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termined not by the record but by the effect of the decree which is sought.22

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§ 96. Liability of the United States to suits for the recovery of money upon contract. The Judicial Code provides: District Courts of the United States shall have jurisdiction, Concurrent with the Court of Claims, of all claims not exceeding ten thousand dollars founded upon the Constitution of the United States or any law of Congress, or upon any regulation of an Executive Department, or upon any contract, express or implied, with the Government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect to which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable, and of all set-offs, counterclaims, claims for damages, whether liquidated or unliquidated, or other demands whatsoever on the part of the Government of the United States against any claimant against the Government in said. court: Provided, however, That nothing in this paragraph shall be construed as giving to either the district courts or the Court of Claims jurisdiction to hear and determine claims growing out of the late Civil War, and commonly known as 'war claims,' or to hear and determine other claims which had been rejected or reported on adversely prior to the third day of March, eighteen hundred and eighty-seven, by any court, department, or commission authorized to hear and determine the same, or to hear and determine claims for pensions; or as giving to the district courts jurisdiction of cases brought to recover fees, salary, or compensation for official services of officers of the United States or brought for such purpose by persons claiming as such officers or as assignees or legal representatives thereof; but no suit pending on the twenty-seventh day of June, eighteen hundred and ninety-eight, shall abate or be affected by this provision: And provided further, That no suit against the Government of the United States shall be allowed under this paragraph unless the same shall have been brought within six years after the right accrued for which the claim is made: Provided, That the claims of married women, first accrued during marriage, of persons

22 Louisiana v. McAdoo, 234 U. S. 627; see infra, §§ 100, 105c. For

suits against the Director General of Railroads, see infra, § 961.

under the age of twenty-one years, first accrued during minority, and of idiots, lunatics, insane persons, and persons beyond the seas at the time the claim accrued, entitled to the claim, shall not be barred if the suit be brought within three years after the disability has ceased; but no other disability than those enumerated shall prevent any claim from being barred, nor shall any of the said disabilities operate cumulatively. All suits brought and tried under the provisions of this paragraph shall be tried by the court without a jury." This withholds from the District Courts jurisdiction over all claims against the United States which exceed ten thousand dollars and all cases brought to recover fees, salary or compensation for the services of officers. In such cases, suit must be brought in the Court of Claims; 2 but it has been held that the District Courts have jurisdiction of suits to recover disbursements made by marshals in payment of the services of court bailiffs, and the expense allowances of Circuit. Judges.

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Actions for similar causes may be brought in the District Court of the United States for Porto Rico.5

It is doubtful whether an alien corporation can maintain such a suit in any court. It has been doubted whether an alien corporation can bring such a suit in a District Court.7 But the Circuit Court of Appeals for the Second Circuit has held that it may do so.8

"The words 'hear and determine' are used four times,-once as applied to the Court of Claims, twice as applied to that court and to the Circuit and District Courts, and again as applied to any court, department, or commission. These words must be taken to be used in each instance in the same sense, and as imply

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ing an adjudication conclusive as between the parties, in the nature of a judgment or award. The proviso that nothing in this section shall be construed as giving to either of the courts named in the act jurisdiction to hear and determine claims 'which have heretofore been rejected or reported on adversely by any court, department, or commission authorized to hear and determine the same,' must be limited to a rejection of a claim, or an adverse report thereon, by a court, department, or commission which determines the rights of the parties, such as the approval by the Secretary of the Treasury of an account of expenses under the captured and abandoned property act, or the decisions of an international commission. Moreover, the Court of Claims, even before the passage of the Act of 1887, had jurisdiction of Claims under an act of Congress or under a contract, and could therefore hear and determine claims for legal salaries or fees.10 We cannot believe that the Act of 1887, entitled 'An act to provide for the bringing of suits against the government of the United States,' the manifest scope and purpose of which are to extend the liability of the government to be sued, was intended to take away a jurisdiction already existing, and to give to the decisions of accounting officers an authority and effect which they never had before." 11 Consequently, the rejection of a claim by the First Comptroller of the Treasury, which is only conclusive within the Department of the Treasury, is not a bar to such a suit.12

§ 96a. Suits against the United States for torts and upon implied contracts when a tort is waived. It has been said: that the words "in cases not sounding in tort" limit only the last part of the clause, and do not affect claims founded upon the Constitution of the United States or a law of Congress. With the exception of claims for the proceeds of captured or abandoned prop

9 U. S. v. Johnson, 124 U. S. 236, 31 L. ed. 389, 8 Sup. Ct. R.

446.

10 Meade v. U. S., 9 Wall. 691, 19 L. ed. 687.

11 Meade v. U. S., 18 Ct. Cl. 281; s. c., 109 U. S. 146; Adams v. U. S., 20 Ct. Cl. 115; U. S. v. McDonald, 128 U S. 471, 32 L. ed. 506; U. S. v. Jones, 131 U. S. 1, 13.

12 U. S. v. Harmon, 147 U. S. 268; s. c. as Harrison v. U. S. 41 Fed. 560; U. S. v. Rand, C. C. A., 53 Fed. 348; U. S. v. Jones, 131 U. S. 1, 13, 33 L. ed. 90.

$ 96a. 1 Dooley v. U. S., 182 U. S. 222, 45 L. ed. 1074; U. S. v. Lynah, 188 U. S. 445, 475, 47 L. ed. 539, 550.

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erty and others arising under special statutes, the courts have no jurisdiction of claims upon torts committed by the United States, except where the claimant can waive the tort and sue upon an implied contract, or where the case arises under the Constitution or a law of the United States. The United States is not liable for damages caused by the negligence of a government contractor.5 The United States are not liable for injury

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2 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 of 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 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, as well understood in our system of jurisprudence, and

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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." Miller, J., in Langford v. U. S., 101 U. S. 341, 25 L. ed. 1010.

Where a statute which authorized a suit against the United States for a continuous tort was repealed pending such suit, it was held that the damages sustained up to the time of the repeal only could be recovered. Paine L. Co. v. U. S., 55 Fed. 854.

3 Ingram v. U. S., 32 Ct. Cl. 147, 162, per Nott, C. J.: The common law reduces all civil actions between individuals to two simple classes, ex contractu and ex delicto. There are many subdivisions of the former, but generally it may be said that what is not ex delicto is ex contractu. It is the opinion of this court that Congress used the language 'upon any contract, expressed or implied,' with reference to this general classification of the common law. The meaning is that the court shall have jurisdiction of all actions ex contractu whether the contract be express or implied, but shall not have jurisdiction of aetions ex delicto."

4 Dooley v. U. S., 182 U. S. 222, 45 L. ed. 1074; Lincoln v. U. S., 197 U. S. 419, 49 L. ed. 816.

5 U. S. v. Riffle Co., 247 Fed. 374.

resulting from the negligence of their officers to those who are not in a contractual or a quasi-contractual relation with them.6 A person injured by the negligence of a government employee operating an elevator cannot waive the tort and sue the United States upon an implied contract to carry him with care. Where the Register of the Treasury canceled registered bonds without authority of law, a party who bought them on the faith of such cancellation and subsequently was obliged to repay their value to the original owner, was not allowed to recover from the United States the amount for which he was thus mulcted.8 An action for the unlawful seizure of private property for the use of the army sounds in tort and the courts have no jurisdiction of the same. Where a suit was brought by an army officer against the United States for indemnity because of his payment of a judg ment recovered against him on account of his seizure and use of a boat for the benefit of the government under the orders of his superior officer; it was held that, if the liability of the United States was in tort, no action would lie, and that if the liability was upon an implied contract, it arose when the seizure was made, not when the judgment was recovered.10 Damages have been awarded against the government for the use of a vessel impressed during the Spanish War.11 The liability of the United States and of officers thereof for damages to real estate,12 for infringement of patents 13 and for taxes illegally collected,14 is subsequently considered.

§ 96b. Suits against the United States for damages for use of, and injury to, real property. A suit may be brought against the United States to recover damage to property leased by the Government and injured by want of reasonable care while in its

6 German Bank of Memphis v. U. S., 148 U. S. 573, 37 L. ed. 564; Occidental Const. Co. v. U. S., C. C. A., 245 Fed. 817.

7 Bigby v. U. S., 188 U. S. 400, 47 L. ed. 519.

8 German Bank of Memphis v. U. S., 148 U. S. 573, 37 L. ed. 564. 9 Herrera v. U. S., 222 U. S. 558, 55 L. ed. 316.

10 Carpenter v. U. S., 42 Fed. 264. 11 Neal's Case, 36 Ct. Cl. 49. See U. S. v. Russell, 13 Wall. 623, 20 L. ed. 474.

12 Infra, § 96b.

13 Infra, § 100 and Chapter XXXV on the Court of Claims.

14 Infra, § 96f.

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