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just compensation. Kohl v. U. S., 91 U. S. proceed against the United States, as upon 367, 374. In that view, we are of opinion an implied contract, it appearing, as it does that the United States, having, by its agents, here, that the government recognizes and reproceeding under the authority of congress, tains the possession taken in its behalt for taken the property of the claimant for public the public purposes indicated in the act under use, are, under an obligation imposed by the which its officers have proceeded." constitution, to make compensation. The In Hollister v. Manufacturing Co., 113 U. law will imply promise to make the re S. 59, 67, 5 Sup. Ct. 717, the principles laid quired compensation where property, to down in James v. Campbell and in U. S. v. which the government asserts no title, is Great Falls Manuf'g Co., above cited, were taken, pursuant to an act of congress, as recognized and approved. And in U. S. v. private property to be applied for public uses. Palmer, 128 U. S. 262, 269, 9 Sup. Ct. 104, the Such an implication being consistent with decision was that the United States was liathe constitutional duty of the government,

ble to suit in the court of claims, as upon as well as with common justice, the claim implied contract, for the value of the use of ant's cause of action is one that arises out of an invention which was used with the consent implied contract within the meaning of the of the patentee. statute which confers jurisdiction upon the It may therefore be regarded as settled., court of claims of actions founded upon any that the government may be sued in the contract, express or implied, with the gov court of claims, as upon implied*contract, not* ernment of the United States." In Great only for the value of specific property taken Falls Manuf'g Co. v. Attorney General, 124 for public use by an officer acting under the U. S. 581, 597, 598, 8 Sup. Ct. 631, it appeared authority of the government, even if the takthat the secretary of war was authorized by ing was originally without the consent of the an act of congress to take possession of prem owner and without legal proceedings for conises that might be covered by a survey and demnation, but for the value of the use of map directed to be made. He took posses a patented invention, when such use was sion of property and water rights that were with the consent of the patentee. alleged not to be embraced in such sur It seems to me looking at the case from the vey and map, and it was contended that in standpoint of mere contract—that these prinso doing he was guilty of trespass. This ciples control the present inquiry, and suscourt said: "If the secretary of war, who tain the right of the claimant to sue the govwas invested with large discretion in deter ernment for the value of the use of his almining what land was actually required to leged invention. Congress made an appropriaccomplish in the best manner the object ation of $200,000 “for improvement of capicongress bad in view, found it necessary to tol grounds according to the plans and untake, and has taken and used, and still holds, der the general direction of Frederick Law lands of the plaintiff for the proposed dam, Olmsted, to be expended by the architect of which happened not to be covered by the sur the capitol" 18 Stat. 214. The architect invey and map, the United States are as much vited proposals for laying concrete pavement bound to make just compensation therefor as required for the proposed improvement acif such lands had been actually embraced cording to those plans and specifications, and in that survey and map." After observing one Cook was the lowest bidder. His bid that it must not be understood as holding was accepted. Schillinger protested against that the secretary could bind the United the contract being awarded to Cook, the latStates to pay for lands taken by him which ter having no right to use the Schillinger patmanifestly had no substantial connection ent. He gave notice to the architect of his with the improvement under his charge, the patented rights. It was found by the court court said: "It is sufficient to say that the of claims that "at the time the bids were record discloses nothing showing that he has opened plaintiff protested to the architect taken more land than was reasonably neces against the award being made to any one but sary for the purposes described in the act of his associate, Roberts (who was entitled to congress, or that he did not honestly and use the Schillinger invention); but the archireasonably exercise the discretion with which tect and his advising engineers decided they he was invested; and consequently the gov. would award the contract to the lowest bidernment is under a constitutional obligation der, on the ground that, as the validity of to make compensation for any property or the Schillinger patent had not been tested property right taken, used, and held by him at law or in equity, they could not decide for the purposes indicated in the act of con whether it was valid or not, and that the gress, whether it is embraced or described interest of the government, in their judg. in said survey or map or not. U. S. v. Great inent, would be best subserved by giving the Falls Manuf'g Co., 112 U. S. 645,646,5 Sup. Ct. contract to the lowest bidder, taking a bond 306.

Evin if the secretary's survey to protect the government from the suit and map and the publication of the attorney threatened by claimant." In the contract be general's notice did not, in strict law, justify tween the government, represented by the the former in taking possession of the land architect of the capitol, and Cook, for a conand water rights in question, it was compe crete pavement, according to the Olmsted tent for the company to waive the tort, and plans and specifications, it was provided

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“that in the event of any legal proceedings of implied contract based on the constitubeing taken by other parties against the con tional obligation to make just compensation tractor of the United States for the infringe for private property taken for public use. ment of any patent or claimed patent during But such a case is not distinguishable, in execution of the work, the contractor shall principle, from the present one, where the hold the United States harmless."

architect, proceeding under a general authori. All this shows that the architect of the ty to expend the public money according to capitol was aware of the existence of the specified plans, uses, or knowingly permits to Schillinger patent He did not dispute Schil be used, a particular patented invention, not linger's rights under the patent, nor did he, disputing the rights of the patentee, but leav. as the representative of the government, ing the question of the validity of the patent, claim that the patent was invalid, nor, if and the consequent liability of the governvalid, that the government could get the ben. ment for its use, to judicial determination. efit of it in the contemplated improvement I do not stop to discuss the question whether without compensating the patentee. On the Schillinger's patent was valid, nor whether it contrary, he in effect recognized a right to was infringed by the mode in which the pavesuch compensation, if the patent was valid, ment in question was constructed. Those and took a bond from the contractor for the questions would have been here for deterprotection of the government in the event of mination if the court below had assumed jua suit against the contractor that would in- risdiction, and decided the case upon its mer. terfere with the use of the Schillinger inven its. That court dismissed the petition for tion in the pavement in the public grounds. want of jurisdiction, on the ground simply But no such suit appears to have been that there was no contract, express or implied, brought. The patentee had the right to between the owner of the patent and the waive any suit against the contractor or the government. It held that the appropriation architect that would interfere with the prose or use of the Schillinger invention was in the cution of the work, and look to the obligation nature of a tort, and this conclusion rested upof the government to make him just compen on the ground that the architect of the capsation for the use of his invention. It was itol denied that any private right existed unso ruled in the Great Falls Case.

The au

der the alleged patent. But this was an erthority of that case is not here disputed. As There is no finding by the court showthe government had granted the patent, the ing a denial of that character, even if it be purpose to commit a tort cannot be imputed assumed that such a denial could be deemed to the architect as the agent of the United of any consequence in view of the constituStates. His action meant no more than that tional obligation to make just compensation he would leave the question of the obliga for private property taken for public use. tion of the United States to make compensa I am of opinion that when the government. tion for the use of the Schillinger patent to by its agent, knowingly uses or permits to be depend upon a decision by the courts as to used for its benefit a valid patented inven.. its validity.

tion, it is liable to suit in the court of claims Under the authority given by congress to for the value of such use, and that its liabili. expend the money appropriated in improving ty arises out of contract based upon the conthe capitol grounds according to specified stitutional requirement that private property plans, the architect of the capitol had a large shall not be taken for public use without just discretion, and was authorized, so far as the compensation. government was concerned, to use in such im It is proper to say that the claimant in his provement any patented invention that those petition does not place the claim for compen. plans would require, or that would best sub sation as distinctly upon the basis of contract serve the public interests, subject, of course, as he might have done. But, as the opinion to the constitutional obligation to make just of the court may be interpreted as proceedcompensation to the inventor. The constitu ing upon the broad ground that the governtion imposing that obligation is a covenant ment could not be sued as upon contract, exbetween the government and every citizen press or implied, unless its agent at the time whose property is appropriated by it for pub the invention was used for its benefit recog. lic use. If Schillinger's patent was valid, nized or admitted the validity of the patent, then the government is bound by an obliga- I have thought it appropriate to state my tion of the highest character to compensate view of that question, him for the use of his invention, and its use 2. There is another view of the case which by the government cannot be said to arise out is independent of mere contract. The act of of mere tort, at least when its representative March 3, 1897, for the first time gives the did not himself dispute, nor assume to decide, court of claims jurisdiction, to hear and dethe validity of the patent. If the act of con termine "all claims founded upon the constigress under which the architect proceeded tution of the United States." If the Schilhad, in express terms, directed him to use linger patent be valid, and if the invention deSchillinger's invention in any pavement laid scribed in it has been used or appropriated down in the public grounds, then such use, by the government through its agent charged according to the decision in U. S. v. Great with the improvement of the capitol grounds, Falls Manuf'g Co., would have made a case then the patentee, or those entitled to enjoy

the exclusive rights granted by it, are enti- | agreement, deposited with the deposit and tled to be compensated by the government trust company, the other defendant, to be de And the claim to have just compensation for livered to the plaintiff when a certain railsuch an appropriation of private property to road in the township was completed and the public use is “founded upon the constitu- ready for operation, as shown by the certifition of the United States." It is none the less cate of the engineer of a railroad company a claim of that character even if the appro and a majority of the board of county compriation had its origin in tort. The consti missioners of Lancaster county, the corporate tutional obligation cannot be evaded by show- agent of said township; that the road had ing that the original appropriation was with been fully completed, but that the commisout the express direction of the government, sioners wrongfully refused to sign the re aor by simply interposing a denial of the title quired certificate; that the deposit and trust of the claimant to the property or property company had no interest in the bonds, and rights alleged to have been appropriated. claimed none, and was ready and willing The questions of title and appropriation are to deliver the bonds whenever it was profor judicial determination. Those being de- | tected in so doing. The prayer was,First, cided in favor of the claimant, the constitu for process; "second, that pending said suit, tion requires a judgment in his favor. If the and until further order of the court, the said claim here made to be compensated for the trust company be ordered to deliver and pay use of a patented invention is not founded up over said bonds to the complainant; third, on the constitution of the United States, it that the said defendant township may be would be difficult to imagine one that would required to specifically perform its aforesaid be of that character.

agreements, by assenting to the delivery of • As the agent of the government was moved said bonds, now in the hands of said defend. to use the Schillinger invention because the ant trust company, to the complainant; patent had not then been established by the fourth, that said defendant trust company decision of any court, it may be stated that it be ordered to pay over and deliver said was subsequently sustained, as the findings bonds to the complainant"; fifth, for further below show, in numerous cases; the earliest relief. The township defended by a motion being Paving Co. v. Perine, 8 Fed. 821 (1881, to set aside the service of process; by a plea Sawyer, J.), and the latest being Hurlbut v. to the jurisdiction of the court, on the ground Schillinger, 130 U. S. 456, 9 Sup. Ct. 584.

that one of the defendants was a citizen of I am authorized by Mr. Justice SHIRAS to the same state as the plaintiff, and a necessay that he concurs in this opinion.

sary party to the controversy; and by an answer to the merits. The deposit and trust

company also filed an answer, which set forth (155 U. S. 283)

that it had no interest in the bonds, or the MASSACHUSETTS & S. CONST. CO. V.

debt represented thereby,-made no claim TOWNSHIP OF CANE CREEK.

for any services in connection therewith; (December 3, 1894.)

that it was a mere stakeholder, and ready

to deliver the bonds whenever protected in No. 112.

so doing. It was agreed by counsel *“that: UNITED STATES Circuit COURT - JURISDICTION

the motion to set aside service and the pleas DIVERSE CITIZENSHIP, A trust company, to which bonds are de

to the jurisdiction should be heard when the livered merely to be held by it until the perform

case was tried on its merits without prejuance of a condition by the payee entitling it to dice, the motion not to be deemed as waived possession, is a necessary, and not merely a for

or overruled by the pleas and answer, and mal, party to an action by such payee against it and the maker of the bonds to obtain their pos

the pleas not to be deemed waived or oversession; and the United States circuit court of ruled by the answer, and for the sake of the state of which such maker is a resident has convenience this agreement shall continue no jurisdiction of such action, where plaintiff

of force for the purposes of this appeal and and such trust conpany are both nonresidents of such state, but residents of the same state.

hearing in the supreme court."

The motion to set aside service and the Appeal from the Circuit Court of the United

plea were overruled, but upon the merits a States for the District of South Carolina.

decree was entered in favor of the defendThis was a suit commenced by the appel

ants. To reverse this decree the plaintiff lant, a citizen of the state of Massachusetts,

appealed to this court, the bond on appeal in the circuit court of the United States for

running only to the township. the district of South Carolina, to recover the possession of certain bonds. The defendants Samuel Lord, for appellant. Ira B. Jones, were the township of Cane Creek, Lancaster

for appellee. county, S. C., a citizen of that state, and the Boston Safe Deposit & Trust Company, Mr. Justice BREWER, after stating the a corporation created by, and a citizen of, facts in the foregoing language, delivered the state of Massachusetts,-the state of the opinion of the court. which the plaintiff was a citizen.

The plea to the jurisdiction should have The facts, as alleged in the bill, were that been sustained. The substantial object of $19,000 of the bords of the township of Cane the suit was to obtain possession of the Creek, one of the defendants, had been, by bonds. The deposit and trust company was

the party in possession, and, although it claimed no interest in the bonds, as against the plaintiff and its codefendant, yet possession could not be enforced in favor of the plaintiff except by a decree against it. Where the object of an action or suit is to recover the possession of real or personal property, the one in possession is a necessary and indispensable, and not a formal, party. The case of Wilson v. Oswego Tp., 151 U. S. 46, 14 Sup. Ct. 259, is decisive on this point. In that case a suit was commenced in a state court in Missouri to recover possession of certain bonds in the custody of the Union Savings Association. There were several de fendants (among them, one Montague) and an intervener, Oswego township, who, claiming the bonds, removed the case, on the ground of diverse citizenship, to the federal court. Such removal was adjudged to be erroneous, this court holding that “the Union Savings Association, being the bailee or trus. tee of the bonds, was a necessary and indispensable party to the relief sought by the petition, and that, defendant being a citizen of the same state with the plaintiff, there was no right of removal on the part of Montague or of the intervening defendant, the Oswego township, on the ground that the Union Savings Association was a formal, unnecessary, or nominal party."

Further comment is not required. The decree of the circuit court must be reversed and the case remanded, with instructions to sustain the plea and to dismiss the bill for want of jurisdiction.

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preme court cannot say that the exclusion of the answer was error.

5. Rev. St. $2900, authorizing, a 20 per cent. additional duty as therein provided, is not unconstitutional. Passavant v. U. S., 13 Sup. Ct. 572, 148 U. S. 214, followed.

6. An importer is not entitled to be present during proceedings on appraisement, to hear or examine all the testimony, and to cross-examine the witnesses; and where he is invited by the appraisers to present his views in regard to the reappraisement, and to suggest questions to be put to the witnesses, he has no ground for complaint.

7. Where the merchant appraiser examines the goods in one case out of each importation sufficiently to satisfy him that they are the same order of goods that his firm imports, the reappraisement is not open to the objection that his examination of the goods was not sufficient to qualify him to act.

8. The mere fact that all the cases of an importation "were by the collector ordered to the public store, and that they were there at the time of the reappraisement,” does not show a specific direction by the collector that all should be examined, and render void a reappraisement made without examining all the cases, though, under Rev. St. $$2901, 2939, such reappraisement would be void if the collector directed an examination of all the cases, and it was not made.

In Error to the Circuit Court of the Unit. ed States for the Southern District of New York. *This was an action seasonably brought by Arthur Origet against Edward L. Hedden, then collector of the port of New York, in the circuit court of the United States for the Southern district of New York, to recover an alleged excess of duty exacted by the col. lector upon goods imported by plaintiff on February 8, 9, 17, and 23, 1886 (the last two. importations being by steamships Oregon and Chicago, respectively), and paid under protest.

The invoice and entered value of each of the four importations were raised by the appraisers to an amount exceeding 10 per cent thereof, and the collector liquidated and exacted duty upon the value so increased, and the additional duty of 20 per cent. thereon, mentioned in section 2900 of the Revised Stat. utes.

Upon the two entries of the 8th and 9th of February, plaintiff did not call for any reappraisement, but protested against the assessment of duty upon any values higher than those declared on the entry, the protest stating that "said valuations are correct, and that said goods are liable to do more duty than would accrue upon said valuations, and that the additional values were not legally ascertained; that the appraiser made no proper or legal examination or appraisement: of said goods; that he arbitrarily added to the values upon an arbitrary and assumed basis of the cost thereof; that in so doing he acted under instructions from special agents of the treasury, and not upon his own knowl. edge or judgment; and we specially protest against the additional duty of 20%, claiming, for the reasons aforesaid, that it did not accrue, and said goods are not datiable as. charged."

(155 U. S. 228)

ORIGET v. HEDDEN.
(December 3, 1891.)

No. 19.
CUSTOMS DUTIES_ACTION TO RECOVER EXCESS OF

DUTIES-EVIDEXCE- REAPPRAISEMENT RIGHT OF IMPORTER TO BE PRESENT MERCHANT APPRAISER-EXAMINATION OF GOODS – TRIAL-OBJECTIONS TO EVIDENCE-SUFFICIENCY.

1. In an action by an importer against a collector to recover an excess of duty exacted by defendant on certain importations, where it was not claimed in the protest under which the duty was paid that any reappraisal was called for and refused, evidence as to what plaintiff's manager said to an assistant appruiser as to the production of evidence of value of the goods, and of his conversation with the collector about a reappraisal or a call for reappraisal had after the appraisement, is incompetent.

2. In such action, evidence that the general and merchant appraisers agreed to apply the valuation of one case of goods in each invoice to the entire importation of which it was a part, is immaterial, it being conceded that all the cases were not opened and examined.

3. In such case, evidence as to whether or not the goods in the several cases were all of the same character as to value is immaterial, where it appears that the appraisers examined one case of each importation.

4. Where a question to a witness does not clearly admit of an answer favorable to the party asking it, on a matter manifestly relevant to the issue, and no offer of proof is made, nor reason given for excluding the answer, the su

On the trial, plaintiff's New York manager praiser and himself had a joint session, in testified that he saw Brown, the assistant which they made up their reports. appraiser, regarding the appraisal of these Plaintiff's manager was asked in reference importations, and was then asked, "State to the goods reappraised, “State whether or whether or not you said anything to Mr. not those goods in the several cases were Brown (and, if so, what) as to the produc all of the same character as to value." The tion of evidence as to the value of these witness testified to the presence of a treasgoods." The question was objected to on ury agent at the reappraisement, and was the ground that the importer's remedy was asked, “Did you hear any of the questions to call for a reappraisement. The court put to the witness?" The witness was also thereupon excluded the question, and plain asked if the treasury agent did not himself tiff excepted. The witness then testified that put questions to him on that examination. he had conversed with the collector as to a These questions were severally objected to reappraisal, or a call for a reappraisal, of as immaterial, and were excluded by the these first two entries, and was asked what court, and plaintiff excepted, but only the the conversation was. To this the defendant exception to the first was argued. objected because it was not claimed in the When the reappraisement was about to protest that any reappraisal was called for take place, plaintiff's counsel, Mr. Clarke, was and refused. The question was excluded, present, and made application to the apand plaintiff excepted.

praisers “to be present to examine the schedThe record thus proceeded: “Upon the two ules of the different witnesses,--to ask them later importations, of February 17th and questions, or to suggest questions to you to 23d, per the Oregon and the City of Chicago, be asked them, and hear and know the reappraisements were called for and had. testimony which you have or may receive,”The Oregon importation consisted of four and that, if this request be denied, plaintiff cases, and the other of three cases, all of and his associate in business “be present which (both importations) were by the col when the witnesses are examined in the lector ordered to the public store, and were case of Origet, and that one of them be al. there at the time of the reappraisements.” lowed to see the schedules of the witnesses."

The merchant appraiser was then called *To which the general and merchant apas a witness by plaintiff, and testified: “I praisers responded that they denied the apdid not examine one case. I merely looked plication of the attorney to be present, but orer the goods. Q. You did not examine any desired to hear the importers in regard to case? A. Not specially; not to appraise it.”. their reappraisements, and that they would But he explained on cross-examination that be glad to have any suggestions that they he examined the goods in one case out of might have to make as to asking questions of each importation sufficiently to satisfy him witnesses. self that the goods were of the same order The record then gives the following state. as those imported by the firm of which he ment by the general appraiser: "Mr. Clarke was a member; that the average of the further asks that they may be permitted to different valuations of the witnesses was examine the various affidavits inade by the made up in his office by another person, experts, importers, merchants, and others, and at his direction; "that the report of the also to be present at the taking of any testiappraisal was based upon that computation mony herein, and to cross-examine all such and the witnesses' reports"; and that the witnesses as may be produced here on this general appraiser sat with the witness "in reappraisement, or to suggest questions to the reappraisal,-in the writing up of the re the general appraiser. appraisal."

“The general appraiser and the merchant The following question was then propound appraiser say, in regard to that, they cannot ed by plaintiff's counsel: “What I ask you permit the importers to be present during the is, Mr. Brower being the general appraiser, taking of the testimony or the examination and sitting with you on the reappraisal, was of the affidavits, , but they will be glad there or not any agreement (and, if any, to receive suggestions from the importers in what) as to the application of the valuation asking any questions of any and all who of one case on each invoice to the entire im may be called.” portation?" This was objected to, the ques The request was then renewed so that tion excluded, and plaintiff excepted.

plaintiff might "be enabled to suggest quesThe witness also testified that the general tions," and disposed of by the same ruling. appraiser, in examining the goods "simply Plaintiff protested against the assessment passed and looked at them to see that they and exaction of duties upon the values aswere woolens,-he was not competent to certained by the reappraisements upon the judge of their value,-to see that they cor grounds: That the goods were "liable to no responded with the invoices." He further greater amount of duty than that accruing said that the general appraiser generally upon the invoice or entered value thereof." went with him in examining the goods, That the appraiser's return "was made conbut what he did when witness was not trary to law, and without legal or proper expresent he did not know; that after the amination of the goods." That plaintiir computations were made the general ap "was entitled to a reappraisement of said

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