# Mitchell v. Clark/Opinion of the Court

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* Opinion of the Court
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United States Supreme Court
110 U.S. 633
Mitchell v. Clark
The first of these defenses is intended to assert the validity of the military order by which defendants under compulsion of that order paid the rent which as tenants of Clark they then owed to him, into the military chest of Gen. Schofield, and that said order being lawful and valid is a full protection to them and a bar to this action. We shall not undertake to decide in this case whether Gen. Schofield had such authority as would make that payment a discharge of the debt or not.
The third plea, conceding that the order of Gen. Schofield may not of itself be a sufficient defense to the action, invokes the aid of the fourth section of article 11 of the constitution of the state of Missouri as making the facts set out in the first plea a good defense. The language of this section is as follows: 'No person shall be prosecuted in any civil action or criminal proceeding for or on account of any act by him done, performed, or executed after the first day of January, 1861, by virtue of military authority vested in him by the government of the United States or that of this state to do such act, or in pursuance of orders received by him from any person vested with such authority; and if any action or proceeding shall heretofore have been or shall hereafter be instituted against any person for the doing of any such act, the defendant may plead this section in bar thereof.' This constitutional provision was adopted in 1865, and was clearly intended to protect the military officers or those acting under them from liability, civil or criminal, for acts done under their orders. Whether it covers the present case or not is not a question within our province to decide. The plea is made in a state court and sets up a defense under the state law, and however much the party may be aggrieved by that court's decision he in that plea sets up an immunity under a state law and not under the law of the United States. Of such matter this court has no jurisdiction, and we consider it no further.
The second and fourth pleas both set up the act of March 3, 1863, (12 St. 755,) as a defense; the second plea relying upon the fourth section of the act as a full defense to any suit at all in such case as the present, and the fourth plea setting up the specific defense of the statute of limitation found in the seventh section of that act. The fourth section is as follows: 'That any order of the president, or under his authority, made at any time during the existence of the present rebellion, shall be a defense in all courts to any action or prosecution, civil or criminal, pending or to be commenced, for any such seizure, arrest, or imprisonment made, done, or committed, or acts omitted to be done, under and by virtue of such order, or under color of any law of congress, and such defense may be made by the special plea or under the general issue.' And the seventh section declares 'that no suit or prosecution, civil or criminal, shall be maintained for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or act omitted to de done, at any time during the present rebellion, by virtue or under color of any authority derived from or exercised by or under the president of the United States, or by or under any act of congress, unless the same shall have been commenced within two years next after such arrest, imprisonment, trespass, or wrong may have been done or committed, or act may have been omitted to have been done: provided, that in no case shall the limitation herein provided commence to run until the passage of this act, so that no party shall, by virtue of this act, be debarred of his remedy by suit or prosecution until two years from and after the passage of this act.' The act of May 11, 1866, to amend this act, (14 St. 46,) by its first section declares that the benefit of this defense shall extend to any acts done or omitted to be done during said rebellion by any officer or person, under and by virtue of any order, Written or verbal, general or special, issued by the president or secretary of war, or by any military officer of the United States holding command of the department, district, or place within which such acts * * * were done or omitted to be done, either by the person or officer to whom the order was addressed, or for whom it was intended.' The act of 1863 also makes elaborate provision for the removal of this class of cases, including any act done under color of authority derived from the president, from a state court into a federal court, which provision is also made more effectual by the act of 1866.
It is not at all difficult to discover the purpose of all this legislation. Throughout a large part of the theater of the civil war the officers of the army, as well as many civil officers, were engaged in the discharge of very delicate duties among a class of people who, while asserting themselves to be citizens of the United States, were intensely hostile to the government, and were ready and anxious at all times, though professing to be non-combatants, to render every aid in their power to those engaged in active efforts to overthrow the government and destroy the Union. For this state of things congress had provided no adequate legislation, no law by which the powers of these officers were so enlarged as to enable them to deal with this class of persons dwelling in the midst of those who were loyal to the government. Some statutes were passed after delay of a general character, but it was seen that many acts had probably been done by these officers, in defense of the life of the nation, for which no authority of law could be found, though the purpose was good and the act a necessity. For most of these acts there was constitutional power in congress to have authorized them, if it had acted in the matter in advance. It is possible that in a few cases, for acts performed in haste and in the presence of an overpowering emergency, there was no constitutional power anywhere to make them good. But who was to determine this question; and for service so rendered to the government by its own officers, and by men acting under the compulsory power of these officers, could congress grant no relief? That an act passed after the event, which, in effect, ratifies what has been done, and declares that no suit shall be sustained against the party acting under color of authority, is valid, so far as congress could have conferred such authority before, admits of no reasonable doubt. These are ordinary acts of indemnity passed by all governments when the occasion requires it.
In the legislation to which we have referred in the act of 1863 and the amendatory act of 1866, congress seems to have well considered this subject. By the fourth section of the act of 1863 it undoubtedly intended to afford an absolute defense, as far as it had power to do so, in this class of cases. By sections 5 and 6 it was enacted that the person sued for any of this class if acts, performed or omitted under orders of officers of the government, even when there was only color of authority, could, instead of having his case tried in a state court, where both court and jury might be prejudiced against him, remove his case into a court of the United States for trial. That this act is constitutional, so far as it authorizes this removal, was settled in the case of The Mayor v.Cooper, 6 Wall. 247.
The defendant, however, for some reason did not attempt to remove this case into the circuit court of the United States, probably because the supreme court of the state had decided in the case of State v. Gatzweiler, 49 Mo. 17, that the limitation clause of the act of congress was valid, and was binding on the state court. The third measure of relief which those statute provided for said case was this statute of limitations, found in the seventh section relief which those statutes provided of the right of action, like the right of removal, did not depend, by the terms of the statute, on the validity of the authority set up by the party. In one case it is obvious that that question must be inquired into after the removal. In the other, if the action had not been brought within two years, it was immaterial; for the plaintiff could not recover, however void the authority under which defendant acted. Had congress power to pass such a law? The suit being one which, under the act of congress, could be removed into the courts of the United States, congress could certainly prescribe for it the law of limitations for those courts. If for such actions in those courts, why not in all courts? Otherwise there would be two rules of limitation of actions in different courts holding pleas of the same cause.
But there are other considerations which lead to the conclusion that congress must have the right to prescribe the rule of limitations for all courts in this class of cases. The act complained of is done for the benefit of the government by one of its officers, or by his imperative orders, which could not be resisted. If done under a necessity or a mistake, the government should not see him suffer. In such a case as the present, where the money collected went into the military chest, and was either turned over to the treasury or used to pay the military expenses of the United States, the government is bound in equity, if not legally, to repay the defendant, if judgment goes against him, what it received, with interest and costs. It has a right to say in such cases that the suit, which is to establish this liability, must be brought within reasonable time in whatever court it is brought, and to determine what is that reasonable time. The government which thus exposes its officers and others, acting under its compulsory exercise of power, to be sued, while not denying redress for the illegal exercise of such power, must have the authority to require that suits brought for such redress shall be commenced within reasonable time. The question in all such cases is one that arises under the constitution and laws of the United States, because the act questioned is one done or omitted under color of authority claimed to be derived from the government, and therefore involves the consideration whether such authority did in fact, or could in law, exist. It is one, consequently, that falls within the constitutional jurisdiction of the judicial power of the United States. Hence it follows that congress might vest that jurisdiction exclusively in the courts of the United States, and might regulate all the incidents of suits brought in any jurisdiction authorized to entertain them. It is upon this principle that the case of Arnson v. Murphy, 109 U.S. 238, [S.C.. 3 SUP. CT. REP. 184,] was decided. The question there was whether the statute of limitations of the state or of congress should govern, the suit having been brought to recover for duties illegally assessed. And though the action was one properly brought originally in the state court, and which might have been tried there, it was held that as the money collected by the collector had been paid into the treasury, and the United States was responsible for the judgment which might be recovered against him, and congress having also modified the right of action which plaintiff had at common law, the provisions of the act in regard to time of commencing the action governed the case, and that they were necessarily exclusive.
The supreme court of Missouri, in the case of State v. Gatzweiler, 49 Mo. 17, held that the seventh section of the act of 1863 is not only valid, but is binding on the state courts. Quoting from the case of Clark v. Dick, 1 Dill. 15, it concurs with the circuit court that if congress has the right to determine in what courts such questions must be tried, it must necessarily have the power to regulate the remedy, including the right to prescribe the time within which the suit must be brought. That court further cites from the same opinion with approval, as follows: 'Nor is the objection sound that in such cases the action, if tried in the state courts, will be subject to the laws of limitations prescribed by the states, while in the federal courts a different rule would prevail. For the act of congress by its terms applies to all cases of the character described in the statute, and we see no reason to limit its application to the federal courts. If congress has a right to legislate on this subject, it has the right to make that legislation the law of all courts into which such a case may come, and we think they have done this in the statute under consideration.' That a similar statute in regard to suits by or against an assignee in bankruptcy governs the state courts, see Jenkins v. The Bank, 106 U.S. 571, [S.C.. 2 SUP. CT. REP. 1,] and Jenkins v. Loewenthal, 3 SUP. CT. REP. 638. It is no answer to this to say that it interferes with the validity of contracts, for no provision of the constitution prohibits congress from doing this, as it does the states; and where the question of the power of congress arises, as in the legal-tender cases, and in bankruptcy cases, it does not depend upon the incidental effect of its exercise on contracts, but on the existence of the power itself. In regard to the states, which are expressly forbidden to impair by legislation the obligation of contracts, it has been repeatedly held that a statute of limitation which reduces materially the time within which suit may be commenced, though passed after the contract was made, is not void if a reasonable time is left for the enforcement of the contract by suit before the statute bars that right. Such is the case before us, for the statute leaves two years after its passage, and two years after cause of action accrued, within which suit could be brought.
It is said that the plea does not bring the case within the provisions of the act of congress, because this is an action to recover of the defendant the rents which are due from him to the plaintiff on a contract in writing, and that the trespass committed on the defendant by order of Gen. Schofield is no answer to plaintiff's right under the contract. But we are of opinion that both the language and the spirit of the statute embrace the present case. The plea makes it plain that it was the purpose of the Schofield order to seize the debt due from defendant to plaintiff, to confiscate it for military purposes. The sum enforced from Mitchell was the precise sum due to Clark for those rents. It was to answer Clark's obligation or default the order was made and enforced against Mitchell. He could not help himself. It could as well be said that the garnishee in attachment is not protected when paying under the order of the court, because there was error in the proceeding against his creditor. In all the confiscation of debts in the cases arises out of the late rebellion the same thing was done by the courts that was done here by the military power, namely, a debt due by a debtor, who was present, was seized and paid over to the United States. Can it be held that this was no proceeding against the creditor? It cannot be denied that such a procedure, if well conducted, is a good defense. It was the purpose of this statute to make it a defense here, though done without authority, if the creditor's right was not asserted by suit within two years. The language of the statute is that no suit shall be maintained unless brought within two years, for any wrongs done or committed, or act omitted to be done, by virtue or under color of authority derived from or exercised by or under the president. The act done here was the payment, under summary confiscation, of the debt due Clark to the military officer. The act omitted was the omission by Mitchell, during all these years, under that order, to pay to Clark. The two-years statute was intended to cover the act done by Mitchell in paying according to the order of Schofield, and the omission in refusing to pay to Clark.
The case of Harrison v. Myer, 92 U.S. 111, was a case where the rent due under a lease from an absconding malcontent was seized by a military order. This court held that the lessor could not afterwards insist on the contract. His property was seized, says the court, and the tenant was no longer responsible to him, who could no longer secure him possession, and as the lessee was obliged to render obedience to paramount authority, it was entirely competent for him to enter into a new contract to protect his interest.
It is said, however, that the supreme court of Missouri held the plea to be bad because it did not set out a copy of the order of Gen. Schofield on which the defense is founded, either in hoec verba or in substance, and that this, not being a question of federal law, is sufficient to sustain the judgment of that court. But there are several sufficient answers to this: (1) The opinion of the supreme court, while mentioning this objection en passant, does not decide that it is of itself sufficient to invalidate the plea. (2) It does proceed in a lengthy discussion of the plea on its merits, and rests its judgment on the ground that congress had no power to pass the statute of limitations in question. (3) The question, whether a plea sets up a sufficient defense when the defense relied on arises under an act of congress, does present, and that necessarily, a question of federal law; for the question is, and must be, does the plea state facts which, under the act of congress, constitute a good defense? (4) In this particular matter congress made even the manner of pleading the defense a question of federal law by the provisions of the statutes on this subject.
By section 4 of the act of 1863, (12 St. 756,) it is enacted that the defense which it affords may be made by special plea, or under the general issue; and by section 1 of the act of 1866, (14 St. 46,) that the order which shall be a sufficient defense may be written or verbal, general or special. These provisions furnish the rules by which the manner of setting up the defense is to be governed, and they leave no doubt in our mind that the liberality which they intended to prescribe in the matter requires that the present plea of the statute of limitations, being good in substance, is sufficient in form of statement. If the order was verbal, if it was general, if it could be given in evidence under the general issue, it is sufficiently set out in this plea as an order of Gen. Schofield, in command of that military department, under which defendant was compelled to pay to that officer's subordinate the rent he owed to plaintiff.
In the case of Bean v. Beckwith, 18 Wall. 510, the defendants did not rely upon the statute of limitations of 1863, but pleaded as a special defense that one of them was a provost-marshal, and the other acted under his orders; and that they both acted under the authority and by the order of Abraham Lincoln, president of the United States. But whether there was in that case a special order of the president to the provost-marshal, or whether he assumed to arrest and imprison the plaintiff under some proclamation or general order, did not appear by the plea, and as it was a case of arrest and imprisonment, this court held that the authority of the defendants to make it should be specifically set forth. That is not the present case, for the defendant here did as he was compelled to by others, and probably never saw the order under which he was forced to pay the money, and has not now within his control the order under which the officer acted. He has, basides, given with sufficient clearness the substance of Gen. Schofield's order to enable plaintiff to deny its existence, if he can, or to make any other reply appropriate to the merits of the case, and if the order was verbal no better statement of it can be exacted.
We concur in the opinion of the lower courts in Missouri that the plea of the statute of limitations is a good plea, and is sufficiently set out; and for the error in sustaining the demurrer to this plea, the judgment of the supreme court of Missouri is reversed, and the case remanded to that court for further proceedings, not inconsistent with this opinion.

## Notes

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