Santa Fe gazette. [volume] (Santa Fe, N.M.) 1859-1864, 1864-04-09
.(NUMBER As NEW sERIEs)


mandmg officer must act at once tia .pra,
perly must be destroyed Or fall into tho
hands Of open and aVoEed eneHies. o..
gained and araled rebel forces were under.
stood 10 be advancing into tue Territory,
and The suppllesaad property ifeft behind
would materially y contribute to thenpulbose
of occupation. Under these circumstances
Capt. Moore gave the order for its deshuc,
tlOn We cannot say that hc acted rashly
and without sufficient csuses The necessity
to US appears to have been urgout.-tle dan.
ger impending Texas, adjoining New
Mexico, oil which Arizona was then a part
was in Hagrant rebellion A few days
after the destruction Of the property at
} Tucson Capt Moore received information
that Fort Fillmore, with ten companies,
had surrendered to the rebels, when he took
! to the mountains, finally bringing his
, command safely into Fort Craig. We do
not believe that any court would hold his
: conduct in the destruction Of this property
illegal and without justiGablo cause, vet
. we must SO hold to relieve the Government
E from responsibility.
= Private property must not only be taken
= upon urgent necessity, but for the public use,
d in order to fix the liability Of the Government
t to make compensation. Was the destruction
/ Of this property taking of 1t for public use?
4, It is almost Of equal public importance that
; military supplies be kept from the use Of the
! enemy as that thdy minister to the support Of
. our own armies. Writers public law not
G discriminate between property DESTROYED to
= prevent if from falling into the hands Of an
o enemy and property taken for the actual sus-
II tenance Of our own military forces. In both
n casesit is treated rs taking for public use--
} In tho case Of tho American Print Works vs..
u Lawrence, zabrskie, the Supreme Court Of
g New Jersey affirm that "the destruction Of
y private property lorpublic use is taking Of
% it within tho meaning Of the OonstitutionD
10 We hold in this case that the property was
4 destroyed BY the rightful order Of the com
a mandlng oihcer, and upon an urgent andpres
~ lng necessity, and to prevent it from falling
VI into the hands of the public enemy, and those
Ot hostile to the United States that it was tak-
H. ing for public use and that the Grvernmentis
ST. bound under the Constitution to make lust
~. compensation to the owner. Tho legal duty
,v to make compensation raises ON implied pro-
Z mise to do so, and here is found tho hirisdie-
~ ton Of tlA Court to entertain this proceeding.
"s Ihe damages remain to bo considered; and
10, here an objection is taken against the allow
no anco oil any thing, on the ground that the pros
n Ply, u NY o,ieuis'unces u IN whlehlt was plae
oGondono wnVuI wv 'aug 70 tn9 oWne mat the
- forts in the vicinity Of Tucson was the ineyita-
'ly bic loss to Grant of the entire propcrty md md
he therefore its destruction did him ma mfwv.-
in This ground of objection we believe ia wit6out
reason or law to suppor It. Tho cloimnnt snfI-
,r cred great loss lis Immediate and direct
- cause was the burning of bis nroncrtv Ly order
W Of Capt. Moore; that tho same loss wonid have
befallen him in another waviis nm ilHboral
ste and we think illerol responsi 10 ibe clom for
Oy. compensation The property was Of intrinsic
dds value. and its worth TO the cnemv wns tho
M. cause of its destrndtion, In necuniarv
A. point Of view 1t may have been Il matter of IN.
y difference to the claimant whether bis nrnnnr.
uo' ty was destroyd OF fell into the hands of tho
IN euomy; but to the State il was of serious i'm
rn poflance, and the Government nreferred Ia mn,
the ib fair value rnthorthap Give its enenios 'tbo
advantages of lis possession. In sueh eases TO
.e. hold the oproporty worthless, and denv danooes
~ on that ground, 'is TO deny thu constimtionol
NC right to condensation. iffbe nronertv d 90
'eW circurstanced that unless destroyed tbs cnomv
Jll- would take it, then, ON the prineiplo eontcni-
cd for,no injury was done The owner, ond mn.
II less the grounds were yery strong indeel for
- believing that II wonld be ca nixon tLc dos.
a'e truetion is ILLEGAL. and tIe Goyernn,ent cleor-
Tor lv notliable.
init 'r,.r.in,..sA ,
;-sI " 10 llt uulltuVt VI lAc ulnGtT, INC press