by John Marshall Harlan

“ No government has ever held itself liable to individuals for the misfeasance, laches, or unauthorized exercise of power by its officers and agents. In the language of Judge Story, 'it does not undertake to guarantee to any person the fidelity of any of the officers or agents whom it employs, since that would involve it in all its operations in endless embarrassments, and difficulties, and losses, which would be subversive of the public interests.' . ”

“ We find no authority for this position in any act of Congress, and nothing short of an act of Congress can make the United States responsible for a personal injury done to the citizen by one of its employees who, while discharging his duties, fails to exercise such care and diligence as a proper regard to the rights of others required. ”

“ But if more than this was meant to be alleged; if the plaintiff intended to allege an express or affirmative request by officers or agents of the United States,-the case would not, in our view, be changed; for the court knows that, without the authority of an act of Congress, no officer or agent of the United States could, in writing or verbally, make the government liable to suit by reason of the want of due care on the part of those having charge of an elevator in a public building. ”

“ 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 subject was again considered in Hill v. United States, 149 U.S. 593, 598, 599, 37 L. ed. 862, 864, 13 Sup. Ct. ”

“ In other words,-for it comes to that,-by the mere construction and maintenance of such elevator the government, contrary to its established policy, impliedly agreed to be responsible for the torts of an employee having charge of the elevator, if, by his negligence, injury came to one using it. ”

“ An action in the nature of assumpsit for the use and occupation of real estate will never lie where there has been no relation of contract between the parties, and where the possession has been acquired and maintained under a different or adverse title, or where it is tortious and makes the defendant a trespasser. ”

“ United States, 8 Wall. 269, 274, 19 L. ed. 453, 454; Langford v. United States, 101 U.S. 341, 346, 25 L. ed. 1010, 1012; United States v. Jones, 131 U.S. 1, 16, 18, 33 L. ed. 90, 91, 9 Sup. Ct. Rep. 669. ”