Statement of the Case.

"plea to the jurisdiction,") in which he stated that the caisson gate in question was planned and constructed by the United States, and ever since its construction had been in the possession, control and use of the United States at the navy yard at Mare Island, and was operated at the dry dock in the navy yard for naval purposes and the public defence, in the building and repairing of ships for the Navy of the United States; that the United States, through their officers and agents, charged with the possession, control and operation of that navy yard, had at all times been in possession, control and operation of the caisson gate as public property of the United States, for public uses, in the exercise of their sovereign and constitutional powers; and that the defendants, and each of them, never had anything to do with the construction, use or operation of the gate, or made any claim of right, title, possession, control or use of it, other than as officers and agents of the United States, and in obedience to orders of the naval department of the government; and therefore, "without submitting the rights of the United States to the jurisdiction of the court, but insisting that the court has no jurisdiction of the controversy, for that the said caisson gate and its use now is and at all times has been the property of the United States," moved that the bill be dismissed, and all proceedings stayed and set aside.

The case having been submitted to the court upon the plea of the defendants, and the suggestion of the Attorney General, both were overruled.

The defendants, Belknap, Feaster, Wolcott and Diamond, then filed an answer, admitting the grant of the letters patent, denying the infringement, setting forth affirmatively the matters stated in their former plea, and alleging that neither these defendants nor the United States were parties to the action brought by the plaintiff against the Union Iron Works, or estopped by the judgment therein.

A general replication was filed; and evidence was taken, by which it appeared that the validity of the plaintiff's patent, and its infringement by the defendants, were subjects of conflicting testimony; that Mare Island and the works and dock

Statement of the Case.

thereon, including the caisson gate, belonged to the United States, and were held and occupied for them by their officers and employés; that the defendants respectively held the positions stated in their former plea, and had no interest in the caisson gate, and nothing to do with it beyond operating it under the direction of the United States; that the gate was built in 1884, without any agreement or license of the plaintiff, by the Union Iron Works under its contract with the United States, and according to plans and specifications furnished by the Bureau of Yards and Docks, and Wolcott simply inspected the materials and workmanship, as the work progressed, to see if they were according to the contract; and that the gate had since been used by the United States, as part of the dock in the navy yard aforesaid.

After a hearing upon pleadings and proofs, the court made an interlocutory decree, adjudging that the patent was valid, and had been infringed by the defendants; referring the case to a master to take an account of the number of caisson gates made or used by the defendants, or either of them, in violation of the patent, and also of the gains, profits and advantages, arising or accruing to the defendants or either of them, and of the damages sustained by the plaintiff; and ordering a perpetual injunction against the defendants and each of them, "and their and each of their agents, servants, clerks and workmen, and all persons claiming or holding under or through them or either of them."

The master reported that one caisson gate to the dock in the navy yard at Mare Island, for the making and using of which the defendants had been adjudged to have infringed the plaintiff's patent, had been made upon plans furnished by the plaintiff and modified by the government officials, and put in use in 1884; that the cost of this gate was $60,000, and the cost of the cheapest practicable gate, constructed on any other plan known to the defendants, would be at least $100,000, and therefore the gains, profits and advantages, which had arisen and accrued to the defendants from infringing the plaintiff's patent, amounted to $40,000; and that no damages, in addition to such gains, profits and advantages, had been proved.

Opinion of the Court.

The court overruled exceptions taken by the defendants to the master's report, confirmed his report, and entered a final decree for the plaintiff for the sum of $40,000, with interest and costs. The defendants appealed to this court.

Mr. Assistant Attorney General Conrad for appellants.

Mr. J. H. Miller, (with whom was Mr. L. T. Michener on the brief,) for appellee.

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 construed 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

Opinion of the Court.

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 sovereign 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

Opinion of the Court.

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, с. 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.

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