
    ROBERTS’S CASE.
    (6 Court of Claims R., 84; 92 U. S. R., 41.)
    Marshall O. Roberts et al., trustees, appellants, v. The United States, appellees.
    
      On the claimants Appeal.
    
    
      The Government contracts for the carrying of the mails between New York and Chagres twice a month on steamers touching at various points, including Havana. Also that the parties shall convey the mails of tener, if required, at a proportionate increase of compensation, “ on the routes aforesaid.” Subsequently the claimants run other steamers direct to Chagres. Consequently the mails are behind private dispatches. This leads to violations of the postal monopoly. The Post-Office lays the matter before the claimants. They offer to take an additional mail upon their direct line. The Post-Office replies that this mnstmake no difference in the compensation. The claimants respond that for the additional service they expect Congress to award suitable remuneration. The Post-Office thereupon directs the mails to be sent, “ with the understanding, however, that this Department does not thereby become responsible for any additional expense,” and the claimants reply that they will so carry them upon the condition previously stated, viz: such additional compensation “ as in the judgment of Congress may be considered equitable.” Thereafter the mails are carried on both lines six times a month. After suit brought to recover for this additional service, but before trial, Congress pass a private aet, referring the claim to the Court of Claims and directing it “ to examine the same and determine and adjudge whether any, and, if any, what, amount is due said trustees for said extra services.” The aet also prescribes a rule for the measure of damages. The court below being equally divided, renders judgment pro forma for the defendants. The claimants appeal.
    
    
      I. Where a contract is for the carrying of mails by an indirect route touching at various places, it does not preclude a claim for additional service in carrying a part of the same mail-matter by another, the direct, route.
    II. When services were rendered subject to the future ratification of Congress, and a suit is pending therefor, and Congress pass a private act referring the claim to the same court, with instructions to examine what amount is due and award damages according to a designated rule, it must be held that the purpose of the act was to validate the proceedings already commenced, and that it should have the same effect as though the pending suit had been subsequently brought.
    III. Where a service was rendered to an Executive Department subject to the approval of Congress, and a private act is passed referring the claim therefor and directing the court “ to examine the same and determine and adjudge whether any, and, if any, what, amount is due said trustees for said extra services,” at the same time prescribing a rule for the measirre of damages, the act ratifies the service and constitutes an approval by Congress. Act July 14,1870, (16 Stat. L., p. 53, chap. 288.)
    IV. While the agents of the Government may decline to incur specific responsibilities, they may at the same time accept services for the Government, leaving, by .agreement, the question of compensation to their principal, i. e., Congress.
    V. While, as a general thing, the Government ought not to be bound unless prescribed rules and forms are complied with, yet where, at the request of the proper agents, a necessary public service has been performed in expectation of compensation, and with reliance upon Congress to fix the amount, and Congress, upon application, refers the matter to a court, that court is authorized thereby to make such allowance as is required ex ceqiio et bono.
    
    
      The Reporters’ statement of tbe case:
    The case was first tried in 1871, and is reported in 6 0. Cls. B., p. 84. A new trial was subsequently granted. On the second trial, the court being equally divided upon the claimants’ right to recover, rendered judgment pro forma for the defendants on the following facts:
    1. On the 20th of April, 1847, in pursuance of the fourth section of the “Act providing for the building and equipment of four naval steamships,” approved March 3,1847, (9 Stat. L., 187,) the Secretary of the Navy, on behalf of the United States, entered into the contract with Albert Gf. Sloo which is annexed to the claimants’ amended petition as Exhibit A.
    2. The said Sloo applied to Prosper M. Wetmore, George Law, Marshall O. Boberts, and Edwin Crosswell for aid to enable him to fulfill the terms of said contract, and they agreed to aid him on the terms and conditions set forth in the indenture dated August 17, 1847, which is annexed to said amended petition as Exhibit 0.
    3. On the 3d of September, 1847, the said Sloo executed to George Law, Marshall O. Roberts, and Bowes R. Mcllvaine the assignment of the said contract with the United States, with a paper thereto subjoined, signed by Robert C. Wetmore, Marshall O. Roberts, George Law, and Edwin Orosswell; which assignment and paper are annexed to said amended petition as Exhibit B.
    4. On the 8th of July, 1850, Prosper M. Wetmore, George Law, Marshall O. Roberts, and Edwin Orosswell executed the indenture with the United States Mail-Steamship Company which is annexed to the said amended petition as Exhibit D.
    5. On the 21st of January, 1851, an agreement in writing was entered into between the Pacific Mail-Steamship Company and others, which is annexed to said amended petition as Exhibit E, with the name of “ Quintuple Treaty.”
    6. On or before the 23d of December, 1848, the said assignment by said Sloo of his said contract with the United States was recognized by the Navy Department and the Post-Office Department.
    7. Horace F. Clark and Edward N. Dickerson became, by legal appointment, trustees, under the said indenture of August 17,1847, in place of George Law and Bowes R. Mcllvaine, resigned; and the said Clark has deceased.
    8. The said United States Mail Steamship Company was a corporation created by an act of the legislature of the State of New York, passed April 6,1850; and the said Prosper M. Wet-more, George Law, Marshall O. Roberts, and Edwin Crosswell were members of said corporation; and the said George Law and Marshall O. Roberts were each, at different times, presidents thereof.
    9. The contract between said Sloo and the United States was performed by the trustees, and all transactions thereuuder have been closed, and all accounts connected therewith settled, and all moneys due in relation thereto paid by the United States to said trustees.
    10. In the year 1851, while the mail-service as prescribed in the said contract between the said Sloo and the United States was in course of performance, the United States Mail Steamship Oompauy, as the owners, and the said trustees, as the parties in control, under the said so-called “Quintuple Treaty,” had in operation a line of steamships, which plied between the city of New York and the port of Chagres direct, and not by way of Charleston, Savannah, or Havana, making trips twice a month each way, and leaving New York and Chagres, respectively, at later days in each month than the steamships which were engaged in carrying the mail between New York and Chagres via Charleston, Savannah, and Havana, but arriving at New York and Chagres, respectively, at about the same time as those steamers.
    11. In June, 1851, the Postmaster-General caused the postmaster in New York to lay before George Law, president of the United States Mail Steamship Company, a letter which had been received at the Post-Office Department, complaining of the then existing arrangement for carrying the mails'between New York and Chagres, on account of the fact that the steamships running direct between those ports performed their voyages quicker than those employed under the contract with said Sloo; whereby it was averred in said letter that parties in New York had to wait two or three days after news was received by the direct steamers, before the mail steamer under that contract arrived.
    In response to the matter of this complaint, the said George Law, on the 25th of June, 1851, said in a letter to the postmaster at New York as follows :
    “The mails for California, via Chagres, and back, are dispatched by the mail-steamships of this company twice each month, on the days originally arranged with the Department. Being required to go and return by way of Havana, and to receive and discharge there the mails from and for New Orleans, Charleston, &c., the passage is usually two days longer than the direct passage to and from Chagres and this port.
    “In addition to the mail-steamers, we dispatch also, twice a month, a steamer from this port and Chagres direct. These leave here usually two days later than the mail-steamers via Havana, so as to make the arrival at Chagres at about the same time. Of course the return steamer, with the mail from Chagres, is usually two days later in arriving here, coming via Havana, than the steamer starting at the same time and coming direct. The mail to and from Cliagres will therefore be carried with greater dispatch by the direct line, while the mails for New Orleans, Charleston, &c., must necessarily be carried by the Havana route. If the Department desires the Chagres and California mails, outward or homeward, to be sent by the direct steamers, I shall be happy to direct the commanders of the ships to receive them on board.”
    On the 1st of July, 1851, the Postmaster-General addressed to said George Law the following letter:
    “ Tour letter of 25th ultimo is received, and, if understood, is satisfactory.
    “You say, 4 If the Department desires the Chagres and California mails, outward and homeward, to be sent by the direct steamers, I shall be happy to direct the commanders of the ships to receive them on board.’
    44 We understand this to mean that you will take mails both by your steamers via Havana and by those plying between New York and Chagres direct; and, of course, that this division of the mails is to make no difference in respect to the expense of the service. Are we correct in this?”
    On the 21st day of July, 1851, this letter was answered by said Law, in the following terms:
    44 It is the intention of this company, at an early day, if it shall meet with the approbation of the Department, to arrange the running of its steamers, each month, as follows: Twice between New York and Chagres direct; twice between New York and New Orleans via Havana; and twice between New Orleans and Chagres direct, making three distinct routes and six passages per month to and from the respective points of destination. Provision will be made for carrying the mail by each steamer, and to insure the arrival of the California mails at the city of New York and at New Orleans at the earliest day that their arrival at Chagres will enable them to be brought forward. We propose to. make trial of this arrangement, and, if it proves satisfactory, to continue it. So long as it is in operation, the direct connection between Havana and Chagres may be dispensed with, as the Charleston and Savannah mails may be sent via New Orleans.
    44 In expressing, in my letter of the 25th ultimo, the readiness of this company to instruct the commanders of their steamers, direct as well as by the way of Havana, to convey the California mails, if desired by the Department, it was not my intention to preclude a claim for reasonable additional compensation for such service. Although we desire to meet fully the requirements of the service and the wishes of the Department, it is not expected, 1 presume, that the mails can be carried outward and homeward, six times per month, with the necessary additional clerks or agents, for the same sum for which we contract to carry them twice monthly. Still, desirous of promoting to the utmost the interest and convenience of the public, we are entirely willing to perform the additional service, in the confident expectation that a sense of justice will induce Congress to make such further provision as may be considered a suitable compensation for it.”
    This letter was not received at the Post-Office Department until July 29, 1851.
    On the 26th of that month the Postmaster-General, by telegraph, requested the postmaster at New York to see if Mr. Law would take a mail by his steamer of the 28th of that month, and if so, to make it up and send it. On the same day the postmaster at New York answered, by telegraph, that the steamer of the 28th would take a mail for California, and that he would make up a mail by her; and he asked to be advised if he should continue making up mails by the direct steamers, which sailed from New York on the 13 th and 28th of each month, and also by the steamers via Havana, which sailed from New York on the 11th and 26th of each month.
    This request he repeated in a letter dated August 7,1851; in answer whereto the Postmaster-General, on the 8th of that month, said:
    “In answer to your letter of the 7th instant, I have to say that you will make up and forward mails by Mr. Law’s direct steamers to Ohagres; with this understanding, however, that this Department does not thereby become responsible for any additional expense.”
    ■ On the 9th of August, 1851, Marshall O. Roberts informed the postmaster at New York, by letter, that the mails for Oha-.gres, both direct and via Havana, would be carried by the United States Mail-Steamship Company upon the terms and in the manner theretofore stated to the Post-Office Department, viz, compensation for any extra or additional mail-service to be submitted to Congress, without requiring a imior stipulation to pay from the Department.
    
      This letter was, on the day of its date, transmitted by the postmaster at New York to the Postmaster-General, with request to be advised by teiegraph, provided the latter wished a mail sent by the steamer Georgia, which was to sail on the ensuing 13th of that month.
    On the 11th the Postmaster-General telegraphed to the postmaster at New York to send a mail for California by the direct steamer of the 13th.
    This mail of the 13th of August, 1851, was the first for which the claimants demand compensation in this suit.
    Afterward the mails were sent on the direct steamers between New York and Chagres,on the following dates:
    From New York, August 28, September 13 and 27, October 13 and 25, November 11, December 11, in the year 1851; and January 10,1852.
    From Chagres, September 7 and 20, October 5 and 18, November 5 and 23, and December 7, in the year 1851; and January 7 and February 4, in the year 1852.
    From the last named of these dates of departures from the respective ports, the said direct steamers did not run until the 26th of April, 1852, during which interval the port of those steamers in Central America was changed from Chagres to As-pinwall.
    The Post-Office Department having been informed by Marshall O. Roberts that the departure of the direct steamers would be resumed on the 26th of that month, and being inquired of by the postmaster at New York whether the instructions to make up mails for the direct steamers were still in force, the Postmaster-General directed the postmaster at New York, if the contractors should resume the running of those steamers on thev 11th and 26th of the month for Chagres and San Francisco, to make up and send mails by said direct steamers on said days as theretofore under the original order.
    In a letter addressed May 18, 1852, by the Postmaster-General to William H. Aspinwall, president of the Pacific Mail-Steamship Company, in reference to a proposed change in the times of departure of the direct steamers between New York and Aspinwall, to which the Postmaster-General had assented, that officer said:
    “Under these circumstances, I gave my assent to the change, with the understanding, of course, hitherto existing, that there was to be no additional expense for these additional trips.”
    
      The letter containing these words was shown by William EL Asifinwall to George Law, president of the United States Mail-Steamship Company; and the said Aspinwall, on the 25th of May, 1852, wrote a letter to the Postmaster-General in answer thereto, in which he used the following language:
    “ I have seen Mr. Law, the president of that company, and he is willing that the mail-boats shall run direct between New York and Aspinwall, and New Orleans and Aspinwall, understanding that with the increased service you may confirm in sanctioning this arrangement, you authorize no corresponding change in our or his compensation, as more specially detailed in the letter of Mr. M. O. Roberts to you of July 21, 1851.”
    At the close of the letter containing these words, the said George Law wrote his concurrence in said letter.
    In reply to this letter the Postmaster-General, on the 31st of May, 1852, wrote to said William H. Aspinwall as follows:
    “In reply, I have to inform you that, agreeably to the propositions above referred to, I have made an order (contingent upon the concurrence of the Secretary of the Navy) for the great through-mails between New York and San Francisco to be sent from New York, on the 5th' and 20th of each month, direct to Aspinwall, instead of the 9th and 24th, via Havana; and from New Orleans on the 7th and 22d of each month, also direct to Aspinwall, instead of via Havana, on condition that the present semi-monthly service between New York and New Orleans, via Havana, and back, shall still be continued, and with the distinct understanding that, in thus giving my assent to this arrangement, I in no way consent to any increased expense in the matter, either by a direct allowance from the Treasury, or by favoring any application which may be hereafter made elsewhere for increased compensation.”
    A copy of the letter containing these words was on the 1st of June, 1852, transmitted by the Postmaster-General to the Secretary of the Navy, with request that if he concurred therein he should advise the respective parties interested; and the Secretary of the Navy, on the 2d of that month, answered that he concurred, “but with the distinct understanding that no allowance from the Treasury’, or any application which may hereafter be made elsewhere for increased compensation, will receive the sanction of this Department.”
    
      A copy of this letter of the Secretary of the Navy was, by the Postmaster-G-eneral, transmitted to George Daw on the 3d of June, 1852.
    The Postmaster-General having, on the 1st of June, transmitted to said Law a copy of the aforesaid letter of May 31 to William H. Aspinwall, the said Law, on the 8th of June, wrote to the Postmaster-General as follows:
    “ Upon the terms and conditions prescribed in the letters from the Post-Office and Navy Departments, of the 1st and 2d instant, I do not consider it compatible with the interest of the company to carry out the proposed arrangement for increased mail-service between this port and California. This company is prepared, agreeably to our letter of the 21st of July, 1851, to carry the mail direct between New York and Aspinwall, and between New Orleans and Aspinwall, discontinuing the line between Havana and Chagres, and run the line direct between New York and New Orleans, touching at Havana twice a month, and leave to Congress the compensation for the increased service over the amount paid under the existing contract, the company retaining the right to discontinue such increased service upon giving the Department one month's notice, and to resume the service as now performed, according to the requirements of the contract, viz, twice each month between New York, New Orleans, Havana, and Aspinwall. This is the only portion of the joint letter of the 25th of May last in which this company was interested, and to which its assent was given.”
    On the 10th of June, the Postmaster-General replied as follows:
    “Your letter of the 8th instant is received, declining to carry out the arrangement between New York and Aspinwall, and New Orleans and Aspinwall, contemplated by the conditional order of the 31st ultimo, on the ground, as it is understood, that the Secretary of the Navy and Postmaster-General will not hold themselves liable, either directly or indirectly, for any additional expense in the matter. In order, therefore, that no time may be lost in making the existing arrangement better known to the public, I inclose a schedule blank, which you will be pleased to fill with the proper dates of arrival aud departure at the several ports named, and return at your earliest convenience. The postmaster at New York will be instructed to forward no mails by the irregular steamers, except with the positive assurance that they will go forward from Aspinwall and Panama without delay, and without additional expense to the Department.”
    On the 14th of June, the Postmaster-General, in a letter to William H. Aspinwall, said, with reference to the said letter of George Law of the 8th of that month, as follows:
    
      “It is not perceived that the order, as made, differs from Mr. Law’s proposition essentially in any respect, except it be in the fact that the Secretary of the Navy and Postmaster-General decline to be responsible, either directly or indirectly, for any additional expense in the matter; in other words, they decline to join in submitting the subject to Congress hereafter, upon a question of increased compensation to the company. If the matter must be submitted to Congress, would it not be advisable that it be done at once'?”
    On the 15th of June, George Law answered the Postmaster-General’s letter of the 10th of that month to him, and used the following language:
    “The impression of the Department that this company declines to carry out the proposition for such increased service as shall be required for direct mails between New York and Aspinwall, New Orleans and Aspinwall, and New York and New Orleans via Havana, each twice a month, ‘on the ground that the Secretary of the Navy and the Postmaster-General will not hold themselves liable, either directly or indirectly, for any additional expense in the matter,’ is not, as the case is understood by the company, the actual attitude in which the matter stands.
    “In my letter to the Department of the 21st July, 1851, embodying this proposition, it was alluded to as an experiment, intended to meet the public wants and a general demand for increased mail facilities between the Atlantic and Pacific portions of the United States, beyond the stipulations of the existing contract, which being voluntary on our part, and requiring the employment of several additional steamers, we claimed the right, should it prove too onerous and expensive to the company, to discontinue, and to return to the existing schedule upon giving the Department one month’s notice.
    “In relation to compensation, I said: ‘Still, desirous of promoting to the utmost the interest and convenience of the public, we are entirely willing to perform the additional service, in the confident expectation that a sense of justice will induce Congress to make such further provision as may be considered a suitable compensation for it.’
    “This was the basis of the recent renewal of the proposition in the joint letter of the 2oth May last, but the tenor of the letters of the Secretary of the Navy and the Postínaster-G-eueral of the 1st and 2d instant seems to admit of an interpretation beyond a determination not to hold themselves liable, directly or indirectly, for any additional expense. It seems to preclude the idea of any application hereafter on the párt of this company to Congress for any additional compensation, whatever may be the additional performance of mail-service, and to be a distinct negative by the Departments, to which we become parties, upon anything additional that Congress may deem it just and expedient to allow. It seems also to preclude the right ou the part of the company to go back to the schedules under the contract.
    “ While it has not been the intention of this company to hold either of the Departments liable, directly or indirectly, for any additional mail-service beyond the conditions of the contract, but to perform it subject entirely to the decision of Congress, I desire respectfully to say that I do not feel authorized to place the company in a position that would preclude it from applying for or accepting such additional allowance as in the judgment of Congress might be considered equitable.
    “By the terms of the contract for running between New York and New Orleans, Havana, and Ohagres, twice each month, we stipulated to employ five steamships in the performance of the mail-service, two of them being spare ships. The proposed servie'e will require six steamers iti constant service and three spare ships. We were entirety willing to make the trial and to continue the service if it should prove as advantageous to the public as was supposed, and the business of the company would justify the increased expenditure to which it would be subjected; but if it should not, or if Congress should not regard it of sufficient importance to pay such compensation as would enable the company to perform the additional service without loss, the company reserved the right to return to the former schedule, viz, twice a month between New York and New Orleans, and twice a month between Havana and Aspinwall. In such case it was also the intention to give the Postmaster-General due notice, one month being thought sufficient for that purpose.
    
      “ Upon this basis the company is prepared to enter at once upon this arrangement, to carry it out to the best of its ability, and to contribute, to the extent of its means, to the mail facilities between New York and California.”
    When this letter was written, the writer thereof had no knowledge of the letter of William H. Aspinwall, of the 12th of June, 1852, to the Postmaster-General, and the reply of the latter thereto, of the 14th of that month, as hereinbefore set forth; but afterward having received from said Aspinwall copies thereof, he, on the 16th of June, addressed another letter to the Postmaster-General in relation to said reply, wherein he used the following language:
    “I perceive, by the reply, that we have given a construction to the letters of the Secretary of the Navy and the Postmaster-General, addressed to me, different from that given by the Departments themselves. Upon the basis of my letter of yesterday, which seems to be in accordance with the reply of the Departments to Mr. Aspinwall, of the 14th instant, we are prepared to enter at once upon the proposed arrangement, and to try it in accordance with the inclosed schedule.”
    On the same 16th of June, the Postmaster-General instructed the postmaster at New York not to send any mails by the direct steamer to leave on the 20th of that month, unless the contractors should give assurance that they would go through without delay and without additional expense to the Department.
    On the 18th of June, the Postmaster-General replied to the letters of George Law, of the 15th and 16th of that month, as follows:
    “In reply, I have to say that, so far as this Department was concerned, and the same, we have no doubt, is true of the Navy Department, it was not the intention to hold your company to the proposed arrangement, after a fair trial, should the change be found to operate disadvantageous^ to either party. It is, therefore, understood that, should it be found to the interest either of the company or the Government to return to their existing arrangement, this may be done, as you propose, on a month’s notice by one party to the other; and the change may take effect from and after the 5th of next month.”
    On the 22d of June, no reply having been received at the Post-Office Department to this letter, the Postmaster-General again wrote to George Law that, owing to the non-reception of a reply, “the existing arrangement will continue until further order, and in the mean 'time the Department will consider the propriety of adopting fixed schedules for the coming year, or of submitting the whole matter for the action of Congress.”
    Afterward, an explanation of the absence of a reply haring been giren, the Postmaster-General, on the 24th of June, wrote to George Law as follows:
    “The schedule proposed for the direct line between New York and Aspinwall, and New Orleans and Aspinwall, and the line between New York ahd New Orleans ria Havana, has been adopted, to go into effect on the 5th day of July next.”
    12. From the date of this letter till the 20th of September, 1859,- the mails for California, ria Aspinwall, wrere regularly sent by the steamers running direct between New York and Aspinwall; and such mails were not sent during that time by the steamers which touched at Havana, except that between July, 1852, and September, 1854, the United States Mail Steamship Company and the said trustees, with the approval of the Navy and Post-Office Departments, ran a line of steamers twice a month each way, between New Orleans and Aspinwall direct, by which mails from California to the southwestern portion of the States lying east of the Rocky Mountains were brought from Aspinwall to New Orleans. While steamers thus ran direct between New Orleans and Aspinwall, no steamer was run by said parties between Havana and Aspinwall; but, with this' exception, a steamer ran regularly between those points in accordance with said Sloo’s contract. For carrying the mails between New Orleans and Aspinwall direct, the claimants, at the trial, expressly abandoned all claim against the defendants.
    13. From July 1,1852, till September 20,1859, the said direct steamers, carrying mails, performed 187 trips from New York to Aspinwall, and 184 trips from Aspinwall .to New York. On each of the former class of trips the mails averaged thirty tons, and on each of the latter class fifteen tons; and on the trips made prior to July 1, 1852, the same average existed.
    14. During all the time that the mails were carried on said direct steamers the average value of carrying first-class freight on said steamers between New York and Aspinwall was six cents per pound.
    15. No allowance has been made by Congress to the claimants on account of the carrying of the mails on the direct steamers, as hereinbefore set forth.
    
      
      Mr. JE. N. Diclcerson and Mr. Thomas Wilson for the appellants :
    TJpon the state of facts found by the court, the appellants are entitled to a judgment upon one of three distinct grounds: 1. An express contract with the Government, under which they performed the service; or, 2. An implied contract, under which they are entitled to compensation quantum meruit; or, 3. The act of Congress, which entitles them to compensation at the rate therein fixed, provided they did perform the service.
    I. The express contract is in writing, and is expressed in the letter of July 21, 1851, and again in the letter of the 9th of August, 1851, in which Mr. Law and Mr. Roberts proposed to carry the mail for such compensation as Congress might give, and in the telegram of the Postmaster-General to the postmaster of New York, of the 11th of August, in answer to Mr. Roberts’s letter, ordering the postmaster to send the mails by the direct steamer of the 13th, which was done. This contract thus made was never departed from during the continuance of the service; but, on the contrary, was renewed at least twice: first when the Postmaster-General, on the 26th of April, 1852, ordered the mails to be sent by the direct steamers “ under the original order;” and again when Mr. Law declined to carry the mails under what he supposed to be an interpretation of the contract by the Postmaster-General which would exclude the trustees from compensation by Congress, when the Postmaster-General ordered the mails sent under Mr. Law’s and Mr. Roberts’s letters, restating their letter of the 21st of July, 1851, as the only basis upon which they would consent to carry the mails.
    The eifect of this contract was that the parties to it agreed that the mails should be carried for such compensation as Congress might fix, the Postmaster-General, on his part, being relieved from any obligation to pay for the service out of the post-office appropriation, and the contractors, on their part, relying upon the compensation which Congress might award.
    If a similar contract had been made between private persons, submitting it to a third person to fix the compensation, that would have been a valid contract; and if the third person had refused to fix the price, an action could have been maintained quantum oneruit.
    
    
      In this case, however, Congress has fixed the measure of compensation, and referred the claimants to the Court of Claims to prove that they performed some service, and the extent of the service thus performed; which, having done, they are entitled to be paid according to the price thus established.
    II. If, however, there were no express contract between the parties, then the appellants would be entitled to compensation quantum meruit, in the absence of any act of Congress fixing the rate of compensation. They have done the service at the request of the Government and for the benefit of the Government, and are therefore entitled to be paid; but Congress having fixed the measure, they are entitled to be paid according to that standard.
    The presumption of law is that the service was not rendered • gratuitously, and therefore no proof is needed to show that it was expected to be paid for; but in this case the trustees took special pains to exclude the idea that the service was to be done without compensation, and actually refused to go on with it when a misunderstanding arose between them and the Postmaster-General, under which it might possibly be inferred that he took that view of it. It would require strong proof to establish the proposition that these trustees, who were running the regular mail-service all the time to New Orleans, undertook to carry gratuitously thirty tons of mail-matter by ships that were then overcrowded by the rush of California travel, and in which the express-freight demanded all the room they had; and there is no such proof, nor any such finding by the court.
    III. But Congress has decided the whole question by the Act July 14, 1870. This act is complete in itself. It states the claim to be “for compensation for services in carrying the United States mails by steamers direct between New Yorlc and Chagres, and New Orleans and Chagres, in addition to the regular service and it refers that claim to the Court of Claims to “determine a/nd adjudge whether any, and, if any, what amount is due said trustees for said extra service; provided that the amount to be awarded by said court shall be upon the basis of the value of carrying other first-class freight of lilce quantity with the mails actually carried between the same forts at the same time.”
    
    The words in this act, “ whether any, and, if any,” if struck out, would leave the act with the same force and effect as it now lias. The Court of Claims would then be directed to “ determine and adjudge wlutt amount is due said trustees for said extra service.” In that form the same questions would be open as in the present form of the act. The petitioners must prove in either case that they did perform some service, and its extent. ■ In either case they must fail if they do not prove some service, and its extent. And in either ease, having proved the performance of some service, and the extent of It, they would be entitled to compensation at the rate fixed by the act.
    If the trustees had never exchanged a word with the Postmaster-General, but had simply received and transported the mails sent to their ships from the Post-Office, they would be entitled to recover under the act; for they would have performed a service for the Government, the benefit of which had been taken by the Government, and for which Congress had fixed the rate of compensation. The law would not object the want of an express coutract when an implied one existed, and when Congress had acknowledged the claim and fixed the measure of compensation. How, then, can it be said that the correspondence on the subject deprives the trustees of a right which they would have had if they had kept silent? Certainly they never agreed to do the service without compensation, but carefully preserved their right to demand compensation of the United States, represented by Congress; and nothing but an express contract to the contrary, made since the act was passed, can deprive them of the benefit of a recovery under it.
    The argument addressed, by the then Assistant Attorney-General, to the Court of Claims amounted to this: that the act should be read as if it had a proviso that unless the trustees were entitled to recover without the aid of the act, it should have no force or effect.
    As we understand it, the act supplies the measure of compensation to the express contract, and was so intended; but if there be no express contract, and the appellants stand upon a quantum meruit, then it fixes the compensation for that. And if it were possible to say that the trustees had undertaken to perform the service without compensation, the act releases them of that undertaking and entitles them to recover at the rate specified.
    The act is il for the relief of the trustees.” If the trustees had had a perfect case under the general law which created the Court of Claims, so that there could bo no question about their right to recover when they proved service, this private act would be simply nugatory. Their difficulty was, however, that they were under an express contract which required Congress to fix the price; and until Congress acted, or refused to act, the Court of Claims could not apply the quantum meruit to the contract. Congress did act, and thus relieved the case from the difficulty it encountered in the court, and enabled the appellants to proceed and to recover upon proving that they had performed the service which the act-contemplates. Any technical objection to the form of the contract, or to the proceeding under which the service was done, is remedied by this act; the theory of which is that if the service had been rendered, it should be compensated, whatever objection might have existed to the manner and form in which the contract was made,
    
      Mr. Solieitor-General Phillips for the United States, appellees:
    
    I. Under the state of things existing before the passage of the act of July 14, 1870, the claimants had no rights that could be enforced in a court of justice.
    Under the act of 1847, the Secretary of the Navy was empowered to bind the United States by a contract to pay for the transportation of the mails over a defined route, i. e., from New York to New Orleans, touching at Charleston, (if practicable,) Savannah, and Havana, and also from Havana to Chagres. Under this authority he had no power to contract for such transportation directly from New York to Chagres, i. e., over the only route for which payment is here demanded. It is suggested in the plaintiffs’ brief that the clause in the contract of 1847 by which Sloo was to be paid ratably, beyond the sum agreed upon, for extra transportation of mails over the route, of itself authorizes the plaintiffs to demand payment for the service now in question, leaving, under their agreement with the Postmaster-General, for decision by Congress only the amount of such compensation.
    But the transportation now in question was not over the same routes, (“the routes aforesaid,”) although between the same termini. A fair test of the right of the plaintiffs to claim payment under the above clause may be applied by considering whether they had a right thereunder to perform all the transportation contracted for (original and extra) by such substituted route. If the plaintiffs had no right to substitute, of their own will, the direct line from New York to Chagres in place of the two partial routes which, by the act of 1847, conducted the mails between those points, it was because the latter was a different route from the former. This consideration applies as well to exclude the above clause from operating as is suggested for the extra service. The extra service stipulated for was to be over the same route; this “additional service” was not.
    It seems evident, also, that this suggestion as to the extent of the above clause is an afterthought, not entertained by the parties to the correspondence given in the eleventh finding, i. <?., that correspondence which authorized the service now in question. In that correspondence the plaintiffs over and again disclaimed "any right under the proposed arrangement, except of making suit to Congress for such relief as it might think proper. The position taken by the plaintiffs as to such additional service is well expressed by them in the following passage, among others:
    “ While it has not been the intention of this company to hold either of the Departments liable, directly or indirectly, for any additional mail-service beyond the conditions of the contract,, but to perform it subject entirely to the decision of Congress,. I desire, respectfully, to say that I do not feel authorized to place the company in a position that would preclude it from, applying for or accepting such additional allowance as in the judgment of Congress might be considered equitable.”
    Moreover, if the rights of the plaintiffs arise under the contract in any way whatever, directly or indirectly, they are barred by the ninth finding of the Court of Claims, viz:
    “The contract between said Sloo and the United States was performed by the trustees, and all transactions thereunder have been closed, and all accounts connected therewith settled, and all moneys due in relation thereto paid by the United States to said trustees.”
    II. The Act July 14, 1870, refers to the Court of Claims only such rights as the claimants had previous to its passage. After about eleven weary years of application to Congress, the plaintiffs procured the passage of the above act of 1870, which refers to the Court of Claims the question raised before the legislature, i. e., whether they are entitled to any, and if so, what, compensation for their additional service.
    The learned counsel for the plaintiffs, in discussing that act, suggests that the expression “ Whether any, and if any,” might as well be stricken out. While we admit that it is not only as well, but far better for his cause, so to amend the act, yet we know of no rule of construction which will justify such emasculation. The suggestion shows that what the plaintiffs stand in need of is legislation, and that, as their cause now is, a court cannot recognize it. This legislation the plaintiffs seek here, by asking the court to amend the act of 1870. We admit that for their purposes the act needs the very amendment which they suggest. But, of course, it cannot be had in the way desired. Evidently the plaintiffs must go back to Congress.
    The question submitted by Congress to the court is one of the very questions that arose before it upon the application of the plaintiffs. Congress evidently declined to make an appropriation for the plaintiffs, or to put their claim upon any higher ground than it then occupied, but was willing that their legal rights, whatever they were, should be passed upon by the court; or rather, as seems to us most probable, the plaintiffs, after failing in their real object in applying to Congress, adopted a pis alter, out of which, by construction, possibly something might be made, and which at all events looked like relief.
    It cannot be forgottón that the act is a private act, procured by the plaintiffs, and therefore that all doubts arising thereupon are to be resolved against such procurers. In 1851, upon deliberation, they placed themselves outside of all contract with the United Stages, and entered upon the performance of a certain service, compensation for which they admitted could only be had from Congress. What they referred to the good-will of Congress was not only the rate, but the fact of compensation. In order to create that tie betwixt them and the United States which would justify a consideration of the rate of compensation, legislation was necessary.
    If such legislation was not necessary from the nature of such cases in general, it was from the special features of this case, in which the'representatives of the Government expressly and repeatedly declined to make any contract, and the plaintiffs expressly and repeatedly referred their claims to the sovereign will of Congress. If the plaintiffs had intended, by the act of 1870, to obtain from Congress a sanction of their “additional service,” and a reference to the Court of Claims of no more than the question as to the rate of compensation, words to express such purpose could easily have been found. The act of 1870 contains no such words, but leaves the question of this obligation of the United States where it found it. The rights of the plaintiffs are still rights of a suit to a tribunal that can legislate. It is still true that Congress alone can supply the defect existing in their title to compensation.
    III. It is contrary to fundamental rules governing proceedings in courts of justice to allow rights originating subsequent to the inception of a suit to be litigated in such suit. Therefore, rights accruing to the plaintiffs under the above act of Congress of 1870 can be tested only by a suit brought after such time of enactment, and cannot be brought in to support an action already pending.
    The act of 1870 does not give the Court of Claims power-to consider this matter in the suit then pending. Whatever right was thereby conferred was to be administered by the court according to its course, which course does not admit that an action shall precede its cause. Upon the record, then, the plaintiffs seek to support an action begun in 1866 by a cause of action arising in 1870. By fundamental principles common to all courts this cannot be done. Omission by the counsel for the United States below to object to the amendment of the petition in 1874 does not preclude criticism of its effect after it has been allowed. When the amendment had been made, it related back to the time when the original petition was filed. A declaration “since the last continuance” is unknown to pleading. We have here, then, after all, a petition filed virtually in 1866, upon a cause of action given first in 1870.
    
      Mr. Thomas Wilson in reply:
    The argument of the Solicitor-General, contained in his first two points, is substantially this: 1st. That, before the act of 1870, the claimants could not recover for their services under their agreement with the Postmaster-General, because that agreement was incomplete until Congress had fixed the compensation ; and 2d. The act of 1870 did not relieve the claimants from their difficulty, because it did not enact “a sanction of their additional service.” Our answer is that, as to the first point, it is immaterial whether the claimants could recover or not without the aid of the act of 1870; but that, having performed the service, they might have recovered, quantum, meruit, if Congress had refused to act on the submission of the question to it, when requested by them to do so — Congress representing one of the parties to the agreement. And, as to the second point, we say that the act of 1870 has done all that is required to afford a remedy under the contract, and that the reference to the Court of Claims by that act carries with it the ascertained measure of compensation by Congress, thereby supplying all the elements of a perfected contract. There is no need of a “sanction of their additional service” by Congress, as is supposed. That service was done at the request of the Postmaster-General, who was competent to contract for it and to bind the United States by his contract.
    It is an error to say that the act of 1S70 is to be “resolved” against the claimants. The act is a “remedial” one, and must be construed liberally, to give effect to the intention of the legislature. What that intention was is very plain. Congress meant that if the service had been done it should be paid for, and the act fixed the rate — not as a maximum, but absolutely. The proviso is “that the amount to be awarded by said court .shall be upon the basis,” &c.
    The Solicitor-General also contends that the act of 1870 ought not to have been set up in a pending suit in the Court of Claims in aid of that suit, but that a new suit should have been begun when that act was passed. This is a question of practice, and, as no objection was ever made to the proceedings till the case is on appeal here, it is too late now to make it. But there is no sound objection to the course pursued. A petition was pending in the Court of Claims when the act in aid of it was passed. If the original petition could not be maintained, then the act vitalized it; if it could be, then the act, so far, was immaterial. In either case, it was proper to be introduced into the suit, because it purported to give a remedy of the same kind which was being sought in the suit, and was, therefore, in aid of the suit.
   Mr. Justice Bradley

delivered the opinion of the court.

Immediately after tbe conquest of California the Government of the United States, through its various departments, made arrangements for the transportation of the mails between that Territory and the Atlantic ports by way of Panama. By an act of Congress passed March 3, 1847, it was, among other things, enacted as follows:

“Sec. 4. And be it further enacted, That from and immediately after the passage of this act, it shall be the duty of the Secretary'of the Navy to contract, on the part of the Government of the United States, with A. G. Sloo, of Cincinnati, for the transportation of the United States mail from New York to New Orleans twice a month, and back, touching at Charleston, (if practicable,) Savannah, and Havana; and from Havana to Chagres, and back, twice a month; the said mail to be transported in at least five steamships of not less than fifteen hundred tons burden, and propelled by engines of not less than one thousand horse-power each, to be constructed under the superintendence and direction of a naval constructor in the employ of the Navy Department, and to be so constructed as to render them convertible, at the least possible expense, into war-steamers of the first class; and that the said steamships shall be commanded by officers of the United States Navy not below the grade of lieutenant, who shall be selected by the contractor, with the approval and consent of the Secretary of the Navy, and who shall be suitably accommodated without charge to the Government. Each of said steamers shall receive on board four passed midshipmen of the United States Navy, who shall serve as watch-officers, and be suitably accommodated without charge to the Government; and each of the said steamers shall also receive on board and accommodate, without charge to the Government, one agent, to be appointed by the Postmaster-General, who shall have charge of the mails to be transported in said steamers: Provided, The Secretary of the Navy may, at his discretion, permit a steamer of not less than' six hundred tons burden, and engines in proportion, to be employed in the mail-service herein provided for between Havana and Chagres: Provided further, That the compensation for said service shall not exceed the sum of two hundred and ninety thousand dollars, and that good and sufficient security be required for the faithful fulfillment of the stipulations of the contract. ”

In pursuance of this act, on the 20th of April, 1847, a contract was made by the Navy Department with Sloo, whereby he agreed to build five naval steamships, capable of being converted to the purposes of naval warfare, of which four were to be not less than 1,500 tons burden, and one to be not less than 600. The four larger ones were to carry the mails between New York and New Orleans, touching at Charleston, Savannah, and Havana, twice a month and back; and the smaller one was to be run from Havana to Chagres and back twice a month, carrying the mails for the Pacific. The compensation was to be $290,000 per annum and the period of service was to be ten years. The contract, among other things, contained the following provision:

“ And it is further agreed, by and between the parties aforesaid, that on tender of compensation by the said Government of the United States not exceeding a d ue proportion of the pay herein stipulated, the said A. G-. Sloo, contractor, shall convey any mail or mails of the said United States which he may be required to convey on any steamship which he, the said Sloo, may own, run, or control on the routes aforesaid, beyond the number of trips herein specified. ”

At that time the mail-service between New York and New Orleans was evidently regarded as the more important; that between Havana and Chagres being provided for by a branch line served by a single small vessel twice a month. But after the discovery of gold in California, and the rush thither of emigration and trade, the aspect of things was greatly changed. The assignees of Sloo (now represented by the appellants) purchased additional ships and established a direct line between New York and Chagres, which made the passage two days sooner than was done by the mail-ships running under the contract by way of Havana, and which, therefore, could start two days later, and, on the return, arrive two days sooner. By this means the private dispatches by the direct line had an advantage over communication by the mails, and some public dissatisfaction arose in consequence. Thereupon a correspondence on the subject ensued between the contractors and the Post-Office Department. The postmaster of New York having by direction of the Postmaster-General laid before George Law, president of the United States Mail-Steamship Company, (at that time beneficially interested in Sloo’s contract,) a letter complaining of the existing arrangement, Mr. Law, on the 25th June, 1851, wrote to the postmaster a letter, in which, among other things, he said:

“ The mails for California, via Chagres, and back, are dispatched by the mail-steamships of this company twice each month, on the days originally arranged with the Department. Being required to go and return by way of Havana, and to receive and discharge there the mails from and for New Orleans, Charleston, &c., the passage is usually two days longer than the direct passage to and from Chagres and this port.
“ In addition to the mail-steamers, we dispatch also, twice a month, a steamer from this port and Chagres direct. These leave here usually two days later than the mail-steamers via Havana, so as to make the arrival at Chagres at about the-same time. Of course the return steamer with the mail from Chagres is usually two days later in arriving here, coming via Havana, than the steamer starting at the same time and coming direct. The mail to and from Chagres will, therefore, be carried with greater dispatch by the direct line, while the mails for New Orleans, Charleston, &c., must necessarily be carried by the Havana route. If the Department desires the Chagres and California mails, outward or homeward, to be sent by the direct steamers, I shall be happy to direct the commanders of the ships-to receive them on board.”

This letter was communicated to thePostmaster-General, who,, in answer, declared it satisfactory, but intimated his understanding that the proposed arrangement should make “no difference-in respect to the expense of the service.” This intimation was-met by a reply from Mr. Law correcting any such understanding. After explaining what the mail-company proposed to do, namely, to run their steamers twice a'month each way directly between New York and Chagres, twice between New York, and New Orleans, touching at Havana, and twice between New Orleans and Chagres, he said:

“ In expressing in my letter of the 25th ultimo the readiness-of this company to instruct the commanders of their steamers, direct as well as by the w7ay of Havana, to convey the California mails, if desired by the Department, it was not my intention to preclude a claim for reasonable additional compensation for such service. Although, we desire to meet fully the requirements of the service and the wishes of the Department, it is not expected, I presume, that the mails can be carried outward and homeward six times per month, with the necessary additional clerks or agents, for the same sum for which we contract to carry them twice monthly. Still, desirous of promoting to the utmost the interest and convenience of the public, we are entirely willing to perform the additional service, in the confident expectation that a sense of justice will induce Congress to make such further provision as may be considered a suitable compensation for it.”

After the receipt of this letter the Postmaster-General, on the 7th of August, 1851, in answer to a letter-of the postmaster of New York asking whether he should send the mails by the steamers going direct to Chagres,'wrote as follows :

In answer to your letter of the 7th instant, I have to say that you will make up and forward mails by Mr. Law’s direct •steamers to Chagres; with this understanding, however, that this Department does not thereby become responsible for any additional expense.”

On the 9th of August, 1851, Marshall O. .Roberts, on behalf of the contractors, informed the postmaster at New York, by letter, that the mails for Chagres, both direct and via Havana, would be carried by the United States Mail-Steamship Company upon the terms and in the manner theretofore stated to the Post-Office Department, viz, compensation for any extra or ■additional mail-service to be submitted to Congress without requiring a prior stipulation to pay from the Department. This letter being transmitted to the Postmaster-General, with a request for directions as to sending the mails by the direct steamers, he returned a dispatch giving directions to send them.

Upon the footing of this correspondence the extra service by the direct steamers was commenced bn the 13th of .August, 1851.

A temporary suspension of the trips having occurred from some cause, further correspondence on the subject took place in 1852, in which the Secretary of the Navy as well as the Postmaster-General participated. But the general result was that the matter was left substantially in the same position as before, namely, that while the Departments declined to make themselves responsible for any compensation for the extra service, the contractors were to be left free to apply to Congress for such allowance as it might deem just and reasonable. The contractors never gave up a claim for an allowance, but they consented to perform the service in reliance upon the justice of Congress, and with the distinct understanding that they should not prefer any claim against the Departments. It is unnecessary to reproduce all the correspondence that ensued. Its general purport and effect is as stated. Mr. Law, in a letter to the Postmaster-General, dated loth of June, 1852, referred to his previous letter of July 21, 1851, quoting the passage relating to compensation, in which he said: “We are entirely willing to perform the additional service, in the confident expectation that a sense of justice will induce Congress to make such further q>rovision as may be considered a suitable compensation for it.” And, to avoid any misunderstanding which might arise from expressions contained in the Postmaster-General’s communication, he adds:

“While it has not been the intention of this company to hold either of the Departments liable, directly or indirectly, for any additional mail-service beyond the conditions of the contract, but to perform it subject entirely to the decision of Congress, I desire respectfully to say that I do not feel authorized to place the company in a position that would preclude it from applying for or accepting such additional allowance as in the judgment of Congress might he considered equitable.”

Upon this understanding the service in question continued to be performed until September, 1859; and no compensation therefor has ever yet been allowed by Congress, although application has persistently been made.

From the tenor of this correspondence, it is clear that the proprietors of the Sloo contract did not rely upon that clause in it (which has been referred to) providing extra compensation for conveying mails, when required by the Government, on any steamship which might be run on the routes named in the contract beyond the number of trips therein specified. Had they relied on this clause, they would not have relinquished their claim against the Department and consented to look to Congress. Indeed, the service performed by the steamers running on the direct route between New York and Ghagres or Aspin-wall was not embraced in the terms of that provision. The route was not the same, but a different one. The question, therefore, is, whether doing the service they did, upon the footing on which they did it, and supposing it not to be embraced within the letter of the contract, the contractors are entitled in law or equity to compensation for that service ? The service performed directly under the contract, and within its terms, has all been settled for, and the accounts closed. This is specifically found by the Court of Claims. But the question of this extra service has never been settled, but is still open and undetermined. Application, as before stated, was persistently made to Congress for an equitable allowance; but, for some reason or other, the subject was always postponed or delayed, until finally, on the 14th of July, 1870, Congress passed an act entitled uAn act for the relief of the trustees of Albert G. Sloof the tenor of which is as follows:

“•Be it enacted by the Senate and House of Representatives of the. United States of America in Congress assembled, That the claim of the trustees of Albert G. Sloo, for compensation for services in carrying the United States mails by steamers direct between New York and Chagres and New Orleans and Ohagres, in addition to the regular service required under the contract made between the said Albert G. Sloo and the United States, be, and the same is hereby, referred to the Court of Claims, and the said court is hereby directed to examine the same, and determine and adjudge whether any, and if any what, amount is due said trustees for said extra service: Provided, That the amount to be awarded by said court shall be upon the basis of the value of carrying other first-class freight of like quantity with the mails actually carried between the same ports at the same time.”

In the mean time, several years prior to the passage of this act, to wit, in 1866, as soon as the disturbances incident to the civil war had .been allayed, the appellants had presented their claim before the Court of Claims. But they were met by embarrassments arising from the peculiar form which their stipulations with the Government had assumed. They had agreed to] submit to the arbitrament of Congress, and Congress had never acted in their case. Under these circumstances the act referred to was passed. The claimants thereupon filed an amended petition, setting up the act.

The counsel for the Government contend that while this act might be used to support proceedings commenced after its passage, it cannot aid proceedings already, commenced. We think that under the peculiar circumstances of this case, its well-kuo wn history, and its frequent consideration by Congress itself, the act was intended to validate the application to the Court of Claims then in progress, and to refer the whole matter to that court. It enacts that the claim be, and it hereby is, referred to the Court of Claims, and that the said court is hereby directed to examine the same and determine and adjudge, &e. The words of that act are apposite to validate the proceedings already commenced, and as those proceedings had in view the very object sought by the act, it would be a strain of technicality to turn the claimants out of court, and to compel them to commence anew.

In view, then, of the circumstances and history of this case, the correspondence between the parties, and the act of Congress referred to, what are the rights of the appellants ?

If this were a controversy between private parties, we do not think that there could be a particle of doubt that the contractor would be entitled to demand compensation upon a quantum, meruit for the performance of the service in question. Circumstances arose after the performance of the contract had commenced, which neither of the parties had anticipated or dreamed of, requiring an increase in the amount of service and a change in the manner of performing it, which could not be brought under the literal provisions of the contract. But it was of the greatest consequence that the service should be performed, and the contractors, under the exigencies of the case, were willing to depart from the literal stipulations of the instrument, and do the necessary work, relying upon Congress to provide suitable compensation. As before said, if this were a controversy between individuals, there could not be the slightest hesitation on the subject. It would present a clear case of departure from the terms of a contract, by the mutual consent of the parties, and the performance of extras by.the contractor for which he would be entitled to the reasonable value of the work performed. The service was performed on one side ; it was accepted and received on the other; and while the agents of the Government declined to incur any specific responsibilities, they agreed that the question of compensation should be settled between the contractors and their principal.

This is, in short, the whole case. And while, as a general thing, it may be true that Government ought not to be bound unless prescribed rules and forms are complied with, yet where a necessary public service has been performed at the request of the proper Government agents and under the expectation of compensation, and with reliance upon Cong’ress to fix the amount; and where Congress, upon application made to it, has referred the matter to the Court of Claims, we think that that court is authorized to make and adjudge such an allowance as is required ex ceguo et dono, by all the circumstances of the case.

It is true that Congress has not determined, in express terms,, that the parties are entitled to any compensation, and refer it to the, court to decide “ whether any, and if any what, amount, is due.” But we think it is plain that Congress principally intended to refer to the adjudication of the Court of Claims the amount of compensation to which the claimants were entitled, and for that purpose prescribed the principle by which it should be estimated. But even if it was intended to refer the whole subject, the right to compensation as well as the amount, in our judgment the claimants, under the circumstances of the case, were entitled to compensation.

The decree is reversed, and the record remanded with directions to proceed according to law, and award compensation to the claimants upon the principles directed by the act of 1870.

Mr. Justice Swayne

dissenting:

I dissent from the judgment of the court in this case. In my opinion, it makes a contract where the parties made none.

I am authorized to say that Mr. Justice Davis and Mr. Justice Strong concur in this dissent.  