abandoned by order of a superior officer, &c. Then follows section two, above cited. Section 3 provides for the adjustment of these claims. Section 5, that parents or guardians are to be allowed for the loss of horses provided for minors. Taking the whole together, it is submitted that its provisions are strictly confined to losses incurred by persons in the military service of the United States. The claimants were not in any sense in that service. Their train of wagons was not a military train, accompanying the Army, but only a train employed in transporting goods, as an express company might have transported them, from one military post to another. Contractors are not in the United States service. (Osborne v. United States Bank-, 9 Wheat., pp. 859, 860, 867 j Whitehouse v. Langdon, id N. H., p. 331.)
    3. But, admitting that this belongs to a class of claims that falls within the act of 1849, nevertheless the demurrer was properly sustained in the court below, because it does not appear that the claimants were transporting a less quantity than one hundred and twenty-five thousand pounds, in which case only an escort was to be furnished for the protection of the supplies. The proper construction of this article of the contract, requires that the claimants should be considered as their own insurers whenever transporting 125,000 pounds or more 5 and, in order to recover from the Government, they must show in their petition that the case was one falling within the conditions on which the Government agreed to furnish a suitable escort for the protection of the supplies.
   Mr. Justice Hunt

delivered the opinion of the court:

The appellants presented their petition to the Court of Claims, asking to be allowed the value of fifty-six oxen, alleged to have been captured by a band of hostile Indians, and which were totally lost to them. The United States demurred to the claim as set forth, and the Court of Claims sustained the demurrer.

The claim was based upon the statute of 1849, entitled “An act to provide for the payment of horses and other property lost or destroyed in the military, service of the United States.”

A contract was entered into on the 25th day of July, 1864, between the United States quartermaster, Hodges, on the part of the United States, and Stuart, one of the claimants, of the other part. By the first article of the contract it was agreed that Stuart “should receive such military stores and supplies as may be offered or turned over to him for transportation, and to transport the same with all possible dispatch” between the points specified.

By the second, article it was agreed that Stuart should transport “ any number of pounds of military stores and supplies from and between one hundred thousand pounds and ten million pounds in the aggregate.”

The tenth article was as follows :

“Article X. That the said Andrew Stuart shall be furnished with a suitable escort for the protection of the supplies, should he be required to transport in any one train a less quantity than 125,000 pounds, but whenever required to transport 125,000 pounds, or more, then no escort shall be furnished.”

The petition alleges:

“That in the month of July, 1864, while Stuart was proceeding, in execution of said contract, with a train of wagons, from Fort Leavenworth, Kansas, to Fort Union, Hew Mexico Territory, the said train was, on the 12th day of July, 1864, in the vicinity of Oow Creek, Kansas, attacked by a band of hostile Indians, and without any fault or neglect on the part of the claimants, or any of them, or of their agents, fifty-sis head of oxen, employed in moving said train, were captured by the said band of hostile Indians, and no part thereof has been recovered.”

Three questions arise upon the case:

1. Was the capture of the property made “by an enemy,” within the meaning of the statute ?

2. Was the property, at the time of its capture, “in the military service of the United States %

3. Does the tenth section, above quoted, impose upon the owner the risk to which the property was exposed ?

So far as it may be necessary, these questions will be considered.

First. The allegations of the petition respecting the character, numbers, nation, or position of the capturing party are quite meager. It is said merely that the train “ was attacked by a band of hostile Indians,” and that the oxen “ were captured by the said band of hostile Indians.” A “ band” means a company of persons, perhaps a company of armed persons, as we may well assume to have been the case in this instance. We have no means of knowing how many persons composed this baud, what was their organization if any, or under what pretense, name, or authority they made the attack and capture. We know only that they were Indians, and that they were hostile. The fact that they were Indians gives no light. Many Indians, both in tribes and as individuals, were friendly to the United States in its late civil contest, as others were hostile. The Indian tribes and individuals are subject to the laws of the United States and of the States in which they are locate!, (The Cherokee Tobacco, 11 Wall., 619.) The claimants do not even state to whom or to what these Indians were hostile. They may have been hostile to the Government of the United States; they may have been hostile, inimical, or unfriendly to the owners of the cattle only. The hostility may have been •from the enmity of an organized community to the United States as a party engaged in war, or it may have been a hostility to the owners of cattle, because they had the cattle, and because the Indians desired the animals for their own use. In the one case the capture would have been that of an enemy, in the other that of marauders and plunderers only. The petition should have been more full and more specific in its statements. The law assumes that these deficiencies in it exist, because the petitioner could not with advantage to his case supply them.

Second. Was the property thus captured in the “ military service of the United States'?’’ By his contract of the 25th of July, 1864, did Stuart enter into the military service of the United States, and was he acting in such military service when his property -was captured, or was he a transporter, a carrier, a contractor merely? By the first article of his contract he undertakes “to transport” “ all such military stores or supplies as may be turned over to him for transportation ” from Forts Eiley and Leavenworth, and the town of Kansas, to New Mexico or Colorado. In the second, fourth, fifth, sixth, eighth, eleventh, twelfth, thirteenth, aud sixteenth articles the duty is clearly pointed out and named as that of transporting and delivering. A contractor or carrier is in no sense a soldier. In. no just sense is he engaged in war, although he may transport the articles used in war. He carries forth and he carries back (§ 13) supplies and stores for those who are engaged in war, but takes no personal part in it. He carries, in the present case, during the period between April and September, of the year 1864, from the points to the points named. There is no allegation that in the month of July, when the capture took place, actual war was going on in Kansas, or in the region between Kansas and New Mexico, or Colorado, or that the train from which the capture was made was a part of a military expedition. The stores, supplies, baggage-trains, the “impedimenta” of an army, are undoubtedly a portion of the army, and those engaged in the management and control of them are in the military service. These are indeed vital to its existence, and their collection and protection are among the most anxious duties of a careful commander.

But the collection and transportation from post to post of stores and supplies, remote from the seat of actual war, not forming a portion of an advancing or retreating army, is quite another thing. These latter duties are those of a^commissary or quartermaster, and not of a commanding officer. They may be performed by soldiers or by civilians, by the army or by contractors. Those engaged in them may or may not form a portion of an army.

That the statute of 1849, under which this claim is made, was intended for the indemnity of those engaged in the actual military service of the United States, that is, for enlisted men while in the performance of their duties as such, is plain enough-(9 Stat. L., p. 414.)

Its first section provides for payment for horses killed or wounded in battle, or which shall have been injured or destroyed by dangers of the seas on a United States transport vessel, or which shall have been abandoned for want of forage by order of a superior officer, with certain provisions respecting deductions from future pay, which can only apply to enlisted men. The payment is limited by the words of this section to “ officers, volunteers, rangers, mounted militia-men, or cavalry engaged in.the military service of the United States.”

The second section of the act, under which the present claim is made, is as follows:

“That any person who has sustained, or shall sustain, damage by the capture or destruction by an enemy, or by the abandonment or destruction by the order of the commanding general, the commanding officer, or quartermaster, of any horse, mule, ox, wagon, cart, boat, sleigh, or harness, while such property was in the military service of the United States, either by im-pressment or contract, except in cases where the risk to which the property would be exposed was agreed to be incurred by the owner, and any person who has sustained, or shall sustain, damage by the death or abandonment and loss of any such horse, mule, or ox, while in the service aforesaid, in consequence of the failure on the part of the United States to furnish the same with sufficient forage, and any person who has lost, or shall lose, or has had, or shall have, destroyed, by unavoidable accident, any horse, mule, ox, wagon, cart, boat, sleigh, or harness, while such property was in the service aforesaid, shall be allowed and paid the value thereof at the time he entered the service: Provided, It shall appear that such loss, capture, abandonment, destruction, or death Avas without any fault or negligence on the part of the owner of the property, and while it was actually employed in the service of the United States.”

This section provides in its first clause for an indemnity for the loss of any horse, mule, ox, wagon, &c., arising from capture or destruction by an enemy, or where the property has been abandoned or destroyed by the order of a commanding officer, while such property was in the military service of the United States, either by impressment or by contract. This military service is the same as that spoken of in the ñrst section, to wit: in battle, or service as soldiers under the command of officers of the army. The destruction, abandonment, or capture is that of the same enemy, to wit, an organized hostile force. And the same rule is applicable whether the property was in such actual service by the consent and agreement of the owner, as by hire, or whether it had been forcibly seized by the Government, that is to say, either by impressment or contract,” unless the owner had agreed himself to bear the hazard of the loss.

The next paragraph of the section provides for a loss by death or abandonment in consequence of failure on the part of the United States to supply sufficient forage, or where the loss has occurred “ by unavoidable accident” while such property was in the service aforesaid.” In each case the value of the article to be paid, is its value at the time such person “entered the service.” To all these provisos is added the final and sweeping qualification, in these words: Provided it shall appear that such loss, capture, abandonment, destruction, or death was without fault or negligence on the part of the owner of the property, and while it was actually employed in the service of the United States.”

Was the claimant personally in the service of the United States, and when did he enter it, if at all, and what were his duties'? It does not appear that he was obliged to be with the train in person, or even that he was with it at the time of the loss.

Upon the claimant’s construction of the statute, if his whole .train had been destroyed by lightning or by tempests, by unexpected drought or overwhelming heat, his claim for indemnity would have been perfect. A destruction, •“ by unavoidable accident,” of any horse, mule, ox, wagon, or cart, is provided for with equal clearness as where loss occurs by abandonment or by the capture of an enemy.

This construction is not admissible. The claimant was a carrier or transporter of stores or supplies for the United States, which stores and supplies were of a military character, and which would be used by the United States as their convenience or necessity required. He contracted to carry the stores, and the Government contracted to pay him $1.97 per hundred pounds. He was not in the military service of the United States, and can, therefore, claim no benefit under the statute of 1819.

It is not perceived that the claimant’s caséis aided by the statute of 1863. (12 Stat. L., p. 743, § 5.) That statute enacts that the provisions of the act of 1849 shall be “ applicable to steamboats and other vessels, to railroad cars and engines, when destroyed under the circumstances provided fqr in the said act.” said act.”

We know, from the recent events of our history, that steamboats and railroad trains were actually and usefully employed as adjuncts of the Army, that they were used in military expeditions, and on some occasions that the trains were captured and destroyed by the enemy. These engines, both of war and of peace, when employed in tbe actual military service ofthe United States, are entitled to the same indemnity as the other property referred to.

The tenth article of the contract requires no discussion. It is quite immaterial in any view of the case.

The judgment of the Court of Claims is affirmed.  