Schillinger v. United States

• Decision Date: 19 November 1894
• Docket Number: No. 4,4
• Citation: 39 L.Ed. 108,155 U.S. 163,15 S.Ct. 85
• Parties: SCHILLINGER et al. v. UNITED STATES
• Court: U.S. Supreme Court

155 U.S. 163

15 S.Ct. 85

39 L.Ed. 108

SCHILLINGER et al.

v UNITED STATES.

No. 4.

November 19, 1894.

This was a petition in the court of claims by John J. Schillinger and others against the United States to recover damages for the wrongful use of a patented invention. The court of claims dismissed the petition. Petitioners appeal.

On July 19, 1870, a patent was issued to John J. Schillinger for an improvement in concrete pavement. The claim of the patent was in these words:

'The arrangement of tar paper, or its equivalent, between adjoining blocks of concrete, substantially as and for the purpose described.'

A reissue was granted May 2, 1871. The claims in the reissue were thus stated:

'(1) A concrete pavement laid in detached blocks or sections, substantially in the manner shown and described.

'(2) The arrangement of tar paper, or its equivalent, between adjoining blocks of concrete, substantially as and for the purpose set forth.'

On February 27, 1875, Schillinger filed in the patent office a disclaimer; which, after stating the language of the specification disclaimed, added: 'Your petitioner hereby disclaims the forming of blocks from plastic material without interposing anything between their joints while in the process of formation.'

Thereafter the archetect of the capitol invited proposals for a concrete pavement in the capitol grounds, and on September 2, 1875, entered into a contract with G. W. Cook for the laying of such pavement. It does not appear that in the proposals, specifications, or contract there was in terms any reference to or description of the Schillinger patent.

Frederick Law Olmsted was the person who prepared the plans and specifications, and in the contract it was provided as follows:

'The pavement to be laid with free joints, in the best manner, the courses running diagonally, and arranged around the curved parts to the satisfaction of the said Fred. Law Olmsted.

'It is understood and agreed by the party of the second part that in the event of any legal proceedings being taken by other parties against the contractor of the United States for the infringement of any patent or claimed patent during the execution of the work the contractor shall hold the United States harmless; and, if said proceedings tend to create delay in the prosecution of the work, the United States shall have the right to immediately employ other parties to complete the same, and the contractor shall reimburse the United States in any extra amount it may have to pay for such completion over and above the amount which the contractor would have been entitled to for the same work.'

This is the only language found in the contract which in any manner suggests the use, or possibility of use, of the Schillinger patent. The contract price was 28 1/2 cents per square foot. Certain of the claimants who had acquired by assignment the right to use the Schillinger patent in the District of Clumbia were bidders for such contract, and proposed to do the work in accordance with the Schillinger patent at 45 cents per square foot. Cook proceeded to perform the contract, finished it and received payment between October, 1875, and july, 1881.

On March 22, 1887, these claimants filed their petition in the court of claims, asserting full ownership of the Schillinger patent, and seeking to recover from the United States damages for the wrongful use thereof in the construction of this pavement. The court of claims held (24 Ct. Cl. 278) that there was no contract, either expressed or implied, on the part of the government for the use of such patent, and on that ground dismissed the petition as outside of the jurisdiction of the court.

From that judgment the claimants appealed to this court.

Mr. Justice Harlan and Mr. Justice Shiras, dissenting. 24 Ct. Cl. 278, affirmed.

John C. Fay, Eppa Hunton, and V. B. Edwards, for appellants.

Assistant Attorney General Conrad for the United States.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the 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...