Opinion of the Court

the willow fascine revetment, consisting of larger willow poles laid parallel to each other and fastened at intervals with wire.

There were numerous and serious objections to this revetment formed of willow, some of said objections being the following:

The willow wood being only slightly heavier than water even when thoroughly soaked, the revetment mats had to be sunk by means of heavy weights, generally of rock placed at intervals, in order to press them to the bottom and to hold them there when laid. The great difficulties of thus sinking the mats will be appreciated; secondly, where the willow mats at periods of low water, extend above the water line on the banks, the wood being alternately wet and dry rapidly deteriorated and rotted; third, there was great difficulty in laying and maintaining the rocks or weights for holding down the willow mats, especially on the slopes or sides of the channel; fourth, there was a great tendency to breaking and lifting the ends or edges of this willow mat through movements of snags or undermining by the river current, and when the edges started to lift the weights holding the balance of the mat were displaced and great sections of the mat would roll up and be destroyed or washed away; fifth, the supply of willows for making revetment was becoming alarmingly scarce.

That this claimant, from his practical experience and observation, appreciated these shortcomings of the willow revetment and undertook the study of some improved form of revetment. By long application to the subject he invented a revetment consisting of concrete slabs or sections of rectangular form, 3 or 4 inches thick, having molded through the body of the slab wires, the protruding ends of the wires forming a means for attaching the slabs to each other, thus forming an extended sheet or mat of revetment.

The great and obvious advantages of this revetment over any previously used were as follows: First, the specific gravity of the concrete being much greater than water, it would sink readily and remain permanently where it was laid; second, it would form a floor for the bottom and sides of the river channel having the permanency of stone; third, being formed in sections with wire connections, it had all of the advantages of flexibility, which enabled it to fit the river bottom when laid and to conform to any minor changes in the river bottom or banks that might later occur; fourth, it required no weights, subject to shifting of position, to hold it down; fifth, where this reinforced-concrete revetment extended above the water line of the banks at times of low

Opinion of the Court

water there was no rotting or deterioration; sixth, there was no possibility of the edges or ends of this concrete revetment turning up or washing away; seventh, the supply of concrete is of course unlimited; eighth, the actual cost of making and laying this reinforced-concrete revetment, as tested, fell below the cost of making and laying the unsatisfactory willow revetment.

He finally disclosed the character of his invention to his superior officers in the third district and at the same time applied for and obtained patents as follows:

On reinforced-concrete revetment; application filed December 30, 1914; Letters Patent No. 1173879, issued February 29, 1916.

On reinforced-concrete revetment mold; application filed August 20, 1915; Letters Patent No. 1173882, issued February 20, 1916.

Apparatus for launching concrete-revetment mats; application filed October 6, 1915; Letters Patent No. 1229152, issued June 5, 1917.

The said officers of the third district became interested in adopting and using this revetment in their work on the Mississippi River. This claimant consented to such use and aided and assisted in carrying out the plans for the manufacture and laying of said reinforced concrete revetment, employing exactly the form of reinforced-concrete revetment covered by his patent, the molds for manufacture of the same covered by his patent, and the apparatus for laying the same covered by his patent. He never intimated that he would not expect compensation for the use of said patent rights, but when the subject of compensation came up he received evasive answers and failed to obtain from said officers promises of granting such compensation.

Your committee finds that the inventions of Captain Shearer have been used by the Government to a large extent since said inventions were made and since said patents were procured and that it will be found upon hearing of said cause that the claimant is entitled to compensation therefor.

Captain Shearer asserts that he was not employed by the Government to invent or develop any concrete revetment or any revetment aside from the willow type previously in use; that no suggestion was made to him relative to changing the type, and that his study and development of these ideas were absolutely voluntary and independent on his part; that he received no increase in salary from the time he disclosed these inventions to the officers of the third district until he left the service to enter the Army; that he paid the entire expense of said applications for patents, although said ex

Opinion of the Court

pense was a heavy burden, in view of his limited salary and the fact that he was a married man.

He asserts that no material or labor paid for by the Government was used in making his inventions. The material and labor furnished by the Government were consumed in making actual use of the inventions for the benefit of the United States. The expenditure by the United States was in construction of the molds for manufacture of the concrete revetment sections and three sets of apparatus for laying the revetment mats. These molds and machines are, of course, the property of the United States. They will last for years and be available for constant use. These expeditures were not made in connection with Captain Shearer's invention.

He submits that there can be little or no use for the inventions he has produced except by the United States Government, for the reason that practically all protection of river channels calling for revetment is laid by the United States Government.

The claimant has been actively seeking the right to have made the adjudication herein provided for constantly since said infringement, and bills providing for the reference of said claim to the Court of Claims for adjudication, as herein provided for, have actually passed the Senate at former sessions of Congress. It is therefore deemed just that the claim should be protected from any statute of limitation barring his action, since he has been diligently seeking the right to maintain such action.

The facts as asserted by Captain Shearer are controverted. The bill is carefully safeguarded by the amendments herein proposed and otherwise, and it seems but just that Captain Shearer be given opportunity to present his case to the Court of Claims, that court to determine what compensation, if any, should be granted him.

The letter from the War Department, dated March 1, 1927, is attached hereto and made a part of this report as follows:

WAR DEPARTMENT, WASHINGTON, March 1, 1927.

HON. CHARLES L. UNDERHILL,

Chairman Committee on Claims,

House of Representatives, Washington, D. C. DEAR MR. UNDERHILL: In further response to your letter of February 21, 1927, in which you request my opinion as to the merits of Senate bill 3701, for the relief of David McD. Shearer, I have to say that while it is the well-known policy

109870-39-c.c.-vol. 87- -8

Opinion of the Court

of the War Department to encourage invention by those in Government service, to safeguard their interests in their dealings with the Government, and not to oppose legislation designed to give the Government inventor a day in court, that is to place him in the same position with respect to recovering compensation from the Government as is enjoyed by other members of the public; however, from a study of this bill I am constrained to conclude that its text goes considerably further than I have indicated above, and if passed by Congress would place Mr. Shearer in a much more favorable position than that enjoyed by the ordinary private claimant against the Government.

The Judge Advocate General has advised me that the language in line 7, page 2, of the bill, allowing compensation for use of the claimant's patents before the date of his letters patent constitutes an extraordinary remedy, contrary to the patent laws, and therefore not enjoyed by the public generally. The Judge Advocate General further advises that the bill fails to give the Government the right to interpose all of the defenses usual in infringement suits, and for this reason goes much further than merely to give Mr. Shearer a day in court. In this regard, it might be said that if this were an ordinary infringement suit the Government might be able to show that it had an implied license to use the inventions concerned and thus have a complete defense to the action. It is not at all clear that under the language of the bill the Government could so defend in the instant suit. Furthermore, the effect of the bill as submitted is to compel the purchase of the patents in suit by the United States. It is, of course, obvious that compensation for the entire right, title, and interest in the patents would be greater than compensation for a mere license to practice the inventions, and, generally speaking, the War Department is interested in securing licenses only under patents it desires to use. The commercial value of patents for their use in other fields is of no concern to the Government.

In view of the above I find myself not in accord with those features of the bill outlined in the preceding paragraph. I assure you that as to the general purpose of the bill, namely, that of removing the disabilities under which Mr. Shearer now finds himself under existing law for having perfected his inventions while in the Government service, I have no objection whatever.

Sincerely yours,

DWIGHT F. DAVIS, Secretary of War.

Reporter's Statement of the Case

THE CHICKASAW NATION v. THE UNITED

STATES

[No. K-376. Decided April 4, 1938; plaintiff's motion for new trial overruled November 14, 1938]

On the Proofs

Indian claims; cxpenditure of tribal funds for school purposes.It is held that under the act of April 26, 1906, as amended, relating to distribution of tribal funds and enrollment of children of enrolled members of the Chickasaw, and other tribes, of Indians, expenditures made for the education of non-enrolled children of the Chickasaws were within the administrative power of Congress over unallotted Indian property, and were legal.

Same; distribution of tribal funds.-It is held that the "distribution" referred to in the act of July 1, 1902, referred to the distribution of the Chickasaw property specified in the act and was thus limited in its meaning.

The Reporter's statement of the case:

Mr. Melven Cornish for the plaintiff. Mr. William H. Fuller was on the brief.

Mr. Wilfred Hearn, with whom was Mr. Assistant Attorney General Carl McFarland, for the defendant. Messrs. Raymond T. Nagle and Thomas E. Harris were on the brief.

The court made special findings of fact as follows:

1. Prior to the approval of the Act of April 26, 1906 (34 Stat. 137), the Chickasaw Nation had the management and control of its tribal schools. Pursuant to the provisions of that act, the Secretary of the Interior assumed control of and conducted the Chickasaw schools, using Chickasaw funds therefor.

2. During the years 1913 to 1932, inclusive, there was expended by the defendant out of tribal funds belonging to the Chickasaw Nation the sum of $788,421.70 for the education of children who were not on the final roll of members of that Nation but who were children of members of that tribe which had been duly enrolled. This expenditure includes $262,151.95 expended for buildings and repairs to structures used for school purposes.