sounding in tort. The exception of tort claims acts as the greatest single limitation upon the jurisdiction of the court, but it seems now to be fairly certain that it does not affect a claim under subdivisions (1) and (2), i. e., founded on the Constitution, a law of Congress, or Executive regulation, notwithstanding its tortious origin.1 Congress may under the Bowman Act and by special statute refer tort cases to the Court of Claims, as it has, for example, in the numerous cases of collision between private vessels and government vessels which have been so referred,2 or may itself allow tort claims. When Congress waives the government's immunity from suit, the waiver is strictly construed and will in the absence of clear evidence of a contrary intention be held to waive only well-known special defenses, e. g., the statute of limitations, and not such a general defense as the tortious nature of the claim or its origin in an unauthorized wrong of an officer.3 Congress alone, and not an officer of the United States, can waive the privilege of the government not to be sued.1

On principle, the United States government is not liable for the negligence, misfeasance or non-feasance of its officers, even though

5

1 Dooley v. U. S., 182 U. S. 222; Basso v. U. S., 40 Ct. Cl. 202; Christie-Street Commission Co. v. U. S., 136 Fed. 326. See an instructive article by C. C. Binney, Element of tort as affecting the legal liability of the U.S., 20 Yale Law Journ., 95–110. 2 In England, in such cases, the government undertakes the defense of the naval officer who may be sued for this tort, and pays any judgment found against him. On the Continent, regular judicial remedies are provided in the ordinary courts or in administrative courts for cases in which vessels owned by individuals have suffered damage by collision with public vessels. A federal bill to permit suit against the U. S. government in all such cases has not yet become a law; see Argument in support of Bill S. 7627 (later H. R. 64, Sen. 1662, 63rd Cong., 1st sess.) permitting suits against the U. S. for damages by vessels owned or operated by the U. S.-Amendments to admiralty law, Senate Hearings, 1910, p. 11.

A gratuitous subsidiary liability is recognized for certain claims, as, e. g., the Indian Depredation Claims according to the Act of 1891. Leighton v. U. S., 161 U. S. 291; Woolverton v. U. S., 29 Ct. Cl. 107; Love v. U. S., 29 Ct. Cl. 332; Pino v. U. S., 38 Ct. Cl. 64; Labadie v. U. S., 32 Ct. Cl. 368.

3 Dahlgren v. U. S., 16 Ct. Cl. 30; U. S. v. Irwin, 127 U. S. 125; Haskell v. U. S., 9 Ct. Cl. 410; U. S. v. Cumming, 130 U. S. 452.

4 Carr v. U. S., 98 U. S. 433.

5 German Bank v. U. S., 148 U. S. 573, particularly 579; Moffat v. U. S., 112 U. S. 24; Whiteside v. U. S., 93 U. S. 247; Hart v. U. S., 95 U. S. 316; Langford v. U. S., 101 U. S. 341 and numerous other cases. See also Bark Eliza (opinion of Cushing, Atty. Gen.), 7 Op. At. Gen. 229, 237.

in the discharge of their official duties.1 Nor can an officer by unauthorized acts fix any liability on the United States, although it may have been beneficial to the government or done in its interest.2 Where the government derives a financial benefit, at the expense of an individual, from the unauthorized act of an officer, it usually makes provision for the payment by the Treasury of any judgment against the officer or permits a suit on implied contract. The remedy for injuries occasioned by the negligence or misfeasance or non-feasance of officers is by appeal to Congress.5

3

4

While the phrase "not sounding in tort" prevents a claimant from waiving a tort and suing ex contractu, even in a case where he could have done so at common law, there is great difficulty in drawing a clear line between claims disallowed on the ground of tort, and those allowed on implied contract. Some of the cases in which jurisdiction has been declined on the ground of tort are the following: failure to remove the wreck of a government vessel;' faulty construction of a dam; failure to put proper light on pier; 9 wrongful diversion of

8

1 Langford v. U. S., 101 U. S. 341; Belknap v. Schild, 161 U. S. 10; Morgan v. U. S., 14 Wall. 531; Hill v. U. S., 149 U. S. 593. See Story on Agency, 8th ed., 412.

2 Filor v. U. S., 9 Wall. 45; Gibbons v. U. S., 8 Wall. 269. In most of the countries of Europe, as we have seen, the government is liable for the wrongful acts of officers in the discharge of their official duties, and the government is nearly always liable where the act of the officer has benefited it.

The government, for example, by statute pays judgments against customs collectors for excess duties unlawfully levied. See also Mechem, Public offices and officers, Chicago, 1890, § 879.

'State Nat. Bank v. U. S., 24 Ct. Cl. 488; cf. Knote v. U. S., 95 U. S. 149; U. S. v. Great Falls Mfg. Co., 112 U. S. 645; U. S. v. Bank, 96 U. S. 30.

In the case of Knote v. U. S. it was said: "To constitute an implied contract with the U. S. there must have been some consideration moving to the U. S.; or they must have received the money, charged with a duty to pay it over; or the claimant must have had a lawful right to it when it was received, as in the case of money paid by mistake."

5 German Bank v. U. S., 148 U. S. 573; Dooley v. U. S., 182 U. S. 222.

* McArthur v. U. S., 29 Ct. Cl. 194. So claim for property unlawfully taken cannot be converted into one of implied contract by suing for the use of the property. Ribas v. U. S., 194 U. S. 315.

'McArthur v. U. S., 29 Ct. Cl. 191.

8 Hayward v. U. S., 30 Ct. Cl. 219. "Walton v. U. S., 24 Ct. Cl. 372.

2

watercourse;1 collision of government vessel with a private vessel; wrongful diversion of proceeds of lands;3 illegal arrest and imprisonment; or taking of property from an arrested person by the arresting officer; 5 an injury to an employee of the government in official work; 6 seizure of private vessel by military forces in the prosecution of a war;7 or compelling a master to proceed to sea with resulting injury to his vessel.8

9

7

Until the Act of June 25, 1910 (36 Stat. L. 851) made the government liable to reasonable compensation for the unauthorized use of a patent, a peculiar line of decisions left much doubt upon the responsibility of the government for such use. Where the claim was brought for infringement, it was dismissed for lack of jurisdiction on the ground of tort, 10 nor could the officer using the patent be used.11 Where, however, instead of denying the private right, as in the above cases, the government recognized the patentee's right, expressly or by implication, a recovery on implied contract was allowed.12 The same criterion has been applied generally to property wrongfully held by government officers. If the government alleges title in itself, it is a tort in case title proves to be in the private individual, and there is no jurisdiction; otherwise, if the private title is recognized.

13

Some difficulty has arisen as to what is a "taking" of property for public use within the principle of constitutional liability for eminent

1 Mills v. U. S., 46 Fed. 738

2 Dennis v. U. S., 2 Ct. Cl. 210.

Milwaukee v. U. S., 1 Ct. Cl. 187.

4 Spicer v. U. S., 1 Ct. Cl. 316.

5 Mann v. U. S., 32 Ct. Cl. 580.

Hayes' case, 46 Ct. Cl. 282.

7 Herrera Nephews' Case, 43 Ct. Cl. 430; Plant Investment Co. Case, 45 Ct. Cl. 374.

8 Morgan v. U. S., 14 Wall. 531.

See article by C. C. Binney, The government's liability for the use of patented inventions, 52 Amer. Law Reg. (1904), 22–53. The Patent Act of Austria, France, and Germany provides that government is liable for use of private patent.

10 Schillinger v. U. S. (1894), 155 U. S. 163; Russell v. U. S. (1901), 182 U. S. 516; Sullivan et al v. U. S., 23 Ct. Cl. 477.

11 Belknap v. Schild (1895), 161 U. S. 10.

12 U. S. v. Palmer (1888), 128 U. S. 262; U. S. v. Berdan Firearms Co. (1894), 156 U. S. 552; Bethlehem Steel Co. v. U. S., 42 Ct. Cl. 365.

13 Langford v. U. S., 101 U. S. 341; U. S. v. Lynah, 188 U. S. 445.

domain. Thus, the overflow of private land rendering it worthless, in the exercise of the power to regulate commerce and improve the navigability of a river, done under authority of Congress, was held a sufficient taking to warrant recovery; whereas the injury to and destruction of agricultural lands on the bank in improving the navigation of the Mississippi river 2 and the raising of the river level in improving navigation, thereby preventing an adjoining owner from draining his canals into the river 3 were held to be consequential damages and not to constitute a "taking" of private property. Even before the Tucker Act, a claim for the taking of property under eminent domain was held to arise ex contractu and not ex delicto.4 Negligence of officers doing injury to property in carrying out authorized government operations will not, in the absence of a "taking" of such property, warrant a recovery.5

6

The following have been held to be claims on implied contract: impressment of wagon-train or other private property by military officer in an emergency; misappropriation of gold certificates presented to proper officer for redemption, but applied by him to make up his own indebtedness to the government; unlawful eviction of a tenant under lease; a grant by Congress of moneys as a gratuity.9 But there is no implied contract to pay for merely voluntary service to the government, 10 although there is, if rendered in expectation of compensation and Congress refers the claim." Nor is there any liabil

8

1U. S. v. Lynah, 188 U. S. 445; Pumpelly v. Green Bay Co., 13 Wall. 166.

2 Jackson v. U. S., 47 Ct. Cl. 579, 230 U. S. 1 (June 16, 1913) and Hughes v. U. S., 230 U. S. 24 (June 16, 1913); cf. Bedford v. U. S., 192 U. S. 217, 225; U. S. v. ChandlerDunbar Co., 229 U. S. 53 (May 16, 1913).

'Mills v. U. S., 46 Fed. 738.

U. S. v. Great Falls Mfg. Co., 112 U. S. 645.

12 Dec. Comp. of the Treasury, 580, 582. Payment of Malambo fire claims in Panama, Sen. Doc. 858, 61st Cong., 3rd sess., pp. 2, 4.

'Mason v. U. S., 14 Ct. Cl. 59; U. S. v. Russel, 13 Wall. 623.

'State Nat. Bank v. U. S., 24 Ct. Cl. 488.

Dunbar v. U. S., 22 Ct. Cl. 109.

'Mumford v. U. S., 31 Ct. Cl. 210.

10 Boston v. District of Columbia, 19 Ct. Cl. 31.

11 Roberts v.

U. S., 92 U. S. 41. In England and Canada, there seems little doubt that a petition of right lies for services rendered; see cases cited in Robertson, op. cit.,

ity on implied contract for moneys illegally received by consuls,1 nor for property captured from a public enemy, which had previously belonged to a loyal private citizen and been unlawfully confiscated; 2 nor is there any implied contract to make good the losses of an individual from the wrongful acts of officers, except in the cases of authorized appropriation of property above mentioned.

When the government enters into a contract with an individual or corporation it divests itself of its sovereign character so far as concerns the particular transaction and assumes that of an ordinary citizen.4 In contractual relations, we find the most frequent waivers of the state's immunity from suit. It becomes subject to the rules of private law in the interpretation of the obligations under the contract, with the exception of the ordinary rules of agency. The officer contracting in the name of the government stands in a somewhat different legal relation to it than the ordinary agent to his principal. So, for example, while the private agent binds the principal to the extent of his apparent and ostensible authority, every one dealing with government officers is bound by their actual authority, and by every requirement of form, even by the amount of appropriations, which may limit the power to incur obligations.5 Thus it is clear that the unauthorized act of an officer does not bind the government unless it is subsequently ratified, although his authority may be implied

1 The Bark Serene, 6 Op. Atty. Gen. 617 (Cushing).

2 Fawcett v. U. S., 25 Ct. Cl. 178.

3 Langford v. U. S., 101 U. S. 341.

4 U. S. v. N. A. C. Co., 74 Fed. 145, 151; So. Pac. v. U. S., 28 Ct. Cl. 77; Cook v. U. S., 91 U. S. 398; Purcell Envelope Co. v. U. S., 47 Ct. Cl. 1, 24. See the following articles: Government contracts, 4 Amer. Law Rev., 1-17; Government contracts, by C. F. Carusi, 43 Amer. Law Rev. (1909), 1-28, and 161-191; cf. Perriquet, E., Contrats de l'état et travaux publics, 2nd ed., Paris, 1890; Der Staat als Kontrahent, by G. Grosch, 5 Jahrbuch des öff. Rechts (1911), 267-284 (emphasizing treaty relations), and Navarra, P. G., Lo stato nei contratti con persone private, Turin,

1911.

5 Pierce v. U. S., 1 Ct. Cl. 270; R. S., § 3679; Shipman v. U. S., 18 Ct. Cl. 138; Dunwoody v. U. S., 143 U. S. 578; Hawkins v. U. S., 96 U. S. 689; Sprague v. U. S., 37 Ct. Cl. 447; Hume v. U. S., 132 U. S. 406; Neilson v. Lagow, 12 Howard, 98.

• Whiteside v. U. S., 12 Ct. Cl. 10, 93 U. S. 247; Reeside v. U. S., 2 Ct. Cl. 1, 7 Ct. Cl. 82; Pierce v. U. S., 7 Wall. 666; Hooe v. U. S., 218 U. S. 322, 336; Filor v. U. S., 9 Wall. 45; U. S. v. Speed, 8 Wall. 77.