
    JAMES D. SMITH, for the use of Rochester.
    [No. 16751.
    Decided February 24, 1891.]
    
      On the Proofs.
    
    A mail contract requires the contractor to carry the mails according to the schedule which the Postmaster-General may from time to time prescribe. The schedule existing at the time of the contract is for carrying the mail from M., where the contractor resides, to I. daily and return. Subsequently the Department reverses this, making him carry it from I. to M. and return. He objects; and asks to have the contract canceled. The Department declines and he performs at a loss.
    
      I. Where the direction of a mail route is reversed, hut the change requires no greater speed or increase of distance, the carrier is not entitled to increase of pay, though it may involve him in serious loss. It is a case coming within the provision that schedules of departures and arrivals may he ordered without increase.of pay if the running time he not abridged,
    II. The contracts of the Post-Office Department empower the Postmaster-General to make such changes, and the complexity of the post-office system renders it essential that this power be retained by the Department.
    
      The Reporters’ statement of tbe ease:
    The following are the facts of this case as found by the court:
    I. James D. Smith, February 23,1885, entered into a mail contract with the United States, the material portions of which are as follows:
    “Whereas James D. Smith has been accepted, according to law, as contractor for transporting the mail on route No. 10157, from Ingleside, Md., to Merrickton and back six times a week by a schedule satisfactory to the Department, at one hundred and thirty dollars per year, for and during the term beginning the first day of July, 1885, and ending June 30, eighteen hundred and eighty-nine: Now, therefore, the said contractor and his sureties do jointly and severally undertake, covenant, and agree with the United States of America, and do bind themselves—
    “To carry said mail with certainty, celerity, and security, using therefor such means as may be necessary to transport the whole of said mail, whatever may be its size, weight, or increase, during the term of this contract, and within the time fixed in the annexed schedule of departures and arrivals; and so to carry until said schedule is altered by the authority of the Postmaster-General of the United States, as hereinafter provided, and then to carry according to such altered schedule ; and in all cases to carry said mail in preference to passengers and freight, and to their entireexclusion, if its weight, bulk, or safety shall so require. And that they will carry the mail, upon demand, by any conveyance which said contractor regularly runs, or is concerned in running, on the route, beyond the number of trips above specified, in the same manner,' and subject to the same regulations, as are herein provided touching regular trips.
    **####*
    “ It is hereby stipulated and agreed by the said contractor and his sureties that the Postmaster General may discontinue or extend this contract, change the schedule and termini of
    
      the route, and alter, increase, or decrease, or extend the service in accordance with law, he allowing- not to exceed a pro ■rateincrease of compensation for any additional service thereby-required, or for increased speed, if the employment of additional stock and carriers is rendered necessary5 and, in case of decrease, curtailment, or discontinuance of service, as a full indemnity to said contractor, one month’s extra pay on the amount of service dispensed with, and not to exceed a pro rata compensation for the service retained: Provided, however, that, ift case of increased expedition, the contractor may, upon timely notice, relinquish the contract.”
    The schedule of departures and arrivals annexed to said contract was as follows :
    “ Leave Ingleside daily, except Sunday, at 12:40 p. m.; arrive at Merrickton by 1:40 p. m. Leave Merrickton daily, except Sunday, at 11:30 a. m.; arrive at Ingleside by 12:30 p. in.
    
      “Provided, for opening and closing the mails at any office, the surplus time so taken is to be allowed in addition to the time fixed in this schedule.”
    Thereafter, on the 1st day of May, 1885, said James D. Smith, with the permission of the Post-Office Department, entered into a subcontract with James W. Rochester, on the blank form prescribed by the Postmaster-General, the material parts of which subcontract are as follows:
    “That said party (or parties) of the second part [Rochester] and his sureties aforesaid do jointly and severally undertake, covenant, and agree, and do bind themselves and each of them to and with the said party (or parties) of the first part [Smith] in the sum of one hundred dollars, to transport the United States mail on said route No. 10157, from Merrickton to Ingle-side and back, G times a week, from the first day of July, 1885, to June 30, 1889, inclusive, on the schedule hereto appended, or upon such schedule as the Postmaster-General may direct (except in case of increased expedition, when the party of the second part may, upon reasonable notice, relinquish this subcontract), and in full compliance with the postal laws and regulations, and subject to all the requirements of the said party of the first part under the said contract with the Unites States, for one hundred dollars per annum, or for the annual rate of pay set opposite the number of round trips that may be ordered by the Postmaster-General to be performed during the period of this subcontract, as follows:
    “ Three round trips per week, pro rata.
    “ Six round trips per week, one hundred dollars.
    “ Seven round trips per week, pro rata.
    
      “ And it is hereby farther agreed that liability for all fines and deductions imposed upon the party of the first part [Smith] by the Postmaster-General, for failures and delinquencies in the performance of service under his contract, shall be assumed and borne by the party of the second part [Rochester], and, if necessary, the Auditor of the Treasury for the Post-Office Department may enforce this agreement by proper deductions from any compensation due the party of the second part [Rochester] for services performed under this subcontract.
    “ And it is hereby further agreed that for any additional service required by the Postmaster-General, and not hereinbe-fore expressly stipulated, the party of the second part [Rochester] shall be allowed not to exceed a pro rata increase of compensation, or for increased speed, if the employment of additional stock and carriers is rendered necessary; and in case of decrease, curtailment, or discontinuance of service, as full indemnity, a pro rata of the one month’s extra pay allowed by the United States to the party of the first part, and unless previously herein stipulated, not to exceed a pro rata compensation for the service retained.”
    The schedule of departures and arrivals annexed to said subcontract was as follows:
    “ Leave Merrickton daily, except Sunday, on arrival of train at 11:30 a. m.
    “Arrive at Ingleside daily, except Sunday, by 12:30 p. m.
    “ Leave Ingleside daily, except Sunday, at 12:4-0 p. m.
    “Arrive at Merrickton daily, except Sunday, by 1:40 p. m.
    
      “Provided, That when more than seven minutes are taken for opening and closing the mails at any office, the surplus time so taken is to be allowed in addition to the time fixed in this schedule.”
    II. Thereafter, on the 5th day of June, 1885, the Postmaster-General altered the schedule as follows:
    “ Leave Ingleside daily, except Sunday, at 6:45 a. m., or in time to meet mail train going north.
    “Arrive Merrickton at 7:45 a. m., or in one hour after leaving Ingleside.
    “ Leave Merrickton daily, except Sunday, after arrival of mail train going south.
    “Arrive Ingleside in one hour after leaving Merrickton.”
    III. On the 6th day of June, 1885, the subcontractor, J. W. Rochester, directed a letter to the Second Assistant Postmaster-General, protesting against the change of schedule and asking for increased compensation, to which the Second Assistant Postmaster General replied, under date of June 9,1885, stating that no additional allowance could be made for performing service in accordance with changed schedule. On the 30th day of June, 1885, the subcontractor again wrote the Second Assistant Postmaster General, referring to this route, stating that the price ($100 per year) which he had received for performing this service prior to the date of the new contract was satisfactory, and that he would perform the same service without change of schedule under the new contract tor the same price per year (viz, $100), but that under the changed schedule he could not perform the service for less than $200 per year, and he thus concluded :
    “ How shall I get rid of it Can I sublet it ? Let me hear from you. How can 1 afford to carry it for same money when it only taken me 4 hours before and now it takes me 6. When I bid $200 at first I could not carry it for less in this way.”
    The mail was carried in accordance with the aforesaid altered schedule for the 4 years covered by the contract, from July 1, 1885, to June 30, 1889, inclusive, and the contract price was paid.
    III. The subcontractor, James W. Rochester, was, at the time he entered into the subcontract, a resident of Merrickton, Md., where he had lived for about 12 years. Under the original schedule he would have had to leave Merrickton every week day at 11:30, and would have been occupied two hours and teu minutes in executing the contract until his return from Ingle-side at 1:40 p. m., thus leaving him free during the morning until 11:30 and after 1:40 to work on his own place in cultivating land, as well as to do odd jobs for others, for which, when he was employed, he was paid from 10 to 25 cents an hour. Under the altered schedule he was forced to get up between 4 and 5 o’clock in the morning in order to arrive at Ingleside in time for his first trip from there at 6:45 ; he arrived at Merrick-ton at 7:45 a. m.; returned to Ingleside, after the arrival of the mail train going south, and after completing the trip to Ingleside, returned to his home at Merrickton. How much time was occupied in waiting for the train does not appear; when the train was'late, as it not infrequently was, the time was more than ten minutes. He was also compelled by the change of schedule to buy another horse, at an expense of $150 for the horse and $100 a year for his feed. On the trip made each way in the middle of the day, as provide ! in the original schedule, be also earned money by carrying passengers and express packages; but on the trip to Ingleside and back, which he made earlyin the morning under the altered schedule, as stated in finding n, he carried no passengers or packages, because of the early hour.
    Had plaintiff been a resident of Ingleside instead of Mer-rickton the expense of carrying the mail under the new schedule would have been substantially what it was under the old schedule to him, a resident of Merriekton. The increased cost was entirely due to starting the round trip from Inglesid<e instead of from Merriekton. In fact, plaintiff’s expense under the new contract was double what it was under the old schedule.
    
      Mr. George A. King (with whom was Mr. Harvey Spalding) for the claimant.
    
      Mr. Henry M. Foote (with whom was Mr. Assistant Attorney-General Cotton) for the'defendants.
   Davis, J.,

delivered the opinion of the court:

The schedule of a star route in Maryland having been changed by the Postmaster-General, plaintiff in this action seeks to recover additional compensation for what he alleges to have been increased service. Smith, the plaintiff, was the contractor with the Government; he sublet the route to Rochester, for whose use he sues. The two contracts are in -the usual form, and provide for one round trip between Merriekton and Ingleside, villages some 6 miles apart. Rochester resided at Merriekton, and under the schedule which had been theretofore in force and under which the contract was let, he left Merriekton at 11:30 &. in., went to Ingleside, 6 miles, waited there but 10 minutes, when he returned with the mail to Mer-rickton, arriving at 1:40 p. in., when his service was completed and he was free. This was convenient, was economical in time, and harmonized with the movement of passengers and parcels, and he agreed to do it for $100 a year. After the contracts had been signed, but before they came into effect, the schedule was reversed, and Rochester was directed to leave Ingleside at 6:45 a. in. to arrive at Merriekton at 7:45 a. m., to leave there after arrival of mail train going south, terminating the trip at Ingleside.

Plaintiff then, under this arrangement, was obliged to leave Merrickton at a very early hour in the morning, drive to Ingle-side, where his service began at a quarter before 7 in the morning; he then performed the round trip, and afterwards drove back from Ingleside to his home in Merrickton. This put plaintiff to inconvenience, to extra expense, and deprived him of some revenue which he had previously received through the carriage of passengers and parcels.

Two points will be noticed: First, that the change in schedule was made before-the contract went into effect with full knowledge upon the part of both Smith and Eochester, and that the latter, although he protested against the change, and asked to be released from his engagement, performed the contract. Second, that the extra expense and inconvenience were caused principally by the fact of plaintiff’s residence at Merrickton ; with the round trip commencing at Merrickton plaintiff was at an advantage; had he resided at Ingleside the change of schedule would have benefited him.

While actually carrying the mail plaintiff traveled the same distance at the same rate of speed under the one schedule as under the other.

The misfortune of his residence required him under the new schedule to go over the road four times daily instead of twice; yet while performing the contract service, that is, while carrying the mail one round trip daily between the two villages, he traveled no further and he traveled no faster under the one schedule than under the other. The accident of his residence was an advantage in the one case, a disadvantage in the other. Such fortuitous advantages or disadvantages can not form the basis of recovery.

It does appear, however, that while under the first schedule plaintiff waited but 10 minutes for the return mail from Ingle-side, he, under the second schedule, was forced to wait longer than 10 minutes at Merrickton for the return mail.

As he traveled no faster under the one schedule than under the other, as it does not appear that he carried more mail under the one schedule than under the other, we have now simply to decide whether the additional time spent in waiting at one end of the route under the one schedule over that spent under the other is such “ additional service” as will authorize a recovery equal to a pro rata increase of compensation.

That the Postmaster-General had the right to change the schedule can not be doubted; it is thus expressly agreed in the contract.

“It is hereby stipulated and agreed * * * that the Postmaster-General may discontinue or extend this con tract, change the schedule and termini of the route, and alter, increase, or decrease, or extend the service in accordance with law.”

As to increased pay it is thus stipulated:

“He [the Postmaster-General] allowing not to exceed a pro rata increase of compensation for any additional service thereby required, or for increased speed, if the employment of additional stock and carriers is rendered necessary.”

No greater speed has been required of plaintiff nor has he made more trips under the one schedule than under the other, and the increase in his stock was occasioned by the accident of his residence; that is, by the fact that he was forced to go from Merrickton to Ingleside to begin his trip and to return from Ingleside to Merrickton after his service was concluded.

The Postmaster-General did not discontinue or extend the contract, nor did he increase, decrease, or extend the service, so far as the mere carriage of the mail is concerned, but he did change the schedule and he reversed the termini, in that way altering the service. This the contract in terms permitted, and the fact that the subcontractor was thereby forced to wait longer in Merrickton than he had before waited at Ingleside, but at no increased expense, does not in our opinion entitle him to additional compensation. This view is strengthened by section 812 of the Eegulations, which authorizes the Postmaster-General to “ change schedules of departures and arrivals in all cases without increase of pay, provided the running time be not abridged.”

The running time in this instance was not abridged.

The case involves hardship to the subcontractor, who is apparently a poor man; he contracted in good faith to perform a service, which, under the then schedule, could have been economically performed in two hours and ten minutes at a convenient time of the day; he finds the schedule reversed, so that by the accident of his residence he is forced, under the new arrangement, to travel twice the distance required under the first arrangement at inconvenient hours, at increased expense, and at considerable loss in his other employments. He unsuccessfully endeavored to escape from his contract. It is known that upon many of the star routes, probably upon most of them, the mail is carried as an incident to other business, particularly that of transporting passengers and parcels; where the post-ofíice schedule corresponds with the natural movement of trade and travel the contractor can afford to perform the Government service at a low rate of compensation; but if the schedule be so altered that the mails move in the opposite direction to passengers and parcels, the contractor carrying the mails and the mails alone suffers loss.

The contracts of the Post-Office Department, however, empower the Postmaster-General to make such changes of schedule, and in the complicated post-office system it seems essential that such power should be retained in the Department, as otherwise the Government would be exposed to endless vexation and to loss, and the public to serious inconvenience.

As we said in Otis against The United States:

“This deduction may be a hardship to the claimant, but he dealt with the defendants in the light of that law which conferred upon a public officer almost absolute power, and in the absence of a showing that such officer acted in Dad faith or beyond the legitimate domain of his rights, we must recognize his action as binding upon the interest of claimant. * * * Congress lias seen fit to clothe the Department with a plenary power; in the absence of proof that such power has been mistaken or abused courts must enforce the law to protect the rights secured by its provisions.” (24 O. Cls. B., 73.)

Petition dismissed.  