Overholser v. National Home for Disabled Volunteer Soldiers, 1 Ohio Law Rep. 321

Overholser v. National Home for Disabled Volunteer Soldiers

1 Ohio Law Rep. 321 | Ohio | 1903

The controlling question in this case is whether the defendant can be sued for a tort. It is a well-established principle in our jurisprudence that no suit can be maintained against the.United States, or against its property, in any court, without express authority of Congress. In some of the cases it has been held that for the purposes of jurisdiction there is no distinction between suits against the government directly and suits against its property (Stanley v. Schwalby, 147 U. S., 508; Stanley v. Schwalby, 162 U. S., 255, 269-270). The defendant is admitted to be a corporation. Territorially it is within the jurisdiction of the state of Ohio; but by the act of Congress ceding that' jurisdiction, it is provided that nothing contained in that act shall be construed to impair the powers and rights in and, over said territory theretofore conferred upon the board of managers of The National Asylum for Disabled Volunteer Soldiers. These powers and rights were conferred upon the President of the United States, the Secretary of War, the Chief Justice and nine others chosen from time to time by Congress, constituting "a board of managers of an establishment for the care and relief of the disabled volunteers of the United States army, to be known by the name and style of ‘The National Home for Disabled Volunteer Soldiers,’ and have perpetual succession, with powers to take, hold and convey real and *329personal property, establish a common seal, and to sue and be suecl in courts of law and equity; and to make by-laws, rules, and regulations, not inconsistent with law, for carrying on the business and government of the home, and to affix penalties thereto.” Congress reserved the right to at any time amend, alter or repeal the laws relating to The National ITome for Disabled "Volunteer Soldiers. This eleemosynary corporation, as it has already been denominated by this court (Renner v. Bennett, 21 Ohio St., 442), therefore remains in all respects, as it Was originally, an institution of the government of the "United States for the administration of a charity of the United States. It continues t'o be, as it always has been, maintained by the funds of the government of the United States. All of the property held in it's name was paid for by the United States; and that it is performing an appropriate and constitutional function of the general government nobody doubts; for at this time it is too late to question the power of Congress to create corporations for such purposes (Osborn v. Bank of United States, 9 Wheat., 738, 859, 872; McCulloch v. Maryland, 4 Wheat., 316, 411, 422; Luxton v. North River Bridge Co., 153 U. S., 529). But, as was remarked by Chief Justice Marshall, in Osborn v. Bank of United States, 9 Wheat., 860, this corporation is not a private corporation but “a public corporation created for public and national purposes.” It is “an instrument which is ‘necessary and proper for carrying into effect the powers vested in the government of the United States/ It is not an instrument which the government found ready made, and has supposed'to- be adapted for its purposes; but one which was created in the form in which it now appears, for national purposes only.” A suit against a public corporation having no other powers than the performance of a function of the government and accomplishing no other object, is plainly a suit against the government and its property, although nominally it is a suit against the corporation only. This principle was applied by this court in Finch v. Board of Education, 30 Ohio St., 37, 47, in which it was held that in -the absence of a statute creating the liability, a board of education, which was incorporated by an act of the General Assembly, passed March 9, 1849, was not liable in its corporate capacity for damages resulting from its negligence -in erecting 'and maintaining a school *330building. It was beld that t'he defendant was "-a public agent employed in administering tlie common school system of the state/’ and that .there is no principle oil the common law by which the action could be supported. .

In Board of Commissioners v. Mighels, 109 Ohio St., 109, a case in which the liability for tort of mere governmental agencies, in the absence of express consent of the sovereignty, is denied, Brinker-hoff, J., clearly distinguished municipal corporations and counties as follows:

“Municipal corporations proper are called into existence, either at the direct solicitation or by the free consent of the people who compose them.

“Counties are local subdivisions of a state, created by the sovereign power of the state, of its own sovereign will, without the particular solicitation, consent, or concurrent aetian of the people who inhabit them. The former organization is asked for, or at least assented to by the people it embraces; the latter is superimposed by a sovereign and paramount' authority.

“A municipal corporation proper is created mainly for the interest, advantage and convenience of the locality 'and its people; a county organization is created almost exclusively with a view to the policy of the state at large, for purposes of political organization and civil administration, in matters of finance, of education, of provision for the poor, of military organization, of the means of travel 'and transport, and especially for the general administration of justice. With scarcely an exception, all the powers and functions of the county organization have' a direct and exclusive reference to the general policy of the state, 'and are, in fact, but a branch of the general administration of that policy.”

This is exactly the distinction which we make here between the defendant in this case 'and municipal or commercial corporations.

The general doctrine in regard to the liability of the government for torts is thus stated: “Even the state or t'he general government may be guilty of individual wrongs; for, while each is a sovereignty, it is a corporation also, and as such capable of doing wrongful acts. The difficulty here is with the remedy, not with the right. No sovereignty is subject to suits, except with its own consent. But either this consent is given by general law or some tribunal is established with power to hear all just claims. Or, if neither of these is done, the tort remains; and it is always to be *331presumed that the legislative authority will make the proper provision for redress when, its attention is directed to the injury” (Cooley on Torts, 122-123). The United States has consented to be sued on its contracts, either in the court' of claims or in a circuit or district court of the United States; but it has not yet consented to be liable to actions for torts (Belknap v. Schild, 161 U. S., 17). Therefore, we are not persuaded by the argument that the power conferred upon this corporation, of suing and being-sued both at law and in equity, must be construed as a consent by Congress that this particular governmental agency may be sued upon any cause of action, whether sounding in contract or in tort. On the'contrary we are constrained upon all considerations, to regard this as imposing the power and liability to sue and be sued in respect to such matters only as are within the scope of the other corporate powers of the defendant. The National Home for Disabled Soldiers was not given the right to commit wrongs upon individuals. It was not contemplated that it would do so. It was created and is perpetuated by the federal government for a very different purpose. Hence, it can not be inferred that Congress meant to impose 'a liability upon this corporation so unusual, so different from its general policy and so different from the liabilities imposed on other public agencies.

The defendant has no corporate fund nor any property applicable to the payment of 'a judgment -in such an action as this. A judgment could not be satisfied except by seizing upon the property and funds supplied by the general government for the purpose for which the defendant was created, and without which it must cease to exist. Execution against the defendant would not only bring on conflict between the state and federal governments, but if allowed, it would tend to the destruction of this splendid national charity. It is no answer to these considerations to say that a judgment in damages for the tort would'be an ascertained basis for an appeal to Congress for satisfaction; for, as is said by the eminent -author already quoted, it is to be presumed that the sovereign is always ready and willing to do justice, and a judgment in the courts, when unauthorized by the government, would not only be ■altogether vanity, an empty result, but would be 'an indecorous assumption of the right to advise the general government as t'o its *332duty, and of the right to make the judgment the basis of a demand precluding inquiry by the general government as to its ultimate liability''. . The courts can be better employed than in doing a useless thing.

We, therefore, conclude that the right to sue The National Home for Disabled "Volunteer Soldiers for a tort was never contemplated nor conferred. In Finch v. Board of Education, supra, this court so construe-dl the power “to sue and be sued” contained in the charter of the board of education. Likewise in Board of Commissioners v. Mighels, 7 Ohio St., 109, 114-117.

The judgment of the circuit court is

Affirmed.