Dana, 371. L. ed. 202, this court approved of Kent's | ture, that power is limited by a principle view, and said: "A ferry franchise is as inhering in the very nature of constitutional much property as a rent or any other incor- government, namely, that the taxation imporeal hereditament, or chattels, or realty. posed must have relation to a subject within It is clothed with the same sanctity and en- the jurisdiction of the taxing government. titled to the same protection as other prop Hence, this court, speaking by Chief Justice erty." In Kentucky the right of the widow Marshall, in M'Culloch v. Maryland, 4 to have dower assigned to her in a ferry has Wheat. 316, 429, 4 L. ed. 579, 607, said that, been recognized. Stevens v. Stevens, 3 while all subjects over which the sovereign power of a state extends are objects of taxation, "those over which it does not extend are, upon the soundest principles, exempt from taxation." That proposition, he said, could almost be pronounced self-evident. It was therefore held in Hays v. Pacific Mail S. 8. Co. 17 How. 596, 599, 15 L. ed. 254, terstate commerce were not subject to taxation in a state where they might be temporarily when prosecuting their business, but were taxable at their home port, which was their situs, and where they belonged, the court saying: "We are satisfied that the state of California had no jurisdiction over these vessels for the purpose of taxation; they were not, properly, *abiding within its[397] limits, so as to become incorporated with the other personal property of the state; they were there but temporarily, engaged in lawful trade and commerce, with their situs at the home port, where the vessels belonged, and where the owners were liable to be taxed for the capital invested, and where the taxes had been paid;" in St. Louis v. Wiggins Ferry Co. 11 Wall. 423, 429, 431, 20 L. ed. 192, 194, 195, that certain ferry boats belonging to an Illinois corporation and plying between East St. Louis, Illinois, and St. Louis, Missouri, were not taxable in the latter state, but at their home port in the former state, the court saying that a tax was void when there was no jurisdiction as to the property taxed; in Morgan v. Parham, 16 Wall. 471, 476, 21 L. ed. 303, 304, that a vessel engaged in interstate commerce, and being from time to time in Mobile while prosecuting its business, was not taxable in Alabama, but was taxable in New York, where it was owned and registered, the court saying that, in its opinion, "the state of Alabama had no jurisdiction over this vessel for the purpose of taxation, for the reason that it had not become incorporated into the personal property of the state, but was there temporarily only, and that it was engaged in lawful commerce between the states, with its situs at the home port of New York, where it belonged, and where its owner was liable to he taxed for its value;" and in Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 206, 29 L. ed. 158, 163, 1 Inters. Com. Rep. 386, 5 Sup. Ct. Rep. 829, that "the property of [foreign] corporations engaged in foreign or interstate commerce, as well as the prop. There is, in our judgment, no escape from erty of corporations engaged in other busithe conclusion that Kentucky thus asserts ness, is subject to state taxation, provided its authority to tax a property right, an in- always it be within the jurisdiction of the corporeal hereditament, which has its situs state." In Cooley on Taxation, the author, in Indiana. While the mode, form, and ex- while conceding that the legislative power tent of taxation are, speaking generally.extends over everything, whether it be perlimited only by the wisdom of the legisla- son, property, possession, franchise, privi As, then, the privilege of maintaining the ferry in question from the Indiana shore to the Kentucky shore is a franchise derived from Indiana, and as that franchise is a valuable right of property, is it within the power of Kentucky to tax it directly or indirectly? It is said that the Indiana fran-255, that certain steamers engaged in inchise has not been taxed, but only the franchise derived from Kentucky; that the tax is none the less a tax on the Kentucky franchise, because of the value of that franchise being increased by the acquisition by the Kentucky corporation of the franchise granted by Indiana. This view sacrifices substance to form. If the board of valuation and assessment, for purposes of taxation, had separately valued and assessed at a given sum the franchise derived by the ferry company from Kentucky, and had separately valued and assessed at another given sum the franchise obtained from Indiana, the result would have been the same as if it had assessed, as it did assess, the Kentucky franchise as a unit upon the basis of its value as enlarged or increased by the acquisition of the Indiana franchise. The learned counsel for Kentucky says that it is the value of the company's franchise contained "in its charter" which is the subject of taxation. But the franchise obtained from Indiana is not in the com[396]pany's charter granted by Kentucky. It is contained only in the act of the legislature of Indiana. The Indiana franchise was not carried into the charter of the Kentucky corporation by reason of that corporation having the authority to purchase it. Its existence and validity depend entirely upon the laws of Indiana. Counsel further say that Kentucky does not impose a tax upon the company's privilege, as such, granted by the state of Indiana. If it had done so the tax so imposed would not have been defended as valid. Yet by her statute, under which the board of valuation and assessment proceeded, Kentucky has accomplished that result by including for purposes of taxation, in the valuation of the franchise granted by it, the value of the franchise granted by Indiana, and then taxing the franchise of the Kentucky corporation upon the basis of the aggregate value of both franchises. Although now owned by one corporation, these are separate franchises. 18 lege, occupation, or right, says that "per sons and property not within the territorial limits of a state cannot be taxed by it;" and that "a state can no more subject to its power a single person or a single article of property whose residence or legal situs is in another state, than it can subject all the citizens or all the property of such other state to its power." 2d ed. pp. 5, 55, 159. We recognize the difficulty which some398] times exists in particular *cases in determining the situs of personal property for purposes of taxation, and the above cases have been referred to because they have gone into judgment and recognize the general rule that the power of the state to tax is limited to subjects within its jurisdiction or over which it can exercise dominion. No difficulty can exist in applying the general rule in this case; for, beyond all question, the ferry franchise derived from Indiana is an incorporeal hereditament derived from and having its legal situs in that state. It is not within the jurisdiction of Kentucky. The taxation of that franchise or incorporeal hereditament by Kentucky is, in our opinion, a deprivation by that state of the property of the ferry company without due process of law in violation of the 14th Amendment of the Constitution of the United States; as much so as if the state taxed the real estate owned by that company in Indiana. merce forbidden by the Constitution of the United States. The judgment of the court of appeals of Kentucky is reversed, and the cause remanded for such further proceedings as may not be inconsistent with this opinion. Reversed. The Chief Justice and Mr. Justice Shiras dissent. LOUISVILLE & JEFFERSONVILLE FER- v. COMMONWEALTH OF KENTUCKY. (See S. C. Reporter's ed. 399.) Taxation of corporate franchise-including value of franchise derived from other state-due process of law. These cases are governed by the decision in Louisville & Jeffersonville Ferry Co. v. Kentucky, ante, 513. INS [Nos. 18, 19, 20, 21, 22.] Decided February 23, 1903. IN ERROR to the Court of Appeals of the State of Kentucky to review judgments sustaining a tax on corporate franchises. Reversed. See same case below, 22 Ky. L. Rep. 446, 57 S. W. 624. Mr. Justice Harlan delivered the opinion of the court: This view is not met by the suggestion that Kentucky can make it a condition of the exercise of corporate powers under its authority that the tax upon the franchise granted by it shall be measured by the value of all its property, wherever situated, of whatever nature, or from whatever source derived. It is a sufficient answer to this suggestion to say that no such condition was prescribed in the charter of the ferry company when it was granted and accepted. Nor does the taxing statute in question make it a condition of the ferry company's case is remanded to the state court for such continuing to exercise its corporate powers further proceedings as may not be inconsistthat it shall pay a tax for its property hav-ent with the opinion in No. 17. ing a situs in another state. There is no suggestion in the company's charter that the state would ever, in any form, tax its property having a situs in another state. It having been stipulated between the parties that the above cases should abide the decision in No. 17, just decided, 188 U. S. 385, ante, 513, 23 Sup. Ct. Rep. 463, the judgment in each case is reversed, and each Reversed. We express no opinion as to the validity of WILLIAM SAMUEL BIGBY, Plff. in Err.,[400] such a condition if it had been inserted in the company's charter, or if it were now, in terms, prescribed by any statute. We decide nothing more than it is not competent for Kentucky, under the charter granted by it, and under the Constitution of the United States, to tax the franchise which its | corporation, the ferry company, lawfully acquired from Indiana, and which franchise or incorporeal hereditament has its situs, for purposes of taxation, in Indiana. As what has been said is sufficient to dispose of the case, we need not consider the question arising upon the record and urged [399]*by counsel, whether the taxation by Ken tucky of the ferry company's Indiana franchise to transport persons and property from Indiana to Kentucky is not, by its necessary effect, a burden on interstate com 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 the Tucker act of March 3, 1887, chap. 359 (24 Stat. at L. 505, U. S. Comp. Stat. 1901, p. 752), 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 gov ernment of the United States," within the meaning of that act; but the case is one carrier, and is governed by the same prinThe operator of a passenger elevator is a "sounding in tort," which by that act is ex-ciples of law that apply to other carriers. cluded from judicial cognizance. [No. 111.] Argued December 4, 5, 1902. Decided February 23, 1903. IN N ERROR to the Circuit Court of the United States for the Eastern District of New York to review a judgment sustaining a demurrer to a petition in a suit to recover damages from the United States for personal injuries sustained by reason of the negligence of those in charge of an elevator in a public building. Affirmed. See same case below, 103 Fed. 597. It is well settled that when a carrier, common or special, or any other bailee, injures by his negligence or that of his servants a person or a chattel which has been entrusted to his care, the injured party may waive the tort and sue in contract for damages. Pollard v. New Jersey R. & Transp. Co. 101 U. S. 223, 25 L. ed. 840; Philadelphia & R. R. Co. v. Derby, 14 How. 468, 14 L. ed. 502; New Jersey S. B. Co. v. Brockett, 121 U. S. 637, 30 L. ed. 1049, 7 Sup. Ct. Rep. 1039; Boylan v. Hot Springs R. Co. 132 U. S. 146, 33 L. ed. 290, 10 Sup. Ct. Rep. 50; Kansas P. R. Co. v. Kunkel, 17 Kan. 145; Pennsylvania R. Co. v. Peoples, 31 Ohio St. 537; The Queen of the Pacific, 61 Fed. 213; Central Vt. R. Co. v. Soper, 8 C. C. A. 341, 21 U. S. App. 24, 59 Fed. 879; Cooper v. Berry, 21 Ga. 526, 68 Am. Dec. 468; Hunt v. Norris, 4 Mart. La. 517; Orange Bank v. Brown, 3 Wend. 158; Jeremy, Carr. p. 117; 1 Chitty, Pl. 75, 6; 2 Chitty, Pl. 117, 271, 2; Pom. Rem. §§ 568, 570, 571; Addison, Torts, Wood's ed. § 16, p. 17; Legge v. Tucker, 1 Hurlst & N. 500; Baylis v. Lintott, L. R. 8 C. P. 345; Fleming v. Manchester, S. & L. R. Co. L. R. 4 Q. B. Div. 81. The doctrine applies to all carriers of goods or persons, and to all other bailees, whether or not there has been any undertaking upon their part, and although they do not receive compensation. Foulkes v. Metropolitan Dist. R. Co. L. R. 4 C. P. Div. 267; Metcalf, Contr. 2d ed. 5, 6; Warbrook v. Griffin, 2 Brownl. 254, F. Moore, 876; Coggs v. Bernard, 2 Ld. Raym. 909; Beauchamp v. Powley, 1 Moody & R. 38: Doorman v. Jenkins, 2 Ad. & El. 256; Marker v. Mitchell, 54 Fed. 637. This is not an action "sounding in tort." Boylan v. Hot Springs R. Co. 132 U. S. 146, 33 L. ed. 290, 10 Sup. Ct. Rep. 50. Where the money or property of an innocent person has gone into the coffers of the agent was a party, such money or property nation by means of any fraud to which its cannot be held by the United States against the claim of the wronged and injured party. United States v. State Nat. Bank, 96 U. S. 30, 24 L. ed. 647; Swift & C. & B. Co. v. United States, 111 U. S. 22, 28 L. ed. 341, 4 Sup. Ct. Rep. 244. The United States is liable for salvage services rendered to its ships. Gowan v. United States, 20 Ct. Cl. 147. The United States has often been held liable for the negligence of its officers. United States v. Bostwick, 94 U. S. 53, 24 L. ed. 65; Collins v. United States, 34 Ct. Cl. 294. The liability of the government to make been recognized in Belgium. reparation in cases of this character has Gerveis de Clifton's Case, Y. B. 22 Edw. III., Passicrisie A. D. 1852, pp. 1-370. See also folio 5, pl. 12. The state of New York was held liable in damages for the negligence of its employees in leaving unguarded an opening in the railing of a bridge, in consequence of which a person crossing the bridge was injured. 365, 33 N. E. 142. Assistant Attorney General Pradt argued the cause and filed a brief for defendant in error: certain facts which, when proved, evidence The true implied contract arises out of a contract as effectually as though it had been made in express terms. But as to contracts described as implied in law, it cannot be truly said that there is any contract, since tract; but, on the contrary, the facts, when there is no evidence of any intention of conestablished, show that no intention to contract existed. Woods v. Ayres, 39 Mich. 350, 33 Am. Rep. calf, Contr. p. 9; Pom. Rem. p. 637; Mil396; Hertzog v. Hertzog, 29 Pa. 465; Metford v. Com. 144 Mass. 65, 10 N. E. 516. found in the jurisdictional statute, in conTaking the phrase "implied contract," nection with the accompanying provision exDalston v. Janson, 5 Mod. 90, 1 Ld. Raym. cluding claims "sounding in tort," it is diffi 58; Symons v. Darknoll, Palmer, 523; Boson cult to see how the term can be held to refer v. Sandford, 1 Shower, 29, and 101, 2 Shower, to any other than a genuine contract aris478, 3 Mod. 321, 2 Salk. 440; Hunt v. Noring with certainty out of proved facts. ris, 4 Mart. La. 517; Brown v. Boorman, 11 C. & F. 1. Any other construction will render the judisdiction of the court of claims "as broad Calling the permission to use the eleva- as the manifold grievances complained of tor a license does not prevent the transac-against the officers and agents of the United tion from becoming a contract as soon as the licensee has acted upon the license. Mumford v. Whitney, 15 Wend. 380, 30 Am. Dec. 60. 520 States." McArthur v. United States, 29 Ct. Cl. 194. This case is an attempt, under the assumption of an implied contract, to make the gov ernment responsible for the unauthorized acts of its officer, those acts being in themselves torts. Gibbons v. United States, 8 Wall. 274, 19 L. ed. 454. The government itself is not responsible for the misfeasances, wrongs, negligences, or omissions of duty of the subordinate officers or agents employed in the public service. Robertson v. Sichel, 127 U. S. 515, 32 L. ed. 206, 8 Sup. Ct. Rep. 1286; German Bank v. United States, 148 U. S. 579, 37 L. ed. 568, 13 Sup. Ct. Rep. 702. The United States cannot be sued in its own courts without its consent, and has nev er permitted itself to be sued in any court for torts committed in its name by its officers. Nor can the settled distinction in this respect between contract and tort be evaded by framing the claim as upon an implied contract. grounds, namely, that the court had no jurisdiction of the person of the defendant, or of the subject of the action, and did not state facts sufficient to constitute a cause of action against the United States. The demurrer was sustained by the circuit court on each of the grounds specified, and, so far as it was sustained upon the ground that the petition did not state a cause of action, it was sustained because the action was not authorized by the act of Congress known as the Tucker act, approved March 3d, 1887, chap. 359, and entitled "An Act to Provide for the Bringing of Suits against the Government of the United States." 24 Stat. at L. 505 (U. S. Comp. Stat. 1901, p. 752). The action was accordingly dismissed. The specific allegations of the petition are That the United States is a corporation Hill v. United States, 149 U. S. 598, 37 created by the Constitution, with its prin-[401] L. ed. 864, 13 Sup. Ct. Rep. 1011; Langford cipal office in Washington, and, within the v. United States, 101 U. S. 345, 25 L. ed. meaning of the New York Code of Civil 1012; Schillinger.v. United States, 155 U. S. Procedure, is a foreign corporation; 163, 39 L. ed. 108, 15 Sup. Ct. Rep. 85; Lan- the petitioner, while on his way to the of man v. United States, 27 Ct. Cl. 265; Mc-fice of the marshal of the United States for Arthur v. United States, 29 Ct. Cl. 194. That on or about November 27th, 1899, The defendant in this case was not in the the eastern district of New York, and at the relation of a common carrier by reason of request of the United States and of its officers, employees, and duly authorized agents, running its elevator, but simply rested under a duty imposed by law to carry passen-ity, entered into a passenger elevator in the each acting within the scope of his authorgers in safety. McGrell v. Buffalo Office Bldg. Co. 153 N. United States courthouse and postoffice Y. 268, 47 N. E. 305; Allen v. Sackrider, 37 building in Brooklyn, which building and N. Y. 342; 2 Parsons, Contr. 5th ed. 166, United States, and was designed and intendelevator was owned and controlled by the note; Nolton v. Western R. Corp. 15 N. Yed by it for the use of persons on their way 444, 69 Am. Dec. 623; Marker v. Mitchell, to the office of its said marshal; 54 Fed. 638. In every case in which one undertakes to carry passengers, there is imposed upon him by law a duty to convey such passengers safely, and this without respect to the manner in which the undertaking is assumed, whether by contract for hire, or gratuitously, or by reason of a mere license extended to the passenger; but such legal liability does not in itself constitute or imply a contract. Carroll v. Staten Island R. Co. 58 N. Y. 133, 17 Am. Rep. 221; Hannibal & St. J. R. Co. v. Swift, 12 Wall. 270, 20 L. ed. 428; Marshall v. York, N. & B. R. Co. 11 C. B. 663; Austin v. Great Western R. Co. L. R. 2 Q. B. 445. Claimant's proper recourse is to Congress. Gibbons v. United States, 8 Wall. 274, 19 L. ed. 454; German Bank v. United States, 148 U. S. 579, 37 L. ed. 568, 13 Sup. Ct. Rep. That in consequence of said failures, respectively, the petitioner, "while entering the said elevator without negligence on his part was caused to fall and his foot, ankle, and leg were crushed between said elevator Mr. Justice Harlan delivered the opintor shaft or a projection in the shaft of said and the top of the entrance into the eleva 702. ion of the court: elevator or in some other manner, and the Bigby, the plaintiff in error, claimed in back of your petitioner and other parts of his petition to have been damaged to the ex- the body of your petitioner were also content of $10,000 on account of certain persequently injured, and your petitioner consonal injuries received by him while enter ing an elevator placed by the United States in its courthouse and postoffice building in the city of Brooklyn, and asked judgment for that sum against the government. The petition was demurred to upon three sequently suffered a laceration of the ligaments of his ankle, and he consequently was caused much bodily and mental pain." The transcript contains a certificate from the circuit court to the effect that in said cause the jurisdiction of that court was in issue, and that the question was "whether his suit is embraced by the words "upon a person who is not, and has not been, an any contract, express or implied, with the [402]employee of the United States, can *sue the government of the United States." The United States, in the circuit court of the contention of the United States is that no United States, in the district where he re- such implied contract with the government sides, to recover damages to the amount of arose from the plaintiff's entering or at$10,000, which damages were caused by per- tempting to enter and use the elevator in sonal injury received by said person question, and that the claim is distinctly through the negligence of an employee of for damages in a case "sounding in tort," the United States, while said person injured of which the act of Congress did not authoras aforesaid was being carried on an ele-ize the circuit court to take cognizance. vator in a public building owned and used by the United States as a postoffice and for other governmental uses and purposes, when said person entered said elevator for the purpose of visiting the office of the United States marshal of such district on official business." Can the plaintiff's cause of action be regarded as founded upon implied contract with the government, within the meaning of the act of 1887? The precise question thus presented has not been determined by this court. But former decisions may be consulted in order This being an action against the United to ascertain whether this suit is embraced States, the authority of the circuit court to by the words, in that act, "upon any contake cognizance of it depends upon the contract, express or implied, with the govern struction of the above act of March 3d, 1887. 24 Stat. at L. 505 (U. S. Comp. Stat. 1901, p. 752). By that act it is provided that the court of claims shall have jurisdiction to hear and determine "all claims founded upon the Constitution of the United States or any law of Congress, except for pensions, or upon any regulation of an executive department, or upon any contract, expressed or implied, with the government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of 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: Provided, however, That nothing in this section shall be construed as giving to either of the courts herein mentioned 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 have heretofore been rejected, or reported on adversely by any [103 court, department, or commission authorized to hear and determine the same." The act further provided that "the district courts of the United States shall have concurrent jurisdiction with the court of claims as to all matters named in the preceding section where the amount of the claim does not exceed one thousand dollars, and the circuit courts of the United States shall have such concurrent jurisdiction in all cases where the amount of such claim exceeds one thousand dollars and does not exceed ten thousand dollars." ment of the United States." Do those words include an action against the United States to recover damages for personal injuries caused by the negligent management of an elevator erected and maintained by it in one of its courthouse and postoflice buildings? an *In Gibbons v. United States, 8 Wall. 269,[404] 274, 19 L. ed. 453, 454,-which was an action in the court of claims to recover amount alleged to have been wrongfully exacted by a quartermaster of the United States in the execution of a contract for the delivery of oats,-this court said: "But it is not to be disguised that this case is an attempt, under the assumption of an implied contract, to make the government responsible for the unauthorized acts of its oflicer, those acts being in themselves torts. 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 of ficers 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.' The language of the statutes which confer jurisdiction upon the court of claims excludes by the strong-. est implication demands against the government founded on torts. The general principle which we have already stated as applicable to all governments forbids, on a policy imposed by necessity, that they should hold themselves liable for unauthor It is clear that the act excludes from ju-ized wrongs inflicted by their officers on the dicial cognizance any claim against the United States for damages in a case "sounding in tort." But the contention of the plaintiff is, in substance, that, although the facts constituting the negligence of which he complains made a case of tort, he may waive the tort; that his present claim is founded upon an implied contract with the government, whereby it agreed to carry him safely in its elevator, would operate the elevator with due care, and employ for the purposes of such carriage a competent and experienced person; and, consequently, that citizen, though occurring while engaged in |