
    JOHN J. SCHILLINGER ET AL v. THE UNITED STATES.
    [No. 15595.
    Decided March 18, 1889.]
    
      On the Proofs.
    
    The owner of a patent for concrete pavement protests against the pavement in the Capitol Grounds being laid by the contractor, and notifies the Architect of the Capitol that it will be an infringement of his patent. He now brings an action in the nature of an infringement.
    I.An examination of all the cases relating to the jurisdiction of the court shows that a contract may he implied whenever the Government, acting through a competent agent, takes private property, acknowledging, explicitly or tacitly, that it is such.
    II.When there is a denial of private right in an alleged invention used by the Government, the appropriation or use is in the nature of a tort, and this court is without jurisdiction.
    III. When the proper agent of the Government does not acknowledge the validity of a patent, nor recognize the work done by his authority as embodying or infringing the invention, no contract can be implied.
    IV. If tangible property be appropriated the owner thereby suffers loss, and the Government at the same time acquires value, and a contract may be implied, though the act of the agent was unauthorized ; but the use of a patented process or article deprives the owner of nothing of intrinsic value, and is per se only an invasion of a right.
    
      
      The Reporters’ statement of tbe case :
    Tbe following are tbe facts as found by tbe court:
    I. Letters patent were issued to John J. Scbillinger July 19, T870, for an improvement in laying concrete. Tbe letters patent bear tbe number 105599, and, with tbe specifications forming part thereof, appear as Exhibit A attached to tbe petition filed in this cause March 22, 1887. Afterwards, and on 31 ay 2, 1871, there was are-issue to said Scbillinger of said letters patent. This re-issue, numbered 4364, with tbe specifications forming part thereof, appear as Exhibit B, attached to tbe said petition.
    II. July 3, 1871, said Scbillinger entered into tbe following agreement with the claimant and others therein named:
    “ This agreement, made the third day of July, eighteen hundred and seventy-one, between John J. Schillinger, of the city of New York, of the first part, and A. G. Richards, George R. Herrick, Oharles E. Greecy, Albert D. Y. Burr, L. R. Byrne, A. Elsberg, and Edward Renand, of Washington City, District ■of Columbia, parties of the second part, witnesseth :
    “ Whereas the said Johu J. Schillinger is the inventor of a certain improvement in concrete pavement for making artificial-stone sidewalks, secured to him by letters patent of the United States dated July 19fcb, .1870, and numbered 105599, re-issue May 2, 1871, No. 4364; and whereas the said A. C. Richards, George R. Herrick, Charles E. Greecy, Albert D. Y. Burr, L. R. Byrne, A. Elsberg, and Edward Renand desire to purchase the exclusive right or license to construct and lay the said patented pavement or sidewalk within the city of Washington and District of Columbia: Now, therefore, said John J. Schillinger, in consideration of the covenants and agreements hereinafter contained, and in consideration of six hundred dollars to the said Schillinger in hand paid, the receipt whereof is hereby acknowledged, doth hereby grant and convey to the said A. C. Richards, George R. Herrick, Charles E. Greecy, Albert D. Y. Burr, L. R. Byrne, A. Elsberg, and Edward Renand the sole and exclusive right and license to construct and lay, and to authorize others to construct and lay, the said patented pavement or sidewalk within the limits of the city of Washington and District of Columbia during the entire term of said patent, any renewal, extension, and improvement thereof, upon the terms, stipulations, and conditions following, to wit:
    “ First. The aforenamed parties of the second part'agree to use their best diligence and efforts to further the introduction of and to introduce the said patented pavement or sidewalk into general and extensive use throughout the aforesaid city and District.
    “ Second. They agree to pay to the said John J. Schillinger, at the office of the latter, in the city of New York, a royalty of one and a half cents for and upon each and every square foot of said pavement or said sidewalk which shall be laid within any part of the said District by them or any person authorized by them, said royalty to be paid to said John J. Schillinger, his representatives and assigns, quarterly, from and after the date hereof, upon a quarterly account or quarterly accounts to be rendered of the work done or pavement laid under said agreement within the three months next preceding the respective quarter days.
    “Third. The said parties of the second part may sell or assign the right or license herein granted to them as aforesaid to any party or parties, provided, however, and upon the express condition, that in every contract of such sale or assignment which may be made by the said party of the second part there shall be reserved and guaranteed to said party of the first part, his personal representatives and assigns, a royalty of one cent and a half upon each and every square foot of pavement or sidewalk laid or to be laid under such sale or assignment; such royalty to be paid by such purchaser or purchasers, assignee or assignees, and his other representatives or assigns, to the said John J. Schillinger, his personal representatives or assigns, at the same time or times and in the same manner as in the second clause hereinbefore stipulated. And further provided, that notwithstanding such sale or assignment, the said parties of the second part, and their personal representatives, shall continue to remain personally and severally responsible for the punctual payment of the aforesaid royalty by such purchaser or assignee.
    “This instrument and the covenants and agreements herein contained shall bind the parties to the same and their respective personal representatives and assigns.
    “In witness whereof the said parties have hereunto set their hands and seals on the day and in the year first herein, named.
    “John J. Schillinger. 'seal.
    “A. C. Richards. 'seal.'
    “G-eo. R. Herrick. SEAL.’
    “Charles E. Oreect. ‘SEAL.’
    “A. D. V.'Burr. SEAL.'
    “L. R. Byrne. SEAL.’
    “Albert Elsberg. SEAL.’
    “Edward Renand.” SEAL.’
    
      November 3p, 1871, said claimant and others therein named entered into the following agreement:
    “This agreement, made this thirtieth day of November, eighteen hundred and seventy-one, between A. C. Eichards, C. E, Creecy, Edward Eenand, A. D. Y. Burr, A. Ellsberg, George E. Herrick, and Lawrence R. Byrne, parties of the first part, and The Artificial Stone Company of Washington, D. G., party of the second part, witnesseth, that whereas letters patent of the United States of America for an artificial-stone sidewalk were granted to Johu J. Schillinger, of New York. City, July nineteenth, eighteen hundred and seventy, and reissued May seventeenth, eighteen hundred and seventy-one, and the right of which for the District of Columbia has been purcli ased from said Schillinger by said parties of the first part; and whereas said party of the second part is desirous of using said patents:
    “ Now, therefore, the parties hereto have agreed as follows:
    “1st. The parties of the first*part hereby license and empower the party of the second part to use said patents in the District of Columbia for the term of ten years from the date of this agreement, subject to the conditions hereinafter named.
    “ 2d. The party of the second part agrees to use its best diligence and effort to introduce and to further the introduction of the said patented pavement or sidewalk into general and extensive use throughout the aforesaid city and District.
    “3rd. Said party of the second part agrees to pay to John J. Schillinger, at the office of the latter, in the city of New York, a royalty of one and one-half cents for and upon each and every square foot of said pavement or sidewalk which shall be laid within any part of the said District by them, or any person by them authorized, said royalty to be paid to said John J. Schillinger, his representatives or assigns, quarterly from and after the date hereof, upon a quarterly account or accounts to be rendered of the work done or pavement laid under said agreement witbin the three months next preceding the respective quarter days.
    “ 4th. And the party of the second part hereby agrees, in the consideration of the license hereinbefore granted, to pay to the parties of-the first part, upon the execution and delivery of this agreement, the sum of one dollar, the receipt whereof is hereby acknowledged.
    “ 5th. And further, upon the failure of the party of the second part to make the returns to pay the royalty as herein provided, the parties of the first part may terminate this license by serving a written notice upon the said party of the second part at any time after such failure.
    
      “In witness whereof the said parties have hereunto set their hands and seals on the day and in the year first herein named.
    “A. C. Richards,
    “C. E. Creect,
    “Edward Renand, [seal.] “A. D. V. Burr,
    “Albert Elsberg,
    “Geo. R. Herrick,
    “Lawrence R. Byrne,
    “ Parties of the First Part.
    
    “A. C. Richards,
    “ President of the Artificial Stone Company of D. C. “Benjamin N. Meeds,
    “ Secretary of the Artificial Stone Company of D. C.
    
    “ (Seal of The Artificial Stone Company of the District of Columbia. Incorporated Dec. 26th, 1871.)”
    The Artificial Stone Company, on or about January 29, 1874, assigned all its interest under the said last-mentioned agreement to Charles M. Roberts by an instrument which has been lost.
    III. February 27, 1875, said Schillinger entered in the Patent Office the following disclaimer;
    “ To the Commissioner of Patents :
    
    “ Your petitioner, John J. Schillinger, of the city and county and State of New York, represents that letters patent of the United States, re-issue No. 4364, bearing date May 2, 1871, were granted to him for an improvement in concrete pavements.
    “ That he has reason to believe that through inadvertence, accident, or mistake the specification and claim of said letters patent are too broad, including that of which your petitioner was not the first inventor, and he therefore Hereby enters his disclaimer to the following words ; “And since the concrete in setting shrinks, the second block when set does not adhere to the first,” and so on, and which occur near the middle of said specification; and to the following words near the end of the specification: ‘In such cases, however, where cheapness is an object, the tar-paper may be omitted, and the block formed without interposing anything between their joints, as previously described. In this latter case the joints soon fill up with sand or dust, and the pavement is rendered sufficiently tight for many purposes, while the blocks are detached from each other, and can be taken up and relaid each independent of the adjoining blocks.’
    “ Your petitioner hereby disclaims the forming of blocks from plastic material without interposing anything between their joints while in the process of formation.
    
      “ Your petitioner owns the said patent and the whole interest therein except in the following plac.es or territory for which he has granted exclusive licenses, under royalty, or sold rights under said patent, to wit: the counties of Kings, Queens, and Richmond, New York State; Hartford County, Connecticut; the District of Columbia; the States of New Jersey, Georgia, Maryland, Louisiana, Texas, Ohio, Michigan, Missouri, and Illinois; which above-named States and places comprise all the territory for which he has sold or granted exclusive licenses or rights in or under said patent, to the best of his recollection, knowledge, and belief.
    “ New York, February 37, 1875. _
    “John J. Schilltnger.
    “ Witnesses:
    “George Fuller.
    “S. Mendelsaker.”
    IY. Thereafter and previous to September 2, 1875, the Architect of the Capitol, Edward Clark, invited proposals for laying concrete pavement required for the improvement of the Capitol Grounds. The claimant Oreecy, having entered into an arrangment with said Roberts for a joint interest therein, made proposals to do said work in accordance with the Schill-inger patent, in the name of said Roberts, for 45 cents a square foot. There were other and lower bids by other parties to do said work, among them one from G. W. Cook, with whom the following contract was made:
    [Improvement of Capitol Grounds, Washington, D. 0.]
    “ Agreement for furnishing and laying complete concrete pavement required for the improvement of the Capitol Grounds, Washington, D. G.
    
    “ This agreement, made and concluded this second day of September, in the year one thousand eight hundred and seventy-five, by and between the United States, by Edward Clark, acting for and in behalf of the United States, of the first part, and G.W. Cook,of Washington, of thesecond part, witnesseth, that the said party of the second part agree, and by these presents does agree, with the said party of the first part, for the consideration herein mentioned and contained, and under a penalty expressed in a bond bearing even date with these presents, and hereunto annexed, to provide, furnish, and lay complete a concrete pavement required for the improvement of the Capitol Grounds, Washington, D. C., according to the plans and specifications of Fred. Law Olmsted, which have been approved by the party of the second part, and of such further instructions as may from time to time be furnished, and to the complete and entire satisfaction of the said Fred. Law Olmsted, or his representatives, or of the officer in charge at Washington.
    
      u The pavement included in this contract is to extend from the present Seneca flagging of the north and south terraces near the porte eoehés toward North and South B sts., respectively, and is shown on the plan deposited at the office of the engineer in charge at Washington, but the United States reserves the right to increase or diminish the quauity of work, at its discretion, without in any way vitiating or lessening the force and validity of this contract.
    “ Specification.
    
    “ The foundation and sub-bed will be prepared by the United States to within four inches of the finished level of the pavement, but the contractor for the pavement is to satisfy himseli of the sufficiency thereof to insure the pavement against settlement or other damage likely to arise from deficiencies of foundations. The concrete pavement to be 4 inches thick, the lower three inches to be composed of at least 1 part of the best Portland cement and three parts clean sharp sand, well rammed, and the upper 1 inch to be composed of one part of best Portland cement and one part clean sharp sand, with an admixture of color to resemble, as near as may be, Seneca stone, to be troweled smooth and firm.
    “ 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 re-imburse 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.
    “ The work shown upon the plans shall be completed bn or before the 10th day of November, one thousand eight hundred and seventy-five (1875).
    “ In default of such completion at the time stated, the party of the second part agrees to pay to the United States the sum of ($50) fifty dollars per day for each and every day thereafter that the said work shall remain incomplete, not as a penalty, but as liquidated damages.
    
      “ And the said party of the second part hereby further agrees to receive as full compensation for finishing and laying complete the aforesaid pavement in the manner above specified for the sum of twenty-eight and one-half cents per square foot; and the said party of the second part hereby further agrees to maintain and deliver up the said pavement in perfect condition at the expiration of four years from the date of completion theveof.
    “ Payments will be made on % of the United States by the disbursing officer of the Dept, of the Interior upon the certificate of the officer in charge, less 15 per <5ent., which will be retained until the work is certified to be completed to his satisfaction.
    “ In witness whereof the parties to these presents have hereunto set their hands and seals this'day and year first above mentioned.
    “ Edward Clark, [seal.]
    
      u Architect U. S. Ga/pitol.
    
    “Geo. W. Cook. [seal.]
    “ Witness:
    “Bernard Sears,
    “ Geo. Peabody Estes.”
    Y. Said Cook proceeded to perform his part of said contract, and laid 236,571 square feet of pavement in accordance with ■the terms thereof, and was paid therefor by the defendants the sum of $67,432.93 between October, 1875, and July, 1881.
    YI. September 26,1882, the following assignment was made:
    “Whereas we, the undersigned, being the assignees of and owners of the sole right to use the patents of John J. Schill-inger, in the District of Columbia, for laying artificial stone sidewalks, said patents being No. 105599, issued July 19,1870, and re-issued May 2, 1871, No. 4364:
    “Now, therefore, to all whom it may concern, be it known that, in consideration of the sum of one dollar in hand paid each and all of us, the receipt whereof is hereby acknowledged, we have assigned, sold, and set over, and do hereby assign, sell, and set over, to Frances A. Roberts, of the District of Columbia, all of our light-, title, and interest in and to the said patents of John J. Schillinger and the use thereof in the District of Columbia.
    “ In testimony whereof we hereunto set our hands and seals this 26th day of September, A. D. 1882.
    “ CHARLES E. CREECY. [L. S.'
    “ A. D. Y. Burr. [l. s.
    “ A. C. Richards. [l. s.
    “ Edward Renand.” [l. s."
    
      July 2, 1883, the claimant was appointed administrator of the estate of Lawrence R. Byrne aforesaid. December 10, 1883, the following assignment was made:
    “ Whereas I, one of the assignees of the patents of John J. Schillinger for laying artificial stone in the District of Columbia, issued July 19th, 1870, No. 105599, and re-issued May 2d, 1871, and of former stockholders in the Artificial Stone Company of the District of Columbia, having heretofore sold and assigned all our right? and stock to Charles M. Roberts, of the District of Columbia, for a valuable consideration; and whereas the said Charles M. Roberts, having died intestate, leaving his widow in poor circumstances; and whereas the said assignments having been mislaid and having never been recorded:
    “ Now, therefore, in order that Frances A. Roberts may have a good title, so far as I can give it, to said patent rights of Schillinger in the District of Columbia and to said Artificial Stone Company’s stock, I hereby, in consideration of the sum of one dollar in hand paid, the receipt whereof is hereby acknowledged, have assigned, sold, and set over unto the said Frances A. Roberts of all my right, title, and interest in and to the patents of John J. Schillinger for laying artificial stone pavement, issued July 19th, 1870, No. 105599, and re-issued May 2d, 1871, No. 4364, and to the stock of the Artificial Stone Company of the District of Columbia.
    “ In testimony whereof I hereunto set my hand and affix my seal this tenth day of December, A. D. 1883.
    “ Geo. R. Hekeick.”
    December 12, 1883, the following assignment was made:
    “ Whereas Frances A. Roberts, of the city of Washington, District of Columbia, did obtain by assignment the title to letters patent from the United States for improvement in concrete pavements, and which letters patent arenumberedl05599, re-issued No. 4364, and bear date the 9th'July, 1870, and May 2, 1871, respectively; and whereas she now the part owner of said patent and all the rights under the same; and whereas Charles E. Creecy, of Washington City, D. O., is desirous of acquiring her interest in the same:
    “ Now, therefore, to all whom it may concern, be it known that, for and in consideration of one dollar to her in hand paid, the, receipt whereof is hereby acknowledged, she has assigned, sold and set over, and by these presents does hereby assign, sell, and set over, unto the said Charles E. Creecy all of her right, title, and interest in and to the said improvement and in and to the said letters patent therefor aforesaid and my right to profits arising from infringement suits; the same to be held and enjoyed by the said Charles E. Creecy for his own use and behoof, and for the use and behoof of his legal representa-
    
      tives, as fully and entirely as tbe same would have been beld and enjoyed by him had this assignment and sale not been made.
    “In testimony whereof.she hereunto sets her hand and affixes her seal this twelfth day of December, A. D. 1883.
    “Frances A. Boberts.” [seal.]
    VII. The validity and infringement of said Schillinger patent have been controverted in the courts and sustained in the following cases: Kuhl v. Mueller, Circuit Court U. S., district of Ohio, decision by Judge Sage, July 5,1884; Schillinger v. Gunther, Blatchford, J., 14 Blatchford, 153, 17 Blatchford, 66; SameY. Same, Shipman, J., Official Gazette, 831; Same v. Same, Blatch-ford, J., 16 Official Gazette, 905; California Stone Co., v. Perinere, Sawyer, J., 8 Federal Beporter, 821; Schillinger v. Greenway Brewing Go., Blatchford J., July 31, 1883, vol. 24, No. 5, U. S. Official Gazette, Patent Office; Same v. Rulbert, Blodgett J., northern district of Illinois, May 15, 1884; California Artificial Stone Co., v. Ferine, Circuit Court, D. California, May, 1881, opinion by Sawyer, J., 8 Fed. Bep., 821; Schillinger v. Cranford et al., Supreme Court of District of Columbia, 1884, opinion by Cox, J.
    VIII. Claim ant protested against the contract being awarded to Cook, and notified Architect Clark of the rights of the Schill-inger patent and warned said Clark against infringing the same. This protest was made both orally and in writing. In one letter claimant said:
    “We shall take steps, by injunction or otherwise, to prevent any further violation of this patent; and unless the contractor shall make satisfactory arrangement with us, we will not permit the further violation of the patent rights of Schillinger.”
    At the time the bids were opened plaintiff protested to the Architect against the award being made to any one but his associate, Boberts. But the Architect and his advising engineers decided they would award the contract to the lowest bidder on the ground that as the validity of the Schillinger patent had not been tested at law or in equity they could not decide whether it was valid or not, and that the interest of the Government, in their judgment, would be best subserved by giving the contract to the lower bidder, taking a bond to protect the Government from the suit threatened by claimant.
    
      IX. The case of the present parties in interest under the name of Charles E. Creecy et al., based upon exactly the facts now presented, was, March 26, 1884, transmitted to this court by the Committee on Patents of the House of Representatives, under the Act of March 3,1883 (22 Stat. L., 486). The fact's were found by the court and were reported to the committee February 3, 1886, in accordance with the terms of said act.
    
      Mr. Eppa Hunton and Mr. V. B. Edwards for the claimants:
    Claimants contend that the facts in this case bring it within the jurisdiction of this court if the same rule of law is applied as was applied in the cases .where this court assumed jurisdiction and rendered judgment forthe claimants, and the Supreme Court affirmed the decisions.
    The first case tried in this court was the case of Pitcher (1 C. Oís. R., 7), where this court held that it had no jurisdiction; but the claim now before the court stands on an entirely different footing. In the Pitcher Case the officer using the patented invention was a subordinate officer, without power or authority of law to make a contract, and one who had no order or direction from a superior officer having lawful authority to use a patented invention without the consent of the owner of the patent.
    In this case the Schillinger invention had been submitted to the Architect of the Capitol, an officer authorized bylaw to make contracts; it had been by that officer examined, and the owners offered the use to the Government by the bid to lay the pavement in the Capitol Grounds, which was received and considered by that officer. The ownership of the patent had been recognized by the proper officer; and the owner’s right to the patent is not contested. The Schillinger Case is therefore similar in these respects to McKeever’s Case reported in 14 Court of Claims, 396, which was affirmed by the Supreme Court.
    Claimants’ invention, after being submitted to and its use offered to the Architect of the Capitol, was by him adopted by the use thereof. The use by the Architect of the Capitol pending the settlement of the question as to the validity of the Schillinger patent made the question of compensation for use depend upon the point raised, i. e., was the patent valid "l That point has been settled by many circuit and district courts of tbe United States, tbe Court of Claims in 71 Congressional Case, and tbe Supreme Court in tbe Schalicke Case, and tbe Government is now liable under tbe rules laid down in Palmer’s Case (20 C. Cls. R., 432) and affirmed by tbe Supreme Court (128 U. S. R., 262), and also in Forehand’s Case (23 C. Cls. R., 480, 481).
    Tbe decisions of the Supreme Court sustain this view and bold that this court under such a state of facts has jurisdiction {Hollister v. Benedict Manufacturing Company, 113 U. S. B., 67).
    Assuming, so far as this patent is concerned, that tbe question as to whether it is private property or not has been settled, we lay down as tbe broad doctrine of law, “ That tbe King (the Government) can do no wrong.” In other words, that a community in establishing or creating a form of government does it for tbe public good, and no power can be presumed to exist in tbe creature to wrong its creators or any of them.
    Tbe implied contract to pay'a just compensation arises under the Constitution tbe moment tbe owner loses and the Government acquires possession, and Congress has given jurisdiction to tbe Court of Claims to bear this class of cases and determine what is tbe just compensation so guarantied.
    While we contend tbe Government can commit no wrong against its citizens, let us assume that it can, for tbe purpose of presenting the law upon that aspect of tbe case.
    When tbe owner bi'ings suit in tbe Court of Claims for compensation, be waives any remedy be may have for tbe tort and sties under tbe implied contract.
    Ohitty on Contracts, page 20, says:
    “ There are likewise cases in which tbe law raises a promise even from tbe wrongful acts of a party, and in which the courts will not admit of evidence of bis intention to commit a tort in order to negative an implied promise, for no man can set up or take advantage of bis own wrong.”
    Is this not such a case?
    Tbe Supreme Court in the case of Campbell v. James (104 U.
    • S. B., 358) says: “The most proper forum for such a claim is tbe Court of Claims, if that court has tbe requisite jurisdiction.”
    The Supreme Court in the case of Palmer v. The United States (123 U. S. B., 262) quotes tbe above case with approvál, and Judge Matthews, in delivering tbe opinion of tbe Supreme Court in the case of Hollister v. Benedict Manufacturing Company (113 U. S. R., 59, 67), says:
    “ If the right of the patentee was acknowledged, and without his consent an officer of the Government acting under legislative authority made use of the invention in the discharge of his official duties, it would seem to be a clear case of the exercise of the right of eminent domain upon which the law would imply a promise of compensation, an action on which would lie within the jurisdiction of the Court of Claims, such as was entertained and sanctioned in the case of The United States v. The Great Falls Manufacturing Company (112 U. S. R., 645).
    The Government of the United States pays one-half of the expenses of the District of Columbia, and the officers of the District government in 1872 acknowledged this patented invention to be valid, etc., by entering into contracts with the owners of the patent and paying 40, 50, 55 cents per superficial foot for pavements laid under the patent.
    In conclusion claimants contend that this case is essentially different from the facts in the case of Forehand et al. v. The United States, 23 O. Cls. R., 477.
    Do not the proven facts bring this case strictly within the rule laid down by the court in the Fordham Case as governing its action in assuming jurisdiction of this class of cases?
    There had been communications between the owners of this patented invention and the proper officer of the Government. They offered their invention to the Government at the same rates paid by the District of Columbia officers for similar work done in and around Government reservations and for the same rates paid by private parties. They submitted their patent to the proper officers and put the Government on its guard as to all their rights in the premises, and the proper officer adopted and used their invention with a reservation as to compensation, dependent only upon the settlement of the judicial question of the validity of the patent. The.privity was established by these acts between the proper officer and the owners.
    There does not appear to be single element of tort in this case. The use by the Government without immediate compensation to the licensee of the patent was purely a proper exercise of discretion on the part of the officer who was legally authorized to contract, and that discretion was exercised, not with the intent to commit a wrong upon the owners of the patent, but to economize for the G-overnment until the legal question of the validity of the patent had been settled.
    
      Mr. Heber J. May (with whom was Mr. Assistant Attorney-General Howard) for the defendants :
    The argument of counsel for claimants is almost entirely answered by the opinion of the courts in Pitcher’s Case.
    According to our understanding of the decisions this court had decided the question of jurisdiction against the claimants in cases similar to this one, namely, in the Pitcher and Forehand-Cases. Where the court has taken jurisdiction as upon an implied promise the Pitcher Case has always been expressly distinguished, and this is so in all the late decisions. In this case, as in those, no contract can be implied from the circumstances of the user. It may have been a disturbance or infringement of claimants’ rights by Cook, the contractor, but not by an officer of the Government. The property of the claimants was not taken or used by the United States at all, and consequently not upon an implied promise.
    In answer to the proposition that property can not be taken for public use under Article Y of the Constitution, reference is made to Pitcher’s Case, where it is decided “that the use of a patented machine by the Government does not constitute a taking of private property for public use within the meaning of the Constitution.” This doctrine is affirmed in the Forehand Case, and also inferentially in Palmer’s Case on appeal to the Supreme Court (128 U. S. R., 270.)
    There was not a caption of private property for public use under any circumstances in the case at bar. It is argued for claimants that if a tort or infringement has been committed, that the tort can be waived and suit entertained upon an implied contract. We think the Court of Claims has also disposed of this contention adversely to the claimants. {Pitcher’s Case, 1 C. Ols. R., 8, 9; Forehand’s Case, 23 C. 01s. R.)
    The Supreme Court'refused to pass upon this point in Palmer’s Case (128 U. S. R., 262-272.)
   Davis, J.,

delivered the opinion of the court:

Plaintiffs contend that they should recover from the United States compensation upon an implied contract for the use, upon the Capitol Grounds, of a patent for improvement in' pavements.

It appears that Schillinger obtained a patent which has been supported by the courts upon several occasions; that by a series of assignments plaintiff Creecy became vested with all rights under the patent important to this case at the date when the petition herein was filed.

In 1875, when improvements to the Capitol Grounds were in contemplation, Creecy brought the Schillinger pavement to the attention of the Architect of the Capitol and bid for the work. His bid was rejected, and a contract was entered into with George W. Cook for pavement at a lower rate of compensation. Creecy then appealed to Congress for relief, and the Committee on Patents of the House of Representatives sent the case here under the Bowman Act, whereupon, in due course, and as directed in that act, we found the facts and returned them to the committee. This report was made on the 3d day of February, 1886, and apparently plaintiffs have not received the relief they thus sought, as they now sue the Government, upon the theory of an implied contract, for compensation for the use of the pavement.

It is contended that the invention was submitted to the Architect of the Capitol, an officer authorized by law to make contracts; that it was examined by him and its use offered through the bid made to lay the pavement. The fiudings show this contention to be correct. Plaintiffs, however, go further; saying that the Architect “adopted” the invention “by the use thereof.” This allegation we shall have occasion to examine later. Urging it to be correct, plaintiffs contend that the case falls within the principle of McKeever’s Case (14 C. Cls. R., 396, affirmed, without opinion, by the Supreme Court); of Palmer’s Case (20 C. Cls. R., 432, affirmed 128 U. S. R., 262), and of Forehand’s Case (23 C. Cls. R., 480), in which the court held:

“It will be noticed that in all cases in which the contentions have been sustained here, that there existed an implied contract between the inventor and the Government; there have been communications of some kind between the inventor and proper officers of the Government. The inventor had offered his invention; had called attention to his alleged rights; had claimed compensation, or in some equivalent manner had put the Government upon their guard and done some act tending ing to establish privity between them and him.”

We do not decide in this case whether the Cook pavement embodied Schillinger’s invention, nor do we purpose to rule upon the validity of the patent. The discussion is reduced to one question, to wit: Whether, admitting the patent to be valid and the Cook pavement to be an infringement, there was a contract between plaintiff and the G-overnment.

Plaintiff Creecy offered his invention to defendants and they refused it. He himself avers in his petition that ‘‘they [he and his then associate] protested against the use of their patent without compensation, and notwithstanding such protest and notice the said Architect Clark caused the said artificial stone sidewalk' to be laid under the said Schillinger patent, and it has all been laid under the said Schillinger patent without any compensation to your petitioners, and contrary to the laws of the United States.” The findings show that Creecy protested against the contract being awarded to Cook and warned the Architect against infringing the same; that he threatened an injunction “to prevent any further violation of the patent,” and stated in writing that “unless the contractor, Cook, shall make satisfactory arrangement with us we will not permit the further violations of the patent rights of Schillinger.” The Architect fully understood plaintiffs’ position before he signed the contract with Cook, but preferred to accept the lower bid and.protect the Government against infringement on Cook’s part by a guaranty clause in the contract.

None of this tends to disclose contract relations between the plaintiffs and the United States, unless a patentee has rights against his Government which do not exist in the relations between individuals. There was no acknowledgment of the rights of the patentee (Hollister v. Benedict Manufacturing Company, 113 U. S. R., 67); on the contrary, the Architect having awarded a contract to a rival bidder, the allegations of plaintiffs tend to show an infringement of his rights by this, contractor (Cook), who certainly was not an agent of the Government. Creecy, in his dealings with the Architect, as well as in his application to Congress, seems to have proceeded upon the theory of infringement, not contract.

Plaintiffs had notified the Government; had called attention to their alleged rights; but those rights had never been acknowledged by the Government. On the contrary, they were in effect denied by a refusal of his bid, a danger to the Government, though a possible infringement on the part of the contractor, Cook, was provided against in, the clause whereby Cook bound himself to protect the Government against any suits for infringement.

It has been earnestly urged here in argument that in patent cases the relations of the Government to the citizen and their mutual duties and rights are not to be measured by the same standard as that adopted for the settlement, in courts, of disputes between individuals, in relation to the same subject-matter.

The argument rests substantially upon this provision in the fifth article of the Constitution: “ nor shall private property be taken for public use without just compensation.” Therefore, it is said, any taking or use by the Government of property actually owned by an individual must be presumed a legal taking, from which a promise of compensation will necessarily be inferred. A paraphrase of the argument may be thus stated: The King can do no wrong$ he can not commit an act which 'would fall within the common-law definition of torts; therefore any apparent invasion of the rights of a citizen by the Government must be construed a lawful act, for which compensation is promised. Carried to its extreme, this argument might prove that under no circumstances whatever could the Government commit an injury to an individual, and might bring within the general jurisdiction of this court suits in admiralty for collision, and actions for the destruction of property by military officers. It was said in counsel’s argument of the Forehand Case:

“ TheKingcan do no wrong,while an individual may. Where the infringement is made by the authority of the Department, and not at the caprice of the employé, under the assumption that the Government wilfully wrongs no man, an implied contract to pay may justly be assumed.”

The maxim thus quoted is, however, much broader in its language than in its spirit, and in England it has been construed to mean that the King is under, not above, the laws, and is bound by them equally with his subjects.

“ For though the King is not himself under the coercive power of the law, yet in may cases his commands are under the directive power of the law which makes the act itself .invalid if unlawful, and so renders the instrument of execution thereof obnoxious to punishment. * * * The Crown can not dispense with anything in which the subject has an interest, nor make a grant in violation of the common law of the land, or injurious to vested rights. In this sense it is that while a sovereign himself is in a personal sense incapable of doing wrong, yet his acts may in themselves be contrary to law, and on that account be avoided or set aside by the law.” (Broom’s Legal Maxims, 51 et seq.)

Langford’s case distinctly decides that the maxim “ the King can do no wrong” has no place in our system of government. The argument made in that case was like that made here, and is thus stated by the court:

“ (1) That the maxim of English constitutional law that the King can do no wrong is one which the courts must apply to the Government of the United States, and that therefore there can be no tort committed by the Government. (2) That by virtue of the constitutional provision that private property shall not be taken for public use without just compensation, there arises in all cases where such property is so taken an implied obligation to pay for it.”

As to this the court said :

“ It is not easy to see how the first proposition can have any place in our system of government. * * * We do not understand that either in reference to the Government of the United States, or of the several States, or of any of their officers, the English maxim has an existence in this country.” [Langford v. United States, 101 U. S. R., 341.)
Proceeding to the second point the court said they were not prepared to deny that when the Government, “ by such formal, proceedings as are necessary to bind it,” takes for a public purpose land “ to which it asserts no claim of title, but admits the ownership to be private or individual, there arises an implied obligation to pay the owner its just value.”

Again:

“We are not called on to decide that when the Government, acting by the forms which are sufficient to bind it, recognizes the fact that it is taking private property for public use, the compensation may not be recovered in the Court of Claims.”

The italics are in the opinion of the Supreme Court.

Three points of importance to our present purpose are made by this case.

The distinction between actions ex delicto and actions ex con-tractu as against the Government is maintained.

It concedes that the taking of private property for public use may bind the Government as upon an implied contract, provided the Government acts by such formal proceedings as aré sufficient to bind it, and also recognizes that the taking is of property to which it asserts no claim of title, but admits the ownership to be private or individual.

In Campbell v. James (104 U. S. R., 356) the court decided that when the Government issues letters patent for a new invention or discovery in the arts it confers upon the patentee an exclusive property in the patented invention. “ It can not be appropriated or used by the Government itself, without just compensation, any more tfian it can appropriate or use without compensation land which has been patented to a private purchaser;” and of this the court said “they had no doubt.” They further said:

“The United States has no such prerogative as that which is claimed by the Sovereign of England, by which it can reserve to itself, either expressly or by implication, a superior dominion and use in that which it grants by letters patent to those who entitle themselves to such grants. The Government of the United States as well as the citizen is subject to the Constitution, and when it grants a patent the grantee is entitled to it as a matter of right, and does not receive it, as was originally supposed to be the case in England, as a matter of grace and favor.”

These propositions are now admitted law, and need no further discussion.

There appears, however, in this opinion an important dictum. The court said:

“ But the mode of obtaining compensation from the United States for the use of an invention, when such use has not been by the consent of the patentee, has never been specifically provided for by any statute. The most proper forum for such a claim is the Court of Claims, if that court has the requisite jurisdiction. As its jurisdiction does not extend to torts, there might be some difficulty, as the law now stands, for prosecuting in that court a claim for the unauthorized use of a patented invention, although where the tort is waived and the claim is placed upon the footing of an implied contract, we understand that the court has in several recent instances entertained the jurisdiction.
“ It is true it overruled such a claim on the original patent in this case presented in 1867, but according to' more recent holdings it would properly now take cognizance of the ease. The question of its jurisdiction has never been presented for the consideration of this court, and it would be premature for us to determine it now. If tbe jurisdiction of the Court of Claims should not be finally sustained, the only remedy against the United States, until Congress enlarges the jurisdiction of that court, would be to apply to Congress itself.
. “ The course adopted in the present case of instituting an action against the public officer who acts only for and in behalf of the Government is open to serious objections. We doubt very much whether such an action can be sustained. It is substantially a suit against the United States itself, which can not be maintained under the guise of a suit against -its officers and agents, except in the manner provided by law. We have heretofore expressed our views on this subject in Carr v. The United States (98 U. S. R., 433), where a judgment in ejectment against a Government agent was held to be no estoppel against the Government itself.”

In the Great Falls Case (112 U. S. R., 656) the court affirmed the judgment in favor of plaintiffs entered below, notwithstanding the fact that formal proceedings in condemnation of the land in question had not been prosecuted to a decision, and this upon the ground that the Government recognized the property as private, individual property to which it asserted no title, and that the taking was for a public use.

At the same term was decided Hollister v. The Benedict Manufacturing Company (113 U. S. R., 59), a suit in equity against a Government agent for alleged infringement of a patent for revenue stamps. One of the defenses was that defendant acted officially, and the court, citing Campbell v. James, said:

. “ If the right of the patentee was acknowledged, and without his consent an officer of the Government, acting under legislative authority, made use of the invention in the discharge of his official duties, it would seem to be a clear case of the exercise of therightof eminent domain, upon which the law would imply a promise of compensation, an action on which would lie within the jurisdiction of the Court of Claims.”

The court said:

“ It may be that even if the exclusive right of the patentee were contested, such an action might be brought in that court involving all questions relating to the validity of the patent.”

But the court did not decide this question.

In the opinion affirming the judgment of this court in Palmer’s Case (128 U. S. R.,269) the Supreme Court said:

“ The assumption of the appellant is erroneous. No tort was committed or claimed to have been committed. The Government used the claimant’s ‘improvements with his consent, and certainly with the expectation on his part of receiving a reasonable compensation for the license. 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 land is from use and occupation under a lease. The first sentencé in the original opinion of the court below strikes the key-note 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. The objection, therefore, that this is an action for a tort falls to the ground.”

After quoting Campbell against James as in accord with the present views of the court, the court added:

“In our judgment the Court of Claims has jurisdiction to entertain claims and demands of the character presented in the present suit. Whether a patentee may waive an infringement of his patent by the Government, and sue upon an implied contract, is a question upon which we do not express an opinion.”

A careful examination of these cases shows that a contract to pay is implied whenever the Government, acting through a competent agent, takes or uses individual property, acknowledging explicitly or tacitly that the property is individual property. No formal proceedings in condemnation are necessary to this result. Where, however, there is a denial of private right in an alleged patent, and the invention is nevertheless appropriated or used by the Government, the appropriation or use is in the nature of a tort, and an action thereon is not within the general jurisdiction of this court. So if it had not been disputed that the Schillinger patent was valid and the invention had been used by.the Government, acting through a competent agent, a contract for royalty would be implied. It appears, however, that the Government was far from acknowledging any right in plaintiffs, nor did it even recognize that the Cook pavement embodied the Schillinger invention. Every act of the Architect was openly adverse to plaintiffs’ alleged rights, and therefore from these acts no contract can be implied. There may be a distinction between the taking of intangible property, such as a patent right, and the taking of tangible property in this, that by the Government’s use of a patent right the owner loses nothing per se through the taking; whereas if atangible article be appropriated the owner instantly becomes so much the poorer. So if the Government actually acquire the property, even through the act of an agent not competent, a contract to pay for it is implied; while the use of a patented process or article may directly deprive the owner of nothing of intrinsic value, but be simply an invasion of a right, an act which, to bind the Government, must be performed by a competent agent.

We are of opinion that there was no contract between plaintiffs and the Government, and on that ground the petition is dismissed.  