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decided: February 3, 1896.



Author: Gray

[ 161 U.S. Page 15]

 MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.

A recapitulation of the principles heretofore affirmed by this court, touching the liability of the United States, and of their officers and agents, to suit in the judicial tribunals, will go far towards disposing of this case.

It should be premised that our law differs from that of England as to the right of the government to use, without compensation, an invention for which it has granted letters patent.

In England, the grant of a patent for an invention is considered as simply an exercise of the royal prerogative, and not to be costrued as precluding the Crown from using the invention at its pleasure; and therefore a petition of right cannot be maintained against the Crown for using a patented invention; although a private person or corporation, that has contracted to supply the government with articles embodying the invention, may be sued for infringement of the patent. Feather v. The Queen, 6 B. & S. 257; Dixon v. London Small Arms Co., L.R. 10 Q.B. 130, and 1 App. Cas. 632.

But, in this country, letters patent for inventions are not granted in the exercise of prerogative, or as a matter of favor, but under art. 1, sect. 8, of the Constitution of the United States, which gives Congress power "to promote the progress of science and useful arts, by securing for limited terms to authors and inventors the exclusive right to their respective writings and discoveries." The Patent Act provides that

[ 161 U.S. Page 16]

     every patent shall contain a grant to the patentee, his heirs and assigns, for a certain term of years, of "the exclusive right to make, use and vend the invention or discovery throughout the United States." Rev. Stat. § 4884. And this court has repeatedly and uniformly declared that the United States have no more right than any private person to use a patented invention without license of the patentee or making compensation to him. United States v. Burns, 12 Wall. 246, 252; Cammeyer v. Newton, 94 U.S. 225, 235; James v. Campbell, 104 U.S. 356, 358; Hollister v. Benedict Manufacturing Co., 113 U.S. 59, 67; United States v. Palmer, 128 U.S. 262, 270-272.

The United States, however, like all sovereigns, cannot be impleaded in a judicial tribunal, except so far as they have consented to be sued. This doctrine has been affirmed by this court in cases too numerous to be cited; and was clearly stated by Mr. Justice Field, delivering judgment in the case of The Siren, as follows: "It is a familiar doctrine of the common law, that the soverign cannot be sued in his own courts without his consent. The doctrine rests upon reasons of public policy: the inconvenience and danger which would follow from any different rule. It is obvious that the public service would be hindered, and the public safety endangered, if the supreme authority could be subjected to suit at the instance of every citizen, and consequently controlled in the use and disposition of the means required for the proper administration of the government. The exemption from direct suit is, therefore, without exception. This doctrine of the common law is equally applicable to the supreme authority of the nation, the United States. They cannot be subjected to legal proceedings, at law or in equity, without their consent; and whoever institutes such proceedings must bring his case within the authority of some act of Congress. Such is the language of this court in United States v. Clarke, 8 Pet. 444. The same exemption from judicial process extends to the property of the United States, and for the same reasons. As justly observed by the learned judge who tried this case, there is no distinction between suits against the government directly, and suits

[ 161 U.S. Page 17]

     against its property." 7 Wall. 152-154. So much of this statement as regards suits against the United States, or against their property, was repeated by the present Chief Justice in the recent case of Stanley v. Schwalby, 147 U.S. 508, 512.

It necessarily follows that, unless expressly permitted by act of Congress, no injunction can be granted against the United States. United States v. McLemore, 4 how. 286; Hill v. United States, 9 How. 386; Case v. Terrell, 11 Wall. 199.

The United States, by successive acts of Congress, have consented to be sued upon their contracts, either in the Court of Claims, or in a Circuit or District Court of the United States. Acts of February 24, 1855, c. 122 § 1; 10 Stat. 612; March 3, 1863, c. 92, § 2; 12 Stat. 765; Rev. Stat. § 1059; Act of March 3, 1887, c. 359, §§ 1, 2; 24 Stat. 505; United States v. Jones, 131 U.S. 1, 15, 16. The United States may accordingly be sued by a patentee for their use of his invention under a contract made with him by the United States or by their authorized officers. United States v. Burns, 12 Wall. 246; United States v. Palmer, 128 U.S. 262; United States v. Berdan Co., 156 U.S. 552.

But the United States have not consented to be liable to suits, founded in tort, for wrongs done by their officers, though in the discharge of their official duties. Gibbons v. United States, 8 Wall. 269; Morgan v. United States, 14 Wall. 531, 534; Langford v. United States, 101 U.S. 341; United States v. Jones, 131 U.S. 1, 16, 18; German Bank v. United States, 148 U.S. 573, 579, 580; Hill v. United States, 149 U.S. 593. The United States, therefore, are not liable to a suit for an infringement of a patent, that being an action sounding in tort. Schillinger v. United States, 155 U.S. 163; United States v. Berdan Co., 156 U.S. 552.

A public officer is not personally liable on a contract, although under his own hand and seal, made by him in the line of his duty, by legal authority, and on account of the government, and enuring to its benefit, and not to his own. Hodgson v. Dexter, 1 Cranch, 345. See also Macbeath v. Haldimand, 1 T.R. 172; Unwin v. Wolseley, 1 T.R. 674; Palmer v. Hutchinson, 6 App. Cas. 619.

[ 161 U.S. Page 18]

     But the exemption of the United States from judicial process does not protect their officers and agents, civil or military, in time of peace, from being personally liable to an action of tort by a private person whose rights of property they have wrongfully invaded or injured, even by authority of the United States. Little v. Barreme, 2 Cranch, 169; Bates v. Clark, 95 U.S. 204. Such officers or agents, although acting under order of the United States, are therefore personally liable to be sued for their own infringement of a patent. Cammeyer v. Newton, 94 U.S. 225, 235. See also Feather v. The Queen, 6 B. & S. 257, 297; Vavasseur v. Krupp, 9 Ch. D. 351, 355, 358.

The extent to which officers or agents of the government may be restrained by injunction from doing unlawful acts to the prejudice of private rights is illustrated by the decisions of this court regarding injunctions from the courts of the United States to officers and agents of a State, which, by the Constitution of the United States, is as exempt as the United States are from private suit. Hans v. Louisiana, 134 U.S. 1.

In a suit to which the State is neither formally nor really a party, its officers, although acting by its order and for its benefit, may be restrained by injunction, when the remedy at law is inadequate, from doing positive acts, for which they are personally and individually liable, taking or injuring the plaintiff's property, contrary to a plain official duty requiring no exercise of discretion, and in violation of the Constitution or laws of the United States. Osborn v. Bank of United States, 9 Wheat. 738, 868, 871; Board of Liquidation v. McComb, 92 U.S. 531, 541; Allen v. Baltimore & Ohio Railroad, 114 U.S. 311; Pennoyer v. McConnaughy, 140 U.S. 1.

But no injunction can be issued against officers of a State, to restrain or control the use of property already in the possession of the State, or money in its treasury when the suit is commenced; or to compel the State to perform its obligations; or where the State has otherwise such an interest in the object of the suit as to be a necessary party. Louisiana v. Jumel, and Elliott v. ...

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