The Secretary of the Treasury having been authorized by sec. 15
of the Act of March 2, 1867, 14 Stat. 481, to "adopt, procure, and
prescribe" meters to be used by distillers, adopted the meter of
A., April 18, 1867. If the Secretary revoked his order, it was
agreed that A. should be paid for all the instruments he might then
have completed or have in process of completion, provided the
number of sets in process of manufacture at any one time should not
exceed twenty. A joint resolution, passed Feb. 3, 1868, 15
id. 246, declared that, pending an examination thereby
directed, all work on the construction of meters under the
direction of the Treasury Department should be suspended, and that
in the meantime no further contract should be made under the Act of
March 2, 1867. Power to adopt and prescribe meters was, by the Act
of July 20, 1868,
id. 125, conferred upon the Commissioner
of Internal Revenue, who, Sept. 16, 1868, adopted A.'s meter,
reserving the right to entirely revoke his order adopting it, and,
on the part of the government, direct the discontinuance of its
manufacture. June 8, 1870, the Commissioner revoked his previous
order, except as to meters then on hand or in process of
construction not exceeding twenty sets; and A. was informed that
neither the government nor any department or officer thereof was or
would be responsible for or on account of any meters. The use of
A.'s meter was entirely discontinued June 8, 1871. He then had
fourteen and a half sets on hand, for the value of which he brought
this suit, contending that the contract made by the Secretary in
1867, to pay for the instruments on hand at the time of the
discontinuance to the extent of twenty sets, was adopted by the
Commissioner in 1868 and was made part of all the subsequent
proceedings. It does not appear that any of the fourteen and a half
sets on hand June 8, 1871, were on hand or in process of
manufacture June 8, 1870.
Held, that A. was not entitled
to recover.
The facts are stated in the opinion of the Court.
MR. JUSTICE HARLAN delivered the opinion of the Court.
By sec. 15 of an Act approved March 2, 1867, 14 Stat. 481, the
Secretary of the Treasury was authorized to "adopt, procure, and
prescribe" for use hydrometers, weighing and gauging instruments,
meters, or other means for ascertaining the strength and quality of
spirits subject to tax, or for preventing or detecting frauds by
distillers of spirits.
On the 18th of April, 1867, the Secretary adopted the Tice
Page 99 U. S. 287
meter, and prescribed its use in distilleries, upon certain
agreed conditions fully set forth in a letter to the inventor.
Among those conditions were these:
"The Secretary of the Treasury holds himself at liberty at any
time to adopt any improvement or modification of the meter or
system, or at any time to revoke the order adopting the meter, and
to discontinue their manufacture on behalf of the government. If
the first meter shall prove successful when subjected to the test
above set forth, and the government shall subsequently revoke the
adoption of the meter and order a discontinuance of proceedings,
you will be paid such sum as may be determined upon in the manner
hereinafter stated for all instruments which you may have completed
or have in process of completion at the time of such revocation,
provided that at no time shall you have more than twenty
sets in process of manufacture at any one time unless directions
shall be given hereafter for the manufacture of a larger
number."
By joint resolution passed Feb. 3, 1868, 15
id. 246,
Congress directed the appointment, by the Secretary of the
Treasury, of a commission which, in connection with the
then-existing commission of the Academy of Science, should examine
all meters and mechanical contrivances or inventions presented to
them which were intended to measure, test, and ascertain the
productiveness of grain or other articles prepared for
distillation, or the actual quantity and strength of distilled
spirits subject to tax, produced therefrom, the result of such
examination to be communicated to Congress. The act declared
"that, pending the action of said commission and until their
report be made and a meter shall be by law adopted, all work on the
construction of meters, under the direction of the Treasury
Department, be and is hereby suspended. . . . And in the meantime,
no further contract shall be made by the Secretary of the
Treasury"
under the Act of March 2, 1867.
By an Act approved July 20, 1868,
id., 125, power to
"adopt and prescribe" meters was conferred upon the Commissioner of
Internal Revenue. That officer, Sept. 16, 1868, decided to adopt
and prescribe the Tice meter, and upon certain conditions, to which
the inventor assented, the directed the latter "to proceed with
their construction." Among the conditions were these:
Page 99 U. S. 288
"
Third, the one hundred and seventeen meters now
finished will be immediately made ready for delivery, and
thirty-six now in process of manufacture will be completed as soon
as possible. The manufacture of others, to the number of five
hundred in all, is to be proceeded with as rapidly as possible, and
thereafter not more than twenty sets are to be in process of
construction at one time unless a greater number is directed by the
Commissioner of Internal Revenue."
"
Fourth, the Commissioner reserves to himself or his
successor in office the right at any time to adopt any improvement
of the meter or system or to revoke the order adopting the meter
and to direct on the part of the government a discontinuance of its
manufacture."
On the 7th of June, 1870, the Commissioner ordered the
discontinuance of that kind of Tice meter known as the second or
"credit" meter, and required distilleries to use thereafter the
Tice sample meter and the Tice automatic meters adapted for use as
sample meters.
On the succeeding day, June 8, 1870, the Commissioner addressed
to Tice a letter in which, among other things, he gave notice that
instructions and regulations in force prior to Oct. 8, 1869,
"relating to the ordering and shipment and payment for the
meters invented by you and prescribed for use in distilleries,
remain in force only in respect to meters heretofore delivered, and
also those you may now have on hand or in process of construction,
not exceeding twenty sets."
In that letter, the Commissioner further says:
"Any regulations heretofore prescribed, addressed to you by or
from this office, directing or authorizing you to construct, or
proceed with the construction of, or to furnish, meters, especially
those of Sept. 16, 1868, are revoked, except as aforesaid. New
rules, regulations, and orders have been prescribed, a copy of
which is herewith enclosed, it being distinctly understood that
neither the government of the United States nor any department or
officer thereof is or will be responsible for or on account of any
spirit meters or the attachment or adjustment thereof."
By a formal order made on June 8, 1871, the further use of
Tice's spirit meters was finally discontinued, and all existing
orders prescribing the same were revoked. At the date of
Page 99 U. S. 289
that order, Tice had on hand fourteen and one-half sets of
meters, worth $25,000, for which sum, and for storage up to April
8, 1873, the estate of Tice rendered an account against the
government on the 12th of April, 1873. The amount was approved by
the then Commissioner, but, payment being refused, this action was
brought against the government for the recovery of the sum
claimed.
From the judgment of the Court of Claims in favor of the
government, this appeal is prosecuted.
We concur with the learned counsel for appellants in the
proposition that the contract made April 18, 1867, by the Secretary
of the Treasury with Tice was not abrogated by the joint resolution
of Feb. 3, 1868. By the terms of the resolution, it was only
suspended until final action by the commission, whose report was
designed as the foundation of a statute which would designate the
kind of meters which should be adopted. But express authority to
make a new contract was conferred by the Act of July 20, 1868, upon
the Commissioner of Internal Revenue. That officer was empowered to
adopt and prescribe for use such hydrometers, saccharometers,
weighing and gauging instruments or meters, as he might deem
necessary. The extent of the authority intended to be conferred
upon him is manifested by the third section of the Act of July 20,
1868, which required every owner, agent, or superintendent of a
distillery to furnish and attach, at his own expense, such meter as
the Commissioner might adopt and prescribe for use. It was by
virtue of its provisions that the agreement of Sept. 16, 1868, was
made. According to any fair construction of its terms, in the light
of attendant circumstances, the government was bound, as under the
agreement of April 18, 1867, to pay for such sets, not exceeding
twenty, as Tice might have on hand at the time their use should be
discontinued. The provision to that effect in the contract of April
18, 1867, is so reasonable and just that we shall not presume that
the contract of Sept. 16, 1868, was intended to establish a
different rule of compensation to the inventor. But we do not
perceive, however, that all this justifies the conclusion that the
government was under any legal obligation to pay for the meters
which Tice had on hand
Page 99 U. S. 290
on June 8, 1871, and for the value of which the account in
question was presented. By the express words of the agreement of
Sept. 16, 1868, the Commissioner had the right at any time to
revoke the order adopting the meter and to direct the
discontinuance of its manufacture on behalf of the government. That
power was partially exerted by the order of June 7, 1870, which
dispensed with the further use of all Tice meters except the sample
meters or the automatic meters adopted for use as sample meters.
But the power of revocation and discontinuance was fully exerted by
the sweeping order of June 8, 1870, which, reserving the rights of
Tice as to all meters theretofore delivered, and as to such as were
then on hand or in process of construction, not exceeding twenty
sets, revoked all previous regulations which directed or authorized
the inventor to construct, or proceed with the construction of or
to furnish meters, and especially the regulation of Sept. 16, 1868.
By that order, distinct notice was given to the patentee that
neither the government of the United States nor any department or
officer thereof was or would be responsible for or on account of
any spirit meters or the attachment or adjustment thereof. The
order of June 8, 1870, did not, perhaps, discontinue the use of
meters altogether, but it clearly furnished notice that the
patentee could not look to the government for protection or
reimbursement as to any meters thereafter constructed by him and
used by distilleries. The meters for which the account was rendered
were on hand on June 8, 1871, when all existing orders prescribing
the same for the were absolutely revoked, and the further use of
Tice meters discontinued. Had they been on hand and in the process
of construction at the date of the order of June 8, 1870, we would
not doubt the liability of the government for their value. But no
such fact is found, and we suppose no such fact could have been
established.
While we do not agree with the court below in all the reasons
assigned in support of the conclusion reached, we think its
judgment is in accordance with the law.
Judgment affirmed.