Dissenting Opinion: Harlan, Shiras, JJ.

the infringement of any patent or claimed patent during execution of the work the contractor shall hold the United States harmless."

All this shows that the Architect of the Capitol was aware of the existence of the Schillinger patent. He did not dispute Schillinger's rights under the patent, nor did he, as the representative of the government, claim that the patent was invalid, nor if valid that the government could get the benefit of it in the contemplated improvement without compensating the patentee. On the contrary he, in effect, recognized a right to such compensation, if the patent was valid, and took a bond from the contractor for the protection of the government in the event of a suit against the contractor that would interfere with the use of the Schillinger invention in the pavement in the public grounds. But no such suit appears to have been brought. The patentee had the right to waive any suit against the contractor or the Architect that would interfere with the prosecution of the work, and look to the obligation of the government to make him just compensation for the use of his invention. It was so ruled in the Great Falls case. The authority of that case is not here disputed. As the government had granted the patent, the purpose to commit a tort cannot be imputed to the Architect as the agent of the United States. His action meant no more than that he would leave the question of the obligation of the United States to make compensation for the use of the Schillinger patent to depend upon a decision by the courts as to its validity.

Under the authority given by Congress to expend the money appropriated in improving the Capitol grounds according to specified plans, the Architect of the Capitol had a large discretion, and was authorized, so far as the government was concerned, to use in such improvement any patented invention that those plans would require, or that would best subserve the public interests, subject of course to the constitutional obligation to make just compensation to the inventor. The Constitution imposing that obligation is a covenant between the government and every citizen whose property is appropriated by it for public use. If Schillinger's patent was valid,

VOL. CLV-12

Dissenting Opinion: Harlan, Shiras, JJ.

then the government is bound by an obligation of the highest character to compensate him for the use of his invention, and its use by the government cannot be said to arise out of mere tort, at least when its representative did not himself dispute, nor assume to decide, the validity of the patent. If the act of Congress under which the Architect proceeded had, in express terms, directed him to use Schillinger's invention in any pavement laid down in the public grounds, then such use, according to the decision in United States v. Great Falls Manufacturing Co., would have made a case of implied contract based on the constitutional obligation to make just compensation for private property taken for public use. But such a case is not distinguishable, in principle, from the present one, where the Architect, proceeding under a general authority to expend the public money according to specified plans, uses or knowingly permits to be used a particular patented invention, not disputing the rights of the patentee, but leaving the question of the validity of the patent, and the consequent liability of the government for its use, to judicial determination.

I do not stop to discuss the question whether Schillinger's patent was valid nor whether it was infringed by the mode in which the pavement in question was constructed. Those questions would have been here for determination if the court below had assumed jurisdiction and decided the case upon its merits. That court dismissed the petition for want of jurisdiction on the ground simply that there was no contract, express or implied, between the owner of the patent and the government. It held that the appropriation or use of the Schillinger invention was in the nature of a tort, and this conclusion rested upon the ground that the Architect of the Capitol denied that any private right existed under the alleged patent. But this was an error. There is no finding by the court showing a denial of that character, even if it be assumed that such a denial could be deemed of any consequence in view of the constitutional obligation to make just compensation for private property taken for public use.

I am of opinion that when the government, by its agent, knowingly uses or permits to be used for its benefit a valid

Dissenting Opinion: Harlan, Shiras, JJ.

patented invention, it is liable to suit in the Court of Claims for the value of such use, and that its liability arises out of contract based upon the constitutional requirement that private property shall not be taken for public use without just compensation.

It is proper to say that the claimant in his petition does not place the claim for compensation as distinctly upon the basis of contract as he might have done. But as the opinion of the court may be interpreted as proceeding upon the broad ground that the government could not be sued, as upon contract express or implied, unless its agent at the time the invention was used for its benefit recognized or admitted the validity of the patent, I have thought it appropriate to state my view of that question.

2. There is another view of the case which is independent of mere contract. The act of March 3, 1887, for the first time, gives the Court of Claims jurisdiction to hear and determine "all claims founded upon the Constitution of the United States." If the Schillinger patent be valid, and if the invention described in it has been used or appropriated by the government through its agent charged with the improvement of the Capitol grounds, then the patentee or those entitled to enjoy the exclusive rights granted by it, are entitled to be compensated by the government. And the claim to have just compensation for such an appropriation of private property to the public use is "founded upon the Constitution of the United States." It is none the less a claim of that character, even if the appropriation had its origin in tort. The constitutional obligation cannot be evaded by showing that the original appropriation was without the express direction of the government, nor by simply interposing a denial of the title of the claimant to the property or property rights alleged to have been appropriated. The questions of title and appropriation are for judicial determination. Those being decided in favor of the claimant, the Constitution requires a judgment in his favor. If the claim here made compensated for the use of a patented invention, is not founded upon the Constitution of the United States, it would be difficult to imagine one that would be of that character.

to be

Syllabus.

As the agent of the government was moved to use the Schillinger invention because the patent had not then been established by the decision of any court, it may be stated that it was subsequently sustained, as the findings below show, in numerous cases, the earliest being California Artificial Stone Paving Co v. Perine, 7 Sawyer, 190; S. C. 8 Fed. Rep. 821, (1881,) Sawyer, J., and the latest being Hurlbut v. Schillinger, 130 U. S. 456.

I am authorized by MR. JUSTICE SHIRAS to say that he concurs in this opinion.

UNITED STATES v. BLACKFEATHER.

APPEAL FROM THE COURT OF CLAIMS.

No. 622. Argued October 24, 25, 1894.

- Decided November 19, 1894.

This court is not called upon to consider errors assigned by an appellee who has taken no appeal from the judgment below.

The findings of the court below touching the expenditures by the United States to support and keep a blacksmith for the use of the Indians are too indefinite to allow them to be made the subject of a set-off.

The United States having undertaken by Article VII of the Treaty of August 8, 1831, with the Shawnees to " expose to public sale to the highest bidder" the lands ceded to them by the Shawnees, and having disposed of a large part of the same at private sale, were thereby guilty of a violation of trust; and as all public lands of the United States were, by the act of April 24, 1820, c. 51, 3 Stat. 566, made open to entry and sale at $1.25 an acre, the measure of damages for the violation is the difference between the amounts realized, and the statutory price. Under the provisions of said treaty the Shawnees were entitled to interest on such damages as an annuity.

The United States is not responsible to the Shawnees for moneys paid under a treaty to guardians of orphans of the tribe, appointed by the tribal council, who had embezzled the money when so paid.

Whether the Shawnees are entitled to recover in these proceedings money embezzled by an Indian superintendent, quære.

There was no error in the action of the court below ordering a percentage allowance to counsel.

Statement of the Case.

THIS was a claim by the Shawnee tribe of Indians under a special act of Congress passed October 1, 1890, c. 1249, 26 Stat. 636, conferring jurisdiction upon the Court of Claims, subject to an appeal to this court, to hear and determine the just rights in law or in equity of the Shawnee and Delaware Indians under certain treaties with the government.

The fourth section of the act authorizes the Shawnees to bring suit to recover "any amount of money that in law or equity is due from the United States to said tribes in reimbursement of their tribal fund for money wrongfully diverted therefrom."

The original petition in the case was filed December 10, 1890. An amended petition was filed by leave of the court February 3, 1891, to which the defendants filed a traverse.

On July 6, 1892, an amended and supplemental act of Congress was passed, c. 151, 27 Stat. 86, authorizing the Shawnees to present to the Court of Claims "all their claims against the United States and the Cherokee Nation, or against either or both of them, of every description whatsoever, arising out of treaty relations with the United States, rights growing out of such treaties, and from contracts, expressed or implied, under such treaties, made and entered into by and between the said Shawnees and Cherokees, and between them or either of them, and the United States."

Subsequently, on July 21, 1892, the appellee filed a second amended petition in the Court of Claims, introducing claims. not embraced in the former petition.

The United States interposed a general denial of the allegations of the petition and also made a counter-claim of $12,182.03, alleged to have been overpaid, under a treaty of 1825. The case having been heard by the Court of Claims, the court, upon the evidence, made the following findings of fact: I. The following is the Spanish grant to the Shawnee Indians, to which reference is made in the preamble of the treaty between the United States and the Shawnees in Missouri, proclaimed December 30, 1825:

"Delawares and Shawnees, claiming a tract of country