1. As applicable to the government or any of its officers, the
maxim that the King can do no wrong has no place in our system of
constitutional law.
2.
Quaere, where lands which are confessedly private
property are by the express authority of the government taken for
public use, can the just compensation therefor which is guaranteed
by the Constitution be recovered under existing laws in the Court
of Claims?
3. That court has jurisdiction only in cases
ex
contractu, and an implied contract to pay does not arise where
the officer of the government, asserting its ownership, commits a
tort by taking forcible possession of the lands of an individual
for public use.
4. The provision restricting that jurisdiction to contracts
express or implied refers to the well understood distinction
between matters
ex contractu and those
ex
delicto, and is founded on the principle that while Congress
is willing to subject the government to suits on contracts, which
can be valid only when made by some one thereunto vested with
authority, or when under such authority something is by him done
which raises an implied contract, that body did not intend to make
the government liable to suit for the wrongful and unauthorized
acts which are committed by its officers, under a mistaken zeal for
the public good.
6. If, under claim that they belong to the government, an
officer seizes for the use of an Indian agency buildings owned by a
private citizen, no implied obligation of the United States to pay
for the use and occupation of them is thereby raised.
The facts are stated in the opinion of the Court.
MR. JUSTICE MILLER delivered the opinion of the Court.
This suit was brought by the plaintiff against the United States
to recover for the use and occupation of certain lands
Page 101 U. S. 342
and buildings. The judgment of the Court of Claims was rendered
against him, and he appealed here.
The first question arising in this case concerns the
jurisdiction of the Court of Claims upon the suggestion of the
Attorney General that the claim is not founded on contract, either
express or implied. That court could have no cognizance of the case
on any other ground, according to the express language of the
statute defining its jurisdiction. Rev.Stat., sec. 1059.
The findings of the court leave no doubt that the Indian agents
acting for the United States, and without the consent of the
American Board of Commissioners for Foreign Missions, took
possession of the buildings which that board had erected upon the
lands, and have since retained them by force and against its will
or that of Langford, who claims title under it. The United States
always asserted that their possession was by virtue of their own
title, which was hostile to that of the claimant. The military of
the United States was at one time ordered to protect by force the
occupation of the agents.
Conceding that the title, or even the right to the possession of
the premises, was in claimant, it would seem that the facts above
stated show that the act of the United States in taking and holding
that possession was an unequivocal tort, if the government can be
capable of committing one, and that if the case were between
individuals every implication of a contract would be repelled.
Counsel for claimant, admitting this to be true, makes a very
ingenious argument to prove that the government, in taking and
using the property of an individual against his consent, and by
force, cannot be guilty of a tort, because the nature of the
relation of the government to its citizens, and the provisions of
the Constitution, create an implied obligation to pay for property,
or for the use of property, so taken. The argument rests on two
distinct propositions:
1. That the maxim of English constitutional law, that the King
can do no wrong, is one which the courts must apply to the
government of the United States, and that therefore there can be no
tort committed by the government.
2. That by virtue of the constitutional provision that private
property shall not be taken for public use, without
Page 101 U. S. 343
just compensation, there arises in all cases where such property
is so taken an implied obligation to pay for it.
It is not easy to see how the first proposition can have any
place in our system of government.
We have no King to whom it can be applied. The President, in the
exercise of the executive functions, bears a nearer resemblance to
the limited monarch of the English government than any other branch
of our government, and is the only individual to whom it could
possibly have any relation. It cannot apply to him, because the
Constitution admits that he may do wrong, and has provided, by the
proceeding of impeachment, for his trial for wrongdoing, and his
removal from office if found guilty. None of the eminent counsel
who defended President Johnson on his impeachment trial asserted
that by law he was incapable of doing wrong, or that, if done, it
could not, as in the case of the King, be imputed to him, but must
be laid to the charge of the ministers who advised him.
It is to be observed that the English maxim does not declare
that the government, or those who administer it, can do no wrong;
for it is a part of the principle itself that wrong may be done by
the governing power, for which the ministry, for the time being, is
held responsible; and the ministers personally, like our President,
may be impeached; or, if the wrong amounts to a crime, they may be
indicted and tried at law for the offense.
We do not understand that either in reference to the government
of the United States, or of the several states, or of any of their
officers, the English maxim has an existence in this country.
The other point is one which requires more delicate
handling.
We are not prepared to deny that when the government of the
United States, by such formal proceedings as are necessary to bind
it, takes for public use, as for an arsenal, custom house, or fort,
land to which it asserts no claim of title, but admits the
ownership to be private or individual, there arises an implied
obligation to pay the owner its just value.
It is to be regretted that Congress has made no provision by any
general law for ascertaining and paying this just compensation. And
we are not called on to decide that when the
Page 101 U. S. 344
government, acting by the forms which are sufficient to bind it,
recognizes that fact that it is taking private property for public
use, the compensation may not be recovered in the Court of Claims.
On this point we decide nothing.
What is pertinent to the present case is that, conceding that
principle, it does not confer on that court the authority to decide
that the United States, in asserting the right to use its own
property, is using that of an individual, and in taking possession
of such property under claim of title, and retaining it by force
against an opposing claimant, has come under an implied contract to
pay him for the use of the property. In the first case, the
government admits the title of the individual and his right to
compensation. This right to compensation follows from the two
propositions, that it was private property and was taken for public
use, neither of which is disputed.
It is a very different matter where the government claims that
it is dealing with its own, and recognizes no title superior to its
own. In such case the government, or the officers who seize such
property, are guilty of a tort, if it be in fact private property.
No implied contract to pay can arise any more than in the case of
such a transaction between individuals. It is conceded that no
contract for use and occupation would, in that case, be
implied.
Congress, in establishing a court in which the United States may
primarily be sued as defendants, proceeded slowly and with great
caution. As at first organized, the Court of Claims was merely an
auditing board, authorized to pass upon claims submitted to it, and
report to the Secretary of the Treasury. He submitted to Congress
such confirmed claims as he approved, with an estimate for their
insertion in the proper appropriation bill. Such as he disapproved
demanded no further action.
It was by reason of that feature of the law that this Court
refused to exercise the appellate jurisdiction over awards of that
court which the act of Congress attempted to confer, because the
court was of opinion that the so-called Court of Claims was not, in
the constitutional sense, a court which could render valid
judgments, and because there could be no appeal from the Supreme
Court to the Secretary of the Treasury.
Gordon v.
United States, 2 Wall. 561. An act of Congress
removing
Page 101 U. S. 345
this objectionable feature having passed the year after that
decision, the appellate power of this court has been exercised ever
since. The jurisdiction of that court has received frequent
additions by the reference of cases to it under special statutes,
and by other changes in the general law; but the principle
originally adopted, of limiting its general jurisdiction to cases
of contract, remains. There can be no reasonable doubt that this
limitation to cases of contract, express or implied, was
established in reference to the distinction between actions arising
out of contracts, as distinguished from those founded on torts,
which is inherent in the essential nature of judicial remedies
under all systems, and especially under the system of the common
law.
The reason for this restriction is very obvious on a moment's
reflection. While Congress might be willing to subject the
government to the judicial enforcement of valid contracts, which
could only be valid as against the United States when made by some
officer of the government acting under lawful authority, with power
vested in him to make such contracts, or to do acts which implied
them, the very essence of a tort is that it is an unlawful act,
done in violation of the legal rights of some one. For such acts,
however high the position of the officer or agent of the government
who did or commanded them, Congress did not intend to subject the
government to the results of a suit in that court. This policy is
founded in wisdom, and is clearly expressed in the act defining the
jurisdiction of the court, and it would ill become us to fritter
away the distinction between actions ex delicto and actions
ex
contractu, which is well understood in our system of
jurisprudence, and thereby subject the government to payment of
damages for all the wrongs committed by its officers or agents,
under a mistaken zeal, or actuated by less worthy motives.
The question is not a new one in this court.
In
Nichols v. United
States, 7 Wall. 122, where a suit was brought in
the Court of Claims to recover back money exacted of an importer in
excess of the duties allowed by law, the Court held that no
contract to refund was implied, because the money, though paid
under protest, was paid voluntarily, and for this reason, among
others, that court had no jurisdiction.
Page 101 U. S. 346
In
Gibbons v. United
States, 8 Wall. 269, an army contractor, who had
agreed to furnish two hundred thousand bushels of oats at a fixed
price, had, as this court held, after delivering part of the
amount, been legally released from the obligation to deliver the
balance. He was, however, carried before the military authority in
a state of fear and trepidation, and to save himself further
trouble agreed to and did deliver the remainder of the oats. He
sued in the Court of Claims for the difference between the contract
price and the market price of the oats at the time of the delivery.
One ground of his claim was that he acted under duress and the
constraint of fear, and that his agreement to deliver at the
contract price was void.
This Court said, in answer to this argument, that
"it is not to be disguised that this case is an attempt, under
the assumption of an implied contract, to make the government
responsible for the unauthorized acts of its officers, those acts
being in themselves torts. . . . The language of the statutes which
confer jurisdiction upon the Court of Claims excludes, by the
strongest implication, demands against the government founded on
torts. The general principle which we have already stated as
applicable to all governments, forbids, on a policy imposed by
necessity, that they should hold themselves liable for unauthorized
wrongs inflicted by their officers on the citizen, though occurring
while engaged in the discharge of official duties. . . . These
reflections admonish us to be cautious that we do not permit the
decision of this court to become authority for righting in the
Court of Claims all wrongs done to individuals by the officers of
the general government, though they have been committed while
serving the government and in the belief that it was for its
interest. In such cases, where it is proper for the nation to
furnish a remedy, Congress has wisely reserved the matter for its
own determination."
With the reaffirmation of this doctrine, which excludes the
present case from the jurisdiction of that court, its judgment
dismissing the petition of plaintiff is
Affirmed.