Department, at a much increased salary and with full knowledge that his employment would be "under the 24-hour system," and accepts his compensation without protest or complaint to any one in authority that his pay was less than it should be, and makes no claim for compensation for more than eight hours' service until the filing of this suit, more than six months

later, he can not maintain an action for compensation for overtime under the 8-hour laws. Swisher v. U. S. (1922), 57 Ct. Cl. 123.

Firemen serving at United States explosives plants during the war with Germany were not "laborers" or "mechanics " within the meaning of the 8-hour laws. Id.

Jurisdiction in general.-The shipping act of Sept. 7, 1916 (39 Stat. 728), giving the Shipping Board power to form a corporation under the laws of the District of Columbia, contemplated a corporation in which private persons might be stockholders, and which was to be formed like any business corporation with the capacity to sue and be sued, and the fact that the United States took all the stock of the corporation did not affect the legal position of the company, so as to require suits against it to be brought in the Court of Claims. Sloan Shipyards Corporation v. U. S. Shipping Board Emergency Fleet Corporation (1922), 258 U. S. 549, reversing (D. C. 1921) 272 Fed. 132 and (D. C. 1921) 270 Fed. 635, and affirming (C. C. A. 1921) 274 Fed. 893.

The provision of sec. 3, act of Apr. 22, 1918, and sec. 13, act of July 18, 1918, prescribing the method for obtaining compensation for a plant taken by the President under the act of June 15, 1917, and requiring resort to the Court of Claims if the claim exceeded $10,000, did not exempt the Emergency Fleet Corporation from liability to an ordinary suit to recover for property alleged to have been wrongfully seized by it. Id.

The fact that the Court of Claims is given jurisdiction over certain claims against the United States does not prevent concurrent jurisdiction over such claims being granted to the district courts. Benedict v. U. S. (D. C. 1920), 271 Fed. 714, affirmed U. S. บ. Benedict (1923), 261 U. S. 294.

The jurisdiction of the district court under sec. 10, Lever Act, requiring the President to ascertain and pay a just compensation for foods, fuels, etc., requisitioned for the common defense, being limited to controversies in which the compensation fixed is not satisfactory, recovery of a balance of $9,850.98, owing for coal requisitioned under the act, must be had pursuant to the Tucker Act and this subdivision, the amount sued for in such cases being liquidated. Dexter & Carpenter v. U. S. (D. C. 1921), 275 Fed. 566.

See post 768, and notes thereunder. Suits against Government in general.Since the United States is not suable of common right, a party who institutes such suit must bring same within the authority of some act of Congress, or the court can not exercise jurisdiction over it. U. S. v. Clarke (1834), 8 Pet. 436, 444.

The judiciary act does not authorize a suit against the United States in any of the Federal courts. U. S. v. Tillou (1867), 73 U. S. (6 Wall.) 484; Id. (1867), 3 Ct. Cl. 454.

The United States can not be sued without its consent. Cunningham v. Macon & B. R. Co. (1883), 109 U. S. 446.

The Government is not liable to be sued for the torts, misconduct, misfeasance, or laches of its officers or employees, unless its consent thereto is given in some act of Congress. Bigby v. U. S. (1903), 188 U. S. 400; Occidental Const. Co. v. U. S. (C. C. A. 1917), 245 Fed. 817.

Since a sovereign can be sued only by his own consent, be may prescribe the conditions on which he will be sued. Treat t. Farmers' Loan & Trust Co. (1911), 185 Fed. 760, affirming judgments Central Trust Co. of New York v. Treat (C. C. 1909), 171 Fed. 301, and Farmers' Loan & Trust Co. v. Same, Id. 302.

Right to sue the United States in its own courts is strictly limited by the statutes granting the consent (Tucker Act), which can not be extended by the courts. Reid Wrecking Co. v. U. S. (D. C. 1913), 202 Fed. 314.

Actions against the United States can not be maintained except on its consent, which must be evidenced by congressional enactment. Schwab v. U. S. (C. C. A. 1927), 17 F. (2d) 34.

Since Government may refuse permission to be sued, it may impose such restrictions on the right to sue it as Congress deems necessary. Id.

Suits against Federal officers or agents.That the defendant is an officer of the United States, and claims to have been acting under an act of Congress in doing the acts complained of, does not give a Federal court original jurisdiction under secs. 1 and 2, judiciary act of Mar. 3, 1887. of Stanfield v. Umatilla River Water Users' Association (C. C. 1911), 192 Fed. 596.

City

A suit against Government officers to restrain acts claimed to be without authority of law, by which complainant will be deprived of rights accorded to him by the law, is not one against the United States. Baker v. Swigart (D. C. 1912), 196 Fed. 569; reversed (1912), 199 Fed. 865, which is reversed (1913), 229 U. S. 187.

Under this section it is held that a suit may be brought in the district court against the collector of the port of New York as an individual to recover money wrongfully exacted while acting under color of office. Gilmour v. Newton (D. C. 1920), 270 Fed, 332, wherein it was held that in such an action the complaint must show either that the Constitution and laws of the United States are involved or contain an allegation of diverse citizenship.

Suit against presidential agent for injuries to railway employee during Federal control is suit against United States, and

can not be maintained without express permission. Davis v. Dye (Ky. 1926), 284

S. W. 1049. Emergency Fleet Corporation held not personally liable on ship construction contract made by it as authorized agent of President under war powers conferred by a statute entitling person dissatisfied with compensation fixed to sue United States for additional sum in manner provided in this section and 768, post. Astoria Marine Iron Works v. U. S. Shipping Board Emergency Fleet Corporation (D. C. 1924), 295 Fed. 415.

Suit by railroad against the Secretary of War and engineer in charge of improvements in a canal to enjoin the removal of a bridge and threatened criminal prosecution is not a suit against the United States, and the complainants are entitled to the protection of the Federal district court. Delaware R. Co. v. Weeks (D. C. 1923), 293 Fed. 114.

Claims against Government in general.— Acts of 1792, conferring on the circuit courts power to adjudicate pension claims, did not authorize the judges of those courts to exercise out of court, and in the character of commissioners, the powers conferred by the act. U. S. v. Todd (1851), 54 U. S. (13 How.) 51, note.

Act. Mar. 3, 1887, having given jurisdiction to the circuit court of all claims against the United States exceeding $1,000, founded on contracts, express or implied, or for damages, liquidated or unliquidated, in cases not sounding in tort, if claimant's petition shows that the claim is not founded upon torts of officers of the Government, but on acts of theirs authorized by legislation of Congress, it is immaterial whether the petition claims compensation as on an implied contract or as for damages. Chappell v. U. S. (C. C. 1888), 34 Fed. 673.

The district courts have jurisdiction to hear and determine claims against the United States. Swigett v. U. S. (D. C. 1896), 78 Fed. 456, affirmed (C. C. A. 1897), 83 Fed. 97.

A liability is not imposed on the Government by statute without clear words to that effect. Pine Hill Coal Co. v. U. S. (1922), 259 U. S. 191, affirming (1920), 55 Ct. Cl. 433.

Under this subdivision authorizing suits against the United States on "all claims founded * upon any contract, express or implied, with the Government of the United States • . • in respect to which claims the party would be entitled to redress against the United States •

if the United States were suable," a sult may be maintained against the United States for failure of a cable company, which had been taken over and was being operated by the Government, to

transmit a message which it had accepted for transmission, and for transmission of which it had been paid. Heil v. U. S. (D. C. 1921), 273 Fed. 729.

Government may dismiss condemnation proceedings, before taking, notwithstanding owner's claim for damages was in excess of district court's jurisdiction. Owen v. U. S. (C. C. A. 1925), 8 F. (2d) 992.

Under sec. 10, Lever Act (40 Stat. 276), par. 10, giving the owner of requisitioned property the right to sue in the district courts for just compensation, the district court has complete jurisdiction to hear and determine all controversies arising from taking property of the kind in question, where the amount fixed by the President is deemed by the owner insufficient, and the parties are entitled to a jury trial to ascertain the just compensation. U. S. v. Seaboard Air Line Ry. Co. (C. C. A. 1922), 280 Fed. 349, reversed on other grounds (1923), 261 U. S. 299.

In such a case it has been held that though under the rules established by the courts and the invariable practice of the executive departments, interest on a claim will not be allowed against the Government, except where payment thereof is expressly stipulated for by contract or is given in terms by act of Congress, such rules do not apply. Id.

Jurisdictional amount.-A claim against the United States was not beyond the jurisdiction of a circuit court, as exceeding $10,000, under the Tucker Act of Mar. 3, 1887, sec. 2 (24 Stat. 505), where plaintiff in his petition limited his claim to $10,000, and expressly waived all right to recover a larger sum. Hill v. U. S. (C. C. 1889), 40 Fed. 441.

Suit by assignee of claim.-Under the act of 1887 (24 Stat. 505), the assignee of a claim against the United States may sue thereon in his own name. Emmons v. U. S. (C. C. 1891), 48 Fed. 43.

Assignee of patent may sue Government, under 1370, post, for infringements prior to the assignment, Richmond Screw Anchor Co. v. U. S. (1928), 275 U. S. 331. For contrary decision in case arising prior to amendment of 1370, post, see Brothers v. U. S. (1919), 250 U. S. 88, affirming (1917), 52 Ct. Cl. 462.

Claims by aliens.-The Tucker Act of Mar. 3, 1887, authorizes suits against the United States as respects the claims specified therein by aliens as well as citizens. U. S. v. New York & O. S. S. Co. (C. C. A. 1914), 216 Fed. 61.

An alien being entitled to sue the United States in the Court of Claims under R. S. 1068, a Federal district court had concurrent jurisdiction of the subject matter under Tucker Act, sec. 2. New York & 0. S. S. Co. v. U. S. (D. C. 1912), 202 Fed. 311.

Actions of tort.-The United States has never, either by act of Mar. 3, 1887 (24 Stat. 506), or by any other law, permitted itself to be sued for torts committed by its officers, as, for instance, a trespass on private lands; and the settled distinction in this respect can not be evaded by framing the claim so as to count upon an implied contract to compensate for use and occupation. Hill v. U. S. (1893), 149 U. S. 593, reversing judgment (C. C. 1889), 39 Fed. 172; Occidental Const. Co. v. U. S. (C. C. A. 1917), 245 Fed. 817.

Where a Government employee, having property in his possession for a certain purpose, by consent of the owner, uses it by order of his superior officer for another purpose, and the owner recovers judgment for conversion of the property against the employee, the latter can not sue the United States for indemnification, since sec. 1, act Mar. 3, 1887, giving the Court of Claims Jurisdiction of all claims on any contract, express or implied, with the United States, expressly excepts cases sounding in tort. Carpenter v. U. S. (C. C. 1891), 45 Fed. 341.

An action may not be maintained against the United States for injuries received by reason of a defective elevator in a Federal building. Bigby v. U. S. (C. C. 1900), 103 Fed. 597; affirmed (1903), 188 U. S. 400.

Tucker Act, Mar. 3, 1887 (24 Stat. 505), authorizing suits against the United States does not authorize a recovery of damages for a consequential injury to property not amounting to a taking and for which recovery could be had only in an action of tort. Coleman v. U. S. (C. C. 1910), 181 Fed. 599.

United States does not subject itself to on alleged liability for actions founded torts of Federal officials. Sultzbach Clothing Co. v. U. S. (D. C. 1925), 10 F. (2d) 363.

Implied contract in general.-The United States does not, by undertaking to carry a passenger in an elevator in one of its public buildings, impliedly contract that its employees in charge of it will exercise due care, so as to confer jurisdiction on a Federal court, under Tucker Act of Mar. 3, 1887 (24 Stat. 505), of an action to recover damages for personal injuries sustained by reason of the negligence of such employees, on the theory that such action is upon a "contract, express or implied, with the Government of the United States," within the meaning of that act; but the case is one "sounding in tort," which by that act is excluded from judicial cognizance. Bigby v. U. S. (1903), 188 U. S. 400, affirming judgment (C. C. 1900), 103 Fed. 597.

Implied contract defined. Bigby v. U. S. (C. C. 1900), 103 Fed. 597, affirmed (1903), 188 U. S. 400.

Army Regulations; par. 1452 (now found in AR 40-505), provides that when medical attendance is required by an officer or enlisted man on duty and the attendance of a medical officer can not be had, the officer, or, in his absence such enlisted man, may employ a civilian physician, and a just account for his services and necessary medicines will be paid by the Medical Department. Par. 1457 of the former

cor

Army Regulations requires that accounts for board, lodging, nursing, and medical attendance of sick soldiers in private hospitals shall be sent to the Surgeon General for settlement. Held, that where a poral was taken sick while detached on recruiting service, and required immediate medical attention, which could not be af forded by the department, and he was sent to a private hospital by his captain in command, who requested that board, lodg ing, medical attendance, etc., be furnished to him, an implied contract was thereby created, which entitled plaintiff to recover against the United States for the reasonable value of the services so furnished. Davis v. U. S. (D. C. 1903), 120 Fed. 190. Implied contract, to give jurisdiction to Court of Claims or district court to give must judgment against Government, be implied in fact, and not based on equitable consideration and implied in law. U. S. €. Minnesota Mut. Inv. Co. (1926), 271 U. S. 212.

Where the United States in taking pos session of land in invitum for a public use, under authority of an act of Congress, takes or destroys an easement over such land, appurtenant to lands not taken, there is an implied contract to pay for the same, which will support an action in the district court under the Tucker Act. v. U. S. (D. C. 1922), 283 Fed. 428.

Tucker

If the acts of the Government in setting up heavy coast-defense guns that could only be fired over claimant's land, and in establishing a fire-control station thereon, and discharging the guns over the land, amount to a taking without assertion of an adverse right, a contract will be implied Portswhether it was thought of or not. mouth Harbor Land & Hotel Co. v. U. S. (1922), 260 U. S. 327.

Under the provision of this paragraph giving the district courts concurrent jurisdiction of claims against the United States founded in any contract, express or im plied," there is no implied contract to repay a fine imposed in a criminal case under an unconstitutional statute and paid voluntarily which gives the court jurisdic tion of an action for its recovery. Blumenthal v. U. S. (D. C. 1925), 4 F. (2d) 808.

Claim or suit for salvage.-Act of Mar. 3, 1887 (24 Stat. 505), gives Jurisdiction to the Court of Claims, inter alia, on any contract, express or implied with the United