
    W. M. GRIFFITH v. THE UNITED STATES.
    [No. 14484.
    Decided April 4, 1887.]
    
      On the Proofs.
    
    'The contract is to carry the mail once a week each way, leaving each terminus upon the same day, arriving at the other within ninety-six hours, the distance being 100 miles. But before it goes into effect the contractor agrees with the postmasters at the termini to start from each- on days so far apart that one horse and carrier can perform the service both ways. Such agreements are common, subject to the supervision of the Department. Subsequently the contractor’s service is increased and expedited until the compensation rises from $680 to $8,170 a year. He having stated in certain affidavits that his original service would require one horse and one carrier, the defendants nowinsist that that representation fraudulently augmented all compensation for expedited service, and seek to recover on a counter-claim.
    I. Every officer of the Government is presumed to know his duty and 'honestly perform it.
    II. Discrepancies patent on their face, which must have been immediately seen to be such by an experienced Government official, cannot be held to have been intended to deceive, nor as in fact deceiving; and no principle of law will allow a self-evident absurdity to form the basis of an action for fraud or deceit.
    ■III. The estimate of a mail contractor who has not yet begun work under his contract as to what he will need to fulfill the duties imposed by it and as to what he will need should expedition be ordered are, in effect, expressions of opinion, not statements of fact.
    TV. A proposal for expedited and increased service, with the order made thereon, does not constitute a new contract, but simply an alteration of the existing contract in a manner authorized by Revised Statutes §§ 3960, 3961.
    Y. No new contract for mail letting on star routes can be made by the Department, except after advertisement.
    yi. The distinction between this and Qarfielde’s Case (93 U. S. R., 242) is that there the proposal was an original one, made after advertisement, there being no existing contract relations between the parties, while here the contractor was bound to increase or expedite the service when ordered on terms prescribed by statute.
    yil. The fraud for which a court of equity will set aside a judgment or decree is one extrinsic or collateral to the matter tried, not one in issue in the former suit.
    
      VIII.Congress intended to give to the Postmaster-General great discretion in the management of the postal service, and committed much to his opinion and good judgment. Such a policy is necessary.
    IX.The Postmaster-General must decide all the facts, existing and prospective, which relate to expedited mail service. The power of ascertaining these facts and making these estimates is exclusively vested in him. The decision is the result of his judgment and discretion. From it there is no appeal to this court.
    X.To authorize relief on the ground of mistake, the mistake must have arisen from ignorance, imposition, or misplaced confidence. An act done intentionally and with knowledge cannot he treated as a mistake.
    XI.The Revised Statutes, § 4057, authorize the Postmaster-General to bring suit to recover hack money in certain cases; hut this does not extend to a case where an additional allowance was not in excess of the maximum permitted, where no fraud is shown on the part of the contractor or of a post-office employé, and where there is no mistake in fact.
    
      The Reporters’ statement of the case:
    The following facts were found by the court:
    I. May 10,1878, the Postmaster-General issued the following’ advertisement, with accompanying instructions :
    “ Post-Office Department,
    “ Washington, May 10, 1878.
    “ Proposals will be received at the contract office of this Department until 3 p. m. of July 20,1878, for conveying the mails of the United States on the routes and by the schedules of departures and arrivals herein specified in the States of -,
    and in the Territories of Indian, Dakota, Montana, Wyoming, New Mexico, Arizona, Utah, Idaho, and Washington, from October 1,1878 to, June 30, 1882.
    
      u Arizona. — Service from October 1,1878, to June 30,1882.
    “ 40116 From Phoenix, by Gillett (¡n. o.) and Agua Fria, to-Prescott, 140 miles and back, once a week.
    “Leave Phoenix Wednesday at 6 a.m.; arrive at Prescott in ninety-six hours; leave Prescott Wednesday at 6 a. m. ,• arrive at Phoenix in ninety-six hours. Bond required with bid, $2,800.”
    Then followed the printed instructions to bidders and postmasters from 1 to 34, which may be found in the Begulations of the Department.
    
      II. In response thereto claimant submitted the following bid:
    “ The undersigned, W. M. Griffith, whose post-office address is Yuma, county of Yuma, Ter. of Arizona, proposes to carry the mails of the'United States from October 1,1878, to June 30, 1882, on route No. 40116, between Phoenix and Prescott, Ter. of Arizona, under the advertisement of the Postmaster-General, dated May 10, 1878, i with celerity, certainty, and security,’ for the sum of six hundred and eighty dollars per annumand if this proposal is accepted he will enter into contract, with sureties to be approved by the Postmaster-General, within the time prescribed in said advertisement.
    “ This proposal is made with full knowledge of the distance of the route, the weight of the mail to be carried, and all other particulars in reference to the route and service; and also after careful examination of the forms and instructions attached to said advertisement.
    
      “ Dated May 24th, 1878.
    '“Wm, M. Griffith,
    “ Bidder.”
    III. The foregoing bid or proposal was accepted by the Postmaster-General, and the following contract was thereafter duly entered into:
    
      “ United States of America,
    “ Yuma, Yuma Oo., Ariz.:
    
    “ No. 40116. $680 per annum.
    “ This article of contract, made the 31st day of July, eighteen hundred and seventy-eight, between the United States of America (acting in this behalf by the Postmaster-General) and W. M. Griffith, contractor, and Jesus Eedondo and Lyman A. Smith, as his sureties.
    “Witnesseth, that whereas W. M. Griffith has accepted, according to law, as contractor for transporting the mail on route No. 40116, from Phoenix, Ariz., by Gillett (n. o.) and Agua Fria, to Prescott and back, once a week, by. a schedule satisfactory to the Department, at six hundred and eighty dollars per year, for and during the term beginning Oct. first, eighteen hundred and seventy-eight, and ending June thirtieth, eighteen hundred and eighty-two : 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—
    “ 1st. 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 entire exclusion 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 conce Tied 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.
    “2d. To carry the mail in a safe and secure manner, free from wet or injury, under a sufficient oil-cloth or bear-skin, if carried on a horse, and in a boot under the driver’s seat, if carried in a coach or other vehicle.
    “3d. To take the mail and every part thereof from, and deliver it and every part thereof at, each post-office on the route, or that may hereafter be established on the route (or on any route that may hereafter be established and to which this contract may be extended, as hereinafter provided), and into the post-office at each end of the route, and into the post-office, if one is there kept, at the place at which the carrier stops for the night, and if no post-office is there kept to lock it up in some secure place, at the risk of the contractor.
    “ They also undertake, covenant, and agree with the United States of America, and do bind themselves, jointly and severally, as aforesaid, to be accountable and answerable in damages for the person to whom the said contractor shall commit the care and transportation of the mail, and his careful and faithful performance of the obligations assumed herein and those imposed by law, not to commit the care or transportation of the mail to any jierson under sixteen years of age; to discharge any carrier of said mail whenever required to do so by the Postmaster-General ; not to transmit, by themselves or either of them, or either of their agents., or be concerned in transmitting commercial intelligence more rapidly than by mail; not to carry otherwise than in the mail letters, packets, or newspapers which should go by mail, or convey or transport any person engaged in carrying letters, packets, or newspapers which should go by mail; to carry post-office blanks, mail locks and bags, and other postal supplies, and also the special agents of the Department on the exhibition of their credentials, if a coach or other suitable conveyance is used, without additional charge; to collect quarterly, if required by the Postmaster-General, of postmasters on the route, the balances due from them to the United States on their quarterly returns, and faithfully to render an account thereof to the Postmaster-General in the settlement of the quarterly accounts of said contractor, and to pay over to the Auditor of the Treasury for the Post-Office Department, on the order of the Postmaster-General, all balances remaining in his hands.
    
      “ For which service, when performed, the said W. M. Griffith, contractor, is to be paid by the United States the sum of six hundred and eighty dollars a year, to wit: Quarterly, in the months of November, February, May, and August, through the postmasters on the route, or otherwise, at the option of the Postmaster-General; said pay to be subject, however, to be reduced or discontinued by the Postmaster-General, as hereinafter stipulated, or to be suspended in case of delinquency.
    “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, decrease, or extend the service, in accordance with law, he allowing a pro rata increase of compensation for any additional service thereby required, or for increased speed, if the employment of additional stock or carriers is rendered necessary; 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 a pro rata compensation for the service retained: Provided, however, That, in case of increased expedition, the contractor may, upon timely notice, relinquish the contract.
    “ It is hereby also stipulated and agreed by the said contractor and his sureties as aforesaid, that they shall forfeit—
    “ 1. The pay of a trip when it is not run, and, in addition, if no sufficient excuse for the failure is furnished, an amount not more than three times the pay of the trip.
    “ 2. At least one-fourth of the pay of a trip when the running is so far behind time as to fail to make connection with a depending mail.
    “ 3. For violating any of the foregoing provisions touching the transmission of commercial intelligence more rapidly than by mail; or giving preference to passengers or freight over the mail, or any portion thereof, or for leaving the same for their accommodation ; or carrying, otherwise than in the mail, matter which should go by mail; or transporting passengers engaged in so doing, with knowledge thereof, a penalty equal to a quarter’s pay.
    “ 4. For violating any other provision of this contract touching the carriage of the mails, or the time and manner thereof, without a satisfactory explanation of the delinquency in due time to the Postmaster-General, a penalty in his discretion. That these forfeitures may be increased into penalties of a higher amount, in the discretion of the Postmaster-General, according to the nature or frequency of the failure and the importance of the mail: Provided, That, except as herein otherwise specified, and except as provided by law, no penalty shall exceed three times the pay of a trip in each case.
    “And it is hereby further stipulated and agreed by the said contractor and his sureties, that the Postmaster-General may annul the contract for repeated failures; for violating the postal laws; for disobeying the instructions of the Post-Office Department; for refusing to discharge a carrier when required by the Department; for transmitting commercial intelligence or matter which should go by mail contrary to the stipulations herein; for transporting persons so engaged as aforesaid; whenever the contractor shall become a postmaster, assistant postmaster, or member of Congress; and whenever, in the opinion of the Postmaster- General, the service cannot be safely continued, the revenue collected, or the laws maintained on the road or roads herein.
    “And it is hereby further stipulated and agreed, that such annulment shall not impair the right to claim damages from said contractor and his sureties under this contract; but such damages may, for the purpose of setoff or counter-claim, in the settlement of any claim of said contractor or his sureties against the United States, whether arising under this contract or otherwise, be assessed and liquidated by the Auditor of the Treasury for the Post-Office Department.
    “And it is hereby stipulated aud agreed by the said contractor and his sureties that this contract may, in the discretion of the Postmaster-Geueral, be continued in force beyond its express terms for a period not exceeding six months, until a new contract with the same or other contractors shall be made by the Postmaster-General.
    “And this contract shall, in all its parts, be subject to the terms and requirements of the act of Congress approved April twenty-first-, one thousand eight hundred and eight, entitled ‘An act concerning public contracts,’ and of the act of Congress approved June eighth, one thousand eight hundred and seventy-two, entitled ‘An act to revise, consolidate, and amend the statutes relating to the Post-Office Department.’ ”
    “THE SCHEDULE OF DEPARTURES AND ARRIVALS.
    “ Leave Phoenix Wednesday at 6 a. m.; arrive at Prescott in ninety-six hours; leave Prescott Wednesday at 6 a. m.; arrive at Phoenix in ninety-six hours.
    “ Provided, That when more than seven minutes are taken for opening and closing the mail at any office, the surplus time so taken is to be allowed in addition to the time fixed in this schedule.”
    IV. Prior to the commencement of service under said contract the claimant made out, swore to, and presented at the office of the Second Assistant Postmaster-General the following statements:
    
      “ Yuma, Arizona, Sept. 10th, 1878.
    “ Hon. Thos. J. Brady,
    
      “Second Ass’t P. M. Gen’l, Washington, D. O. :
    
    “ Sir : If mail service upon route No. 40116, Phoenix to Prescott, Arizona, is ordered reduced in the running time, as contemplated by the people and officials now petitioning, so as to run through in an expedited schedule of two (2) days instead of present advertised schedule of four days, I herewith submit statement of increased number of stock and carriers rendered necessary to shorten the running time upon said route. Stock and carriers necessary to carry mails upon present advertised schedule of (4) days, one trip per week, would be one carrier and one animal.
    “ To increase the sjieed so as to transport mails thro’ in 48 hours, or two days, would require eight animals and three carriers. The slow advertised schedule is not to exceed thirty miles per day. The expedited schedule will be about seventy miles per day. Which is respectfully submitted to the best of my knowledge aud belief.
    “W. M. Griffith,
    “ Contractor.”
    
    “Territory of Arizona,
    “ County of Yuma, ss :
    
    “ Subscribed and sworn to by W. M. Griffith, contractor, before me this 10th day of September, A. D. 1878.
    “George Tyng,
    “ Cleric U. S. Dist. Court, Second Jud. Dist. Arizona.”
    
    “Yúma, Arizona, Sept. 10th, 1878.
    “ Hon. Thos. J. Brady,
    “ Second Asst. P. M. Gen’l, Washington, D. C.:
    
    “ Sir : If mail service upon route No. 40116, Phoenix to Prescott, Arizona, is ordered reduced in the running time as contemplated by all the citizens and officials now petitioning, so as to run thro’ on an expedited schedule of 2¿- days instead of present advertised schedule of 4 days, I herewith transmit statement of increased number of stock and carriers rendered necessary to shorten the running time upon said route.
    “ Stock and carriers necessary to carry mails upon present advertised schedule of four days, one trip per week, would be one carrier and two (2) animals.
    “ To increase the speed so as to transport mails through in two and a half days would require seven animals aud three carriers. The slow advertised schedule is not to exceed 34 miles per day. The expedited schedule will be about 60 miles. Which is respectfully submitted t.o the best of my knowledge and belief.
    “W. M. Griffith,
    “ Contractor.”
    
    
      “Territory of Arizona,
    “ County of Yuma, ss :
    
    “ Subscribed and sworn to by W. M. Griffith, contractor, before me this tenth day of September, A. D. 1878.
    “Geo. Tyng,
    “ Cleric U. S.Dist. Court, Second Jud. Dist. Arizona.”
    V. November 29, 1878, the claimant submitted the following proposal:
    “ Washington, D. 0., Nov. 29,1878.
    “ Hon. Second Ass’t P. M. Gen’d :
    “ Sir : I propose to perform tri-weekly service upon route No. 40116, Phoenix to Prescott, upon an expedited schedule of one-half the running time as advertised, for the total annual pay of eighty-eight hundred and fifty dollars. This route being the shortest and most direct route to the capital of Arizona, it will in time be the route upon which the entire mail will have to be transported; therefore the price above named for this service is a low price.
    “W. M. Griffith,
    “ Contractor.
    
    “ Do this.
    “ Brady.”
    Thereupon the Department made the following order, dated December 2, 1878:
    “Increase service two trips a week and reduce schedule time from 96 hours to 48 hours, from December 16, 1878, and allow contractor $8,170 per annum additional pay, being less than pro rata, but in accordance with his written agreement.”
    TI. After said order was made claimant carried the mail as therein directed over said route up to June 11,1879, when the Department issued the following order, No. 5270, dated June 11,1879:
    “ (1) Increase service four (4) trips per week and allow contractor $11,800 per annum additional pay, being pro rata from June 16,1879.
    “ (2) lieduce running time from forty-eight hours to thirty-two hours and allowcontractor $11,900.32 per annum additional pay, being pro rata from June 16,1879.”
    The following orders were subsequently issued by the Department :
    “Bo. 3435, April 17,1880. From May 1, 1880, reduce service one trip per week, decreasing contractor’s pay $4,662.90 per annum, being pro rata, and allow one month’s extra pay on the service dispensed with.
    
      
      “ No. 9454, August 16,1880. From September 1,1880, reduce service to three times a week, and deduct from contractor’s pay $13,988.71 per annum, being pro rata; allow contractor one month’s extra pay on service dispensed with.
    “ No. 9980, August 31,1880. (1) Rescind order bearing date August 16, 1880 (No. 9454). (2) From September 1, 1880, increase the service one trip) per week and allow contractor $4,662.90 per annum additional pay, being pro rata.
    “ No. 816, January, 20,1882. Suspend pay of contractor.”
    VII. Claimant performed service on said route well and satisfactorily; he has not been paid the compensation for the three quarters begining October 1, 1881, and ending June 30, 1882, which at the rate of $8,160.08 per quarter amounts to $24,-480.24. This sum was demanded of defendants before this action was begun. The price fixed in the orders was reasonable for the service performed, and as compared with the pay for similar service on similar routes, and was not an excessive price for carrying said mail. The amount actually paid for service on said route No. 40116 from October 1, 1878, to September 30, 1881, was $78,192.87.
    VIII. Service on this route never was performed strictly in accordance with the letter of this contract; in fact, such performance was manifestly impossible if one horse or mule and one carrier only were employed. By agreement made by the contractor with the terminal postmasters, forwarded in due course to Washington and not disapproved, claimant performed, without complaint by defendants, the weekly service by forwarding the mail from Phoenix upon one day and forwarding it from Prescott three and a half days later. Such changes so made were customary. This service was first for a short time performed by a mounted carrier and later by a driver, two horses or mules, and a buckboard. The mails were very light at first, but increased greatly in bulk during the period covered by the contract, owing to the building of the Southern Pacific road. The ordinary and usual means for carrying such a mail over such a route as that contemplated by the contract was transportation by man and horse, either under saddle or attached to a light vehicle; if the mail had been started from each terminus of the route on the same day and hour, as provided by the contract, it would have been practicable to convey it both ways by means of two men and two horses in three days of each week; by starting the mail on different days, as it was in fact carried, it was practicable to transport it the round trip by means of one man and one horse in six days of each week$ in both of the foregoing cases the transportation of the mail over that route, at the rate of 33 miles per day per horse, while practicable, would have been severe work for the horses employed; the transportation of the mail by means of one man and two horses in six days, or its equivalent of two men and four horses in three days, that is to say, at the rate of 25 miles per day per horse, would have been ordinary work for the horses employed. Claimant also carried freight and passengers during the term of the contract.
    IX. The number of stock and carriers estimated to be necessary in transporting the mail over said route, in making the increase of pay for increased service and expedited time, was actually used during tbe period covered by the estimate and increase.
    X. The Post-Office Department has an inspector’s division charged with vigilant observation of the manner of carrying mails over all star routes, and with the duty of gathering complete information for the Department concerning the transportation of the mail during the period of the contract. Inspectors passed, over said route 40116 frequently during the last two years of the contract, and no objection was made, until the order of suspension, recited hereinbefore, by the defendant to the claimant, that there was any impropriety in his action, or that he was not properly fulfilling his obligations.
    XI. On and prior to December 2,1878, no rule of the Post-Office Department required a contractor to give an opinion, statement, or affidavit of stock or carriers necessary to transport the mail under existing circumstances or which would be necessary under a contemplated increase of service or expedition of time.
    But at the time the contract in question was made and during its life the regulations set forth in Finding I were in force.
    XII. There never was a schedule over route 40116 of forty-eight hours once a week.
    XIII. The depreciation of capital and property involved in the carrying of the mail on this route during the contract term was 65 per cent, of the value of said property.
    XIY. Defendants had the means of knowing, through the officers and machinery of the Post-Office Department, at the time of the several increases and expeditions, the number of stock and carriers necessary to be used in carrying out the Department’s orders.
    XV. At the time of commencement of service on route 40116 the existing mail could have been carried on horseback between Prescott and Phcenix at average speed, something less than 4 miles an hour; the distance between the two points is about 100 miles. The statement of September 10,1878, set out in Finding IV, and the proposal of November 29,1878, set out in Finding V, were placed in a “jacket” by one of the clerks in charge of this class of business in the Post-Office Department, and the indorsement hereinafter set forth was made thereon, and was laid before the Second Assistant Postmaster-General, and was signed by him. The following is the indorsement:
    “ Date, November 30,1878; Territory, Arizona; No. of route, 40116; termini of route, Phcenix and Prescott; length of route, 140 miles; number of trips per week, one; contractor, W. H. Griffith ; pay, $680 per annum.
    “ Petition inclosed, signed by citizens of Phcenix, Maricopa County, Arizona Territory, asking for an expedition of schedule on this route.
    “Hon. H. S. Stevens states that the advertised schedule is unprecedented in length and recommends that the running time be reduced from 96 hours to 48 hours. There is one intermediate office depending on this route for supply, the terminal offices having three times a week communication via Wicken-burgh.
    “ Contractor submits a sworn statement in regard additional number of men and horses required to reduce running time from 96 hours to 48 hours.
    “ Annual cost of two additional weekly trips and expedition, $9,180.
    “ Citizens living on and near this route petition for expedition of schedule and increase of service to daily; contractor submits a proposition to reduce running time and increase service two trips per week at $8,850 per annum, being less than pro rata.
    “Increase service two trips per week, and reduce schedule time from 96 hours to 48 hours, from December 16, 1878, and allow contractor $8,170 per annum additional pay, being less than pro rata, but in accordance with his written agreement.
    “ Beady.
    “Order No. 10520; date, Dec. 2, 1878; day-book page, 34; wrote P. M. and contractor, Dec. 2, 1878.”
    
      
      Mr. George L. Douglass (with whom was Mr. Assistant Attorney-General Howard) for the defendants:
    1. The position of the defendants in these oases is simply this: That, up to the defined limits, the statutes do clearly imply in the Postmaster-General a discretion to allow or not to allow additional compensation, and to determine the amount, hut that beyond those limits all allowances are absolutely forbidden; that the Postmaster-General has neither discretion nor jurisdiction to make or authorize any allowances to be made beyond those limits, and that if, through mistake or in - advertence, he does make such allowance, the Government is not bound by his act. (Steele’s Case, 19 O. Cls. It., 198; 113 U. S. B., 134; Lee v. Munroe et al., 7 Or., 366; Floyd Acceptance Oases, 7 Wall., 667; Whiteside et al. v. United States, 93 U. S. It., 257; United States v. Bartlett, 2 Ware, 17 ; Peoples. Fields, 58 N. Y., 505; Supervisors v. Filis, 59 id., 624; Demarest v. Inhabitants of New Barbadoes, 40 N. J. Law, 604; Maxwell Land Grant Case, 21 Fed. Bep., 23; Gurtis v; United States, 2 O. Ols. E., 152, &c.)
    “ Public officers, who are but agents, have no such control over public contracts and public money that they can authorize payments to be made beyond the strict' liability to which their principles are legally subjected.” (Roche’s Oase, 18 O. Ols. B., 227.)
    2. But in the counter-claims it is alleged not only that the allowances for expedition were made and paid in violation of law, but that they were made by the Postmaster-General in mistake of fact, the nature of the mistake being explained briefly but clearly; and also that the mistake of fact was produced, in the Griffith Case, by the misrepresentations of the claimant himself, and in the Yaile Case by the misrepresentations of another party, of which the claimant availed himself to “mislead” the Postmaster-General.
    If true, the right to recover would seem almost beyond controversy. (Kelly v. Solari, 9 Meeson & Welsby, 57; Bell v. Gardiner, 4 Manning & Granger, 23; Townsend v. Growdy, 8 C. B., 492; Baltimore and Susquehanna Railroad Company v. Faunae et al., 6 Gill, 77; Waite v. Leggett, 8 Oowen, 195; Whea-don v. Olds, 20 Wend., 175; Lawrence etal. v. Banlc, 54 N. Y., 435; Sharlcey v. Mansfield, 90 id., 229; Banlc v. Allen, 59 Mo., 313; Devine v. B(hoards, 101 111., 138; Deitzey v. District of Columbia, 17 C. Ols. It., 127; Brown v. -District of Columbia, id., 420.)
    3. Tlie Supreme Court and this court have repeatedly held that an allowance for refund of tax by an officer specially empowered is prima facie evidence of a debt and good until impeached for fraud or mistake (96 U. S. R., 567; 104 id., 728 ; 11 O. Cls. It., 659; 16 id., 335, 515), and we may accord equal validity to the allowances of the Postmaster-General when he acts within the scope of his jurisdiction. But in the present cases the Government impeaches these allowances for mistake, and because they were made in excess of the powers and jurisdiction of the Postmaster-General, and because they were procured by means of misinformation furnished to the Post-Office Department by the claimants themselves with the design of misleading the Postmaster-General.
    4. The contention of the claimant’s counsel virtually is that, inasmuch as so large a measure of discretion is vested in the Postmaster-General in these matters, it is impossible that he should make a “mistake” which the law would recognize as such ; that if he does commit any error at all in such matters, it must be classed as an error of judgment and not a “ mistake of fact,’’ and that such “ error of judgment” cannot be corrected by any other tribunal.
    5. In this connection section 4057 of the Revised Statutes is more than pertinent. This section is important as showing that Congress clearly contemplated (1) that money might be paid out improperly under precisely similar circumstances set out in these counter-claims; (2) that just such “mistakes” might be made; (3) that just such payments might be made for service never performed and the fact not be discovered until afterwards; and (4) that the mistake of “any officer” might be reviewed in the courts, to which end it actually directs suits to be brought whenever such mistakes are discovered.
    Section 4057 must be read in the light of sections 3960 and 3961; and in this connection it constitutes a notice to all the world, and especially to mail contractors, that for every dollar they receive from the Post-Office Department in excess of what the law allows, or for service not performed, or by reason of mistake, they may be called on to account whenever the facts are brought to light. To all legal intents these three sections are written across the face of every mail contract, and every contractor knows, or is bound to know, the limitations and obligations they impose.
    6. The law applicable to the dealings of two private individuals, each presumably alive to his own interests, is not always applicable to the transactions between an individual and a public officer or agent exercising defined and limited powers.
    I ask the attention of the court to the opinion of Judge Foster, in the case of the United States v. Cosgrove (26 Fed. Rep., 908). That opinion presents clearly and concisely what the defendants believe to be the law applicable to the present controversy, and which I believe to be more in harmony with the current of decisions in this court and the Supreme Court than the diametrically opposite views expressed by Judge Elallett, in the case of the United States v. Barlow et al., reported in the same volume.
    Finally, if there is any question about the right of a court to go into the question of these allowances, and open up past accounts at the instance of the Government in a proceeding instituted against the contractors, yet where a party comes into court and seeks to recover more than he has already received, the defendants’ right to bring the whole case into court and to insist upon full justice being done would seem to be now unquestioned. (MoBlratWs Case, 102 U. S. R., 426.)
    
      Mr. Jeff Chandler and Mr. Jere Wilson for the claimant:
    1. Is there any power in this court, in the absence of aver-ments of fraud or mistake, to review the action of the Postmaster-General in these matters ?
    Section 3841 of the Revised Statutes provides the Postmaster-General with the facilities or the instrumentalities and means of information by which he determines whether or not the mails are carried according to contract.
    It is made apparent by the statutes and regulations that the matter of determining what, if any, deductions shall be made from the pay of the contractor is conferred upon the Postmaster-General.
    In respect of the other feature, to wit, that allowance was made for a number of stock and carriers in the performance of the expedited service different from what was actually necessary, it appears not only by statute, but by regulation which has the force and operation of law, that the Postmaster-General was to determine whether or not the speed on a route should be increased, and if so, what the pay should be, the law and the regulations limiting the amount to be paid to a ratio between the stock and carriers necessary on the original schedule and the stock and carriers necessary on the expedited schedule.
    The principle which we contend for is tersely and clearly expressed in Martin v. Mott (12 Wheaton, 419).
    Mr. Cooley (Constitutional Limitations, p. 41), in different language, declares the same principle as sound doctrine.
    The counter-claim does not rest upon any alleged mistake of law, but upon the alleged mistake of the Postmaster-General, which mistake is that fewer stock and carriers were necessary to carry the mail than the Postmaster-General believed to be necessary, when the order of allowance was made. This, it is submitted, is not, in contemplation of equity, a mistake at all. If it be anything, it is an error of opinion or judgment of the Postmaster-General.
    In treating of Mistake (Pomeroy, Equity, vol. 2) it is said:
    “It necessarily follows from this description that where an act is done intentionally, and with knowledge, the doing of the act cannot be treated as a mistake.”
    There is no allegation of ignorance on the part of the Postmaster-General of the number necessary. It is not pretended that he did not determine the number that was necessary, and that he did not fix that number knowingly. But.the pretense is that in fixing the number he fixed it erroneously. This statement of the case is made to show that the authorities quoted, .and to be quoted, upon the effect of the Postmaster-General’s action, exclude the right under such circumstances of this court to look into the matter at all. (Kaufman’s case, 96 U. S.' B., 570; Mrst National Bank of Greencastle v. United States, 15 O. Ols. E., 230, 231.)
    Mistake results from ignorance, imposition, or misplaced confidence. (1 Story Eq. Juris, 110,140.) It is the result of ignorance. (Id., 140; Jeremy Eq. Juris., bk. 2, pt. 2, p. 358; 15, Fed. Bepub. 117). Mutual ignorance of fact. (2 Bouv. Dictionary, Mistake.)
    
    Ignorance of the true state of facts is a constituent of the doctrine of mistake. One cannot make a mistake about the existence of a fact, which fact is at the time of his action upon it known to him; and the doctrine of mistake rests upon the fact of ignorance of the truth. The Postmaster-General made the order increasing the pay for increased speed in carrying the mail under the statute which required him to know the number of stock and carriers necessary, as the mail was then being carried, and necessary as it was proposed to be carried, and his official power in executing the authority thus given included, to the amplest degree, power to inform himself of the facts which were to govern his conduct when found.
    So that the element of ignorance of the truth, which lies at the very basis of the doctrine of mistake, as mistake is defined in equity jurisprudence, does not exist in this case.
    It is said by Justice Story (Equity Jurisprudence, § 14G-148) that where the means of information exist upon which the party acts, there can be in law aiid equity no mistake alleged concerning his action. This doctrine is fully declared in 93 U. S. B., in the case of Grymes v. Sanders.
    
    As a separate proposition, however, we say that the plea does not allege the time when the Government discovered the mistake, if mistake it be. But from the plea it would appear that the mistake, if mistake at all, was known from the time the order was made. Under such circumstances the Government cannot in this case insist upon such mistake; for it is said in the same case above cited (93 U: S. B., 55) that— ■
    “Where a party desires to rescind upon the ground of mistake or fraud; he must, upon the discovery of the facts, at once announce his purpose and adhere to it. If he be silent, and continue to treat the property as his own, he will be held to have waived the objection, and will be as conclusively bound by the contract as if the .mistake or fraud had not occurred.”
    The whole matter was in the hands and under the judgment of the Postmaster-General. The contractor was not bound to furnish any evidence whatever. After the Postmaster-General had determined to what degree he would increase the speed and what amount he would allow for this change in the service, the contractor might proceed to perform the service according to the change and at the changed price or not, as he saw proper. Now, such being the case, we contend that it stands in precisely the same position that the judgment of a court would stand in, and that the action of the Postmaster-General can only be interfered with upon such a showing as would be necessary to be made in order to set aside the judgment or decree of a court. (Throckmorton v. United States, 4 Sawyer, 42.)
    It is to no purpose in such case to invoke the doctrine that fraud vitiates all transactions, even the most solemn, and that a court of equity will set aside or enjoin the enforcement of the most formal judgments when obtained by fraud. The doctrine of equity in this respect is not questioned; it is a doctrine of the highest value in the administration of justice, and its assertion in proper cases is essential to any remedial system adequate to the necessities of society. But it cannot be invoked to reopen a case in which the same matter has been once tried, or to put in issue between the parties that it might have been tried. The judgment rendered in such a case is itself the highest evidence that the alleged fraud did not exist, and estops the parties from asserting the contrary. It is afterward mere assumption to say that the fraud was perpetrated. The .judgment has settled the matter otherwise; it is res judicata. (98 U. S. R., 61; 5 Wall., 119, 170; 97 U. S. R., 401.)
    The mistake here relied upon necessarily is a mistake of judgment. It is inherently that or nothing,.because the Postmaster-General was to determine the fact as to whether or not additional stock and carriers were necessary. In determining that fact, he had to advise himself on that subject. He determined that a certain number was necessary on the one schedule, and a certain number necessary on the other schedule. That was a question of judgment upon the facts known to him; and being a matter of judgment, whatever mistake he made was a mistake of judgment, and not a mistake of fact, there being no ignorance of the fact, nor any averment of such ignorance. Marquis of Townsend v. Stan groom, 6 Yes., 328, 332; Lord Irn-.ham v. Child, 1 Bro. Ch., 92; Lord Portmore v. Morris, 2 id., 219; Mare v. Shearwood, 3 id., 168; Gripps v. Lee, 4 id., 472; Pitcairn v. Oghourne, 2 Yes. Sr., 375; Betts v. Gunn, 31 Ala., 219.)
    At all events, it is at least mere matter of opinion deduced from all the information that the Postmaster-General from the many sources may acquire. Now, such being the case, it is thoroughly settled law that a contract will not be set aside because of mere error of opinion in respect of a matter of this kind. On this subject we cite the following authorities: Page ■ et al. v. Bent et al., 43 Mass., 374,; Maycraftv. Greecy, 2 East., 92; Lord v. Colley, 6 New Hainp., 99; Tryon v. Whitemarsh, 1 Metcalf, 1; Gordon v. Butler, 105 IT. S. R., 553.
    But suppose it be conceded that the Postmaster-General’s determination is not to be regarded as a finality, but that it is to be regarded as a case where there were two contracting parties, the claimant and the United States, then it becomes, a case in which any recovery that may be sought must be upon, the established principles of the law, and all pleadings must contain the averments required by the rules applicable to the particular case. What is requisite is sufficiently indicated in the cases, supra, and in the following: Marshall v. Hubbard, 117 U. S. R., 415; Smith v. Richards, 13 Peters, 37; Blease v. Gar-lington, 91 U. S. R., 1 to 9, inclusive.
    In the case now under consideration the Government is seeking virtually to rescind a contract that it made with these contractors. It is seeking to recover back money already paid for the performance of these contracts, and therefore these cases come within the principle involved in the cases cited above. If the doctrines of this counter-claim can be maintained, it will operate to bring before this court every payment of money by any Department of the Government under what might be said to be an error of judgment or opinion, and it would further operate to have this court, after one administration has departed and another administration has come in, to be reviewing the action of that previous adminatration.
   Davis, J.,

delivered the opinion of the court:

The claimant contracted to carry the mail once a week between Phoenix, Ariz., and Prescott, the capitol of the Territory, upon a schedule which required him to leave each end of the route upon the same day, arriving at the other end in ninety-six hours. The distance being not far from 100 miles this required an average speed of a little over 1 mile per hour. The mail was, however, never in fact carried in this way; on the contrary claimant agreed with the postmasters at the termini to start from each end of the route on days so far apart that one horse and carrier could perform the service which otherwise would have required the-service of two horses and two carriers. This kind of agreement made by postmasters, described in the regulations as “ trusted agents ” of the Government, is customary, necessarily so when the shifting methods of communication in a new, vast, and growing country are considered. Changes in the running time of trains, changes in the lines of road, changes in business methods, and the extension of railroads which entirely alter the mail requirements of a district, are matters peculiarly within the knowledge of the local postmasters, and to the discretion of these “trusted agents” much must be committed, subject, of course, to the supervision of the Department in Washington. Claimant’s agreement with the postmasters was in due course sent to Washington, was not disapproved, and-was acted upon presumably with the knowledge of the Department, whose agents (the postmasters) were in accordance with regulations reporting regularly as to the contractor’s work, and whose other agents, the inspectors, were presumably attending to the duties imposed upon them of carefully watching over the Government’s interést in regard to this as well as all other star routes.

The claimant therefore began the performance of his contract not by leaving Phcenix and Prescott on the same day, but by sending a man on horseback from Phoenix to Prescott, who in due course returned over the route; all within the schedule time. The Government therefore had a ninety-six-hour trip once a week each way, but the days of departure were by the postmaster’s consent and without objection or complaint on the part of the Department changed from those specified in the schedule annexed to the contract.

Every Government officer is presumed to know his duty and to honestly perform it. The Government, like any other employer, is responsible for the acts of its agents within the limits of the power given them, and it is as much bound as a private citizen to employ honest and competent men. There is nothing to show that the individual officers who were concerned in the case now at bar did not so act in regard to it; nor do we understand that counsel for defendants so allege, although certain intimations have from time to time escaped in the argument tending to show a suspicion by the Govenment of its own agents.

In the case at bar we practically have to consider only questions of law, for whether the money paid the claimant was legally paid him or not, whether he has a right to recover the balance he alleges to be due him or not, depends principally upon a construction of the statutes and of the Department’s regulations and power. The amount he received and that which he claimed to be still due is a reasonable and just sum for service actually performed, a sum. which, if he could recover at all upon a quantum meruit, he would be entitled to receive. There is, however, one question sounding somewhat in fraud or deceit which we shall first consider.

Turning to the history of the case we find the claimant nnder contract to carry the mail over the Phce nix-Prescot fc route once a week, at the rate of 100 or so miles in ninety-six hours, leaving each terminus the same day, the last condition being changed by agreement, not disapproved by the Department, so that with one horse and carrier it was physically possible to make' the round trip on the ninety-six-hour schedule.

The bid for this contract was made in May, 1878; the contract was made in August, 1878, and was to run from October 1,1878, to June 30,1882.

In September, 187S, some twenty days before any duty under the contract fell upon the claimant, he sent two statements in writing to the Post-Office Department, both made upon the same day and both verified under oath. Upon these statements the defendants’ case largely turns, for they claim that the statements were untrue in fact and that théy were intended to mislead and did mislead the Department, which had a right to trust in them.

In one of these documents claimant said in substance that if the service on the route were to be reduced in running time, i. e., “ expedited,” as contemplated by the people and officials then petitioning, so as to run through in two days instead of four days (ninety-six hours), he would need to use eight horses and three carriers, while on the existing schedule of ninety-six hours, stock and carriers necessary would be one carrier and one animal.

Olaimant’s other statement, made the same day, and which it may be assumed was before the Department, with the one already described, contemplated a reduction of running time from four days to two and one-half days. As to that claimant said:

u Stock and carriers necessary to carry mail upon present advertised schedule of four days, one trip per week, would be one carrier and two animals. To increase the speed so as to transport mails through in two and a half days, would require seven animals and three carriers.”

Two points will immediately strike any one who reads these statements: First, the advertised schedule required claimant to leave both ends of the route on the same day; this he could not do with one carrier and one animal or with one carrier and two animals. Second, he says in one instance that under the then existing schedule he required one carrier and one animal, and in the other that he required one carrier and .two animals.

These two statements made on the same day, and containing these two discrepancies patent on their face, discrepancies which could not escape the eye of any one, and must have been immediately seen by a trained and experienced Government official, cannot be held as intended to deceive, or as in fact deceiving or misleading the defendants’ agents. They are apparently the result of the agreement with the terminal postmas-' ters and of carelessness, or of incorrect judgment; it should further be remembered that claimant had not yet begun work under his August contract, so that he is not stating an existing fact, but his estimate of what he will need to fulfill the duties imposed by it upon him, as well as his estimate of what he will need should an expedition be ordered. Both statements are in effect mere expressions of opinion; they are on their face estimates, not statements of fact.

Whatever the claimant knew about this route theDepartment knew; the system there in force for the collection and arrangement of information as to these routes is confessedly a very thorough and perfect one, and with the aid of the local postmasters and the officers of the inspectors’ division the Department was in a position to exactly investigate the state of affairs in Arizona with the needs and expense of the service there.

Nothing more appears to have been done in the matter until November 29,1878, that is, nearly three months after the September statements (upon which up to that time no action seems to have been taken) when the claimant offered to perform triweekly service on the route upon an expedited schedule of one-half the running time as advertised, that is, one-half of ninety-six hours, for the total annual payment of $8,850, stating at the same time, what subsequent events proved to be true, that the route being the shortest and most direct to the capital of Arizona it would in time become the route upon which the entire mail would be transported. Three days thereafter the Department ordered the service increased to two trips per week, ordered it expedited from ninety-six hours to forty-eight hours, that is, ordered the speed doubled, and ordered the contractor to be allowed $8,170 per annum additional compensation, “ being less than pro rata, but in accordance with his written agreement.” This was done. In June, 1879, the trips were increased to four per week, running time was reduced to thirty-two hours, and for -this service proportionate additional pay was allowed and paid until January, 1882.

The defendants’ counsel has set up and urged with great zeal and ability a counter-claim, upon the theory of which they not only deny claimant’s right to a judgment, but also claim to recover for amounts already paid him under alleged fraud or mistake in that the allowances made were founded upon a false state of facts, and the Department was misled by the claimant.

The statutes relating to increased or expedited service are found in sections 3960 and 3961 of the Bevised Statutes. They provide, first, as to additional service, that compensation shall not be in excess of the exact proportion which the original compensation bears to the original service (§ 3960). This is a very simple provision, and a result can be reached in regard to any case arising under it by the application of the rule of three — one trip so much, two trips not more than twice as much.

As to the expedition or increase of speed there is more difficulty. The statute (§ 3961) provides that no extra allowance shall be made on this account unless by such expedition increase of stock and carriers is made necessary, and then the additional compensation “shall bear no greater proportion to the additional stock and carriers necessarily employed than the compensation in the original contract bears to the stock and carriers necessarily employed in its execution.” This statute may for illustration be resolved into a very simple algebraical problem : a being the present number of stock and carriers necessary, b being the present compensation, c being the necessary increase of stock and carriers, and x being the statutory increase of payment, we construct this proportion : a,:b::c:x. Putting this into figures, again for illustration, and calling the present number of stock and carriers (a) 10, the present compensation (b) $5,000, and the increase of stock and carriers necessary for expedition (c) 5, we reach the following result: 10: $5,000 : : 5 : (a?) $2,500. That is, the contractor should receive, in this hypothetical case of an increase of one-half in his force, one-half more pay; and if his service is at the same time doubled in number of trips, then he is entitled to multiply this gross result by two. Thus in this instance he would receive for one expedited trip $7,500, and for two such trips $15,000, whereas on the single slow-time trip he received but $5,000. Reduce the time again one-half, and then again double the trips (all on the same theory of fact), and there is a very important increase, fully authorized by law, provided the additional stock and carriers are in fact made necessary.

Theimportance of the illustration is in this: Suppose the third term of the proportion, the multiplier, be overstated, or suppose the first term, the divisor, be understated, or, finally, sup pose that both facts concur, the third term is overstated and the first term understated, then in either instance an incorrect conclusion is reached and the Government pays more than the statute authorizes. Three illustrations from the preceding hypothetical case will show the effect of this: 10 : $5,000 : : 20 : $10,000; here the increase of stock and carriers, the third term, is exaggerated; or, 5 : $5,000 : : 10 : $10,000: here the present amount of carriers and stock is understated; or, 5 : $5,000 : : 20 : $20,000; here both errors are present, and the Government pays $20,000 for service worth only $2,500. The room for fraud is great; by cutting off a carrier from present service, or by adding a carrier to the estimate for contemplated service, a result is obtained entirely out of proportion to the apparent extent of the deceit, mistake, or fraud. It is popularly supposed that much money has been dishonestly taken from the Treasury through this or similar methods. Defendants endeavor to show that this was such a case, and for that purpose they principally rely upon the two affidavits of September 10,1878, claiming thatthe contractor coaid not have performed the service called for in his agreement with one horse and carrier, or with two horses and one carrier, as then he could not send the mail from each end of the route upon the same day and at the same time. Of course he could not, and that fact being patent would not have escaped the notice of the Department authorities and could not have misled or deceived them. A self-evident absurdity can deceive no one, and we know of no principle of law which allows such an allegation to form the basis of an action for fraud or deceit.

The agreement with the terminal postmasters, presumably approved by the Department, also lends light to the position of the Government and the claimant at the same time.

Further, the claimant did not state what stock and carriers he was in fact using, for his communication was made twenty days before his contract began to run, which the Postmaster-General knew; but he stated what would be necessary to use, and one horse and carrier, as the findings show, would be sufficient to make the round trip of 200 miles in a week, carrying nothing but a light mail.

It further appears that nothing was done by the Department at the time these affidavits or statements were made; no order was then issued; neither schedule contemplated in the statements was adopted, and matters remained in statu quo until the end of the following November, when an entirely separate and distinct proposal was made by the claimant to do a different service for a sum stated. December 2, 1878, claimant was ordered to proceed upon the terms of this proposal.

We cannot agree that the September affidavits influenced the Postmaster-General’s action, for we see no connection between them and the proposal of November 29; and we cannot agree that they were false in fact. The theory, therefore, that by claimant’s deceit he led the Post-Office Department into the error of supposing less carriers necessary for the then existing mail service than were in fact necessary; that, rightfully relying upon this, the3r reduced the first term of the proportion for increase, and that so, having started in error, all subsequent additions to compensation were based upon the same mathematical mistake, and were therefore too great, we cannot concur in. The Government’s position on this branch of the case turns upon this proposition as stated in their brief when speaking of the proposal of November 29:

11 It was, of course, wholly outside the powers of any officer to accept such a proposition as this after the contract had once been let according to law, unless the terms of it fell within the limitations governing allowances of extra pay, as contained in the sections of the Revised Statutes. * * * But assuming to believe the one horse and one man affidavit, and that an increase of 450 per cent, in stock and carriers would be rendered necessary by the change, the vigilant official then guarding the public interests in star-route matters made the order of December 2.”

There is nothing to show that the Government officers did not act honestly; there is nothing connecting the September statements as to a two day or two and one-half day weekly schedule with the November proposal and the December order for two forty-eight-hour trips weekly.

The Department had other sources of information much more to be depended upon than the ex parte opinion of any contractor — sources of information provided by law, which it was bound to consult and presumably did consult. Finally, as one horse and carrier could, in fact, perform the service under the schedule as changed, there was nothing false in the statement, which, at most, was a careful expression of opinion under oath, made prior to actual performance under the contract.

It further appears that the mail service was always properly and satisfactorily performed, and that the price paid was a fair and reasonable one under all the circumstances. The defendants, therefore, are thrown back upon questions of law relating to the power of the Department to make the increase in compensation which was made.

The proposal of November, 1878, for expedited and increased service, with the order made thereon, did not constitute a new contract, but made simply an alteration of the existing contract in a manner provided by its terms and authorized by statute. No new contract for mail letting on star routes could be made by the Department except after advertisement, and the phraseology of the proposal and the indorsement on it show an intention to alter an existing service, not to contract for a new one. Existing service was to be increased and was to be expedited, and in doing this the Department, in accepting claimant’s bid on the ground that it was less than pro rata, impliedly recognized the fact that the transaction was one covered and limited by the provisions of sctions 3980 and 3961 of the Eevised Statutes.

Garfielde’s Case (93 U. S. R, 242) is not authority for holding an agreement such as this a new contract, for in that ease the proposal was an original one for the service, made after advertisement in the manner prescribed by law, and the court held that the Department’s acceptance of the proposal created a contract. In that case there were no existing contract relations between the parties, and no question of expedition or increase; whereas in the case at bar Griffith was bound to increase or expedite the service he was performing when ordered to do this on certain fixed terms, and these terms could not be altered by the Department, for they were prescribed by law, and if not satisfactory to Griffith, he was without remedy other than a surrender of his contract.

Itis urged that, the Postmaster-General having acted in this matter and no fraud or mistake being shown, this court is without power to review his decision, and cannot substitute its judgment for the judgment of the Postmaster-General.

The general principles governing the question of judicial review of the action of an executive officer in exercising a discretionary power vested in him by law have been thus stated by the Supreme Court:

“ Whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of those facts.” {Martin v. Mott, 12 Wheat., 419.)

The fraud for which a court of equity will intervene to grant relief by setting aside a judgment or decree between the same parties rendered by a court of competent jurisdiction is one extrinsic or collateral to the matter tried, and not a fraud which was in issue in the former suit. Such relief has been granted in cases wherever, by fraud or deception practiced on the unsuccessful party, he has been prevented from exhibiting fully his case, by reason of which there has never been a real contest before the court of the subject-matter of the suit. (United States v. Throckmorton, 98 U. S. R., 61.) In the case last referred to it was sought, by a bill in chancery, to set aside a patent for certain lands in California claimed under a Mexican grant. The patent had been issued by a board of commissioners appointed for that purpose under treaty provisions, and the allegation of the bill was that the claimant had procured a decision in his favor by forgery and by perjured testimony, and by this fraud “ the law agent of the United States was misled, the United States [the orator] deprived of all opportunity to contest the confirmation, and the Land Commissioner and court were deceived into confirmation of the claim.”

The opinion below was delivered by Mr. Justice Field, who said (Throckmorton v. The United States, 4 Sawyer, 42):

“ Here * * * we have a special tribunal, established for the express purpose of ascertaining and passing upon land derived from Spanish or Mexican authorities, clothed with ample power to investigate the subject and determine the validity of every claim and the propriety of its recognition by the Government, capable as any court could possibly be of detecting the fraud connected with the claim, and whose inquiry in every case was necessarily as to the authenticity and genuineness of the documents upon which the claim was founded. * * * On principle such adjudications cannot be reviewed or defeated by a court of equity upon any suggestion that the commissioners and court misapprehended the law, or were mistaken as to the evidence before them, even if that consisted of fabricated papers, supported by perjured testimony. The very questions presented by the present bill were necessarily involved in the proceedings before the commissioners of the District Court, and the credibility of the testimony offered was a matter considered by them. * * * The bill avers that the alleged grant was not genuine because it was antedated. But the genuineness of the document was the matter subjudice, and could not have been established and the claim based upon it affirmed except by evidence to the commission and court that it was made at the time stated.”

The learned justice then, alluding to the doctrine that fraud vitiates all transactions, even the most solemn, says that this doctrine—

“ cannot be invoked to reopen a case in which the same matter has been once tried, or to put in issue between the parties that it might have been tried. The judgment rendered in such a case is itself the highest evidence that the alleged fraud did not exist, and estops the parties from asserting the contrary. It is afterward mere assumption to say that the fraud was perpetrated. The judgment has settled the matter otherwise; it is res judicata. The frauds for which a court of equity will interfere to set aside or stay the enforcement of a judgment of a court having jurisdiction of the subject-matter and the parties must consist of extrinsic collateral acts not involved in the consideration of the merits. They must be acts by which the successful party had prevented his adversary from presenting the merits of his case, or by which the jurisdiction of the court has been imposed upon.”

How, as to the powers and duties of the Postmaster-General, we find that he is to furnish to postmasters schedules of the time of arrival and departure of the mail at their several offices, to notify them of any changes therein, and to cause to be kept and returned to the Department, at short and regular intervals, registers showing the exact time of the arrival and departure of the mail (Rev. Stat., § 3841); a division of in-specfcors is to examine these registers, also the certificates of route agents and reports of mail failures, to note contractors’ delinquencies, to prepare cases thereon for the action of the Postmaster-General, and to perform other duties necessary to secure a faithful and exact performance of all mail contracts and service. (Regulations 1873, p. 148.) The Postmaster-General eral is authorized to make deductions, not exceeding a maximum fixed, from the pa.y of contractors for failure to perform service according to contract, and to impose fines for other delinquencies. (Rev. Stat., § 3962.) The Postmaster-General has power to establish post-offices at such places on post-roads established by law as [he] may deem expedient (§ 3829); he prescribes the penalties on postmasters’ bonds (§ 3834); he may appoint postmasters of a certain class (§ 3836); he may temporarily fix the salary on new offices (§ 3853), and shall readjust the salaries of postmasters (§ 3854); he may designate distributing or separating offices (§ 3859); he may discontinue a post-office (§3864); he fixes th'e salary of letter-carriers (§ 3866) and prescribes, their uniform (§ 3867); he may establish branch offices (§ 3871); he may, upon evidence “ satisfactory to himself,” return certain registered letters as “fraudulent” (§ 3929); he may discontinue a post-road when “ in [his] opinion it cannot be safely continued” (§ 3974). In case of contractor’s delinquencies the Postmaster-General judges of the sufficiency of the contractor’s excuse and fixes the amount of the fine. (Regulations, §§ 279-284.)

It is shown by these citations that the law-making power intended to give to the Postmaster-General great power of discretion in the management of the mails and post-roads, and committed much to his opinion and good judgment. Such a policy is necessary, for no such service can be strictly mapped out and defined by statute, and its changing needs require the attention of an executive officer vested with power of management. Bearing in mind this general policy, we turn to the statutes now in question.

Section 3960, dealing with increase of service, limits the max-mum of allowance to the exact proportion which the original compensation bears to the original service. . Section 3961, dealing with expedition, limits the extra allowance therefor, first, to cases wherein the employment of additional stock and carriers is made necessary by the expedition, and then provides that the additional compensation shall bear no greater proportion to the additional stock and carriers necessarily employed than the compensation in the original contract bears to the stock and carriers necessarily employed in its execution.

The Postmaster-General decides, first, whether expedition is necessary j and if this be settled in the affirmative, then, second, whether thereby additional stock and carriers are rendered necessary; and if they are, third, the number of stock and carriers now necessarily employed in the existing service$ and, fourth, the number of stock and carriers necessarily to be employed in the expedited service. It will be noticed that any decision on these questions involves largely mere estimates or opinions. The stock and carriers actually employed may not be the number necessarily employed in mail service $ a portion perhaps being used for freight, passenger, or express business, while a determination of the number to be employed in the future is purely a question of estimate, calling for the good judgment of an expert.

The power of ascertaining these facts and making these estimates is exclusively vested in the Postmaster-General. The decision is the result of his judgment and discretion. From it there is no appeal to this court, and no fraud has been shown authorizing an interference by us on that ground. (Butterworth v. Hoe. 112 U. S. R., 64.)

To authorize relief on the ground of mistake, the mistake must have arisen from ignorance, imposition, or misplaced confidence. An act done intentionally and with knowledge cannot be treated as a mistake. (1 Story, Eq. Juris., §§ 110, 140.)

The Postmaster-General had to aid him in the decision of this case the vast and complete machinery of his Department, and must have had all the information as to this route which it was possible for any one, including this contractor, to obtain. The local postmasters were reporting to him regularly, while the officers of the inspection division were watching this route as they did all other star routes, and, in fulfillment of the duties placed upon them by the Begulations, were keeping the Department informed as to the business being done and the manner in which it was done. To establish ignorance on the part of the Department of the facts in this case, the defendants must assume that the governmental agents were absolutely derelict in duty — an assumption which is not to be entertained; nor would it lead to a decision in defendants’ favor, for a mistake, to be available in equity, must not have arisen from negligence where the means of knowledge were easily accessible. Further, the Government has long assented to the mistake, if mistake were committed; and having been so long silent, having assented to the performance of the contract in the manner in which it has been performed, it is now too late to tear it open. The Government knew what was being done by Griffith; the findings show that his route was constantly inspected; and knowing this, they allowed him to go on. The Supreme Court has announced as law that, where a party desires to rescind upon the ground of mistake or fraud, he must, upon the discovery of the facts, at once announce his purpose and adhere to it. If he be silent, he will be held to have waived the objection, and will be as conclusively bound by the contract as if the mistake or fraud had not occurred. (Grymes v. Sanders, 93 U. S. R., 55.)

The facts in this case do not require us to decide how far this doctrine is applicable to the Government in contracts for mail service.

The defendants, however, contend, under section 4057, Revised Statutes, that they are taken out of the general principles of equity and placed in a much more advantageous position. That statute authorizes the Postmaster-General to bring suit to recover money paid out of the funds of the Post-Office Department under either of the following circumstances: (a) Under the pretense that service has been performed when in fact it has not been performed; (d) for increased service actually rendered when the additional allowance exceeds the sum which according to law might rightfully have been allowed therefor; (e) all other cases where money has been paid to any person in consequence of fradulent representations, or by the mistake, collusion, or misconduct of any officer or other em-ployé of the Department. We do not find on the facts of this case that it is one embraced by this statute. The additional allowance was not in excess of the maximum permitted; there is no fraud shown on the part either of the contractor or a post-office employé; nor do we find that there was mistake in fact.

The action of the Postmaster-General was in its nature one of opinion, of estimate, deduced from all the information which his Department could procure. Whatever representations were made to him by the contractor were of the same nature. The number of horses and men necessary in the future to carry a mail over a given route where passengers and freight are carried by the same conveyance can be but an estimate, which may or may not stand the test of experience. It is apparent from the subject-matter of this case that whatever was stated must have been understood by the party to whom it was addressed as an expression of strong belief only, because it is a subject-matter of which knowledge in the strict sense cannot be had.. (Page v. Bent, 43 Mass., 374.)

“From the nature of the subject in relation to which the certificate was given the estimate of value was nothing more than a conjectural opinion, which, whether true or false, constituted no legal cause of complaint.” (Gordon v. Butler, 105 U. S. R., 558.)

We therefore conclude, from this examination, of the facts and authorities : The Postmaster-GenéraPs action was so far final that it can be impeached only for fraud or mistake; that no fraud or mistake is shown in the case; and even if a mistake were committed, it was, under the circumstances, one merely of opinion or estimate, and was not of a character, especially after it had been so long assented to, to authorize a recovery.

It is a question, not necessary to decide in this case, whether the Postmaster-General, in estimating the pro rata increase for expedition, may reduce the highest figures stated by the contractor as necessary for present service. No one has better means than the contractor for knowing what force he is employing on an existing contract, and it may be doubted whether the Postmaster-General could adopt any hypothesis more favorable to the contractor than is contained in his own statement, or when there are two statements, then, than that contained in the statement whose terms are least favorable to the interests of the contractor. The action of the Postmaster-General within a reasonable time after the receipt of contractor’s statements or affidavits might be an indication that he acted under “mistake” in accepting of two statements the one most favorable to the contractor, and in disregarding the one most favorable to the Government, whose agent he is. In this case, however, it does not affirmatively appear that the Postmaster-General acted on the affidavits, and circumstances indicate that he did not. About three month elapsed before he acted at all. The affidavits were made when the primary contract had not gone into operation, consequently their statements were necessarily conjectural. During the interval the contract did go into operation, and after conjecture had given place to experience the contractor made a new proposition, upon which the Postmaster-General did act. Too many uncertainties attend the transaction to warrant a court in concluding that a mistake occurred or that an error was involved in the expedited contract.

Counter-claim dismissed.

Judgment for claimant in tho sum of $24,480.24.  