OF THE Supreme Court of the United States, AT DECEMBER TERM, 1871. THE STEAM TUG R. S. MABEY, John Cald- v. (See S. C. "The Mabey," 13 Wall. 738-742.) Commission to take testimony, when refused—insufficient excuse--none but parties to the appeal can be heard in appellate court. Commission to take testimony is not allowed in this court, under the twelfth rule, as of course. Satisfactory excuse for failure to examine the witnesses in the court below must be shown. The excuse that the party agreed that he would not introduce any testimony in the court below and therefore did not is not sufficient. None but parties to the appeal can be heard in the appellate court. [No. 377.] Argued Feb. 24, 1871. Decided Feb. 27, 1871. On motion for commission to take testimony. This case arose upon a libel in admiralty, filed in the district court of the United States for the southern district of New York. Judg ment was given for the libelants in that court, and affirmed upon appeal to the circuit court. Whereupon the claimants took a further appeal to this court. The case is sufficiently stated by the court. Messrs. W. W. Goodrich and T. Wheeler for appellants. M. Mr. E. C. Benedict for appellees. Mr. Justice Clifford delivered the opinion of the court: Motion for a commission to take the testimony of certain witnesses filed by the appellants. Damages are claimed by the owners of the ship Isaac F. Chapman, for injuries which the ship received in a collision that occurred between the ship, while she was lying at a dock in the port of New York, and the steam tug R. S. Mabey, and the ship Helen R. Cooper, which, at the time of the collision, was in tow of the steam tug, as more fully set forth in the libel Serious injury reiled in the district court. sulted to the ship of the libelants, and they alleged that the stcam tug and the ship Helen R. Cooper were both in default. Separate answers were filed by the claimants 13 WALL. U. S., Book 20. of the tug and tow, and both, it seems, made preparation for defense; but, before the day for the hearing arrived, they entered into the following stipulation, which is an exhibit in the motion before the court. Omitting the names of the parties to the suit and the signatures of the proctors, the stipulation reads as follows: It is hereby stipulated by and between the parties representing the claimants of the vessel respondent in the above action, that said ship, Helen R. Cooper, shall and does hereby assume the conduct of the defense, and that all and any judgment ordered against the said vessels, or either of them, shall be assumed and paid by said Helen R. Cooper. Application for the same purpose as that described in the motion was made to this court by the appellants, on a prior occasion during the present term of the court; but it was refused, as no excuse was shown, in the petition or accompanying papers, why the witnesses were not examined either in the district or circuit courts, and the court said some excuse *should [*741 be shown, satisfactory to this court, for the failure to examine them in the courts below; such as that the evidence was discovered when it was too late to procure such examination, or that the witnesses had been subpoenaed and failed to appear, and could not be reached by attachment, and the like. 19 L. ed. 963. Admon Commissions for such a purpose cannot be allowed, as of course under the 12th rule, as it would afford an inducement to parties to keep back their testimony in the subordinate courts, and the effect would be to convert this court into a court of original jurisdiction. ished to that effect by the prior decisions of this court, the parties have filed with the present application an affidavit, as a compliance with Unsettled as the practice that requirement. was prior to that decision, the parties are right in supposing that this court would entertain a second application in the same case. Governed by these views, the court has examined the affidavit and the reasons given why the testimony was not taken prior to the hearings in one of the subordinate courts; but the court is constrained to say that the reasons given are not satisfactory, as they show that the witnesses were in court, and that they were not examined because the party now asking for the commission agreed that they would not introduce any testimony in the case, and the affidavit shows that they did not introduce any in 30 473 it includes all taking and use of property by the Army and Navy, in the cause of the war, not authorized by contract with the government.' Filor v. United States, 9 Wall. 45, 49, 19 L. ed. 549, 551. That case was a temporary occupation of real property by the Quartermaster's Department, under a lease which was held to be invalid. the district court, and did not appeal from the decree, and, of course, they did not and could not introduce any in the circuit court, as it is well-settled law that the losing party in the subordinate court cannot be heard in the appellate court in opposition to the decree in the subordinate court, unless he himself also appeal from the decree. The William Bagaley, 5 Wall. 412, 18 L. ed. 591; The Maria Martin, ante, 251. Instead of being satisfactory, the reasons set forth in the affidavit why the testimony was not introduced in the trials below, are persuasive and convincing that the motion ought not to be granted. Having accepted the bond 742] *of indemnity and failed to make any defense, the risk as to the sufficiency of the sureties was upon the present appellants; and the fact that they misjudged or are disappoint-ray v. Burling, 10 Johns. 172; Lucus v. Trumed in that behalf, furnishes no reason for the motion before the court. Motion denied. UNITED STATES, Appt., v. JOHN H. RUSSELL. (See S. C. 13 Wall. 623-632.) Compensation for private property taken in time of war-steamboats impressed into public service—jurisdiction of court of claims. 1. Where the government, in time of public danger, takes private property for public purposes, it Is bound to make full compensation to the owner. 2. Where steamboats were impressed into public service from imperative military necessity, the gov ernment is bound to make full compensation to the owner for the services rendered. 3. The employment and use of the steamboats raised an implied promise on the part of the United States to re-imburse the owner for the services rendered and expenses incurred, and the court of claims has jurisdiction of such claims. In The subsequent return of the property did not render the action of the Quartermaster's Department any the less an appropriation. the analogous case of trover the action would have lain at the moment of the taking, and the subsequent return of the steamer would not. have defeated the action, but only mitigated the plaintiff's damages. Vandrink v. Archer, 1 Leon. 221, 223; Murbull, 15 Gray, 306. Messrs. Cooley & Clarke, R. M. Corwine, T. L. Dickey, and J. J. Weed, for appellee: Chief Justice Marshall, in the case of Gibbons v. Ogden, 12 Wheat. 341, says: In "A great mass of human transactions depend upon implied contracts which are not written, but grow out of the acts of the parties. such cases the parties are supposed to have made those stipulations which, as honest, fair and just men, they ought to have made." There can be no more comprehensive definition of an implied contract. It applies to governments as well as individuals, and determines the liabilities of each, with the same regard to justice and reason. Conrad v. United States, 3 Ct. Cl. 89; Brooke v. United States, 2 Ct. Cl. 80. There is no question in issue in regard to the authority of the officers who acted for the United States in taking these steamboats into its service. That the use of said steamboats was necessary to the public service, is not denied. That their use was reasonably worth the amount found by the court of claims, is not. steamboats into the military service intended toThe history and facts of the case suffi-mited. Surely these facts justified the courtcompensate the appellee for their use, is ad [No. 220.] Argued Nov. 9, 1871. Decided Nov. 27, 1871. questioned. That the officers taking these PPEAL from the Court of Claims. ciently appear in the opinion of the court. Messrs. A. T. Ackerman, Atty. Gen., C. H. Hill, Asst. Atty. Gen., and B. H. Bristow, Solicitor Gen., for appellant: Under the act of July 4, 1864 (§ 1, 13 Stat. at L. 381), the court of claims had no jurisdiction of the claim of the appellee against the government. The language of the section above referred to is as follows: "That the jurisdiction of the court of claims shall not extend to or include any claim against the United States growing out of the destruction or the appropriation of or damage to prop erty by the Army or Navy, engaged in the suppression of the Rebellion, from the commenceinent to the close thereof." "The The construction put upon this section by the court is decisive of the present question. In the language of Mr. Justice Field: term 'appropriation' is of the broadest import; NOTE--Eminent domain; payment for private property taken for public use generally recognized. Fifth Amendment to Constitution applies only to Federal government, and not to states see note to Withers v. Buckley, 15 L. ed. U. S. 816. Mr. Justice Clifford delivered the opinion of the court: Private property, the Constitution provides, shall not be taken for public use without just compensation, and it is clear that there are few safeguards ordained in the fundamental law against oppression and the exercise of arbitrary power of more ancient origin or of greater value to the citizen, as the provision for compensation, except in certain extreme cases, is a condition precedent annexed to the right of the government to deprive the owner of his property without his consent. 2 Kent, Com., 11th 80 U. S.. script: "Imperative military necessity requires the services of your steamer for a brief period; your captain will report at this office at once in person, first stopping the receipt of freight, should the steamer be so doing." Pursuant to that order, or one of similar import in substance and effect, the respective steamboats were impressed into the public service and employed as transports for carrying government freight for the several periods of time set forth in the findings of the court. Throughout the whole time the steamboats were so employed in the military service they were in command of the owner as master, or of some one employed by him and under his pay and control, and the findings of the court show that he manned and victualed the steamboats and paid all the running expenses during the whole period they were so employed. Unexplained and uncontradicted, the findings of the court show a state of facts which plainly lead to the conclusion that the emergency was such that it justified the officers in each case in ordering the steamboat into the service of the United States, as the orders purport to have been issued from an imperative military necessity, and if so, they show, beyond all doubt, that the officers who issued them were not trespassers, and that the government of the United States is bound to make full compensation to the owner for the services rendered. ed. 339; 2 Story, Const., 3d ed. 596. Extra ordinary and unforeseen occasion arise, how ever, beyond all doubt, in cases of extreme necessity in time of war or of immediate and impending public danger, in which private property may be impressed into the public service, or may be seized or appropriated to the public use, or may even be destroyed without the consent of the owner. Unquestionably, such extreme cases may arise, as where the property taken is imperatively necessary in time of war to construct defenses for the preservation of a military post at the moment of an impending attack by the enemy, or for food or medicine for a sick and famishing army utterly destitute and without other means of such supplies, or to transport troops, munitions of war, or clothing to reinforce or supply an army in a distant field, where the necessity for such reinforcement or supplies is extreme and imperative, to enable those in command of the post to maintain their position or to repel an impending attack, provided it appears that other means 628*] of transportation could not be obtained, and that the transports impressed for the purpose were imperatively required for such immediate use. Where such an extraordinary and unforeseen emergency occurs in the public service in time of war no doubt is entertained that the power of the government is ample to supply for the moment the public wants in that way to the extent of the immediate public exigency, but Such a taking of private property by the govthe public danger must be immediate, immi-ernment, when the emergency of the public nent, and impending, and the emergency in the service in time of war or impending public danpublic service must be extreme and imperative, ger is too urgent to admit of delay, is everyand such as will not admit of delay or a resort where regarded as justified, if the necessity for to any other source of supply; and the circum- the use of the property is imperative and imstances must be such as imperatively require mediate, and the danger, as heretofore described, the exercise of that extreme power in respect to is impending; and it is equally clear that the the particular property so impressed, appropri- taking of such property under such circumated, or destroyed. Exigencies of the kind do stances creates an obligation on the part of the arise in time of war or impending public dan- government to reimburse the owner to the full ger, but it is the emergency, as was said by a value of the service. Private rights, under great magistrate, that gives the right, and it is such extreme and imperious circumstances, clear that the emergency must be shown to ex- must give way for the time to the public good, ist before the taking can be justified. Such a but the government must make full restitution justification may be shown, and when shown, for the sacrifice. the rule is well settled that the officer taking private property for such a purpose, if the emergency is fully proved, is not a trespasser, and that the government is bound to make full compensation to the owner. Mitchell v. Harmony, 13 How. 134. Three steamboats, owned by the appellee, during the Rebellion, were employed as transports in the public service for the respective periods mentioned in the record, without any agreement fixing the compensation to which the owner should be entitled. Certain payments for the services were made in each case by the government to the owner, but he claimed a larger sum, and the demand being refused, he instituted the present suit. Prior to the orders hereinafter mentioned, the steamboats were employed by the owner in carrying private freights, and the findings of the court below show that he quit that employment in each case and went into the public service in obedience to the military order of an assistant quartermaster of the army. Reference to one of the orders will be 629] sufficient, as the others are not *substantially different. Take the second, for example, which reads as follows, as reported in the tran *Beyond doubt, such an obligation [*630 raises an implied promise on the part of the United States to reimburse the owner for the use of the steamboats and for his own services and expenses, and for the services of the crews during the period the steamboats were employed in transporting government freight pursuant to those orders. Indebitatus assumpsit is founded upon what the law terms an implied promise on the part of the defendant to pay what, in good conscience, he is bound to pay to the plaintiff, but the law will not imply a promise to pay unless some duty creates such an obligation, and it never will sustain any such implication in a case where the act of payment would be contrary to duty or contrary to law. Curtis v. Fiedler, 2 Black, 478, 17 L. ed. 276. Tested by those rules it is quite clear that the obligation in this case to reimburse the owner of the steamboats was of a character to raise an implied promise on the part of the United States to pay a reasonable compensation for the service rendered, and if so, then it follows that the decree was properly made in favor of the plaintiff, unless it appears that the adjustment of the claim belonged to Congress or to the ex |