1. A contractor with the government to transport from port to
port, remote from any seat of war, stores and supplies not forming
any portion of the stores or supplies of an advancing or retreating
army is not a person "in the military service of the United States"
within the second section of the Act of March 3, 1849, "to provide
for the payment of horses and other property lost" in that
service.
2. A petition which represents that a party transporting
&c., was "attacked by
a band of hostile Indians," who,
without any fault of the party transporting or his agents, captured
certain oxen, part of the property in transit, which had never been
recovered, is not sufficiently full and specific to answer the
requirement of the said section, which provides compensation for
"damage sustained by the capture or destruction by an enemy."
An Act of March 3, 1849, [
Footnote 1] entitled "An act to provide for the payment of
horses and other property lost or destroyed
in the military
service of the United States," makes provision in its first
section for payment for horses killed
Page 85 U. S. 85
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 apply to enlisted men. The
payment is limited by the words of this section to "officers,
volunteers, rangers, mounted militiamen, or cavalry engaged in the
military service of the United States."
The second section 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
impressment 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 was 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 statute being in force, Stuart entered into a contract with
the United States.
By the first article thereof, it was agreed that he
"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 months of
Page 85 U. S. 86
April and September from Fort Riley and Leavenworth and the Town
of Kansas to New Mexico or Colorado; receiving for such
transportation $1.97 per hundred pounds.
By the second article, that he should transport "any number of
pounds of military stores and supplies from and between one hundred
thousand pounds and ten millions of pounds in the aggregate."
By the tenth article, that he should 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 one
hundred and twenty-five thousand pounds, but whenever required to
transport one hundred and twenty-five thousand pounds or more, then
no escort shall be furnished."
Other articles, as the fourth, fifth, sixth, eighth, eleventh,
twelfth, thirteenth, and sixteenth, described the duty of the
contractor as that of transporting and delivering.
Stuart, while executing his contract, having, as he alleged,
been attacked by a "band of hostile Indians," and having so lost
fifty-six oxen, filed a petition in the Court of Claims, making
claim under the second section, above quoted, of the Act of 1849,
for indemnity by the United States. The petitioner, setting forth
the particulars of his case in his petition, alleged:
"That in the month of July, 1864, while he was proceeding, in
execution of his contract, with a train of wagons from Fort
Leavenworth, Kansas, to Fort Union, New Mexico Territory, the said
train was, on the 12th day of July, 1864, in the vicinity of Cow
Creek, Kansas, attacked by
a bond of hostile Indians, and
without any fault or neglect on the part of the petitioner or of
his agents, fifty-six head of oxen, employed in moving the said
train, were captured by the said band of hostile Indians, and no
part thereof has been recovered."
To the claim thus set forth the United States demurred, and the
Court of Claims having sustained the demurrer and decreed against
the petitioner, he brought the case here.
Page 85 U. S. 87
MR. JUSTICE HUNT delivered the opinion of the Court.
Three questions arise upon the case:
1st. Was the capture of the property made "by an enemy," within
the meaning of the statute?
2d. Was the property, at the time of its capture, "in the
military service of the United States?"
3d. Does the tenth article of the contract, made in the case,
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 band, 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 located.
[
Footnote 2] 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
Page 85 U. S. 88
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 Riley and
Leavenworth and the Town of Kansas to New Mexico or Colorado. In
the second, fourth, fifth, sixth, eighth, eleventh, twelfth,
thirteenth, and 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 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
Page 85 U. S. 89
an advancing or retreating army, is quite another thing. These
letter 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.
This second section, under which the present claim is made,
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 first 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
Page 85 U. S. 90
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 the 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 1849.
It is not perceived that the claimant's case is aided by the
statute of 1863. [
Footnote 3]
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 for in the
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
the actual military service of the United States, are entitled to
the same indemnity as the other property referred to.
Page 85 U. S. 91
The tenth article of the contract requires no discussion. It is
quite immaterial in any view of the case.
Judgment affirmed.
[
Footnote 1]
9 Stat. at Large 414.
[
Footnote 2]
The Cherokee
Tobacco, 11 Wall. 619.
[
Footnote 3]
12 Stat. 743, § 5.
