The flour impressment case — decision of Judge Lyons--an injunction awarded.
The following important decision was delivered yesterday by
Judge Lyons, in the Husting: Court of Richmond:
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On the 7th day of March, 1863,
Wm B. Isaacs presented his bill, stating that he was the owner of 960 barrels of superfine and extra superfine flour, which he had purchased in October for about the sum of $22,000, and on which he had incurred since considerable expense in drayage, storage, & c., and that he had been informed that
Major John H. Claiborne, ing as was alleged, under the orders of the
Secretary of War, had given notice to
Dunlop, Monsure & Co., in whose warehouse the flour was stored, that he had impressed the same for the use of the Confederate Government, and that the
Government would allow him in payment the piece of seventeen and a half dollars per barrel for the superfine, and nineteen and a half dollars for the extra superfine flour, being nearly three thousand dollars less than he paid for it, and nearly twelve dollars a barrel less than the market price of the flour in
Richmond — that the said
Claiborne under the alleged orders, had also impressed a large quantity of flour belonging to other persons and it at his private means were utterly inadequate to compensate parties if he should be held legally responsible for the impressments, and that neither the Confederate Government nor the
Secretary of War had authority to confer upon an officer the power to seize private property without making just compensation therefore;--and praying an in junction to prevent the removal of the flour until just compensation should be made, or until some provision should be made for ascertaining what is just compensation for the flour.
At the request of the
District Attorney, a decision upon the application was postponed, to allow
Claiborne opportunity to show cause why the injunction should not be granted.
Major Claiborne has filed an answer to the bill, in which he alleges that under the orders of the Confederate Government he has impressed a considerable quantity of flour, including that claimed by
Isaacs; that the flour was believed to be necessary for the use of the army in the field, and that price proposed to be paid therefore was believed by many to be just compensation; that his own fortune was ample to satisfy any demand which
Isaacs might have against him, but that as he had acted under orders of the
Government, it would be bound to stand between him and damage; and with his answer he has fled an order from the
Secretary of War to the
Commissary General, dated in December, 1862 authorizing the
Commissary General to impress flour, & c, and fixing a maximum price to be paid and an order from the
Commissary General instructing him to impress flour at the price fixed by the
Secretary of War.
In the argument of the ease it has been contended by the counsel for the
Government that an injunction ought not to be awarded: 1st.
Because the bill was defective in not charging that
Claiborne had impressed the flour; it only stated that the petitioners was "informed" he had done so.--2d.
Because the proper parties were not before the
Court; that as the impressment was said to have been made under the orders of the
Government the
Secretary of War, as the principal Executive officer of the War Department, ought to have been made a party
defendant. 3d.
Because the answer alleges that the flour was impressed by
Major Claiborne on the ground that it was necessary for the use of the army in the field, and that in cases of extreme necessity an officer of the
Government has a right to take private property for public use, and cannot under such Circumstances be considered a trespasser, but that the party injured must look to the
Government for compensation.
4th.
That even if
Claiborne had no authority to impress the flour, the petitioner had a complete and adequate remedy at law, by action of detince or trespass.
The objections to the form of the bill are not well talent, because even if the bill were defective in not charging more distinctly that
Claiborne had impressed the flour, that defect would be cured by the answer of the defendant, in which be not only admits that he had impressed it, but attempts to justify the act. It was not necessary to make the
Secretary of War a party defendant, because when several persons unite in committing a trespass the injured party has the privilege of suing any one, or all, of them.
The bill does not, however charge that the
Secretary of War had authorized the impressment; it only states that
Claiborne alleged that he had acted under such orders.
The counsel for the
Government have argued most currently in support of the doctrine that a military officer has, in cases of extreme necessity, a right to seize private property for public use, and that under such circumstances, he cannot be considered a trespasser, and that the owner of the property can only look to the
Government for compensation.
This proposition has been asserted by many legal writers and received the sanction of the Supreme Court of the
United States in the case of
Mitchell vs. Harmony (13th
Howard, p. --.)
I do not think that this question arises upon the pleadings in this case, because even those writers who claim the existence of such a right, admit that it can only be exercised "where the necessity is urgent for the public service, such as will not admit of delay; and where the action of the civil authority would be too late in providing the means which the occasion calls for. It is the
emergency that gives the right, and the emergency must be shown to exist before the taking can be justified" [13
Howard, P. 134.
Paley, ch. XL, p. 83.] The evidence in this care does not show the existence of any such "emergency," but on the contrary, in my opinion, it proves that it did not exist.
The order of the
Secretary of War to the
Commissary General, authorizing him to impress subsistence, & c, was written on the 29th of December, 1862, and does not appear to have been caused by a want of food for the army, or an inability to purchase it at the market price, but because the
Government could not buy at prices which the officers considered "reasonable."--A maximum price was fixed for all articles, and the
Commissary General authorized to impress the property, at an arbitrary valuation, whenever he should think it necessary for the public service.
It is not asserted in the answer of
Claiborne, nor was it pretended in the argument, that sufficient supplies for the army could not at that time have been purchased, or that they could, not even have been purchased on the 3d day of March, when the flour in controversy was impressed, at the market price, the price which private persons were paying for their own food; but it was said that the price was too high for the
Government to pay, and the right is claimed to take the private property of a citizen against his consent and without reference to what he may have paid for it, and to convert it to the public use, and allow him as compensation a price fixed by the Department more than two months before — a price in this instance less by $3,000 than what the owners paid for it five months before, and less by $5,000 than he could have sold it for in open market.
Can the
Government, by falling to procure supplies for the army at the proper time, or by refusing to buy them at the prices paid by all citizens, because it considers those prices too high, create "a case of extreme necessity," and then appeal to that necessity to justify the forcible seizure of them!
If it has the right to seize flour at an arbitrary valuation of $17 per barrel, when it is selling at $30 per barrel, why has it not the same right to fix any price which it may choose to say is "reasonable," and thus make those persons who happen to own supplies bear the chief expense of the armies and of the war!
If the
Government or any of its officers can lawfully exercise this power, can it not also lawfully punish any resistance to it?
Does not the same principle which would justify the impressment also justify any measure which may be necessary to overcome or punish any opposition to it?
If this doctrine be maintained what does the
Government become but an unmitigated despotism--one to be administered by force according to the wild of its officers, and not according to the laws of the land.
Indeed, the order of the
Commissary General filed by
Claiborne, with his answer as his justification for his proceedings in this very case, shows how prompt the officers will be to resort to violence to obtain possession of the property which they may think necessary, at their own valuation.
The
Commissary General, in his order to
Major Claiborne, directing him to make impressments, in pursuance of the requirements of the
Secretary of War, in his letter, dated 29th December, uses the following language: "It such impressments should be resisted I will obtain from the
Secretary of War an order on the nearest commanding officer of a post for a force sufficient to repress resistance.--This, I hope, will not be necessary"
The right of taking private property for public uses is one inherent in all sovereignties; but under the
Constitution of the
Confederate States this right can only be exercised when the legislative body should have decided that the public necessity or public use shall require the assumption of private property and then upon the condition of making the owner just compensation therefore.--(Constitution C. S., art, 1 sec, 9, clause 16; Vastel, 112; Blacks one's Com., 133; 2
Kent, 340, 3 Pa ze's R., pp. 45, 73; 18 Wend R., 17 8 Camden and Amboy R. R.
Co.; 1
Baldwin C. C. R., p 205)
The Constitution of the
Confederate States was made for a time of war as well as of peace.
It was formed and adopted by the several States when it was evident that we would soon be engaged in a bloody and cruel war, and the numerous provident in it authorizing the declaration of war, the raising of armies, &c. establish the fact that the framers of it expected it to be obligatory in war and peace, and the judges who are sworn to support that Constitution, and whose duty it is to interpret and expound the laws, can never give a judicial sanction to any violation of or departure from it.
If an officer charged with an important duty in the defence of the country should, upon a sudden emergency, find it necessary for the public safety to exceed the law, he must look to congress for indemnity, and not expect a court of law to justify a lawless act.
According to the
Constitution and the decisions cited above, the right to authorize impressments of private property is vested in the
Legislative and not Executive branch of the
Government.
Is a Court, then, to allow the Executive Department of the
Government to assume legislative powers — to exercise the discretion of deciding whether the public necessity does require the taking of private property for public use, when that discretion is, by the
Constitution, vested in Congress alone?
But even if Congress had passed a law authorizing impressments, it would have been compelled to provide by law come impartial tribunal for ascertaining the fair and just value of the property taken, and to make ample provision for the payment to the owner, without unreasonable delay of the compensation ascertained (
Bloodgood vs Mohawk and
Hudson R R. Co., 18 Wend, 9
Rogers vs Bradshaw, 20th
Johnson's R p 7.5.
Martin expert 13
Arkansas R p. 193; 1st
Baldwin C C. R p 227.
Smith's Common Con. Laws p 467-475; 8
Pickering R p 501.)
According to numerous decisions, "just compensation" means an equivalent — a recompense in value or the property taken — what the article would sell for in the market, and not the price which the owner might demand or which some person or special reason, might be willing to give (1st Sedgwick on Damages, p 273; 1st
Baldwin, p 338-310.)
If Congress, then, in whom resides the power of
eminent domain, so far as the Confederate Government is concerned, has no right to authorize as the taking of private property without providing just compensation therefore, can it be tended that, in the absence of such legislation, an executive officer can do it that he can decide when the necessity may exist, and fix amount of compensation to be paid?
I think not.
The only rewarding question to consider is, whether the case is one for an injunction.
It is a well settled rule of equity that an injunction will not be granted where the complainant has a complete and adequate remedy at law.
Is the remedy of the plaintiff complete and adequate at law?
Is the action of Maj
Claiborne be illegal the plaintiff may the human , or trespass, and recover a judgment against him for the flour or its value, with interest, from the time of impressment.
It is admitted by
Claiborne in his answer that he has also impressed a large amount of flour belonging to other persons far exceeding in value his own property, and the plaintiff should bring an action of detinue against him, in all probability whenever he might recover judgment he would find that the flour had been consumed by the army and
Claiborne's property covered over with judgments recovered by other parties for similar in pressments.
The plaintiff on his judgment would either obtain nothing, or, at the a
pro rata share of his claim.
If
Claiborne's action be illegal, although it might be the duty of the
Government under the circumstances to protect him from damages, he could not compel it to do so; nor is there any mode by which the plaintiff could force it to pay him for the flour, although it might have been used by the army.
Compensation cannot be made without legislative sanction and Congress cannot be put under any
legal obligation to pay for property unlawfully seized by any officer nor to protect the officer in such a case from a judgement for damages.
In addition,
Isaacs has not as effectual a remedy at law against
Claiborne as he would have against a private citizen who had committed a trespass.--Under the statute law of
Virginia a plaintiff who has recovered judgment and ed out an execution against a private citizen, may file interrogatories with a Commissioner of the
Court, and a summons will be issued requiring the defendant to appear and disclose what property he possesses, and surrender it to be applied in satisfaction of the execution.
If the defendant should fall or refuse to do this, an attachment would be issued against him, and he would be arrested and committed to jail until he should comply with the law. According to our practice, this is one of the most effectual means of enforcing the payment of judgments, and is frequently resorted to; but the plaintiff in this suit cannot avail himself of this remedy against
Claiborne, because he is an officer in the military service of the
Confederate States, and as such is exempt from arrest under civil process.
The remedy of
Isaacs is not, therefore, complete and adequate at law — irreparable injury to him might be the consequence of refusing to grant an injunction; it is, in my opinion the only complete and effectual remedy, and for that reason ought to be granted.
In conclusion, the learned
Judge referred to the following authorities: Caborn et ats
vs. Bank of
United States--
Wheaton, 74; 24 Rob
Price co. 233, 236
Crenshaw vs. Slate River Company--6 Rand., 215.
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