Juragua Iron Co. v. United States

delivered the opinion of the court.

This action was brought in the Court of Claims to recover from the United States the alleged value of certain property

The case depends altogether upon the facts found by the court; We cannot go beyond those facts.

The Court of Claims found that the Juragua Iron Company (Limited) was a corporation of Pennsylvania, having its principal office and place of business in Philadelphia and was and for many-years had been engaged in the business of mining and selling iron ore and other mineral products in the United States, Cuba and elsewhere and in manufacturing iron and steel products ; that it was so engaged at the opening of the late war with Spain; and to enable it to carry on business it owned, leased and operated mines in Cuba, maintaining offices, works and the necessary tools, machinery, equipments and supplies for its business in the Province of Santiago do' Cuba, at or near Siboney, Firmeza and La Crux; that in addition to its mines, works and their equipments, the company also owned real estate at or near Siboney, which was improved by 66 buildings of a permanent character, used for the purposes of its business and occupied by its employes as,dwellings and for other purposes; that in the year 1898, and “while the war with Spain was in progress, the lives of the United States troops who were engaged in military operations in the Province of Santiago de Cuba, in the belligerent prosecution of the war, became endangered by the prevalence of yellow fever, and it was deemed necessary by the officers in command, in order to preserve the health of the troops and to prevent thé spread of the disease, to destroy all places of occupation or habitation which might contain the fever germs;” that on or about the eleventh of July, 1898, General Miles, commanding the United States forces in Cuba, because of. the necessity aforesaid and by the advice of his. medical staff, issued orders., to destroy by fire these 66-buildings at Siboney, which belonged to the. claimant and had been used for the purposes aforesaid; that pursuant to that order such buildings and their contents were, destroyed by fire by the military .authorities of

As a conclusion of law the court found that the United States was not liable to pay any siim to the plaintiff on account of, the damage aforesaid and dismisséd the petition.

It is to be observed at the outset that no fact was found that impeached the good faith, either of General Miles or of his medical staff, when the former, by the advice of the latter, ordered the destruction of the property in question; nor any fact from which it could be inferred that such an order was not necessary in order to guard the troops against the dangers of yellow fever. It is therefore to be assumed that the health, efficiency and safety of the troops required that to be done which was done. Under these circumstances was the United States under any legal obligation to make good the loss sustained by the owner of the property destroyed?

By the act of-March 3d, 1887, providing for the bringing of suits against the Government of the United States the Court of Claims was given jurisdiction to hear and determine all claims “founded upon the Constitution of the United States or any law of Congress, except for pensions, or upon any regulation of an Executive Department or upon any contract, expressed or implied, with 'the Government of the United States or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect to which claims the party would be entitled to redress against the United States, either in a court of equity or admiralty if- the United States were suable. 24 Stat. 505 , c. 359.

Manifestly, no action can be maintained, under this statute unless the United States became bound by implied contract to compensate the plaintiff for the value of the property destroyed, or' unless the case — regarding it as an action to recover damages — be one “not sounding in tort.”

United States v. Great Falls Mfg. Co., 112 U. S. 645 , 656, was a case of the taking for public use by agents -and officers of' the United States proceeding under the authority of an act of Congress of certain private property — lands; water rights and privileges — which were held and used by the Government for nearly twenty years, without any compensation being made to the owner. A suit was brought against the United States in the Court of Claims, and judgment -was rendered for the claimant. This court said: “ It seems clear that these property rights have been held and used by the agents of the United States under the sanction of legislative enactments by Congress; for the appropriation of money specifically for the construction of the dam from the Maryland shore to Conn’s Island was, all the circumstances considered, equivalent to an express direction by the legislative and executive branches of the Government to its officers to take this particular property for the public objects contemplated by the scheme for supplying the capital of the Nation with wholesome water. The making of the improvements necessarily involves the taking of the property; and if, for the want of'formal proceedings for its condemnation to public use, the claimant was entitled, at the beginning of the work, to have the agents of the Government enjoined from prosecuting it until provision was ma'de for securing in some way payment of the compensation required by the Constitution — upon which question we express no opinion — there is no sound reason why the claimant might not waive that right, and, electing to regard the action of the Government as a taking un

In reference to the subsequent case of Great Falls Mfg. Co. v. Attorney General, 124 U. S. 581 , 597, it may be said that so far as it has any bearing upon the present controversy it reaffirms the principle announced in United States v. Great Falls Mfg. Co., 112 U. S. 645 , 656. The court said: “It is sufficient to say that the record discloses nothing showing that he [the Secretary of War] has taken more land than was reasonably necessary for the purposes described in the act of Congress, or that he did not honestly and reasonably exercise the discretion with which he was invested; and, consequently, the Government is under a constitutional obligation to make compensation for any property or propexty right taken, used, and held by him for the purposes indicated in the act of Congress] whether it is embraced or described in said survey or map, or not. . . . Even if the Secretary’s survey and map, and the publication of the Attorney General’s notice did not, in strict law, justify the former in taking possession of the land and water rights in question, it was competent for the company to waive the tort, and proceed against the United States, as upon an implied contract, it appearing, as it does here, that the Government recognizes and

In United States v. Lynah, 188 U. S. 445 , 464-5, which involved the inquiry whether the injury done to certain lands as the result of work done on the Savannah River by the United States was a taking of privaté property for public use, the court said: “The rule deducible from these cases is that when the Government appropriates property which it does not claim as its own it does so under an implied contract that it will pay the value of the property it so appropriates. ... So the contention that the Government had a paramount right to appro-' priate this property may be conceded, but the Constitution in the Fifth Amendment guarantees that when this governmental right of appropriation — this asserted paramount right — is exercised it shall be attended by compensation. . . . Whenever in' the exercise of its governmental rights it takes property, the ownership of which it concedes to be in an individual, it impliedly promises to pay therefor.”

It is clear that these cases lend no support to the proposition that an implied contract arose on the part of the United States to make compensation for the property destroyed by order of General Miles. The cases cited arose in a time of peace and in each it was claimed that there was within the meaning-of the Constitution an actual taking of property for the use of the United States, and that the taking was by authority of Congress. That taking, it was adjudged, created by implication an obligation to make the compensation required by the Constitution. But can such a principle be enforced in respect of property destroyed by the United States in the course of military operations for the purpose, and only for the purpose, of protecting the health and lives of its soldiers actually engaged at the time in war in the enemy’s country? We say “enemy’s country” because, under the recognized rules governing the conduct of a war between two nations, Cuba, being a part of Spain, was enemy’s country, and all persons, whatever their nationality, who resided there were, pending such war, to be

In Miller v. United States, 11 Wall. 268 , 305, the court, speaking.of the powers possessed by a nation at war, said: “It is sufficient that the right to confiscate the property of all public enemies is a conceded right. Now, what is the right, and why is it allowed? It may be remarked that it has no reference whatever to the personal guilt 'of the owner of confiscated property, and the act of confiscation is not a proceeding against him. The confiscation is not because of crime, but because of the relation of the property to the opposing belligerent, a relation in which it has been brought in consequence of its ownership. It is immaterial to it whether the owner be an alien or a friend, of even a citizen or subject of the power that attempts to appropriate the property. - In either case the property may be liable to confiscation under the rules of war. It is certainly enough to warrant the exercise of this belligerent right that the owner be a resident of the enemy’s country, no matter what his nationality.”’ In Lamar’s Ex’r v. Browne, 92 U. S. 187 , 194, the court said: “For the purposes of capture, property found in enemy territory is enemy property, without regard to the status of the owner. In war, all residents of enemy country are enemies.” “All property within enemy territory,” said the court in Young v. United States, 97 U. S. 39 , 60, “is in law enemy property, just as all/persons in the same territory are enemies. Á neutral owning property within the enemy’s lines holds it as . enemy property, subject to the. laws of war; and if it be hostile prop

So in Hall’s International Law, 5th ed., 500, 504, 533: “A person though not a resident in a country may be associated with it through having or being a partner in a house of trade as to be affected by its enemy character, in respect at least of the

In view of these principles — if there were no other reason— the plaintiff corporation could not invoke the protection of the Constitution in respect of its property used in business in Cuba, during the war, any more than a Spaniard residing there could have done, under like circumstances, in reference to his property then in that island. If the property destroyed by order of General Miles had belonged at the time tó a resident Cuban, the owner would not have been heard in any court, under the facts found, to claim, as upon implied contract, compensation from the United States on account of such destruction. How then under the facts found could an obligation, based on implied contract, arise under the Constitution in favor of the plaintiff, an American corporation, which at the time and in reference to the property in question had a commercial domicil in the enemy’s country? It is true that the army, under General Miles, was under a duty to observe the rules governing the conduct of independent nations when engaged in war — a duty for the proper performance of which the United States may have, been responsible in- its political capacity to the enemy government. If what was done was in conformity to those rules — as upon the facts found we must assume that it was — then the'

In this connection we may refer to Hijo v. United States, 194. U. S. 315, 322, in which the United States.was sued by a Span- • ish corporation for the value of thé use ,of a merchant vessel taken by the United States in the port of Porto Rico, when that city was' captured by our army and navy on July. 28th,- 1898, and kept and used by the Quartermaster’s Department for some.tiine thereafter. The court, said: “There is no element of contract in the case; for nothing was done by the United .States, ñor anythingv said by any of its officers, from which could be implied an agreement or obligation to pay- for the use-■of the plaintiff’s,vessel. According to the established principles of public law, the. .owners, of .the vessel being-Spanish subjects,were to be deemed enemies, although not-directly connected with military operations.- The vessel was therefore to be deemed enemy’s property. It was seized as property of that kind, for the purposes of war, and not for any purposes of-gain.”

In our judgment there is no element of contract in the claim of the plaintiff. And even if it were conceded that its property 'was wrongfully and unnecessarily destroyed under the order of the general commanding the United' States troops, the concession could mean nothing more, in any aspect of the case, than ■ that a tort was committed by that officer in the interest of the United States. But, as already said, of a cause of action arising from such a tort the Court of Claims could not take cognizance, whatever other redress was .open to the plaintiff.

It may be well to notice one other matter referred to in argument. Section 1066 of the Revised Statutes provided that the jurisdiction of the Court of Claims “shall not extend to any claim against the Government not'pending therein on December 1st, 1862, growing out of or dependent on treaty stipulations entered into with foreign nations or with the Indian tribes.” Act of March 3, 1863, 12 Stat. 767 , c. 92, § 9. We need not now consider or definitely determine whether that section, was superseded or modified by the above act of March 3,1887; for, if it was, and if an implied contract could in any case arise from a treaty stipulation, there is nothing' in any treaty with Spain

Haying noticed all the questions that require consideration and finding no error in the record, the judgment of the Court of Claims must be affirmed. ,

It is so ordered.