#### G. L. GARBER, ADMINISTRATOR, v. THE UNITED STATES.

[Congressional, 12979.

Decided May 29, 1911.]

*On the Proofs.*

In December, 1865, tbe dwelling bouse and property of tbe decedent in Alabama is fired by a squad of soldiers in uniform and armed, belonging to a body of colored troops stationed in tbe vicinity for tbe protection of tbe lives and property of people in tbe vicinity. Tbe owner of tbe property was loyal.

*504: I. A claim for the lawless destruction of property by soldiers acting without authority is neither a legal nor equitable one in the sense of contract nor an obligation in a strictly constitutional sense.

II, The wanton destruction of property by soldiers who had been sent to the vicinity to protect it, to the exclusion of the local authorities, is a matter which may strongly appeal to the legislative branch of the Government, but as to which the court is without jurisdiction under the Tucker Act.

III. Where the act of a public officer or agent is unlawful an action at law will lie against him personally for the wrong. It is a fundamental principle of constitutional law that every one who has suffered a legal wrong shall have legal redress. If his real property be taken by force and be converted to public use without lawful authority or due process at law, his only-remedy is an action of ejectment against the officers in possession. *(United States*v. *Lee,*106 U. S. R., 197.)

*The Reporters'*statement of the case:

There follow a statement and the facts of the case as found by the court:

STATEMENT OF CASE.

This is a claim for the destruction of a dwelling house and furniture therein by a detachment of soldiers of the United States Army on the night of December 20,1865.

On December 6, 1906, the United States Senate, by resolution, referred to the court under the act of March 3, 1887, known as the Tucker Act, a bill in the following words:

“ [Senate 6874, Fifty-ninth Congress, second session.]

“A BILL For the relief of the personal representatives of James Rhodes, deceased.

*“Be it enacted by the Senate and House of Representatives of the United States of America in Congress*assembled, That the .Secretary of the Treasury be, .and he is hereby, authorized and directed to pay, out of any money in the Treasury not otherwise appropriated, the sum of seventeen thousand five hundred and fifty dollars to the personal representatives of James Rhodes, deceased, the said sum to be received in full payment and satisfaction for damages sustained by said Rhodes from the destruction of his residence and the personal property therein on the night of the twentieth day of De*505cember, eighteen hundred and sixty-five, by fire set by soldiers of the United States Army.”

The claimant appeared and filed his petition in this court, February 25, 1909, in which he makes substantially the following allegations:

That he is a citizen of the United States and a resident of the county of Demopolis, State of Alabama; that petitioner is duly appointed administrator d. b. n. of the estate of James Rhodes, deceased, late of Choctaw County, Ala.

That on December 20,1865, the claimant’s decedent, James Rhodes, a citizen of the United States, was living with his family at Bladon Springs, Choctaw County, Ala., which had been his home for many years. At that time and for a long time previous all hostilities between the forces of the United States and of the Confederacy had ceased in the State of Alabama and especially in that neighborhood. On December 20, 1865, there were stationed near Bladon Springs several companies of the United States colored troops which had been sent there from Mobile, Ala., some time previous, for the purpose of preserving order in that neighborhood and protecting the lives and property of the citizens of that neighborhood. On the night of December 20, 1865, a detachment of United States soldiers, without provocation on the part of said James Rhodes or his family, willfully and maliciously set fire to his residence, as a result of which it was entirely consumed, together with its furniture. No effort was made at the time by the officers commanding said companies to restrain said soldiers from this act, although they had good reasons to believe that the soldiers under their command intended to do bodily harm to said Rhodes and destroy his property.

The description and value of the property thus destroyed are as follows:

Value of the residence and fixtures_$5,000

yalue of the parlor furniture, including 1 fine rosewood piano, small sofas, mahogany chairs, Brussels carpet, rug, rosewood tables, mahogany marble-top table, books, and other

articles_ 1,400

7 bedsteads, mattresses, bedding, and extra bedding, etc., for

5 rooms_ 2,000

Carpets, bureaus, and other furniture of 3 rooms_ 1,050

*506Furniture of 2 other rooms_ 100

Dining-room furniture, glass, and china_ 500

Bookcase and books, secretary, sideboard, glass center table, and chairs- 1, 500

Stores of supplies, groceries, etc- 1,000

Cloth and materials of various kinds_ 1,000

Silver plate, gold ornaments, and $500 in money- 1, 500

Entire wardrobe of the family and 1 gold watch- 2,000

Miniature and gold case, 7 portraits- 500

Total_17,550

On January 10, 1866, said Rhodes filed his petition under oath with the officer of the United States commanding the District of the Gulf at Mobile, Ala., but no action was taken thereon.

FINDINGS OK FACT.

I. The claimant is the duly appointed administrator of the estate of James Rhodes, late of Bladon Springs, Ala., and is a citizen of the United States.

II. The said decedent, James Rhodes, was not loyal to the Government of the United States throughout the late Civil War. He took the oath of allegiance to the United States in August, 1865.

III. On the night of December 20, 1865, the dwelling house of said James Rhodes, situated at Bladon Springs, Ala., was set on fire by a squad of about 20 soldiers, in uniform and armed, belonging to a body of United States colored troops stationed in the vicinity for the protection of the lives and property of the people in and around Bladon Springs, and said building, together with the contents thereof consisting of furniture, paintings, plate, china and glass,. books, clothing, jewelry, goods, and money, was totally destroyed. The reasonable value of said property so destroyed, at said time and place, was the sum of $9,100, no part of which appears to have been paid.

IY. Said depredation took place without the authority, direction, knowledge, or approval of any officer in command of troops and was the wanton and unauthorized act of individual soldiers of the United States Army, and the United' States derived no benefit therefrom.

Y. On January 10, 1866, claimant’s decedent presented a claim supported by affidavits and setting forth an itemized *507statement of his loss by said fire, to Brig. Gen. G. A. De Bussy, commanding the District of the Gulf, at Mobile, Ala., upon which no action appear to have been taken.

The claim does not appear to have been presented to any other officer or department of the Government until its presentation to Congress and reference to the court as herein-before set forth in the statement of the case.

*Mr. Louis Pradt*and *Mr. Alexander M. Garber*for the claimant.

*Mr. Charles F. Kincheloe*(with whom was *Mr. Assistant Attorney Generad John Q.*Thompson) for the defendants.

Howry, *Judge,*

delivered the opinion of the court:

This claim is neither a legal nor an equitable one against the United States in the sense of contract, express or implied. For this reason it is not a claim in a strictly constitutional sense. Though the act complained of was a grievous wrong against the inoffending citizen and not the subject matter of a remedy in the courts against the Government (beyond this report for congressional consideration and action) , nevertheless the wanton destruction of the claimant’s property by those who had been sent to the vicinity to protect it, to the exclusion of the local authorities, is a matter of such consideration as to strongly appeal to the legislative department to remedy by an appropriation.

The doctrine that the General Government can not be sued without consent of the sovereign has been held to have no application to officers and agents of the United States who, holding for public uses possession of real property, are sued therefor by a person claiming to be the owner thereof or entitled thereto.

If his real property be taken by force and be converted to public use without lawful authority or due process of law, the only remedy is an action of ejectment against the officers in possession.

In *United States*v. Lee, 106 U. S., 197, it appeared that a citizen had been deprived of his real property by force, his estate seized and converted to public use without lawful authority, without process of law, and without compensa*508tion, on an Executive order, and officers of the Government were in possession. A remedy was afforded the citizen in an action to eject the officers in possession. The court said that the law of this country could not sanction a tyranny which had no existence in any government having a just claim to the protection of personal rights, and took the occasion to further say that no man in this country is so high as to be above the law; that the ends of justice did not give immunity from judicial inquiry to officers of the Army who had without proper authority taken the property of the citizen, even though such officers were sheltered behind an order of the President.

The foregoing authority is apposite as illustrating here, not the right to bring an action against the United States in cases sounding in tort in the present state of the law (except for the taking of real estate), but to vindicate the right of all persons, natural or artificial, to avail themselves of all remedies within the constitutional power of any branch of the Government with jurisdiction to afford.

It is within the constitutional power of Congress to determine whether claims upon the Public Treasury are founded upon moral and honorable obligations and upon principles of right and justice. There are many precedents which have resulted in appropriations under this statement of the principle. A few having the sanction of the Supreme Court as to “ the practice of Congress since the adoption of the Constitution ” are the cases of *United States*v *Realty Co.,*163 U. S., 441; *Emerson*v. *Hall,*18 Pet., 409; *United States*v. *Price,*116 U. S., 43; *Williams*v. *Heard,*140 U. S., 529.

If it be the law of this country for the United States to have an army of defense against domestic or foreign invasion, the peaceful citizen is entitled to equal protection ; where troops are sent to protect him ar:1 surround his home. / Legislative relief is all that can be afforded against depredations of enlisted men in camp who are not controlled by the necessary and proper discipline as shown in the present case. - Especially is this so where the civil authority is suspended as it was in the case at bar.

The findings will be transmitted to Congress with the conclusions of the court and a copy of this opinion.