tion for the thousand small services and supplies which are daily needed by those in the employment of the government for its use.

I think the construction given by the court unwarranted and unfortunate, and of sufficient importance to record my dissent from it.

(Supreme Court of the United States, 1887. 120 U. S. 227, 7 Sup. Ct. 490, 30 L. Ed. 634.).

Appeals from the Court of Claims.

FIELD, J. The Pacific Railroad Company, the claimant in this case, is a corporation created under the laws of Missouri, and is frequently designated as the Pacific Railroad of that state, to distinguish it. from the Central Pacific Railroad Company incorporated under the laws of California, and the Union Pacific Railroad Company incorporated under an act of congress, each of which is sometimes referred to as the Pacific Railroad Company.

From the fourteenth of August, 1867, to the twenty-second of July, 1872, it rendered services by the transportation of passengers and freight, for which the United States are indebted to it in the sum of $136,196.98, unless they are entitled to offset the cost of labor and materials alleged to have been furnished by them, at its request, for the construction of certain bridges on the line of its road. The extent and value of the services rendered are not disputed. It is only the offset or charge for the bridges which is in controversy, and that charge arose in this wise: During the civil war the state of Missouri was the theater of active military operations. It was on several occasions invaded by Confederate forces, and between. them and the soldiers of the Union conflicts were frequent and sanguinary. The people of the state were divided in their allegiance, and the country was ravaged by guerrilla bands. The railroads of the state, as a matter of course, were damaged by the contending forces; as each deemed the destruction of that means for transportation necessary to defeat or embarrass the movements of the other. In October, 1864, Sterling Price, a noted Confederate officer, at the head of a large force, invaded the state, and advanced rapidly toward St. Louis, approaching to within a few days' march of the city. During this invasion, 13 bridges upon the main line and south-western branch of the company's road were destroyed. Gen. Rosecrans was in command of the Federal forces in the state, and some of the bridges were destroyed by his orders, as a military necessity, to prevent the advance of the enemy. The record does not state by whom the others were destroyed; but, their destruction having tak en place during the invasion, it seems to have been taken for granted that it was caused by the Confederate forces, and this conclusion was evidently correct. All the bridges except four were rebuilt by the company. These four were rebuilt by the government, and it is their cost which the government seeks to offset against the demand

of the company. Of the four, two (one over the Osage river and on over the Moreau river) were destroyed by order of the commander of the Federal forces. The other two, which were over the Maramec river, it is presumed, were destroyed by the Confederate forces.

Soon after the destruction of the bridges, and during the same month, Gen. Rosecrans summoned to an informal conference, in St. Louis, several gentlemen regarded as proper representatives of the railroad company, being its president, the superintendent, and the engineer of the road, and several of the directors. The court below makes the following findings as to what there occurred.

"By Gen. Rosecrans it was stated that the immediate rebuilding of the bridges was a military necessity; that he should expect and require the company to do all in their power to put the roads in working order at the earliest possible moment; and that he intended to have what work they did not do, done by the government, and withhold from the freight earnings of the road a sum sufficient to repay the government for such outlays as in law and fact it should be found entitled to have repaid. The gentlemen present assured Gen. Rosecrans that they would do all in their power to rebuild the bridges, and put the roads in working order at the earliest moment, but they at the same time represented that several of the bridges, as they believed, had been destroyed by the proper military authority of the United States, and that in such cases the government was properly responsible for the loss, and should replace the bridges. Those which the public enemy had destroyed they conceded that the company should replace.

"Gen. Rosecrans replied, in substance: 'Gentlemen, the question. of the liability of the government for repairing damages to this road is one of both law and fact, and it is too early now to undertake the investigation of that question in this stirring time. I doubt myself whether all the damages which you say the government should be responsible for will be found liable to be laid to the charge of the government. Nevertheless, whatever is fair and right I should like to see done. You tell me now, and I have been informed by some of your representatives individually, that the company's means are insufficient to make these large repairs, and make them promptly. Therefore I want to say to you that, as a military necessity, we must have the work done, and shall be glad to have the company do everything it can, and I will undertake to have the remainder done, and we will reserve out of the freights money enough to make the government good for that to which it shall be found to be entitled for rebuilding any or all of the bridges, and we will return the freights to you, or settle with you on principles of law and equity.' The gentlemen interested in the company reiterated their view of the case, that the company should pay for bridges destroyed by the public enemy, and that the government should replace at its own cost the bridges destroyed by its own military authorities."

The court also finds that these mutual representations and assurances were not intended or understood on either side to form a con

tract or agreement binding on the government or the company; that no formal action upon them was taken by the board of directors; and that there was no proof that they were ever communicated to the directors, except as may be inferred from subsequent facts and circumstances mentioned; but that the company, through its directors and officers, promptly exerted itself, to its utmost power, to restore the roads to running order, and to that end co-operated with the government.

At the same time Gen. Rosecrans informed the secretary of war that the rebuilding of the bridges was "essential, and a great military necessity," in the defense of the state, and requested that Col. Myers should be authorized "to have them rebuilt at once, the United States to be reimbursed the cost out of freight on the road." The secretary referred the matter to the quartermaster general, who recommended that Gen. McCallum, superintendent of military roads, be directed to take the necessary measures immediately for that purpose. The secretary approved the recommendation, and Gen. McCallum was thereupon ordered to cause the bridges to be rebuilt by the quickest and surest means possible. It does not appear that the company had any notice of these communications, or of the order.

The bridge over the Osage river was destroyed on the fifth of October, 1864, by order of the officer commanding the central district of Missouri, acting under instructions from Gen. Rosecrans to "use every means in his power to prevent the advance of the enemy." The court finds that the destruction was ordered for that purpose, and that the exigency appeared to the officer, and in fact was, of the gravest character, and an imperative military necessity. The government rebuilt the bridge at an expense of $96,152.65; and this sum it seeks to charge against the company.

The bridge across the Moreau was also destroyed by command of the same officer, under the same military exigency. The company commenced its reconstruction, but, before it was completed, the work was washed away by a freshet in the river. The government afterwards rebuilt it at an expense of $30,801; and this sum it also seeks to charge against the company.

The two bridges across the Maramec were destroyed during the invasion as already stated, but not by the forces of the United States. They were, however, rebuilt by the government as a military necessity, at an expense of $54,595.24; and this sum, also, it seeks to charge against the company. The court of claims allowed the costs of three of the bridges to be charged against the company, but rejected the charge for the fourth, the one over the Osage river. The United States and the claimant both appealed from its judgment, -the claimant because the cost of the three bridges was allowed; the United States because the charge for one of the four was disallowed.

The cost of the four bridges rebuilt by the government amounted to $181,548.89. The question presented is whether the company is chargeable with their cost, assuming that there was no promise on its part, express or implied, to pay for them. That there was no ex

press promise is clear. The representations and assurance at the conference called by Gen. Rosecrans to urge the rebuilding of the bridges were not intended or understood to constitute any contract; and it is so found, as above stated, by the court below. They were rebuilt by the government as a military necessity, to enable the Federal forces to carry on military operations, and not on any request of or contract with the company. As to the two bridges destroyed by the Federal forces, some of the officers of the company at that conference insisted that they should be rebuilt by the government without charge to the company, and, though they appeared to consider that those destroyed by the enemy should be rebuilt by the company there was no action of the board of directors on the subject. What was said by them was merely an expression of their individual opinions, which were not even communicated to the board. Nor can any such promise be implied from the letter of the president of the company to the quartermaster general in November, subsequent to the destruction of the bridges, informing him that the delay of the war department in rebuilding them had prompted the company to "unusual resources;" that it was constructing the bridges over the Gasconade and the Moreau rivers; and that the only bridge on the main line to be replaced by the government was the one over the Osage river, the company having replaced all the smaller and was then replacing all the larger ones. The letter only imparts information as to the work done and to be done in rebuilding the bridges on the main line. It contains no promise, as the court below seems to have thought, that, if the government would rebuild the bridge over the Osage river, it should be reimbursed for any other it might rebuild on the main line of the company. Nor do we think that any promise can be implied from the fact that the company resumed the management and operation of the road after the bridges. were rebuilt; but on that point we will speak hereafter. Assuming, for the present, that there was no such implication, we are clear that no obligation rests upon the company to pay for work done, not at its request or for its benefit, but solely to enable the government to carry on its military operations.

It has been held by this court in repeated instances that, though the late war was not between independent nations, yet, as it was between the people of different sections of the country, and the insurgents were so thoroughly organized and formidable as to necessitate their recognition as belligerents, the usual incidents of a war between independent nations ensued. The rules of war, as recognized by the public law of civilized nations, became applicable to the contending. forces. Their adoption was seen in the exchange of prisoners, the release of officers on parol, the recognition of flags of truce, and other arrangements designed to mitigate the rigors of warfare. The inhabitants of the Confederate States on the one hand, and of the states which adhered to the Union on the other, became enemies, and subject to be treated as such, without regard to their individual opinions or dispositions; while during its continuance commercial intercourse between them was forbidden, contracts between them were sus

pended, and the courts of each were closed to the citizens of the other. Brown v. Hiatt, 15 Wall. 184, 21 L. Ed. 128.

The war, whether considered with reference to the number of troops in the field, the extent of military operations, and the number and character of the engagements, attained proportions unequaled in the history of the present century. More than a million of men were in the armies on each side. The injury and destruction of private property caused by their operations, and by measures necessary for their safety and efficiency, were almost beyond calculation. For all injuries and destruction which followed necessarily from these causes no compensation could be claimed from the government. By the well-settled doctrines of public law it was not responsible for them. The destruction or injury of private property in battle, or in the bombardment of cities and towns, and in many other ways in the war, had to be borne by the sufferers alone, as one of its consequences. Whatever would embarrass or impede the advance of the enemy, as the breaking up of roads, or the burning of bridges, or would cripple and defeat him, as destroying his means of subsistence, were lawfully ordered by the commanding general. Indeed, it was his imperative duty to direct their destruction. The necessities of the war called for and justified this. The safety of the state in such cases overrides all considerations of private loss. Salus populi is then, in truth, suprema lex. These views are sustained in treatises of text writers, by the action of congress, and by the language of judicial tribunals. Respublica v. Sparhawk, 1 Dall. 357, 1 L. Ed. 174; Parham v. Justices, 9 Ga. 341; Taylor v. Nashville & C. R. Co., 6 Cold. (Tenn.) 646, 98 Am. Dec. 474; Mayor v. Lord, 18 Wend. (N. Y.) 126.

Vattel, in his Law of Nations, speaks of damages sustained by individuals in war as of two kinds,-those done by the state, and those done by the enemy. And after mentioning those done by the state deliberately and by way of precaution, as when a field, a house, or a garden, belonging to a private person, is taken for the purpose of erecting on the spot a town rampart, or other piece of fortification, or when his standing corn or his store-houses are destroyed to prevent their being of use to the enemy, and stating that such damages are to be made good to the individual, who should bear only his quota of the loss, he says: "But there are other damages, caused by inevitable necessity; as, for instance, the destruction caused by the artillery in retaking a town from the enemy. These are merely accidents; they are misfortunes which chance deals out to the proprietors on whom they happen to fall. The sovereign, indeed, ought to show an equitable regard for the sufferers, if the situation of his affairs will admit of it; but no action lies against the state for misfortunes of this nature,-for losses which she has occasioned, not willfully, but through necessity and by mere accident, in' the exertion of her rights. The same may be said of damages caused by the enemy. All the subjects are exposed to such damages; and woe to him on whom they fall! The members of a society may well encounter such risk of property, since they encounter a similar risk