delivered the opinion of the court.
The destruction of the plaintiff’s whisky complained of as a trespass, occurred just at the close of the active hostilities of the late civil war.
The defendants justified the act by reasou of an order issued by Gen. Tucker, commanding a district including the city of Jackson, to Joshua Green, commanding a militia company, directing him to destroy the spirituous liquor in the city of Jackson. That this order was given as a necessary precaution to the safety of the city of Jackson, and the protection of its citizens from the violence of drunken soldiers who had been paroled, and were in large numbers in the city, threatening to burn down the town ; were searching for liquor,, and when under its influence were utterly incontrolable.
Also that the board of mayor and aldermen (of which the plaintiff was a member), passed a resolution, of which plaintiff approved, to have all the spirituous liquors in the town destroyed, to prevent the soldiers from getting possession of it. These mat'ters were set forth in a “ notice ” attached to the plea of “ not guilty,”' which under the statute, fulfills the office of special pleas.
It was not controverted that if the seizure and destruction of the whisky was not warranted by the military order, under which Joshua Green and his associates acted, or by the resolution of the city council, or under the pressure and emergency of necessity arising out of the circumstances disclosed in the “ notice,” then the defendants are trespassers. Wrong doers not in the sense of a *461wanton invasion of the plaintiffs property, but rather as the doers of an unlawful act, under color of authority, under the influence of honest motives; and believing that they were performing a duty for the common good. We are satisfied that if liable at all, it is only for the value of the property destroyed, and not for vindictive or punative damages.
It would seem from the record that the defendants rested their defense mainly upon the order of Gen. Tucker. That brings up for consideration the extent of his powers as a military officer.
When war is flagrant, in the territory of its operations, the civil law, in many of its mandates and over some subjects, retires and gives place to martial law, or the laws of war, and many things may be lawfully done which would be grossly wrong and oppressive in time of peace, which are, nevertheless, permitted and sanctioned by military law. In Mrs. Alexander’s Cotton case, 2 Wal., 418, it was said by the chief justice that private property, under the modern usages of war, is not subject, to seizure for the sake of gain, and ought to be restricted to special cases dictated by the operations of the war; in that case “ cotton ” was excepted out of the operations of the rule. See also 1 Kent’s Com., 98. If a belligereut takes from its own citizens property for military uses, it is under a plain duty to make compensation. The right of seizure by an enemy (in modern times) has been limited to contraband of war ; and things actually necessary for the operations of the war, and effects, perhaps, in a place carried by storm. In the early case of Respublica v. Sparhawk, 1 Dall. Penn. Rep., 388, it was held to be legitimate to remove private property necessary to the maintenance of an army or useful to the enemy, and in danger of falling into his hands, and if captured at the place they were deposited, the government would not be responsible for the consequent loss. In that case, the government did not appropriate the goods, but they still continued private property. If such authority may be exerted, in case of emergency, the property might be destroyed to save it from the enemy.
*462Where property of a citizen may be taken possession of or destroyed to prevent its falling into the hands of the enemy, the government is under a duty to make compensation. Mitchell v. Harmony, 13 How., 134. Nor would the officers or those acting under orders, be trespassers. Ibid. In the same case, the-court say: it is impossible to define the particular circumstances of danger or necessity in which the power may be exercised. Each case must depend on its own circumstances. The principle was carried to its full limit in Ford v. Surget, 46 Miss. Rep., 150. It were, perhaps, well to bear in mind in judicial reviews of acts that occurred at such times, that it is very difficult to fully comprehend the situation of the country and state of facts as they presented themselves at the time to those engaged in the transactions.
A fundamental principle of the common law was, that the owner could not be deprived of his property, except according to the law of the land. Judge Story (3 Com. on Const.), says, that. magna charla did not, on tjiis subject, confer a new right, but was only declaratory of the common law.
The law exacts accountability from those who do violence either to the person or property under claim of authority, and considers of the rightiulness and extent of the authority, in determining as-to the sufficiency of the excuse and justification.
Numerous instances have occurred in the British courts, of suits-brought against the governors of colonies, and others in civil and military authority abroad, for alleged wrongs done to individuals and their property, and in every case, they were put to their justification, and if the act complained of was done without lawful authority, recoveries were had. Lord Bellamont’s case, 2 Salk., 625 ; Wey v. Jally, 6 Mod. R., 195. Other cases were mentioned by Lord Mansfield in Mostyn v. Fabrigas, 1 Cowp., 174, 5, 6. One was the suit of a carpenter against Sabine, who was governor of Gibraltar, for approving the sentence of a court martial, under which the plaintiff had been flogged. Not being amenable to *463martial law, the defendant was a trespasser. Another was- a case of trespass against Capt. Gambier, of the Royal Navy, who, under orders of Admiral Boscawen, stationed off the coast of Nova Scotia, pulled down some shanties in which the sutlers sold liquor to the sailors, which injured their health and efficiency. Yet this action was sustained in England, although it was urged that it was “local.” The judges would not entertain the objection, because there would be no remedy in Nova Scotia.
Il the power exercised by a military officer is conferred by law,' trusting to his discretion for a proper use of it, then, although he acts unwisely, he is not a trespasser, nor are those who obey his-orders. But if he justifies the act done under an order, which for its rightfulness rests alone on “necessity,” the onus is upon the-defendant to show the existence of such necessity. 13 How,, S. C., supra.
A case in analogy to this is Jones v. City of Richmond, 18 Gratt., 522-3-4. The evening preceding the evacuation of Richmond by the confederate forces, the city council passed an ordinance directing the destruction of all the spirituous liquors, on the premises where found, and appointed a committee of citizens to carry the ordinance into execution. The last section pledged the faith of the city to compensate the owners the value of the liquors. The motive was to prevent the riot, tumult, and disorder of a drunken soldiery, which might endanger citizens and their property.
The court of appeals held the city liable. Tn upholding the-validity of the ordinance, the court refer to the constitutional provision forbidding the taking of private property for public use, without making compensation, and treat the destruction of the liquor as a devotion of private property to the public good, as within the equity of the constitutional provision, and as also authorized by the police powers, conferred upon the city government. The court say the modes were open to the city “ to destroy the liquor, and leave the question of liability to be litigated, and *464determined by the courts; or, secondly, to contract to pay the value. Had the council pursued the first mode, it would have been responsible in trespass.”
It is distinctly held that if the city had not contracted to pay, it would have been liable in trespass.
The City of Richmond v. Smith, 15 Wallace, 432, arose out of the same condition of facts. In the circuit court of the United States,'the city justiSed on these allegations, that the confederate government had determined, on the evacuation of the city by its forces, to burn certain warehouses; that said warehouses were set fire to and destroyed by order as aforesaid, and the house in which was the plaintiff’s liquor was contiguous thereto, and was about to take fire, at the instant the committee were destroying the liquor, and was actually consumed. And so the liquor would have been lost by the fire, if the committee had not destroyed it.
The supreme court hold the plea to be no bar to the action, for the reason “that impending dangers give no immunity to one man to destroy the property of another.”
In Mayor etc., of New York v. Lord, 18 Wend., 129, 130, the suit was to recover from the city the value of a building and its contents (merchandise), destroyed in order to arrest the spread of the conflagration. “It was laid down by the chancellor delivering the opinion of the court for the correction of errors, as a well-settled principle at common law, that in case of actual necessity, to prevent the spreading of a fire, the ravages of a pestilence, the advance of a hostile army or any other great .calamity, private property may be taken, used or destroyed for the relief, protection or safety of the many. Those for whose benefit the loss was incurred ought, in natural justice to make compensation, but the actors are not trespassers.
In some instances the law has conformed to this principle of natural equity, and administers practical justice. Maritime contributions, to apportion individual losses, rest upon that founda*465tion. The ship, and freight and cargo contribute to indemnify the owner whose goods have been the subject of a jettison to save the ship and cargo from an impending peril.
The provision in the American constitution, “ that private property shall not be taken for public use without compensation,” has its origin in the same principle. Such, also, is the basis of the statutes of several of the states, charging the city treasury the value of houses torn down to arrest the progress of a conflagration. Butin those instances where the plea of i!necessity” prevails as a justification, the doers of the act complained of as injurious are not liable as trespassers. The injured parties have no redress at law, but may have strong claims on the municipal or public treasury. Parham v. Justices, 9 Georgia, 349.
Private property is sacred from the violent interference of others, and whoever takes, injures or destroys it, is a trespasser unless he shows a justification. Necessity — extreme, imperative and overwhelming — may constitute such justification; but expediency or utility will not answer.
Justification under a plea of necessity is always a question of fact to he tried by a jury, unless the law-making department has provided some other mode. Hale v. Lawrence, 1 Zab., 730; Mitchell v. Harmony, 13 How. S. C., 115, supra. If “ necessity ” be appealed to as excuse or justification, it must be shown to have sprung out of the circumstances that are alleged to have invoked it.
Let us test the instructions to the jury, by the principles we have been discussing.
The first charge, granted at the prayer of the defendants, declares, in effect, that a military officer in command of a district has power to deal with private property, and may, if in his judgment it is fit and proper, order it to be destroyed, and that those who obey are protected by the order. The jury are informed that, if Joshua Green was the captain of a militia company, subject to the commands of General Tucker, commandant of a district including the city of Jackson, and that Green and his asso*466ciates, by authority of an order from General Tucker, did destroy the whisky, then they must find for defendants.
Such a doctrine is subversive of all civil rights, and places the civil authorities in absolute subordination to the military. In Colonel Mitchell’s case, 13 How., supra, the seizure of the goods, resulting in their ulterior loss, was made in the enemy’s country. Yet he was held to be a tort feasor, because the goods were not at the time exposed to capture by the Mexican army, and were not taken to be used in his own military operations. It was put upon Mitchell to show the one state of facts or the other, in justification.
If it was not referred to an officer commanding military operations to judge finally and conclusively of the necessity of the seizure of the property of a citizen, lawfully with his property at that place, with less reason can it be claimed that General Tucker, who was commanding in this state, could, at his discretion, destroy, the property of a citizen; and with the more force does the argument press upon him to show his right.
The instruction rests upon the pretension, so emphaticaly repudiated by the supreme court in Milligan’s case, 4 Wallace, 124, viz: “That in time of war, the commander of an armed force (if in his opinion exigencies demand it, and of which he is to judge) has the power, within his district, to suspend all civil rights, and subject citizens as well as soldiers, to the rule of his will.” And if that position be true, “ then, in time of war, foreign or domestic, each district commander, may, on the plea of necessity,, substitute military force for and to the exclusion of the laws.”
In defining where “ martial rule may rightfully obtain, it is limited to the theatre of active military operations, where no civil authority remains, and there is a necessity to furnish a substitute to preserve the safety of the army and society ; and martial rule can only prevail until the laws can have their free course.”
When the plaintiff’s whisky was destroyed, active hostilities had ceased; all the confederate armies, east of the Mississippi *467river, had surrendered, and the whisky was not exposed tocapture, nor could it have been necessary to Gen. Tucker’s military uses. But more than this, martial law did not prevail, nor did there exist that state of things in which it could rightfully exist.
Bat the authorities, to which .we have referred, distinctly announce the doctrine, that in flagrant war, power does not belong to a military officer, merely as such, to take or to destroy the property of the citizen, unless a necessity exists to apply it to military purposes, or to j^vent its capture by the enemy.
But in this case, the war, so far as actual military hostile movements were concerned, had ceased by an actual surrender of the confederate armies east of the Mississippi river, before the act complained of was committed.
The authorities teach the further doctrine, that military orders do not protect and justify an invasion of private property, either in war or in time of peace, if done without the warrant of the law, applicable to the one state or the other.
The circumstance that Gen. Tucker was district commander, with headquarters at Jackson, did not to any degree supersede the civil authorities, whether state or municipal, within the scope of his command. His duties were purely military, without right to-interfere with private citizens or their property, except within the just limits we have attempted to define.
The first instruction for the defendants is erroneous; the second, which embodies the idea, applied to the condition of facts therein recited, is also erroneous.
Since this case must be remanded for a third trial, we have thought it proper to consider carefully the ground of defense-exclusively relied upon on the last trial, and also to examine somewhat the other matters of defense set up in the notice. This, perhaps, was unnecessary, since the defendants did not offer evidence that they were acting under the authority of the city council.
Judgment reversed, and cause remanded.