74

This latter principle is definitely stated in Stanley v. Schwalby, in which an action of ejectment against persons holding property for the State was held to be a suit against the State, because in that State such an action was regarded as one determining title. With reference to the doctrine declared in the Lee case the court emphasize the fact that the judgment affirmed was simply that the plaintiffs recover against the individual defendants the possession of the property in controversy and costs, "and," the court declare," this court distinctly recognized that, if the title of the United States were good, it would be a justification of the defendants; that the United States could not be sued directly by original process as a defendant, except by virtue of an express act of Congress; and that the United States would not be bound or concluded by the judgment against their officers." 75

§ 634. Recent Cases.

The latest judicial phases of the suability of the United States are to be found in Belknap v. Schild,76 Minnesota v. Hitchcock," Oregon v. Hitchcock,78 and International Postal Supply Co. v. Bruce.79 In the first of these cases an injunction was sought against the commandant of a United States navy yard to prevent the use there of a caisson gate contrary to the patent rights of the plaintiff. The injunction was denied.

The court, after holding that there was a distinction between a property right in an article which infringed a patent right and that patent right itself, and that, thus, though the issuance in pursuance of an act of Congress of a patent right creates a right in

74 162 U. S. 255; 16 Sup. Ct. Rep. 754; 40 L. ed. 960.

75 In Cunningham v. Macon & B. R. Co. (109 U. S. 446; 3 Sup. Ct. Rep. 292; 27 L. ed. 992), the court, defining the doctrine of the Lee case, say: "The action of ejectment in that case is, in its essential character, an action of trespass, with the power in the court to restore possession to the plaintiff as part of the judgment. .. The judgment in that case did not conclude the United States, as the opinion carefully stated, but held the officers liable as unauthorized trespassers and turned them out of their unlawful possession." 76 161 U. S. 10; 16 Sup. Ct. Rep. 443; 40 L. ed. 599. 77 185 U. S. 373; 22 Sup. Ct. Rep. 650; 46 L. ed. 954. 78 202 U. S. 60; 26 Sup. Ct. Rep. 568; 50 L. ed. 935. 79 194 U. S. 601; 24 Sup. Ct. Rep. 820; 48 L. ed. 1134.

the patentee against the United States as well as against individuals, there is nothing to prevent the United States becoming the owner of the article that infringed a patent right, continue:

"In the present case, the caisson gate was a part of the dry dock in a navy yard of the United States, was constructed and put in place by the United States, and was the property of the United States, and held and used by the United States for the public benefit. If the gate was made in infringement of the plaintiff's patent, that did not prevent the title in the gate from vesting in the United States. The United States, then, had both the title and the possession of the property. The United States could not hold or use it, except through officers and agents. Although this suit was not brought against the United States by name, but against their officers and agents only, nevertheless, so far as the bill prayed for an injunction and for the destruction of the gate in question, the defendants had no individual interest in the controversy; the entire interest adverse to the plaintiff was the interest of the United States in property of which the United States had both the title and the possession; the United States were the only real party, against whom alone in fact the relief was asked, and against whom the decree would effectively operate; the plaintiff sought to control the defendants in their official functions, as representatives and agents of the United States, and thereby to defeat the use by the United States of property owned and used by the United States for the common defense and general welfare; therefore the United States was an indispensable party to enable the court, according to the rules which govern its procedure, to grant the relief sought; and the suit could not be maintained without violating the principles affirmed in the long series of decisions of this court, above cited."

In International Postal Supply Co. v. Bruces an injunction was asked to restrain a federal postmaster from using a leased machine which infringed a patent owned by the plaintiff. Again the relief asked for was refused, the court holding that the United States, though not the owner of the machine, had a property right

80 194 U. S. 601; 24 Sup. Ct. Rep. 820; 48 L. ed. 1134.

- a right in rem — in it, and was in possession, and that, therefore, the case was governed by Belknap v. Schild.§1

In Minnesota v. Hitchcock suit was brought against the Secretary of the Interior and the Commissioner of the General Land Office of the United States, to restrain them from selling certain lands in the Indian reservation. The suit was held to be one against the United States, but was entertained by the court on the ground that by virtue of an act of Congress the United States had consented to be sued. In Oregon v. Hitchcock, however, in which suit was brought to restrain the patenting to individuals of certain lands and a decree establishing the title of the State of Oregon to them, the court declined jurisdiction, no statutory consent of the United States to suit appearing.

§ 635. Suability of Minor Political Bodies.

83

In conclusion of this subject it is to be observed that the principle of the non-amenability of the States of the Union to suit does

81 Justice Harlan rendered a dissenting opinion, maintaining as he had in a dissent in Belknap v. Schild, that, under the doctrine declared in United States v. Lee, the court would be empowered to enjoin the defendants individually. "I am of the opinion," he said, "that every officer of the government, however high his position, may be prevented by injunction, operating directly upon him, from illegally injuring or destroying the property rights of the citizen; and this relief should more readily be given when the government itself cannot be made a party of record.

"The courts may, by mandamus, compel a public officer to perform a plain, ministerial duty prescribed by law; and that may be done, although the government itself cannot be made a party of record. Can it be possible that the court is without authority to enjoin the same officer from doing a direct, affirmative wrong to the property rights of the citizen, upon the ground that the government whom he represents, and in whose interest he is acting, is not and cannot be made a party of record? The present decision-erroneously, I take leave to say answers this question favorably to the defendant. But that answer cannot, I submit, be made consistently with the declaration which this court has often repeated, that no officer of the law, however high his position, can set that law at defiance with impunity; that the government, as well as the citizen, is subject to the Constitution, and therefore cannot legally appropriate or use a patented invention without just compensation any more than it can appropriate or use, without compensation, land that it had patented to a private purchaser."

82 185 U. S. 373; 22 Sup. Ct. Rep. 650; 46 L. ed. 954. 83 202 U. S. 60; 26 Sup. Ct. Rep. 568; 50 L. ed. 935.

not extend to their political subdivisions. These may be sued in contract, and even in tort, money judgments may be rendered against them, and mandamus may be awarded to compel the necessary appropriation and the levying and collection of taxes to pay the judgments thus rendered. In some cases also, the private property of such public corporations which is not directly used in the public service may be sold on execution. As regards this liability to suit, there is, however, a distinction to be made be tween municipal corporations, and those known as quasi-municipal. The latter may not be sued in tort except by express statutory permission. The former, however, may be sued in tort, since they are deemed to be organized for the peculiar advantage of those living within their areas, and thus not acting, as it were, as the agent of the sovereignty, do not enjoy its special exemptions, but are subject to the rules of private law.

It is, however, to be observed that in so far as these municipal corporations may properly be held to represent the sovereignty and to exercise purely governmental powers, they are not generally held responsible for damages arising from the exercise of such powers.

§ 636. Statutory Consent of the United States and of the States to Be Sued.

The United States by act of Congress and various of the States of the Union by constitutional or statutory provision, have consented to be sued by individuals as to specified matters.83

In all cases, however this suability has been limited to actions in contract, express or implied. In no case have they rendered themselves pecuniarily responsible for the tortious acts of their agents. From a viewpoint of strict equity, and the general doctrine governing the responsibility of the principal for the 84 Meriwether v. Garrett, 102 U. S. 472; 26 L. ed. 197; Rees v. Watertown, 19 Wall. 107; 22 L. ed. 72.

85 The exemption of the United States from suit may be waived only by legislative act and not by the secretary of war or the attorney general or any other officer not expressly authorized so to do. Stanley v. Schwalby, 162 U. S. 255; 16 Sup. Ct. Rep. 754; 40 L. ed. 960.

acts of his agents, it might seem strange that claims of the individual against his State based upon contract are allowed to be adjudicated, whereas those based upon tort are not; in other words, that, the more wrongful and illegal the acts of the agents, the less liable is his principal. This state of the law, however, is a logical and necessary outcome of the general principle of American and English law that an ultra vires act of a public official is not the act of his government, but is a private act for which he may be held civilly and criminally responsible.

86

86 For an argument as to the justice as well as the expediency of holding the sovereign State liable for the torts of its agents, especially when it acts as the owner of, or in relation to, private property, see article by Professor Ernst Freund entitled "Private Claims against the State,” in Political Science Quarterly, VII, 625. Professor Freund says: "The principal torts which may be imputable to the government in connection with its private relations, are negligence, non-compliance with statutory regulations, nuisance, trespass, and disturbance of natural easements. It is characteristic of these torts that they violate obligations which are cast by law upon the ownership or occupation or control of property, that they are sometimes not directly attributable to a specific act of any particular agent, and that the existence of the wrongful condition is usually of some benefit to the owner. The liability of the State in these cases is demanded not only by justice but by the logic of the law."

For a description of the jurisdiction of the United States Court of Claims, see ante, section 564.