The demurrer admits all the allegations in this declaration that are well pleaded. The substance of the allegations is, that General Wilson, while he occupied the State as military commander, with his forces, on the 20th of May, 1865, which was during the period between the surrender and the appointment of Provisional Governor Johnson, by the President, appointed Major Glenn to take charge of the Western and Atlantic Railroad, as Superintendent, and to repair the same, and that the old officers and servants who were on the road under George D. Phillips, former Superintendent, remained in position under Major Glenn; that Glenn sent an engine and cars to DeKalb county, and seized a large lot of cross-ties, the property of the plaintiff, and carried them and laid them down on the road bed, where they still were in possession of the road at the commencement of this action, as good as when taken from the plaintiff, and that the road keeps them and refuses to pay for them. It is also alleged, that the United States government paid some $35,000 of the amount expended or falling due, during the time the road was controlled by Major Glenn, which the State refunded, and that all the subsequent Superintendents of the road, and Governors of the State, have ratified the acts of Major Glenn, etc. But there is no allegation that the Legislation has recognized or ratified the acts of Major Glenn to any extent bejmnd the payments already made.
Under this state of facts, is the road liable to pay for the cross-ties taken from the plaintiff? We think not. While we admit the liability of the State, the more especially in view of her repeated acts of ratification, to pay all debts contracted by Provisional Governor Johnson, appointed for *614lierj by the President of the United States, we deny-her liability for contracts made, or acts done, or property seized by the officers commanding the Federal armies, or persons appointed by them, during the occupation of her territory or any part thereof, prior, or subsequent to the surrender of the Confederate armies, till a Provisional Governor had been appointed for her, by the President, and he had entered upon the discharge of the duties of his office. The contrary doctrine would make the State liable to pay for all damages done to citizens, by General Sherman’s army, while he occupied the State with a hostile foi’ce, and for all cotton burnt by his or General Wilson’s forces, and for all property taken and used by them, when they did not pretend to act for the State, or as her agents or officers, but as officers of the United States, in hostility to the State.
2. As the State Road is the property of the State, and its incomes are part of her revenue, we hold that the road is not liable for the lot of cross-ties mentioned in this declaration unless the State by her Legislature, or by some agent authorized by the Legislature, has assumed such liability. No ratification of the acts of a military commander or his servants done under such circumstances, which may have been made by the Superintendent of the road, or the Executive of the State, can bind the State, and make this a debt due by her, unless the Executive or Superintendent is authorized by proper legislation to make such ratification. If the Governor or Superintendent may bind the State by such ratification without authority from the Legislature, they may bind her for all losses incurred by the action of the Federal armies in the State, which position will hardly bé seriously urged. It is said in the argument that there was a .contract between the State and the Federal government, by which, after the appointment of Provisional Governor Johnson, the road was turned over to the State and she agreed to pay the Government certain sums expended on the road, etc. If so, the State is bound by her agreement, if made by competent authority, and if she agreed to pay this claim, or any othhr, she is liable and bound to meet her obligation in *615good faith. Her liability in such case would grow, not out of the nature of the transaction, but out of the contract. But no such contract is shown by this record, and therefore no such liability appears in this case.
3. It is part of the public history of the times that General Wilson, in May, 1865, occupied and controlled the State with a large cavalry force, and that the supplies in the State were so far exhausted by the ravages of war, and the drafts made by the two armies, which had for months confronted each other upon her territory, that it was a military necessity for him to repair the Western and Atlantic Railroad as speedily as possible, and thereby re-open communication with the West, whence he might draw necessary supplies. This is a “ matter of public knowledge” of which, as well as of the public history of military operations in the State, the Courts will take judicial notice. In re-opening the road, General Wilson was not the agent of the State, nor was it his object to serve the State. He was an officer of the United States, in command of a portion of its army, and he acted under its authority alone, and for the promotion of its objects.
4. The order given to General Wilson by the Government to open the road, carried with it the authority to take and use such private property as might be necessary for that purpose. The cross-ties taken from the defendant in error, were personal property, and were suitable and necessary. When they were seized by the agent of the Government, the title vested in the United States, and that Government and not the State became liable to pay just compensation to the owner. I understand this to be the ruling of the Courts of the United States in reference to all property seized by the army for the Government during the war. The case of Coolidge vs. Guthrie, tried in the United States Circuit Court for the Southern district of Ohio, was an action of trover for the recovery of a lot of cotton or its value. The plaintiff was a citizen of Arkansas, and his cotton was seized in 1862 by General Curtis, commanding an army of the United States, who, at the time, held possession of the town of *616Helena, in said State. The cotton was seized on farms in the neighborhood of Helena, and brought into that place, and there sold to the defendant, who took it to New York and there sold it. The case was tried by Mr. Justice Swayne, who gave judgment for the defendant on the following grounds:
First, that the Court had no jurisdiction of the case, the seizure being an act of war; and this defence was admissible under the general issue. Second, the property having been seized and firmly held as booty, the title of the hostile owner became extinct, and his remedy, if any, is against the Government, and not against the party to whom it was sold. Am. L., Rev. Yol. 3, p. 582.
If it can be shown, that the State in her settlement with the United States government undertook to settle this claim, she is liable; if not, the plaintiff’s claim is against the United States. And the appeal, if any, is made to the State for compensation, must be left to the Legislature and not to the Courts.
The fact that the old officers of the road, who had held positions under the late Superintendent, held on under Major Glenn, can make no difference, as they had no control over the road. They acted under the military order ot General Wilson and not under the authority of the State.
Judgment reversed.