1 Ct. Cl. 7 | Ct. Cl. | 1853
delivered the opinion of the Court.
On the first day of December, A. D. 1857, a patent was granted to Spencer Rowe for an “improvement in machines for making brooms.” On the fourth of the same month Rowe assigned all his interest in this patent to John Fox; and Fox, on the 2d of April, 1861, conveyed the same to the claimant. These assignments were duly executed and recorded. In 1858, and after he had assigned his interest to Fox, Rowe entered into a contract with the warden of the United States penitentiary for the District of Columbia to erect three of these machines within the penitentiary, and to operate them there, hiring the labor of convicts at forty cents per day for each one he employed. Rowe having failed to perform his contract, his machines were sold, and purchased for the use of the government by the warden.
The claimant now brings this action to recover the profits which it is alleged the United States realized by the unauthorized use of the machines. After setting forth the facts fully in his petition, he states the grounds upon which he bases his right to recover in this case and in this court as follows :
“Your petitioner does not allege the existence of any express promise, upon the part of the agents of the government, to pay him any given sum of money for the use of his patent, but he does rely upon an implied promise, on the part of the government, to pay him for the use of his property, arising from an implication of law, to refund the money had and received to his use, in the manufacture and sale of the brooms by the use of his patent, as much so as if the broom com had been his property, instead of the patent; and upon another distinct ground of claim — the right of the government to take private property, if its convenience or necessity requires, and convert it to its own use in the public service, making just compensation therefor. He does not consider that the government in so doing commits a tortious act, so that no implied promise can arise on its part to pay the citizen for the value of the property taken, or a reasonable price for the use of it, if it shall be restored to him. That compensation ought to precede such taking; but, if not, the promise to pay, after the taking, arises from implication of law, and is as strong as a natural sense of justice and human obligation can make it.”
The solicitor for the United States demurs to the petition, alleging that this court has no jurisdiction of the case as set forth by claimant. This is the only question now before us.
The claimant’s counsel contends in his argument, as in his petition, that we have jurisdiction upon the grounds of an implied contract with the United States; that though the facts set forth would, as between individuals, constitute simply an infringement of a patent right, which in itself is a tort, and at common law, as well as under' the statute, is to be redressed by an “ action on the case,” yet as-the United States as a body politic is incapable of committing a tortious act, there is an implied agreement, when such acts are committed:
We think it quite clear that the circumstances set forth in this petition do not constitute such a taking of private property for public use as the Constitution of the United States contemplates in the clause referred to. We cannot believe that the framers of'this clause intended that every subordinate officer or petty agent of the United States might undertake to decide for himself when the exigency has occurred, or the necessity exists, for the seizure and appropriation of the property of the citizen. And every attempt on the part of any public officer to do so, unless justified by some pressing emergency or overruling necessity, is a simple trespass, for which he is amenable to the law, but for which, being beyond the scope of his powers, the United States is in nowise responsible. (Mitchell v. Harmony, 13 How., 115.)
In this case there was no seizure or taking of any tangible property belonging to the claimant; at most it was a mistaken and unauthorized use of a machine which he had an exclusive right to make, use, and vend. It was the disturbance or infringement.of his right, instead of the caption of his property.
The right of the claimant to this patent right is not disputed, nor is it controverted that this right has been infringed by persons apparently acting for and on behalf of the United States. The only question raised and discussed is whether this court has jurisdiction. What is the nature and character of the injury of which the claimant complains ? At common law the infringement or disturbance of a right of this kind was held to be a tort, for which an action of trespass on the case was the appropriate, if not the only, remedy at law. (Bull, N. P., 75.) Under our statutes in relation to patent rights the same form of action has been prescribed. The fourteenth section of the act of July 4, 1S36, enacts: “ Whenever in any action for damages for making, using, or selling the thing whereof the exclusive right is secured by any patent heretofore granted, or by any patent which may hereafter be granted, a verdict shall be rendered for the plaintiff in such action, it shall be in the power of the court to render judgment for any sum above the amount found by such verdict as the
The seventeenth section of the same act provides “that all actions suits, controversies, and cases arising under any law of the United States granting or confirming to inventors the exclusive right to their inventions or discoveries shall be originally cognizable, as well in equity as at law, by the circuit courts of the United States, or any district court having the powers and jurisdiction of a circuit court.”
These provisions, it seems to us, not only designate the form of action — point out the mode of proceeding — -but specify the very tribunal in which the remedy must be administered. It is to be by action on the case; a verdict of a jury is to fix the amount of damages and the court to increase them, within prescribed limits, according to its discretion. The proceedings of this court are not according to the course of the common law. We have no jury; and it will be readily seen that, constituted as this court is, it would be impossible for us to take cognizance of these cases and meet the requirements of the acts of Congress. Besides all this, there is the direct and explicit enactment confining the jurisdiction to “the circuit courts of the United States or any district court having the powers and jurisdiction of a circuit court.”
The extent of our jurisdiction in cases originating by petition filed is limited and confined by the act of February 24, 1855, and are such claims against the United States as are “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.” There has been no pretence that this claim is founded upon an act of Congress, or any regulation of an executive department, or upon any express contract with the government of the United States. But it is alleged and argued that it comes within the other branch of' our jurisdiction — that is, an implied contract with the government of the United States. Let us now examine this ground and see whether it is well founded or not. The counsel for the claimant has argued with much ingenuity that the United States, as a body politic, is incapable of committing a tort, and authorizes none of its officers or agents to do so ; but where'one of them incidentally commits such wrong in the exercise of his legitimate employment, and the United States receives the benefit of his act, there is an implied en