
    GEORGE A. STOVALL, Administrator of Laura J. Stovall, v. THE UNITED STATES.
    [Congressional 1378.
    Decided March 16, 1891.]
    
      On the Proofs.
    
    A building in Memphis, the separate property of a married woman, is taken by the military forces and used as a hospital. She takes the oath of allegiance, and applies to the Quartermaster Department for the payment of rent. It is refused, because she can not produce evidence of title. Subsequently she produces her deed, and from the 15th September, 1865, rent is paid during the continuance of the occupancy. She petitions Congress, and the claim is transmitted by a committee of the House of Representatives under the Bowman Act. On the hearing her counsel insists that the occupancy constitutes an implied contract, not barred by the statute of limitations, being the claim of a married woman, and he asks for a judgment under the provision of the Tucker Act, § 13.
    I.This court is inhibited from exercising jurisdiction of a claim transmitted under the Bowman Act (§ 4) for the rent of a building in Memphis appropriated by the Army for hospital purposes immediately after the capture of the city.
    II.The Tucker Act (24 Stat. L.', 505, § 13) provides as to cases transmitted under the Bowman Act, that if the court “ has jurisdiction to render judgment" it shall do so. This provision is mandatory, and does not depend upon the consent of parties.
    III. The relations of Congress and this court concerning claims are analogous to those which exist betweeu courts of equity and law. A claim transmitted for a finding of facts, equivalent to the verdict of a jury, must go back to Congress for relief.
    IV. But if a claimant seeks relief in Congress in a case where he might have invoked judicial redress under the general jurisdiction of the court, the facts can not be reported to Congress; but a final judgment must be rendered for or against him.
    V. The policy of the Government in Memphis during the civil war was to pay rent upon proof of the loyalty of the owner of a building used for governmental pmrposes. Nevertheless, until the Government expressly authorizes a contract with an enemy in enemies’ territory for enemies’ property none can be made or implied.
    VI. The decision of this court in Nealds Case (21 C. Cls. R., 240) relates simply to a question of jurisdiction, the meaning of the statutory term “ the seat of toar.” It determines no question of legal right.
    
      VII. The Tncker Act (§ 1) declares that this court shall have jurisdiction of “all claims founded upon the Constitution of the United States.” This is new, making the constitutional obligations of the Government to the citizen the subject of jurisdiction and extending to obligations for the occupation or taking of real property.
    VIII. When the United States accorded to the Confederate States the rights of a belligerent, the latter became ahostile power and their inhabitants public enemies. The law which then, governed the transactions of the civil war was not constitutional law, but international. „ '
    
      The Reporters' statement of tbe ease.:
    The following are the facts of this case as found by the court:
    I. On- June 15, 1862, one week.after the capture of Memphis, the military forces of the United States seized and occupied for hospital purposes the building in that city more fully described in the petition of the claimant. The entry was a military act, without the assent or assistanoe of the owner, and the occupancy continued until September 15, 1865, and subsequently.
    II. After the capture of Memphis and before the 1st of January, 1863, the payment of rent on buildings in that city seized for public purposes was determined upon and ordered by the military commander of the district upon proof of the loyalty of the owners. Such buildings were borne on the abstracts and reports of the quartermaster in charge, and the allowance of rent was approved by the Quartermaster-General, and the accounts therefor were audited and paid .at the Treasury.
    III. Subsequent to taking the oath of allegiance hereinafter set forth, the original claimant, Mrs. Laura J. Stovall, applied to the deputy quartermaster-general in charge to be paid rent for the building before described. It was refused, upon the ground that she could not then produce satisfactory evidence of title. This state of affairs continued until the 29th of July, 1865, when the deed hereinafter described was produced, and the deputy quartermaster-general recommended to the commanding officer of the military district that rent be paid to her,which he,on the 14th September,1865, approved. After and including the 15th September, 1865, rent was paid to Mrs. Stovall during the continuance of the occupancy. The following are the report and approval referred to:
    “Deputy Qr. Me. Genl.’s Office,
    “ Memphis, Term., July 29,1865.
    “ Respectfully referred for the consideration of the district commander.
    “ The building for which rent is claimed, now used as a military hospital, appears by regular conveyance to be the property of Mrs. Laura J. Stovall, and has been for some months in the occupation of the United States. I can see no reason why she should not receive rent therefor, and would accordingly recommend that hereafter she receive the same amount from the Department as is paid for similar buildings in the same block.
    “R. E. Claky,
    “Hep. Qr. Mr. Geni.
    
    “Head Qts. Dist., Sept. 14, I860.
    “ The recommendation of OoL R. E. Clary is approved, and on satisfactory evidence of her having complied with the law, and taken the amnesty oath, rent will be paid at the same rate as other parties owning buildings in the same block. For rent due she is referred to the authorities at Washington.
    
      “J. E. SMITH,
    “ Geni. Commanding.”
    IV. During the occupancy of the defendants alterations were made in the building to fit it for hospital purposes, such as the removal of partitions, the cutting of doorways to connect it with adjoining buildings, etc. The building also suffered the ordinary injuries incidental to such an occupation. After it was surrendered to the owner the cost of restoring it to its original condition was $1,015.34. How much of the cost of restoring the building was due to alterations and how much to injuries incidental to the occupation does not appear. The reasonable value of the occupancy during the time it was so held and occupied by the defendants was the rate allowed by the deputy quartermaster-general, to wit, $250 a month.
    V. Subsequently Mrs. Stovall presented to the deputy quartermaster-general a claim for the rent and cost of repairing the building, which form the subject of the present action. The claim was transmitted by him to the Quartermaster-General and was by that officer disapproved and rejected. The report of the deputy quartermaster-general and the refusal of the Quartermaster-General were in the words following:
    
      “Dep’y Qr.- Mr. Genl.’s Oefice,
    
      “Memphis, Jatfy 23, 1866.
    “Bvt. Maj. General M. C. Meigs,
    
      Qr. Mr. General, 77. 8. A., 'Washington, D. O.:
    
    “General : The papers referred to this office in the case of Mrs. Laura J. Stovall, who claims compensation for the use of her building in this city from the 14th day of June, 1862, to the 14th day of September, 1865, and also reimbursement of amount expended by her for restoring the building to its former condition, are respectfully returned.
    “ The amount claimed for the latter purpose is $ L,015.34, and is supported by subvouchers and an affidavit of Mrs. Stovall, and I believe this amount to have been, paid as stated, though the items of work alleged to have been rendered for this purpose are not given in all cases.
    “ The building I found occupied, on my taking charge of the depot duties in this city Oct. 1st, 1864, as a general hospital, but had no official information nor do the records of my office show the commencement of such occupancy.
    “The claimant made frequent application for rent of her building, but being unable to furnish satisfactory evidence of ownership, the applications were rejected until Sept. 14, 1865, when, upon the production of her title deeds, the general commanding the district ordered her house to be placed under rent at a ratio corresponding with that paid for other buildings of a similar character.
    “ The husband of the claimant has taken an active partas a soldier in the late rebellion, but I believe he has exercised no control over the property in question, it having been purchased with her money and the title thereto being in her name.
    “ The claimant, I doubt not, is, in common with nearly every other lady of this section of the State, bitterly opposed to the Union and to the Federal authorities generally, and how far the oath of allegiance taken by her on the 17th day of June, 1863, a copy of which is filed with her claim, may have influenced her subsequent action I am unable to discover. It is certain, however, that her husband did not leave the rebel ranks until the surrender of their armies during the spring of 1865.
    “ Claims of a similar nature to a very large amount have been made in this city, but I can see no just reason why they should be allowed, particularly in favor of those who at this moment arc as much opposed to the Union as they were during the rebel rule.
    “ The claim for reimbursement of the amount expended in the restoration of the building to its original condition may, I think, with the rejection of back rent, be regarded more favorably, and I should recommend its payment.
    “ Very respectfully, your obedient servant,
    “ K. E. Clary,
    
      “Dep’y Qr. Mr. General."
    
    
      “ War Department,
    “ Quartermaster-General’s Oepioe,
    “ Washington, T). 0., July 5, 1806.
    C( Mr. J. M. Gregory,
    
      u Memphis, Tenn.:
    
    “Sir : The claim of Mrs. Laura J. Stovall, of Memphis, Tenn., for rent of her building in that city occupied by the United States, and for repairs to the same, rendered necessary by its occupation, stated at $10,950, is herewith respectfully returned disallowed.
    “ By decisions of the War Department no claim can be favorably considered at this office arising previous to the 2d day of April, 1866, the date of the proclamation of the President, except those of loyal citizens, that arise in States not declared in rebellion.
    
      “ Your attention is invited to the enclosed copy of the opinion of the Chief of the Bureau of Military Justice, as promulgated in Circular No. 51, War Department, Nov. 29, 1865, on the subject of the settlement of claims.
    “ Yery respectfully, your obedient servant,
    “J. J. Dana,
    “ Colonel, Q. M. Department.
    
    
      " By order of the Qr. Mr. Gen’l.”
    YI. The title to the foregoing property became vested in Mrs. Stovall in the following manner:
    On the 22d February, 1862, Memphis then being in the possession of the Confederate forces, and she and her husband residing therein, he conveyed to her, u for and in consideration of the love and esteem I entertain for my wife,” the premises before described for the term of her natural life, “ to her sole and separate use, free, released, and discharged from all my liabilities or control,” with remainder to her children. No other consideration passed. The deed was duly executed on that day, but was not recorded until the 28th July, 1865, nor was any formal livery of seizin of the premises made, though on the departure of her husband with the Confederate forces Mrs. Stovall had the control and managemént of the building, and on the United States taking possession claimed to be the owner thereof. The deed was taken from Memphis before the capture of the town, aud was lodged by him, with other important and valuable family papers, for safe keeping in the hands of Mrs. Stovall’s mother, in the State, of Mississippi. It was not delivered to Mrs. Stovall until after the termination, of hostilities; that is to say, about the time that it was recorded, as before set forth. The deed by which her husband acquired title to the property, shortly before the conveyance to Mrs. Stovall, was recorded, showing title of record in him at the time of the seizure. Why the deed from him to his wife was not recorded or delivered prior to his leaving Memphis does not appear.
    YII. The court finds that the original claimant, Mrs. Laura J. Stovall, did not adhere to the United States during said rebellion, and that she gave aid and comfort to persons engaged therein. But the court also find's that she took the following oath of allegiance, and, so far as appears, faithfully kept and observed the same:
    “ United States op America,
    
      “State of Tennessee:
    
    “ Provost-Marshal’s Oppice,
    “District op Memphis,
    “ 17th Day of June, 1863.
    “ I do solemnly swear, in the presence of Almighty God, that I will bear true allegiance to the United States of America, and will obey and maintain the Constitution and laws of the same, and will defend and Support the said United States of America against all enemies, foreign and domestic, and especially against the rebellion league known as the Confederate States of America. So help me God.
    “Mrs. L. I. Stoyall.
    “Sworn and subscribed before me this 17th day of June, 1863.
    “ James T. Bennett,
    “ lsi Lieut, and Asst. Provost-Marshal.”
    And upon the foregoing findings of facts the court decides as conclusions of law:
    No contract can be legally impiled from the seizure and occupancy of the claimant’s property; and it having been appropriated by the Army for military use, the action for the use and occupation of the property is excluded from the jurisdiction of the court by the Act February 18, 1875 (18 Stat. L., 318; Bev. Stat., § 1059). ,
    
      Mr. George A. King for the claimant.
    
      Mr. James JI. Nixon (with whom was Mr. Assistant Attorney-General Cotton) for the defendants
   Nott, J.,

delivered the opinion of the court:

This case was transmitted to the court by the Committee on War Claims of the House of Representatives under the provisions of the Bowman Act, § 1. The claim is for the military occupation of real property in the city of Memphis, the entry or seizure having been made immediately after the capture of the city. By the fourth section of the act the court is inhibited from exercising jurisdiction of claims for the'occupation of real property at the seat of war, and the first question in the case is whether jurisdiction can be entertained under that act by virtue of which the case has come into this court. That question is answered by the decisions in the cases of Hefflebower (21 C. Cls. R., 228); Neal (ib., 240), and the Overton Hotel Co. (23 id., 186). The occupation of the property for military purposes began before January 1,1803, while the State of Tennessee was hostile territory and the city of Memphis “the seat of war” within the meaning of the act as interpreted by those decisions.

But the counsel for the claimant has rested the casé upon another statutory provision, which hitherto seems to have escaped the attention of the bar, and certainly has not received a construction from the court.

Concerning cases transmitted to this court under the Bowman Act, 1883, the thirteenth section of the Act 3d March, 1887 (24 Stat., L., p. 505) provides:

“ If it shall appear to the satisfaction of the court, upon the facts established, that it has jurisdiction to render judgment or decree thereon under existing laws or under the provisions of this act, it shall proceed to do so, giving to either party such further opportunity for hearing as in its judgment justice shall require.”

Instead of restricting its action to the functions of a jury and finding the facts in the form of a special verdict for the action of Congress, the court is required by the statute-to act judicially, and determine the legal rights of the parties in a final judgment.

In the present case the claimant alleges that the cause of action is one of which the court has jurisdiction irrespective of the Bowman. Act, and he asks for judgment. The question of this jurisdiction thus invoked “ upon the facts established ” is therefore the fundamental question to be determined.

The court is of the opinion that this provision of the statute is mandatory, and that due effect must be given to it in every case transmitted under the Bowman Act which presents a cause of action upon which a final judgment can be rendered. And the court is also of the opinion that the application of the statute does not depend upon the consent of parties. The accompanying provision, which directs that there shall be given “ to either party such further opportunity for hearing as justice shall require,” clearly casts upon the court the duty of enforcing the mandate of the statute whether it be invoked or not.

The relations of Congress and this court concerning claims are now much like those which exist, or once existed, between courts of -equity and courts of law. If it be necessary in equity to determine contested facts in certain cases, the court will frame issues and send them to a court of law to be tried by a jury. Such, in effect, is the remedy provided by the Bowman Act. Either of the Houses of Congress or one of its committees can send a claim for — what is equivalent to a verdict of a jury — a finding of the facts upon issues joined and regularly tried, after which the claim will go back to Congress for such relief as the legislative authority may deem legal, just, or equitable.

Again, a suitor can not go into equity for relief if he has a remedy at law. That principle seems engrafted on the system by this provision of the Tucker Act. If the case be one which might have been brought in a legal tribunal, the intimation of the statute is that the claimant should have asserted his legal rights there, and that Congress shall not be troubled further with tlm claim. It follows that the claimant must stand or fall with his legal rights ; that the relief of the one party must be restricted to the obligations of the other; that the■ damages can not be discretionary, as in Congress, and that there can be no relief for the claimant until he has established like other plaintiff's in other cases a legal liability on the part of the defendants.

What, then, are the jurisdictional facts of this case considered as an action at law? That is to say, what is this cause of action, considered as one which may be merged into and determined by a final judgment ?

The suit is for an implied rent growing out of the use and occupation of a building in Memphis by the Quartermaster Department as a hospital from June 15, 1862, to September 15, 1865. The alleged owner was a married woman, residing in Memphis ; her husband was within the Confederate lines, bearing arms against the United States. Whether the wife, the .alleged owner, was loyal, is a question in the case which as a matter of fact the court determines adversely to her by finding that she did not at all times bear true allegiance to the United States. Whether, if this be considered as an action at law for the prosecution of a legal right, the judiciary must nevertheless regard her as loyal under the decision of the Supreme Court in Klein’s Case (13 Wall. R., 128) by virtue of the general amnesty proclamation, December 25,1868, is a question which need not at present be discussed. During the period of occupancy the Government paid rent for buildings occupied for military purposes in some cases, but not in all. As appears in Provine’s Case (5 C. Cls. R., 455), they were borne upon the local quartermaster’s abstracts and reports; the allowance of rent was by order of the commanding officer; it was approved,- apparently, by the Quartermaster General, and the accounts were audited and paid at the Treasury. The policy of the Government there, so far as it can be deemed a policy, was thus stated by Colonel Clary, the deputy quartermaster-general in charge, in a report made to the Quartermaster-General, bearing date December 28, 1865:

“ The payment of rent on buildings seized for public purposes on the capture of Memphis was originally determined upon and ordered by the military commander of the district upon proof of the loyalty of the owners.” (Provine’s Case, 5 C. Cls. R., 455, 459.)

But in the case now before us the military commander of the district did not order the payment of rent until the 14th September, 1805, and the Quartermaster-General disapproved the payment of rent for the previous occupancy. There is evidence which indicates that if the owner could have earlier produced her deed she would have been paid sooner for the use of the building, and it is argued that the refusal to allow rent until evidence of title should be produced indicates an intent to recognize the title of the owner and negatives the idea that the military occupancy was by appropriation instead of contract. Nevertheless, possession bad been taken by military force immediately after the capture of the city; the entry had been without the assent or assistance of the owner; no promise had been made, and no assurance had been given on the part of the Government. These facts seem to the court to form the foundation upon which its jurisdictional authority, if it exist, must rest.

There are three cases in which the subject-matter is almost identical with that of the present action-Bishop & Wescott’s (4 C. Cls., 448), Filor’s (9 Wall. R., 43), and Neal’s (21 C. Cls. R., 240).

In the first of these the military forces of the United States had seized certain real property in Memphis, as in this case, immediately after the capture of the city, in June, 1862. The Government continued to occupy the property until March, 1668. In that year the owners brought their action to recover rent, not from the time of the taking, but from the 2d April, 1866, when the proclamation of the President declared the rebellion to have ended in Tennessee. It was held that this was a claim “ growing out of the appropriation of property by the Army” within the meaning of the Act 4th July, 1864 (13 Stat. L., 381), and thereby excluded from the jurisdiction of the court. The court acknowledged that the holding over after the Termination of the rebellion might be a taking of private property for public use, that the owners might have a valid claim for just compensation, but, nevertheless, if the occupancy resulted from an entry made by the Army during the war, the claim for rent was a claim “ growing out of the appropriation” of property.

A difference between that case and the present, favorable to this one, should be noted, that the owners were never recognized as landlord by the Quartermaster Department; and another, in which the former case was much stronger than the present one, that the claim was limited to rent subsequent to the ending’ of the rebellion.

In the case of Filor (9 Wall. R., 45), an assistant quartermaster entered into a lease for property in Florida. The lease was submitted to the Quartermaster-General, who neither approved nor disapproved it. The defendants continued to occupy the property from the beginning of 1862 to the end of 1866, and the owner then brought his action upon the lease.

The language of the Supreme Court in the decision of that ‘case is very broad, but it must of course be understood as referring to the subject which the court was then considering. When the opinion says that “ no lease of the premises for the use of the Quartermaster Department could be binding upon the Government until approved by the Quartermaster-General,” the language must be understood as referring to leases made by assistant quartermasters, or other inferior officers, of buildings in enemy’s territory. There was no statutory authority which expressly conferred power on the Quartermaster-General to bind the Government by entering into express agreements for the occupancy of real property, and there was no statutory restriction or regulation which forbade the officers of the Departmentfrom procuring necessary quarters, hospitals, storehouses, stables, and other buildings for the use of the' Army by express contracts. Moreover, if the'transaction had been in time of peace the owner might have recovered on the implied contract, though the express contract of the agent was ultra vires and void' (Clark v. United States, 95 U. S. R., 539.)

The Supreme Court undoubtedly regarded the Quartermaster-General (the head of theBureau charged with procuring quarters for the Army) as speaking for the Secretary of War and the Secretary of War as speaking for the President. In other words, the court held that the Quartermaster-General was the Government, and that until the Government authorized an express contract with an enemy, in enemy’s territory for enemy’s property, none could be made and none could be implied. It followed, of course, that property so taken must be regarded as “ appropriated” by the Army, and so excluded from the jurisdiction of this court by the expr.-ss terms of the act.

It will be noted in this case of Filor that the occupancy of the property by the Government continued until the end of the of the year 1866, a period of nine months after the proclamation, April 2d, 1866, had brought the insurrection in Florida absolutely to an end. The point was not made by the counsel that there was a clear case of the taking of private property for public use in time of peace for which no compensation whatever had been made, and this distinguishing fact may have escaped the attention of the court, but as the case stands on the record the decision of the Supreme Court is an affirmanceol the decision in Bishop & Wescott that such a claim is one growing out of an appropriation of property.

The question in Neal (21 C. Cls. R., 240) was one of jurisdiction under another statute. Neither the legal rights of the party neither validity of a contract was involved in the decision. The counsel for the claimant has cited the case of Hefflebower (21 C. Cls. R., 228), of which the case of Neal was a sequel, as an authority to support the validity of the implied lease and the owner’s right to recover. But in neither Hefflebower nor Neal was there such a question involved or such a point decided. Both of those cases came into this court under the Bowman Act, and the duty of the court was little more than that of a jury — the finding of the facts for the future consideration of Congress. The decision was strictly upon the subject of jurisdiction, upon the power of the court to proceed and find the facts, and not upon the rights of the parties.

Congress had inhibited the court from exercising jurisdiction territorially. The term used to designate this excluded territory was neither “ the seceded States,” nor “ States'or parts of States declared in insurrection,” nor “ places where the rebel force or organization held sway,” nor any term which had been used in previous statutes or in the proclamation of the President or in the decisions of the courts, but a new and perplexing term — “ the seat of war.” It could not refer merely to those losses which are known as the ravages of war, for the same sentence likewise excluded from jurisdiction “ destruction or damage to property ” by the Army or Navy, in military operations. It could not mean the insurrectionary States, for the term significantly ignored political and geographical boundaries. If actual conflict was the criterion, then endless questions must arise. Did territory cease to be a “seat of war” when the conflict ended ? Was Gettysburg “ the seat of war” a year before the greatest battle of the rebellion was fought or a year afterward9 Was the city of New York “the seat of war” when an attempt was made to burn it, or the State of Vermont when a raid was made across its border ? How was it possible to define, judicially, the boundaries of a battlefield or the geographical limits of military operations'? Was all hostile territory to be favored except the few spots where the opposing forces actually confronted each other ? The purpose of those decisions was primarily to deal with such questions as these, and ultimately to demonstrate that “the seat of war” meant such parts of the insurrectionary district as the President from time to time might designate as enemy’s territory. Hence the decision of the court that where the occupancy of a building in Memphis began during a period when the President had, apparently, withdrawn the State of Tennessee from its previous status of hostile territory the fact might be reported to Congress. But the decision determined no question of legal right, and related strictly to the judicial construction of another statute, and can not be cited as an authority in the present case.

So much of the Act July 4,18G4, as relates to the jurisdiction of this court has been reenacted by the Act to Correct Errors and to Supply Omissions in the Revised Statutes (18 Stat. L., 316); and the foregoing decisions in Bishop & Wescott and Filor are consequently decisive of the present case, unless it be taken out of the prohibitive act by some subsequent legislation, which will now be considered.

The Act to Provide for the Bringing of Suits against the Government of the United States, 1887 (24 Stat. L., 505), popularly known as the Tucker Act, declares that this court “shall have jurisdiction to hear and determine the following matters” — first of which are “ all claims founded upon the Constitution of the United States.” This subject of jurisdiction is entirely new.

The reason of its enactment at that time may be found in some preceding judicial decisions, and an examination of them will assist in ascertaining and measuring the legislative purpose of this grant of jurisdiction.

In the three cases of Johnson (2 C. Cls. R., 391; 4 id., 248; 8 id., 243) this court had held:

“ Ejectment as a possessory action does not lie against the Government, for the Government always has ‘ the right of possession,’ founded either on ‘ aright of property’ or on its right of eminent domain. But wTien, in an action in the nature of ejectment, the ‘ claimant’s right of property ’ is established, the Government will be deemed to have entered as his tenant under an implied lease, whereof the ‘■just compensation’ secured by the Constitution to those whose property is taken for public use is the rent.” (Syllabus, 4 C. Cls. R., 248.)

An appeal was taken by the Government in the first case, but on consideration was abandoned by the Attorney-General. In neither the second nor third was there an appeal, and the principle enunciated was regarded as settled until it was overruled by the Supreme Court in the case of Langford (101 U. S. R., 341), where it was held that the statute conferring a general jurisdiction of cases arising on contract, express or implied, refers only to contracts known to the common law, and not to the broader obligation of the Constitution, to make just compensation for private property taken for public use. The court added:

It is to be regretted that Congress has made no provision by any general law for aseertaining and paying this just compensation

The decision in Langford awakened no general interest, but the subsequent decision in United States v. Lee (106 U. S. R., 196), did.

In that case, as in Johnson’s, the Government had entered upon the property by military force, and as in Johnson, claimed to hold it by a title of its own. If the principle of the Johnson case had ¡igpiaiued undisturbed, the title might have been tried and the value of the property determined by a simple action in this court. But the owner of Arlington was compiled to resort to the circuitous course of bringing an action in ejectment against the agents of the Government in possession, npminally to oust them from property which the Government by its highest executive authority, and with the recognition of repeated appropriation acts, was holding, and intended to hold, and confessedly would continue to hold, for public purposes. The circuitous method for enforcing one of the plainest mandates of the Constitution, without which the property of every citizen would be at the mercy of every public officer, did not commend itself to Congress, and it doubtless brought to mind the declaration of the Supreme Court in Langford:

“ It is to be regretted that Congress has made no provision by any general law for ascertaining and paying this just compensation.”

Accordingly the eminent lawyer whose name has become affixed to the act of 1887 gave to the subject of suits against the Government most careful study, and ultimately, as chairman of the Judiciary Committee of the House of Representatives, succeeded in procuring an enactment which authoritatively makes the constitutional obligations of the Government to the citizen a subject of jurisdiction, irrespective of the technical rules and refinements of the common law, or of the ambiguities and uncertainties of statutory provisions and definitions. “ That the Court of Claims shall have jurisdiction to hear and determine ” “ all claims founded upon the Constitution oftlie United States” is as comprehensive and untrammeled a grant of judicial authority as the legislative power could well make; and it must now be regarded as settled, that whenever a citizen is entitled to “ compensation ” by virtue of the express terms of the Constitution ho may recover it by a suit against the G-overument.

This grant of jurisdiction presents the resulting question whether such claims as the one now before the court are claims “ founded upon the Constitution.”

It has been held in an unbroken series of decisions (from the Prize Cases, in 1 Black’s Reports to Young, assignee of Collie, in 97 U. S. Reports) that the civil war in ali hostile operations must be regarded as international, and that “all property within enemy’s territory is in law enemy’s property, just as all persons in the same territory are enemies” (Chief Justice Waite, 97 U. S. R., 60). When the United States accorded to the Confederate States the rights of a belligerent they became a hostile power and their inhabitants public enemies. The obligations of the Constitution do not extend across military lines nor into hostile territory. The law which governed the transactions of the civil war was not constitutional law, but international. It has been closly adhered to; so closely, that under the decisions of the court of last resort the loyal citizens of the Rorth were practically excluded from the benefits of t]¿e Captured Property Act, and after nonintercourse began could do nothing to save their property in the South from Confederate confiscation; and though they acted in good faith, with no purpose to aid the rebellion^ seeking simply to save their own property in the South by directing its investment there — sending nothing into the insurgent districts and bringing nothing out, but leaving the resources of the rebellion precisely as they found them — their acts were held to be intercourse between enemies, and the investments of their agents illegal and void. (Grossmeyer’s Case (9 Wall. R., 72); Dillon (5 C. Cls. R., 586. Affirmed without opinion); Cutner (17 Wall. R., 617); Lapene (id., 601); Montgomery (16 id., 395); Stoddart (6 id., 340).

The period for which the claimant seeks to recover rent began and ended before the proclamation, April 2,1866, declared the rebellion in Tennessee at an end. The case therefore does not present the question which was presented by that of Bishop & Wescott and which might have been presented by the case of Filor. It is not, in the opinion of the court, founded upon a constitutional obligation; it does not rest upon an express agreement of the Government, or pledge or assurance or declared public policy. The refusal of the deputy quartermaster-general to contract was not a contract, though his reason for refusing may have been a bad one. The claim does not grow out of obligations or agreements or pledges of public faith, but out of military exigencies occurring in a time of war on hostile territory. It is one of those claims “ commonly known as ‘ war claims,’” and as such expressly excluded from our jurisdiction by the statute, which is relied upon as confirming it. (Tucker Act, § 1).

For the purposes of an appeal judgment will be entered in the usual form, that the petition be dismissed for want of jurisdiction. If the claimant applies within the time prescribed by law an appeal will be allowed; if no appeal be taken, the judgment so entered may be vacated and the case, transmitted under the Bowman Act, be dismissed for want of jurisdiction under the decision in the Overton Hotel Co. Case (23 C. Cls. R., 186), and so reported to Congress.  