Schillinger v. United States/Opinion of the Court
The United States cannot be used in their courts without their consent, and in granting such consent congress has an absolute discretion to specify the cases and contingencies in which the liability of the government is submitted to the courts for judicial determination. Beyond the letter of such consent the courts may not go, no matter how beneficial they may deem, or in fact might be, their possession of a larger jurisdiction over the liabilities of the government.

Until the organization of the court of claims by the act of February 24, 1855 (10 Stat. 612) the only recourse of claimants was in an appeal to congress. That act defines the claims which could be submitted to the court of claims for adjudication as follows:

'The said court shall hear and determine all claims founded upon any law of congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the government of the United States, which may be suggested to it by a petition filed therein; and also all claims which may referred to said court by either house of congress.' On March 3, 1863 (12 Stat. 765), this additional jurisdiction was given:

'That the said court * * * shall also have jurisdiction of all set-offs, counter-claims, claims for damages, whether liquidated or unliquidated, or other demands whatsoever, on the part of the government against any person making claim against the government in said court.'

On March 3, 1887 (24 Stat. 505), a new act was passed in reference to the jurisdiction of the court, its language being:

'The court of claims shall have jurisdiction to hear and determine the following matters:

'First. All claims founded upon the constitution of the United States or any law of congress, except for pensions, or upon any regulation of an executive department, or upon any contract, expressed or implied, with the government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty if the United States were suable.

'Second. All set-offs, counter-claims, claims for damages, whether liquidated or unliquidated, or other demands whatsoever on the part of the government of the United States against any claimant against the government in said court.'

Under neither of these statutes had or has the court of claims any jurisdiction of claims against the government for mere torts. Some element of contractual liability must lie at the foundation of every action. In Gibbons v. U.S., 8 Wall. 269, 275, it was said: 'The language of the statutes which confer jurisdiction upon the court of claims excludes by the strongest implication demands against the government founded on torts. The general principle which we have already stated as applicable to all governments forbids, on a policy imposed by necessity, that they should hold themselves liable for unauthorized wrongs inflicted by their officers on the citizen, though occurring while engaged in the discharge of official duties.' And again, in Morgan v. U.S., 14 Wall. 531, 534: 'Congress has wisely reserved to itself the right to give or withhold relief where the claim is founded on the wrongful proceedings of an officer of the government.'

The rule thus laid down has been consistently followed by this court in many cases up to and including the recent case of Hill v. U.S., 149 U.S. 593, 598, 13 Sup. Ct. 1011.

If there was any error in this interpretation, first announced in 1868, of the scope of the act, and if it was the intent of congress to grant to the court jurisdiction over actions against the government for torts, an amending statute of but a few words have corrected the error and removed all doubt. While the language of the act of 1887 is broader than that of 1855, it is equally clear in withholding such jurisdiction. It added, 'all claims founded upon the constitution of the United States,' but that does not include claims founded upon torts, any more than 'all claims founded upon any law of congress,' found in the prior act. The identity of the descriptive words precludes the thought of any change.

It is said that the constitution forbids the taking of private property for public uses without just compensation; that, therefore, every appropriation of private property by any official to the uses of the government, no matter however wrongfully made, creates a claim founded upon the constitution of the United States, and within the letter of the grant in the act of 1887 of the jurisdiction to the court of claims. If that argument be good, it is equally good applied to every other provision of the constitution as well as to every law of congress. This prohibition of the taking of private property for public use without compensation is no more sacred than that other constitutional provision that no person shall be deprived of life, liberty, or property without due process of law. Can it be that congress intended that every wrongful arrest and detention of an individual, or seizure of his property by an officer of the government, should expose it to an action for damages in the court of claims? If any such breadth of jurisdiction was contemplated, language which had already been given a restrictive meaning would have been carefully avoided.

It is true also that to jurisdiction over claims founded 'upon any contract, express or implied, with the government of the United States,' is added jurisdiction over claims 'for damages, liquidated or unliquidated,' but this grant is limited by the provision 'in cases not sounding in tort.' This limitation, even if qualifying only the clause immediately preceding, and not extending to the entire grant of jurisdiction found in the section, is a clear indorsement of the frequent ruling of this court that cases sounding in tort are not cognizable in the court of claims.

That this action is one sounding in tort is clear. It is in form one to recover damages. The petition charges a wrongful appropriation by the government, against the protest of the claimants, and prays to recover the damages done by such wrong. The successive allegations place the parties in continued antagonism to each other, and there is no statement tending to show a coming together of minds in respect to anything. It is plainly and solely an action for an infringement, and in this connection reference may be made to the statutory provision (Rev. St. § 4919) of an action on the case as the legal remedy for the recovery of damages for the infringement of a patent. If it be said that a party may sometimes waive a tort and sue in assumpsit, as on an implied promise, it is technically a sufficient reply to say that these claimants have not done so. They have not counted on any promise, either express or implied.

But we do not care to rest our decision upon the mere form of action. The transaction, as stated in the petition and as disclosed by the findings of the court, was a tort pure and simple. The case was, within the language of the statute, one 'sounding in tort.' It is in this respect essentially different from U.S. v. Palmer, 128 U.S. 262, 9 Sup. Ct. 104. That was an action to recover for the authorized use of a patent by the government, and these observations in the opinion (page 269, 128 U.S., and page 104, 9 Sup. Ct.) are pertinent:

'This is not a claim for an infringement, but a claim of compensation for an authorized use,-two things totally distinct in the law; as distinct as trespass on lands is from use and occupation under a lease. The first sentence in the original opinion of the court below strikes the keynote of the argument on this point. It is as follows: 'The claimant in this case invited the government to adopt his patented infantry equipments, and the government did so. It is conceded on both sides that there was no infringement of the claimant's patent, and that whatever the government did was done with the consent of the patentee, and under his implied license.' We think that an implied contract for compensation fairly arose under the license to use, and the actual use, little or much, that ensued thereon.'

Here the claimants never authorized the use of the patent right by the government; never consented to, but always protested against it; threatening to interfere by injunction or other proceedings to restrain such use. There was no act of congress in terms directing or even by implication suggesting, the use of the patent. No officer of the government directed its use, and the contract which was executed by Cook did not name or describe it. There was no recognition by the government or any of its officers of the fact that in the construction of the pavement there was any use of the patent, or that any appropriation was being made of claimants' property. The government proceeded as though it were acting only in the management of its own property and the exercise of its own rights, and without any trespass upon the rights of the claimants. There was no point in the whole transaction from its commencement to its close where the minds of the parties met, or where there was anything in the semblance of an agreement. So, not only does the petition count upon a tort, but also the findings show a tort. That is the essential fact underlying the transaction, and upon which rests every pretense of a right to recover. There was no suggestion of a waiver of the tort, or a pretense of any implied contract, until after the decision of the court of claims that it had no jurisdiction over an action to recover for the tort.

It may be well to notice some of the cases in which the jurisdiction of the court of claims over implied contracted has been sustained. In the case of U.S. v. Russell, 13 Wall. 623, which was an action to recover for the use of certain steamers, the property of the claimant, it was found as a fact-

'That in the case of each of these steamers, at the times when the same were respectively taken into the service of the United States, the officers acting for the United States did not intend to 'appropriate' these steamers to the United States, nor even their services; but they did intend to compel the captains and crews with such steamers to perform the services needed, and to pay a reasonable compensation for such services, and such was the understanding of the claimant; and that each of said steamers, so soon as the services for which they were respectively required had been performed, were returned to the exclusive possession and control of the claimant.'

Thus it appears that the minds of the claimant and the officers acting for the government met; both intended a contract; and, the power of the officers to act for the government in the premises not being disputed, it was obviously just to treat the case as one of contract, and not of tort. So, also, in the case of U.S. v. Great Falls Manuf'g Co., 112 U.S. 645, 5 Sup. Ct. 306. The appropriation of the claimant's property was under direct legislative enactment by congress. The property thus appropriated was confessedly the property of the claimant, to which the government made no pretense of title. The claimants assented to such appropriation, entered into arbitration proceedings to determine the amount due them therefor. Hence all the elements of contract were found in the transaction.

But there is still another aspect in which this case may be considered. The patent of Schillinger runs to the mode of constructing concrete pavements. The more form of a pavement with free joints-that is, in separate blocks-is not, since the filing of his disclaimer, within the scope of his patent. It may be that the process or mode by which Cook, the contractor, constructed the pavement in the capitol grounds was that described in and covered by the Schillinger patent. He may, therefore, have been an infringer by using that process or mode in the construction of the pavement, and liable to the claimants for the damages they have sustained in consequence thereof. It may be conceded also that the government, as having at least consented to the use by Cook of such process or method in the construction of the pavement, is also liable for damages as a joint tort feasor. But what property of the claimants has the government appropriated? It has and uses the pavement as completed in the capitol grounds, but there is no pretense of a patent on the pavement as a completed structure. When a contractor, in the execution of his contract, uses any patented tool, machine, or process, and the government accepts the work done under such contract, can it be said to have appropriated and be in possession of any property of the patentee in such a sense that the patentee may waive the tort, and sue as on an implied promise? The contractor may have profited by the use of the tool, machine, or process, but the work, as completed and enjoyed by the government, is the same as though done by a different and unpatented process, tool, or machine. Take, for illustration, a patented hammer or trowel. If a contractor in driving nails or laying bricks use such patented tools, does any patent right pass into the building, and become a part of it, so that he who takes the building can be said to be in the possession and enjoyment of such patent right? Even if it be conceded that Cook, in the doing of this work, used tar paper, or its equivalent, to separate the blocks of concrete, and thus finally completed a concrete pavement in detached blocks or sections, was such completed pavement any different from what it would have been if the separation between the blocks had been accomplished in some other way, and is the government now in possession or enjoyment of anything embraced within the patent? Do the facts, as stated in the petition or as found by the court, show anything more than a wrong done, and can this be adjudged other than a case 'sounding in tort'?

We think not, and therefore the judgment of the court of claims is affirmed.

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