GOFF, Circuit Judge
(after stating the facts as above). We think that the pleadings and proofs of this cause clearly demonstrate that this is, in substance, if not in form, a proceeding, the object of which is to prevent the making of breech-loading cannon of a certain character, and by a particular device, at the navy yard of the United States in the city of Washington, Distinct of Columbia, by those officially in charge thereof, representing the government of the United States) and, also, it is clearly shown that the injunction granted by the court below will in effect prohibit the officers so in charge of said navy yard from manufacturing such cannon for use on the vessels of war of the United States, as provided for under the provisions of existing legislation, the reason for such prohibition being that, in so making breech-loading cannon, said officers are infringing on the rights granted to Samuel Seabury. by letters patent No. 425,584, dated April 15, 1890.
Should a suit instituted under such circumstances and with such intention be sustained? Do not public policy and the rights of the government in its sovereign capacity require that parties feeling themselves aggrieved on account of matters relating to such transactions as we have alluded to — to such circumstances as are set forth by the evidence taken and filed in this case — should be compelled to seek relief and compensation, if so entitled, by proceeding [337]*337in another manner, and before another tribunal, and that the courts should not use their writs of injunction so as to retard and embarrass the government in the prosecuiion of work, the product of w-hich is absolutely essential to the public welfare and the national defense? We think that the consent of the owner of a patented device, while it is desirable, and should be obtained, if it conveniently and reasonably can, is not positively necessary in 'order to enable the United State® to use the invention described in the letters patent, particularly in cases where it relates to the mode of construction of implements of warfare required by the government, and indispensable to the armament of its vessels of war. Such right to take and use the property of the citizen for government purposes is indisputable, — an inborn element of sovereign power essential to the independence and perpetuity of the nation.
The constitution of the United States provides that congress shall have the power to raise and support armies, and to provide and maintain a navy. By virtue thereof the congress has appropriated and caused to be expended large sums of money for such purposes, and for the manufacture of arms, the construction of ships of war, and the establishment of navy yards, including the one at Washington where the breech-loading cannon mentioned in complainants’ bill have been and are now being manufactured. Under recent acts of congress, millions of dollars have been expended, through the navy department, in the purchase and manufacture oí the armor plate and armament required for the ships of war lately constructed and now in process of building, and in the procurement and installation of the improved machinery for use in the breech-mechanism shop at said Washington navy yard for the purpose of constructing cannon of the character referred to in the bill. It is evident from the legislation by congress on this subject, and the action of the officials of the government thereunder, that it was and is the intention of the United States to canse to be manufactured, for national purposes, breech-loading cannon of the most approved and scientific design, utilizing such plans and inventions as would best secure the result desired, and making, in those cases where the right to use a patented device had not been secured, just compensation to the owner thereof, in the manner usual under such circumstances. After careful investigation, involving the examination of many designs, drawing's, and innovations, with the aid of models and experiments, the chief of the bureau of ordnance formulated his plans, selected and adopted the devices and inventions he deemed best, and commenced the making of the breech-loading cannon, as he was authorized and directed by the congress to do, employing in connection with such work the defendant in this case. If the invention claimed by complainants is being used and infringed by those so representing the United States, then the owners of the same can recover just compensation for such nse and infringement from the government by suit in the court of claims, or by means of an appropriation for that purpose made by congress, on application made to that body,
[338]*338Tlie fifth amendment to the constitution of the United States contains the provision that private property shall not be taken for public use without just compensation, and this we must consider as an implied assertion that on making such compensation it may be so taken. • It will be noted that this is not a restriction of the power to take private property for public use, but that it is a requirement that when such property is so taken just compensation shall be made therefor to the. owner. That incident of sovereignty —the right to take — belonging to every independent government is not disturbed, nor is the manner in which such right is to be exercised, or the mode by which the proper compensation is to be ascertained and paid, set forth. And because congress has provided by statutes a procedure for the condemnation of private property required for public purposes in certain instances, and not in others, we are not therefore to infer that the power to take does not exist as to the other matters; nor should we construe such legislation as a limitation of that power relative to, other cases of like character not embraced in such enactments. In other words, the nonuser of a power is not to be used to disprove its existence.
The title the individual citizen has to his property is good as against all other citizens, but it must yield to the necessity of the government, and submit to the social requirements and rights of the general public;' and this right of the government to protect itself and defend its own is not to be controlled by any other power, nor is it to depend on the consent of any person, company, or corporation. The only restriction, as we have already remarked, is the constitutional requirement that just compensation shall be made to the owner for property so taken. The proper mode of proceeding in order to secure compensation for private property taken for public use without the consent of the owner, and in the absence of legal action for condemnation, has received judicial consideration, the supreme court of the United States having at different times plainly indicated the same, particularly in cases where the government has used an invention without the permission of the owner of the letters patent protecting the same. Kohl v. U. S., 91 U. S. 367, 374; James v. Campbell, 104 U. S. 356; U. S. v. Great Falls Manuf'g Co., 112 U. S. 645, 656, 5 Sup. Ct. 306; Hollister v. Benedict & B. Manuf'g Co., 113 U. S. 59, 5 Sup. Ct. 717; U. S. v. Palmer, 128 U. S. 262, 9 Sup. Ct. 104; also, the following cases in the court of claims: Schillinger’s Case, 24 Ct. Cl. 278, 298; Gill’s Case, 25 Ct. Cl. 415; Berdan’s Case, 26 Ct. Cl.
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GOFF, Circuit Judge
(after stating the facts as above). We think that the pleadings and proofs of this cause clearly demonstrate that this is, in substance, if not in form, a proceeding, the object of which is to prevent the making of breech-loading cannon of a certain character, and by a particular device, at the navy yard of the United States in the city of Washington, Distinct of Columbia, by those officially in charge thereof, representing the government of the United States) and, also, it is clearly shown that the injunction granted by the court below will in effect prohibit the officers so in charge of said navy yard from manufacturing such cannon for use on the vessels of war of the United States, as provided for under the provisions of existing legislation, the reason for such prohibition being that, in so making breech-loading cannon, said officers are infringing on the rights granted to Samuel Seabury. by letters patent No. 425,584, dated April 15, 1890.
Should a suit instituted under such circumstances and with such intention be sustained? Do not public policy and the rights of the government in its sovereign capacity require that parties feeling themselves aggrieved on account of matters relating to such transactions as we have alluded to — to such circumstances as are set forth by the evidence taken and filed in this case — should be compelled to seek relief and compensation, if so entitled, by proceeding [337]*337in another manner, and before another tribunal, and that the courts should not use their writs of injunction so as to retard and embarrass the government in the prosecuiion of work, the product of w-hich is absolutely essential to the public welfare and the national defense? We think that the consent of the owner of a patented device, while it is desirable, and should be obtained, if it conveniently and reasonably can, is not positively necessary in 'order to enable the United State® to use the invention described in the letters patent, particularly in cases where it relates to the mode of construction of implements of warfare required by the government, and indispensable to the armament of its vessels of war. Such right to take and use the property of the citizen for government purposes is indisputable, — an inborn element of sovereign power essential to the independence and perpetuity of the nation.
The constitution of the United States provides that congress shall have the power to raise and support armies, and to provide and maintain a navy. By virtue thereof the congress has appropriated and caused to be expended large sums of money for such purposes, and for the manufacture of arms, the construction of ships of war, and the establishment of navy yards, including the one at Washington where the breech-loading cannon mentioned in complainants’ bill have been and are now being manufactured. Under recent acts of congress, millions of dollars have been expended, through the navy department, in the purchase and manufacture oí the armor plate and armament required for the ships of war lately constructed and now in process of building, and in the procurement and installation of the improved machinery for use in the breech-mechanism shop at said Washington navy yard for the purpose of constructing cannon of the character referred to in the bill. It is evident from the legislation by congress on this subject, and the action of the officials of the government thereunder, that it was and is the intention of the United States to canse to be manufactured, for national purposes, breech-loading cannon of the most approved and scientific design, utilizing such plans and inventions as would best secure the result desired, and making, in those cases where the right to use a patented device had not been secured, just compensation to the owner thereof, in the manner usual under such circumstances. After careful investigation, involving the examination of many designs, drawing's, and innovations, with the aid of models and experiments, the chief of the bureau of ordnance formulated his plans, selected and adopted the devices and inventions he deemed best, and commenced the making of the breech-loading cannon, as he was authorized and directed by the congress to do, employing in connection with such work the defendant in this case. If the invention claimed by complainants is being used and infringed by those so representing the United States, then the owners of the same can recover just compensation for such nse and infringement from the government by suit in the court of claims, or by means of an appropriation for that purpose made by congress, on application made to that body,
[338]*338Tlie fifth amendment to the constitution of the United States contains the provision that private property shall not be taken for public use without just compensation, and this we must consider as an implied assertion that on making such compensation it may be so taken. • It will be noted that this is not a restriction of the power to take private property for public use, but that it is a requirement that when such property is so taken just compensation shall be made therefor to the. owner. That incident of sovereignty —the right to take — belonging to every independent government is not disturbed, nor is the manner in which such right is to be exercised, or the mode by which the proper compensation is to be ascertained and paid, set forth. And because congress has provided by statutes a procedure for the condemnation of private property required for public purposes in certain instances, and not in others, we are not therefore to infer that the power to take does not exist as to the other matters; nor should we construe such legislation as a limitation of that power relative to, other cases of like character not embraced in such enactments. In other words, the nonuser of a power is not to be used to disprove its existence.
The title the individual citizen has to his property is good as against all other citizens, but it must yield to the necessity of the government, and submit to the social requirements and rights of the general public;' and this right of the government to protect itself and defend its own is not to be controlled by any other power, nor is it to depend on the consent of any person, company, or corporation. The only restriction, as we have already remarked, is the constitutional requirement that just compensation shall be made to the owner for property so taken. The proper mode of proceeding in order to secure compensation for private property taken for public use without the consent of the owner, and in the absence of legal action for condemnation, has received judicial consideration, the supreme court of the United States having at different times plainly indicated the same, particularly in cases where the government has used an invention without the permission of the owner of the letters patent protecting the same. Kohl v. U. S., 91 U. S. 367, 374; James v. Campbell, 104 U. S. 356; U. S. v. Great Falls Manuf'g Co., 112 U. S. 645, 656, 5 Sup. Ct. 306; Hollister v. Benedict & B. Manuf'g Co., 113 U. S. 59, 5 Sup. Ct. 717; U. S. v. Palmer, 128 U. S. 262, 9 Sup. Ct. 104; also, the following cases in the court of claims: Schillinger’s Case, 24 Ct. Cl. 278, 298; Gill’s Case, 25 Ct. Cl. 415; Berdan’s Case, 26 Ct. Cl. 48.
We do not think that contending patentees, striving between themselves and those interested with them as to the validity of their respective letters patent, should be permitted to close the arsenals, ordnance shops, and navy yards of the United States by injunctions issuing out of their litigation, thereby frustrating the designs of the government, rendering inoperative the legislation of congress germane thereto, and causing great loss of the public funds appropriated by congress in execution of the same. It is true that the United States is not made a party to this action, but it is also [339]*339true that it is disclosed by the pleadings and evidence that the1 can-n'on, the further making of which it is the object of this suit to enjoin, are now being manufactured at the navy yard of the United States at Washington, by the employés of that establishment, under the direction of the chief of ordnance of the1 navy department; and it is apparent that such an observance of the injunction granted! by the court below as should be shown by those to whom it is directed, and as must necessarily be required by the courts while it is of force and effect, will close said navy yard, so far at least as the manufacture of hreech-loading cannon is concerned, and thereby prevent the enforcement' of certain laws of the United States, the consummation of which is of national importance.
Independent of the questions we have been considering, there is another reason why, on the case as made in the record before us, the plaintiffs below are not entitled to a decree in their favor. Their hill of complaint, as drawn, rests upon the allegations of fraud contained therein, and it must stand or fall as the testimony establishes or fails to* sustain such charges. The positive assertion of fraud permeates the entire bill, — it is the warp and woof of its structure, — depending on the combination, conspiracy, and confederation of the defendant and William M. Folger, as chief of the bureau of ordnance, to use the invention of Seabury, and deprive the patentee and his assignees of the benefits and royalties claimed to he secured to them by the letters patent referred to. A court of equity will not grant a decree on another ground, where the bill charges actual fraud as the ground of relief, and the fraud is not proven. We find that there is an utter failure to sustain the allegations of fraudulent conspiracy and confederation charged in the bill. It is shown that Commodore Folger, in his endeavor to secure the most useful and scientific plans and devices by which to construct the hreech-loading cannon directed by the congress to be made, the manufacture of which was committed to him, did advise with the plain!iff Seabury, and did request of him Ms plans and drawings, and, also, that he did the same with the defendant, as well as with others; and, also, it is shown that Folger believed that the plans of the defendant were best adapted to the object desired to he secured by the government, and that he agreed to pay a certain sum for the use of the same, under the impression that the defendant was the inventor and patentee of the design so selected. But there was no intention to deprive the true owner of his right to demand and recover just compensation for the said taking and using, and it would not have availed had such intent existed, for the legal owner could have recovered, even though another had by mistake or fraud been paid.
The charges of fraud have been made either under an entire; misconception of the facts or with a recklessness that, at least, is not commendable, and should not be encouraged by an endeavor on the paid of this court to relieve the complainants of the embarrassment caused thereby hv holding that they are entitled to a decree founded on some general ground of equity jurisdiction, not specially pleaded, but supposed to be included in the prayer for gen-[340]*340oral relief. While equity will always relieve those who suffer from acts of fraud, it has also always required that those who seek its jurisdiction on that account shall, after having carefully scrutinized the cause of complaint, most clearly formulate the allegations of the same, and .then that they shall fully prove that which they have so alleged. We do not deem it essential to discuss this matter, elementary as it is in character, but we refer to the following cases, in which the subject is fully considered: Montesquieu v. Sandys, 18 Ves. 302; Price v. Berrington, 7 Eng. Law & Eq. 260, in which case Lord Truro says:
“When the bill sets up a case of actual fraud, and makes that the ground of the prayer for relief, the plaintiff is not entitled to a decree by establishing some one or more of the facts, quite independent of fraud, but which might of themselves create a case under a totally distinct head of equity from that which would be applicable to the case of fraud originally stated.”
Wilde v. Gibson, 1 H. L. Cas. 620; Glasscott v. Lang, 2 Phil. Ch. 310; Curson v. Belworthy, 22 Eng. Law & Eq. 1; Tillinghast v. Champlin, 4 R. I. 173, in which case the court uses the following language:
“In almost all these cases it will be found that the objection to relief was not that the bill did not contain allegations sufficient to afford a basis for the inferior or secondary relief upon which the plaintiff wished to fall back, but that, having mingled with those allegations imputations of personal corruption or actual fraud, he had pointed his bill only to relief upon this higher ground, and must therefore succeed upon that ground, or not at all.”
Fisher v. Boody, 1 Curt. 206, Fed. Cas. No. 4,814; Eyre v. Potter, 15 How. 42, in which the supreme court of the United States cite with approval the case of Price v. Berrington, supra.
The decree complained of will be reversed, and the case will be remanded, with instructions to dismiss the bill.