27]

ernment; and does not embrace allowances for loss-Smith, who ordered the trains to proceed no
es consequent upon the refusal of Colonel Johnston further without his permission. Lieutenant-
to permit plaintiffs' trains to proceed upon their
journey, arising from the mere delay and deten- Colonel Smith was under command of Col-
tion occasioned thereby.
onel Albert Sidney Johnston. The latter, on
joining the command, issued an order addressed
Submitted April 2, 1888. Decided April 23, to the parties in interest, as follows:

[Nos. 1384, 1385.]

1888.

PPEALS from judgments of the Court of

A Claims in favor of claimants, for property
taken and impressed by the United States, and
for damages for the detention and delay of
claimants' trains. Reversed, and remanded for
more definite and specific findings.

The facts are fully stated in the opinion.
Messrs. A. H. Harland, Atty-Gen., and
Robert A. Howard, Asst. Atty-Gen., for
appellant.

Messrs. Wm. E. Earle and James L.
Pugh, Jr., for appellees.

Mr. Justice Matthews delivered the opin-
ion of the court:

"Headquarters Army of Utah,

"South Pass, October 19, 1857.
"Sir,-The colonel commanding directs me
to inform you, in reply to your letter of to-day,
that no goods or supplies of any kind will be
permitted to pass this Army, for Salt Lake City
or other points occupied by the Mormous, so
Government of the United States."
long as they maintain a hostile attitude to the

On the 24th of October an order was issued,
prescribing the order of the march, and desig
nating the position to be maintained on the
march and in the camp by the plaintiff's trains.
Plaintiff did not seek or desire military protec-
tion, and requested Colonel Johnston to be al-
Congress passed an Act, approved July 8, lowed to proceed on their journey, as they were
1886, entitled "An Act Referring to the Court not, in their opinion, in danger from the Mor-
of Claims the Claims for Property Seized by mons. This request was denied. Plaintiffs
General Johnson on the Utah Expedition, for were required to have their teams yoked and
Examination and Report," which enacts "that ready by ten in the morning, and they often
the claims of Joseph C. Irwin and Company, had to stand for two hours in consequence of
and C. A. Perry and Company, freighters, for delay in the general movement. The teams
property claimed to have been taken and im- always got into camp late, and consequently
pressed into the service of the United States in were grazed at great disadvantage. They were
the year 1857, by orders of Colonel Albert Sid- also limited to a defined and restricted space
ney Johnston, in command of the Utah expe- assigned them, and were not permitted by the
dition, as well as for property alleged to have military authorities to go beyond this space.
been sold to the Government, be, and the same The animals belonging to the army arrived first
are hereby, referred, with all the papers relat- at camp, and were posted on the best grass.
ing thereto, to the court of claims, for adjudica-As a necessary result freighters' teams were in-
tion, according to law, on the proofs hereto- sufficiently fed. Plaintiffs' animals were often
fore presented, and such other proofs as may used to aid in hauling the government trains,
be adduced, and report the same to Congress.'
and thus did extra work on insufficient food.
In pursuance of this Act the parties named The orders requiring plaintiff's trains to move
therein filed their respective petitions in the with the army column necessarily impeded
court of claims, stating the grounds and par- their progress, and held them back until the
ticulars of their demands for judgment. Judg- bad weather set in. For these reasons the plain-
ments were rendered therein in the ordinary tiffs' stock became greatly reduced in flesh, and
form in the case of J. C. Irwin and Company many died from overwork and starvation.
for the recovery of the sum of $21,600, and in Plaintiffs' trains were loaded with goods and
the case of Charles A. Perry and Company for merchandise notoriously intended for trade
the sum of $44,025. From these judgments the with the Mormon inhabitants of the Territory
United States prosecutes the present appeals. of Utah, who were then in avowed rebellion
The facts in the two cases as found by the and in threatened war with the Government
court of claims are substantially the same. The of the United States; but plaintiffs were igno-
firm of J. C. Irwin and Company, at the time rant of this state of affairs upon starting, and
of the occurrences hereinafter set forth, were until arrival at Rocky Ridge. It is also found
engaged in freighting across the plains by means by the court of claims that R. H. and James
of wagon trains, and in June, 1857, were under Porter were also freighters like the plaintiffs,
contract to transport from Atchison, Kansas, to and were detained at the same time under sub-
Salt Lake City, seventy-five wagon loads of mer- stantially the same circumstances as those
chandise, and late in the summer of that year already set forth. An Act for their_relief,
started their trains on that journey. Charles passed February 18, 1887, 24 Stat. at L. 900,
A. Perry and Company, in August, 1857, were appropriated the sum of $10,000, less the sum
doing a general merchandise business at Salt of $750 theretofore paid them, "in full for all
Lake City, and in that month started three ox claims for damages or compensation for prop-
trains, two of twenty wagons each, and one of erty impressed by order of Colonel Johnston,in
eighteen wagons, with five wagons drawn by command of the United States troops en route
mules, from Fort Leavenworth, Kansas, to Salt for Utah in 1857."
Lake City. All the trains of both parties
reached Rocky Ridge early in October, 1857,
and were progressing successfully on their jour-

ney.

The animals were in good condition, and making from eighteen to twenty miles per day. At this point they were met by United States troops, under command of Lieutenant-Colonel

Two questions were presented on the part of the United States on the trial of the cases in the court of claims, and are renewed in argument here. They are: (1) that the Act of Congress of July 8, 1886, referring these claims to the court of claims, does not authorize a final judg ment against the United States, but only such

[128

findings as, being reported to Congress, shall | steps and returned. This perhaps would also serve as the basis, in its discretion, for future have involved loss in breaking up their venture, legislative action; and (2) that, supposing the and perhaps damage to the property constitutjudgments of the court of claims, under the Act, ing the trains; but it would not have been tak to be final, they are erroneous because founded ing and impressing the property into the service on allowances for consequential damages to the of the United States. So far as appears from property of the plaintiffs, by reason of deten- the finding of facts, it was the choice of the tion and delay, not within the limitation pre- plaintiffs to remain with Colonel Johnston's [129] scribed by the Act of Congress, which author- column and proceed with it. In making this ized judgment only for property taken and choice they elected to submit to the necessary impressed into the service of the United States. military orders governing the march and the În support of the first proposition it is camp, and to any inconveniences and losses neargued by the attorney-general that the direc- cessarily resulting therefrom. The case in that tion contained in the Act addressed to the court respect does not differ from what it would be of claims to "report the same to Congress," on the supposition of their having been ordered taken in connection with the title, which de- and compelled to remain at Rocky Ridge or to scribes it as "An Act Referring to the Court of return. Even if it be a just inference of fact Claims the Claims for Property Seized by Gen- that the plaintiffs were under compulsion in eral Johnston on the Utah Expedition, for Ex- keeping with the column of Colonel Johnston, amination and Report," sufficiently indicates it by no means follows from that alone that their the intention of Congress that the conclusions property was taken and impressed into the serof the court of claims should not be final, but vice of the United States in the sense of the subject to revision at the discretion of Congress. Act of Congress of July 8, 1886. However But, in our opinion, the controlling words of proper it might have been for the Legislature to the Act are those which declare that the claims have provided indemnity for the losses occurof the parties are thereby referred to the court ring by reason simply of the detention thus ocof claims "for adjudication according to law." casioned, we cannot think it was the intention The force of this phrase cannot be satisfied by of the Act to go beyond payment for property anything less than a formal, regular, and final actually used and employed by the Government judgment of the judicial tribunal to which the in its service. To require the plaintiffs' trains matter is submitted, acting upon the acknowl- to remain with the military force, in order to enedged principles of law applicable to the cir- sure the success of the expedition by preventing cumstances of the case. All such judgments the enemy from obtaining information and supwere required by existing law to be reported plies, cannot be construed as a seizure and imto Congress; and the addition of words to the pressment of their property into the public same effect in this statute, while being perhaps service. unnecessary, does not change the character of the judgments to be reported.

In opposition to this conclusion we are referred to the opinion of Mr. Bates while attorney On the second question, however, we are of general (10 Ops. Atty-Gen. 21), upon the case the opinion that the court of claims has erred.of the Porters, mentioned in the statement of The reference made by the statute is limited by facts found by the court of claims. It seems its express language to a judgment "for prop- their claim was embraced, with those of the erty claimed to have been taken and impressed plaintiffs in these cases, in the original draft of into the service of the United States in the year the Act of July 8, 1886, as it passed the Senate, 1857 by orders of Colonel Albert Sidney John- but, before final passage, was struck out because ston, in command of the Utah expedition, as their claim was pending before the Treasury well as for property alleged to have been sold Department. The accounting officers of the to the Government." Of course, there would treasury allowed their claim, presumably upon be no doubt as to the legality of so much of the strength of the opinion of the attorneythe claims as arise upon sales, proven to have general, who held that they were entitled to an been made by the plaintiffs to the Government, allowance and payment under the provisions of their property for its use; but in point of fact of the Act of March 3, 1849, providing for the no such sales are found to have been made. So payment for horses and other property lost or far as the judgments embrace allowances for destroyed in the military service of the United losses consequent upon the refusal of Colonel States. The attorney-general, it is true, exJohnston to permit the plaintiffs' trains to pro- pressed the opinion that the order of Colonel ceed upon their journey, arising from the mere Johnston reduced the train of the claimants to [130] detention and delay occasioned thereby, they military control, and thereby subjected it to the go beyond the intention of the Act of Congress. losses proved, for the purpose of depriving the It was the clear dictate of military duty on the Mormons of any benefit from it, and was therepart of Colonel Johnston to prevent informa- fore an impressment into the military service tion and supplies from going forward to the within the meaning of the Act of March 3, 1849. public enemy. To effect this, he issued his But it is evident that he did not rest his recomorder "that no goods or supplies of any kind mendation for the payment of the claimants on will be permitted to pass this army for Salt that consideration, for the opinion proceeds as Lake City, or other points occupied by the follows: "But whatever may have been the legal Mormons, so long as they maintain a hostile result of the order of General Johnston, the fact attitude to the Government of the United is well proved that the property of the claim States." There is nothing in the terms of this ants was afterwards actually reduced to miliorder to iequire the plaintiffs to keep with the tary service. The loss of the army cattle com troops; they were only forbidden to pass them pelled a resort to those of the trains, and several in advance. They might have remained at witnesses, servants of the Government and of Rocky Ridge, or they might have retraced their the claimants, state that the cattle of Messrs.

[131]

[127]

ernment; and does not embrace allowances for loss-Smith, who ordered the trains to proceed no
es consequent upon the refusal of Colonel Johnston further without his permission. Lieutenant-
to permit plaintiffs' trains to proceed upon their
journey, arising from the mere delay and deten- Colonel Smith was under command of Col-
tion occasioned thereby.
onel Albert Sidney Johnston. The latter, on
joining the command, issued an order addressed
to the parties in interest, as follows:

findings as, being reported to Congress, shall | steps and returned. This perhaps would also serve as the basis, in its discretion, for future have involved loss in breaking up their venture, legislative action; and (2) that, supposing the and perhaps damage to the property constitut judgments of the court of claims, under the Act, ing the trains; but it would not have been tak to be final, they are erroneous because founded ing and impressing the property into the service on allowances for consequential damages to the of the United States. So far as appears from property of the plaintiffs, by reason of deten- the finding of facts, it was the choice of the tion and delay, not within the limitation pre- plaintiffs to remain with Colonel Johnston's [129] scribed by the Act of Congress, which author- column and proceed with it. In making this ized judgment only for property taken and choice they elected to submit to the necessary impressed into the service of the United States. military orders governing the march and the In support of the first proposition it is camp, and to any inconveniences and losses neargued by the attorney-general that the direc- cessarily resulting therefrom. The case in that tion contained in the Act addressed to the court respect does not differ from what it would be of claims to "report the same to Congress," on the supposition of their having been ordered taken in connection with the title, which de- and compelled to remain at Rocky Ridge or to scribes it as "An Act Referring to the Court of return. Even if it be a just inference of fact Claims the Claims for Property Seized by Gen- that the plaintiffs were under compulsion in eral Johnston on the Utah Expedition, for Ex- keeping with the column of Colonel Johnston, amination and Report," sufficiently indicates it by no means follows from that alone that their the intention of Congress that the conclusions property was taken and impressed into the serof the court of claims should not be final, but vice of the United States in the sense of the subject to revision at the discretion of Congress. Act of Congress of July 8, 1886. However But, in our opinion, the controlling words of proper it might have been for the Legislature to the Act are those which declare that the claims have provided indemnity for the losses occurof the parties are thereby referred to the court ring by reason simply of the detention thus ocof claims "for adjudication according to law." casioned, we cannot think it was the intention The force of this phrase cannot be satisfied by of the Act to go beyond payment for property anything less than a formal, regular, and final actually used and employed by the Government judgment of the judicial tribunal to which the in its service. To require the plaintiffs' trains matter is submitted, acting upon the acknowl- to remain with the military force, in order to enedged principles of law applicable to the cir- sure the success of the expedition by preventing cumstances of the case. All such judgments the enemy from obtaining information and supwere required by existing law to be reported plies, cannot be construed as a seizure and imto Congress; and the addition of words to the pressment of their property into the public same effect in this statute, while being perhaps service. unnecessary, does not change the character of the judgments to be reported.

On the second question, however, we are of the opinion that the court of claims has erred. The reference made by the statute is limited by its express language to a judgment "for property claimed to have been taken and impressed into the service of the United States in the year 1857 by orders of Colonel Albert Sidney Johnston, in command of the Utah expedition, as well as for property alleged to have been sold to the Government." Of course, there would be no doubt as to the legality of so much of the claims as arise upon sales, proven to have been made by the plaintiffs to the Government, of their property for its use; but in point of fact no such sales are found to have been made. So far as the judgments embrace allowances for losses consequent upon the refusal of Colonel Johnston to permit the plaintiffs' trains to proceed upon their journey, arising from the mere [130] detention and delay occasioned thereby, they go beyond the intention of the Act of Congress. It was the clear dictate of military duty on the part of Colonel Johnston to prevent information and supplies from going forward to the public enemy. To effect this, he issued his order "that no goods or supplies of any kind will be permitted to pass this army for Salt Lake City, or other points occupied by the Mormons, so long as they maintain a hostile attitude to the Government of the United States." There is nothing in the terms of this order to require the plaintiffs to keep with the troops; they were only forbidden to pass them in advance. They might have remained at Rocky Ridge, or they might have retraced their

In opposition to this conclusion we are referred to the opinion of Mr. Bates while attorney general (10 Ops. Atty-Gen. 21), upon the case of the Porters, mentioned in the statement of facts found by the court of claims. It seems their claim was embraced, with those of the plaintiffs in these cases, in the original draft of the Act of July 8, 1886, as it passed the Senate, but, before final passage, was struck out because their claim was pending before the Treasury Department. The accounting officers of the treasury allowed their claim, presumably upon the strength of the opinion of the attorneygeneral, who held that they were entitled to an allowance and payment under the provisions of the Act of March 3, 1849, providing for the payment for horses and other property lost or destroyed in the military service of the United States. The attorney-general, it is true, ex pressed the opinion that the order of Colonel Johnston reduced the train of the claimants to military control, and thereby subjected it to the losses proved, for the purpose of depriving the Mormons of any benefit from it, and was therefore an impressment into the military service within the meaning of the Act of March 3, 1849. But it is evident that he did not rest his recommendation for the payment of the claimants on that consideration, for the opinion proceeds as follows: "But whatever may have been the legal result of the order of General Johnston, the fact is well proved that the property of the claim ants was afterwards actually reduced to military service. The loss of the army cattle com pelled a resort to those of the trains, and several witnesses, servants of the Government and of the claimants, state that the cattle of Messrs.

[131]

[132]

[133]

Porter were used indiscriminately with the
army cattle to haul the army wagons. In this
service many of them died and many were
abandoned, exhausted from overwork and want
of forage; many were killed and eaten by the
army, and for these I understand the claimants
have been already paid under this law. I am
unable to see any distinction between the cattle
that were eaten and those that were worked in
the army trains and lost, for both were cer-
tainly impressed within the meaning of the
statute. Nor do I see how any distinction can
be made between the cattle that actually died
when in the army trains and those that may
have been lost between South Pass and Fort
Scott; for, when they had been once used with
the army cattle to haul the trains, they were
actually employed in the service of the United
States, being under military control and liable
to be applied to that work when needed. It is
too rigid a construction to say that 'actual ser-
vice' means only the time employed in labor.
Possession and the power to use the animal,
Judge Black says in Oldham's Case (Man's Op.
No. 59), is the test of employment within the
meaning of the statute, and these General
Johnston undoubtedly had."

used to aid in hauling government trains, and thus did extra work on insufficient food," there is perhaps ground for a recovery to some extent, under the terms of the Act, for property taken and impressed into the service of the United States; but we are unable, from the findings, to determine the amount properly allowable on that account. It becomes necessary, therefore, to reverse the judgments in both cases, and remand them to the court of claims for more definite and specific findings; and inasmuch as we have determined that the facts as found by the court of claims in the present record do not enable us to determine what property of the plaintiffs was taken and impressed into the service of the United States by Colonel Johnston, the cases may be opened for further proofs on that point.

The judgments are therefore reversed, and the causes remanded to the Court of Claims for further proceedings in accordance with this opinion; and it is so ordered.

JEROME B. WHEELER.

(See S. C. Reporter's ed. 85-96).

The amount found due to the Porters by the accounting officers of the treasury was appropriated by Congress by the Act of February 7, 1887, heretofore referred to. The facts relied upon by the attorney-general, as justifying the payment in their case, of actual service in the 1. A judge of a court of the United States, in subemployment of the United States, do not ap-mitting a case to the jury, may, in his discretion, pear in the present cases.

Neither does the conclusion of the court of
claims derive support from anything said or
decided by this court in the case of Mitchell
v. Harmony, 54 U. S. 13 How. 115 [14: 75].
There the plaintiff was forced, against his will,
to accompany the American troops with his
wagons, mules, and goods in a hazardous ex-
pedition, and for the purpose of strengthening
their military force. His wagons and mules
were used in the public service in the battle of

Sacramento, and on the march afterwards;
when the place was evacuated they were left
behind unavoidably, as nearly all of his mules
had been lost in the march and battle; and
when the Mexican authorities regained posses-
sion of the place, his goods were seized and con-
fiscated and totally lost to him. The jury
found, from the evidence, that there was an
actual seizure of the plaintiff's property by the
officer; and, in speaking to that point, the court
says, p. 136 [84]: "We do not see any evi-
dence in the record from which the jury could
have found otherwise. From the moment they
were taken possession of at San Elisario, they
were under the control of Colonel Doniphan,
and held subject to his order. They were no
longer in the possession or control of the plain-
tiff, and the loss which happened was the im-
mediate and necessary consequence of the
coercion which compelled him to accompany
the troops. It is true the plaintiff remained
with his goods, and took care of them so far
as he could during the march, but whatever
he did in that respect was by the orders or per-
mission of the military authorities. He had no
independent control over them."

Charge to jury-expression of opinion.

express his opinion upon the facts; and when no fact are ultimately submitted to the determination rule of law is incorrectly stated, and all matters of of the jury, such expression of opinion is not reviewable on writ of error.

to the jury fairly submitted to the jury the question 2. Held, also, in this case, that the judge's charge as to the existence of the agreement upon which the plaintiff relied; and that there was no error in the charge.

Submitted Jan. 9, 1888. Decided April 16,1888. [No. 1306.]

Ied States for the District of Colorado, to review a judgment in favor of defendant in a suit to recover for the services of plaintiff. Affirmed.

ERROR to the Circuit Court of the Unit

Statement by Mr. Justice Harlan:

The cause of action set out in the first count of the complaint is that the defendant in error, who was the defendant below, agreed with the plaintiff in error that if the latter assisted the former and his agents in purchasing the interest of Julia Webber in the Emma lode mining claim at a price not exceeding $40,000, he should receive for his services the sum of $10,000, but only $5,000 if the defendant was compelled to pay more than $40,000 for said interest. The complaint alleges that, in consequence of services rendered by the plaintiff under that agreement, the defendant was, on the 22d of November, 1884, enabled to buy said interest at a sum exceeding $40,000, whereby the latter became indebted to plaintiff in the sum of $5,000.

The defendant in his answer denies that he made any such agreement as that alleged, or that he was enabled to purchase the interest of As it appears from the findings of the court Julia Webber by reason of any services renof claims that "plaintiffs' animals were oftendered by the plaintiff.