#### JOSE LOPEZ y CASTELO v. THE UNITED STATES.

No. 30073.

Decided April 24, 1916.

*On the Proofs.*

*Seizure of*vessel.—This is a suit for the recovery of the value of the use of a steamer owned by plaintiff and seized by the military authorities of the United States in 1901 during the insurrection in the Philippine Islands, together with the value of the repairs necessarily made by the owner after recovering possession of the property from the United States.

*222
      *Enemy’s property; implied*contract.—Where a steamer is seized by the proper military authorities during pendency of rebellion or insurrection upon the ground that it is the property of the enemy and was at the time being used in furtherance of the rebellion, and the vessel is subsequently used in the service , of the United States, there is no implied contract to pay for the use thereof.

*Jurisdiction;*tort.—Where a vessel is seized under such circumstances, and where nothing is said or done by. the officers of the defendant from which the court can imply an obligation to pay for the property so taken, the transaction assumes the status of a tort and the court is without jurisdiction. *Enemy’s*property.—Where a vessel is seized to prevent its activities in the interest of the rebellion, the transaction is one involving the military arm of the Government and was so seized as enemy’s property.

*Jurisdiction; tort;*assumpsit.—The act of March 3, 1887, known as the Tucker Act, 24 Stats., 359, precludes recovery in this jurisdiction in cases sounding in tort, and the transaction was not converted into one of implied contract because of the retention of the vessel. The plaintiff! can not waive the tort and sue in assumpsit.

The Reporter’s statement of the case:

*Mr. Jachson H. Ralston*for the plaintiff. *Messrs. William E. Richardson*and *George W. Mott*were on the briefs.

The laws in force at the time of the purchase of this steamer by the claimant and during the period which it was used by the Government specifically provide for the ownership of property by minors. Article 160 of the Philippine Civil Code provides as follows:

“The ownership of property which a child not emancipated may have acquired, or acquires by its work or industry or for any good consideration, is vested in the child, and the usufruct in the father or mother who has him or her under his or her authority and in his or her company; but if the child, with the consent of the parents, lives independently of them, he or she shall be considered as emancipated for all purposes with regard to said property and shall own it and enjoy the usufruct and administration thereof.”

Article 443 of said Code provides that:

“Minors and incapacitated persons may acquire the possession of things.”

*223Article 433 provides that:

“Any person who is not aware that there is in his title or in the manner of acquiring it any flaw invalidating the same shall be considered a possessor in good faith.”

Article 434 provides that:

“ Good faith is always presumed, and any person alleging bad faith on the part of the possessor is obliged to prove it.”

Article 464 provides that:

“ The possession of personal property acquired in good faith is equivalent to a title thereto.”

If the claimant herein was not in fact the owner of this steamer, and it belonged to the undivided estate of his father, there was no reason whatever to transfer the title to him. His two brothers, Mariano and Manuel, were thoroughly loyal to the United States Government, on friendly terms with the United States officers, and aided them in every way to suppress the insurrection; in fact it was through their efforts that a number of prominent insurrecto officers surrendered with their commands.

There never was any doubt about the loyalty of the claimant herein. He took the oath of allegiance to the United States in February, 1900. There is no evidence whatever in the case to indicate that any member of this family was disloyal to the United States at the time of the seizure and use of this steamer. As to the question of smuggling, it was a mere suspicion, easy to verify. The military authorities evidently did not consider there were sufficient grounds to warrant an investigation. The burden of proof is on the Government, and there has been no evidence produced on this point. The vessel was plying between open ports, and the presumption is that its owner complied with the laws and regulations in force.

The United States is morally and legally bound to compensate the claimant for the use of this steamer. The articles of capitulation of the city of Manila (where claimant resided), August 13, 1898, provided that:

“ This city, its inhabitants, its churches and religious worship, its educational establishments, and its private property of all descriptions are placed under the special safeguard of the faith and honor of the American Army.”

*224The provisions of the Treaty of Paris, April 11, 1899, pledged the United States to the protection of all rights of property in the islands.

The Executive Order of President McKinley, issued April 7,1900, among other things, contains the following:

“ Upon every division and branch of the government of the Philippine Islands, therefore, must be imposed these inviolable rules: ‘ That no person shall be deprived of life, liberty, or property without due process of law; that private property shall not be taken for public use without just compensation.’ ” (American Charters, Constitutions, and Organic Laws, vol. 5, pp. 3162 to 3164.)

The Congress of the United States ratified and confirmed the foregoing order July 1,1902, 32 Stat. L., 691.

In the case of *The Venice,*2 Wall., 258, it was held that after the issuance of General Butler’s proclamation all rights of property will be held inviolate; that such property was to be protected and not liable to seizure.

There was apparently no well-founded ground for the seizure of this vessel other than, as stated by Gen. Bell, that it was necessary for the public use and “ we could not possibly have gotten along without it.”

The Government is also liable for the value of the use of the vessel during the period it was undergoing repairs. *Dozier*v. *United States,*9 C. Cls., 342; *United States*v. *Shea,*152 U. S., 178. '

*Mr. W. F. Norris,*with whom was *Mr. Assistant Attor-ney General Huston Thompson,*for the defendants.

Booth, *Judge,*

reviewing the facts found to be established, delivered the opinion of the court:

The claimant, Jose Lopez y Castelo, is a native of Batangas, P. I. Some time during the year 1896 he purchased the steamer *Purísima Concepcion,*placing the same in the custody of his elder brother, Manuel Lopez, as his agent. The steamboat was engaged in the transportation of merchandise and made repeated voyages to and from the various ports of the islands, most generally to and from Manila. On December 12, 1901, Brig. Gen. J. F. Bell, in command *225of the Third Separate Brigade, United States Army, then stationed at Batangas, P. I., and actively engaged in the suppression of the Philippine insurrection, telegraphed the commanding officer of the Army at the port of Boac, Island of Marinduque, to seize the steamer *Purísima*Concepcion, put a guard on board her, an officer in charge, and send the boat at once to Batangas. Gen. Bell’s telegraphic orders were promptly executed. The seizure was made by Gen. Bell in pursuance of a belief that the steamer was employed by its owner or agent in contraband trade and was smuggling cattle from the port of Mindoro to the city of Manila in order to obtain funds to finance the cause of the insurrectionists. It was, in fact, the seizure of alleged enemy property, taken during hostilities, and thought to be employed in furtherance of the local insurrection. The boat was thereafter used by the Army, as set forth in the findings, and after being repaired at the expense of the United States was turned over to the owner. This suit is to recover for its use and for additional repairs alleged to have been necessary, made and paid for by the owner after recovering possession thereof.

The jurisdiction of the court in the premises is challenged by the defendants. It will not be profitable to review the extent of our jurisdiction as granted under the act of March 3,1887, commonly known as the Tucker Act, 24 Stat. L., 359. In cases of the character here presented the subject is *res adjudicata.*The right of recovery, as well as the limitations of jurisdiction, depend exclusively upon a taking or a use under circumstances from which a contract to pay therefor may be implied. The event in detail must furnish sufficient evidence of a distinct recognition by the defendants of title in the adverse party of an intention by the Government officers to pay for the property involved. The transaction must exhibit a degree of mutuality sufficient in extent to warrant the court in implying that the defendants recognized the right of private property to which they claimed no legal title and for the use of which nothing remained to be done except to fix the compensation. It must be divested *226of any claim to seize the property in the Government’s own right and free from tortious conduct. There must be an absence of any intent upon the part of the defendants to appropriate the property under authority of law giving the right in times of open hostilities to the constituted authorities. The necessary elements of contractual relation can not obtain where nothing is said or done by the officers of the defendants from which the court can imply an agreement or obligation to pay for the property taken. An invasion, a trespass, no matter how flagrant, is not within the grant of our jurisdiction, and in the present state of Federal jurisprudence is a political and not a justiciable issue. The findings, indisputable, furnish absolutely no evidence upon which we might take jurisdiction of the cause. On the contrary, all the circumstances attending the seizure are replete with significant and positive testimony which conclusively preclude the entertainment of even a suggestion tending toward an appropriation of private property to be used by the Army in military campaigns or in the transportation of necessary supplies for the same. We are not concerned with the accuracy of Gen. Bell’s judgment as to the hostile character of the steamer or its possessors; he may or may not have erred; the investigation of that circumstance is elsewhere. What he did and the various movements made to accomplish the designated purpose are alone open to our investigation, as they and they alone must furnish the basis of contractual relations out of which a correlative obligation to pay money arises. The necessary incidents from which the court may imply a contract to pay for the taking and use of private property is forcibly illustrated in patent cases. The Supreme Court quite recently in the case of *Farnham*v. *United*States, 240 U. S., 537, discussed the subject and collated the leading authorities, viz: *Schillinger*v. *United*States, 155 U. S., 163-170; *United States*v. *Berdan Fire Arms Co.,*156 Ib., 552; *Russell*v. *United States,*182 Ib., 516; *Crozier*v. *Krupp,*224 Ib., 290; *United States*v. *Société, etc.,*Ib., 309.

There is nothing in paragraphs 37 and 38 of General Orders No. 100, under which the seizure was made, that changes *227the legal aspect of the case. We need not recall the extent or magnitude of the Philippine insurrection. It is sufficient to observe that the military forces of the Government were actually engaged in the suppression of flagrant hostility to the authority of the Government, and that the officer in command of the forces of the defendants seized the property of the claimant as enemy property under the belief that its possessor as well as the vessel itself was being employed in active aid of local revolution. The vessel was seized to remove it from the scene of action and prevent its supposed illegal activities, and, irrespective of the technical determination as to whether the Philippine insurrection constituted a state of war, it is apparent from the record that the transaction was one involving the military arm of the Government, accomplished by a military commander in the exercise of what he at least supposed to be a military right— an act performed in defiance of the protest of the possessor of the vessel, in disregard of his claimed immunities, and without the thought or suggestion of promising compensation for the use of the property seized.

In *Hijo*v. *United*States, 194 U. S., 315, Mr. Justice Harlan, in speaking of a seizure in most respects similar to the one in suit, used this language: “ The vessel was, therefore, to be deemed enemy’s property. It was seized as property of that kind, for purposes of war, and not for any purpose of gain.”

Granting *arguendo*that the provisions of General Orders No. 100 afforded sufficient protection to the owners of private property under the circumstances of this seizure, the claimant would nevertheless be in no position to assert liability, for an apparent violation of positive law can give no cause of action in this jurisdiction for a tort. A claimant under the Tucker Act is not permitted to waive the tort and sue in assumpsit. As well said in the *Hijo*case, supra, “If the original seizure made a case sounding in tort, as it undoubtedly did, the transaction was not converted into one of implied contract because of retention and use of the vessel pending negotiations for a treaty of peace.”

*228Whatever may be the equities of the transaction, in its legal aspect it falls far short of coming within the adjudicated cases wherein judgment for the taking and use of private property has been awarded. *Thomas*v. *United*States, 39 C. Cls., 1; *Leigh*v. *United*States, 43 C. Cls., 374.

The petition is dismissed. It is so ordered.