
    GARFIELDE’S CASE.
    (See Court Claims Cases, post; — U. S. K., —.)
    Selucius Garfielde, appellant, v. The United States, appellees.
    
      On the claimants Appeal.
    
    
      The Post-Office advertisement is for carrying the mails “from Portland, by Port Townsend and San Juan, to Sitka, 1,400 miles, more or less, and back, once a month;” “leave Portland on the 1st of every month, arrive at Sitka by the 10th;” “leave Sitka on the 13th of every month, arrive at Portland by the 23d.” “Proposals invited to begin at Port To wnsend, 500 miles less.” The claimant’s bid is to carry the mails “ between Port Townsend and Sitka, Alaska, under the advertisement of the Postmaster-General,” “ for the annual sum of $36,000.” This the Post-Office accepts by letter, stating that the contract will be sent in due time for the claimant to execute and return. Subsequently it revolees its acceptance and awards a contract for the whole route to a third party. The claimant brings his action for the profits which he might have made. He proves on the trial that the same form of advertisement has been used by the Post-Office for many years, The court below decides that the claimant’s bid was defective, mid that no valid contract arose from the acceptance thereof. Judgment for the defendants. The claimant appeals.
    
    I. If a proposal which binds the bidder to perform be accepted by the Post-Office Department, it creates a contract of. the same force and effect as if a formal contract were written out and signed by the parties; and this where the acceptance of the Department states that a formal contract will be forwarded for execution.
    II. A Post-Office advertisement for carrying the mails on part of a route is sufficient if, after defining the route, the distance, the time]of transit, and days of departure, it invites proposals for carrying the mails from an intermediate point to one of the termini, “500 miles less,” without further specifications as to time and days of departure. The time of transit in such a case would be a simple arithmetical question founded on the length of the entire and partial routes, and would be proportionately less than the time specified for the whole route.
    III. The object of the Act 8ih June, 1872, (17 Stat. L., p. 313, § 243,) in requiring mail-contracts to be founded ou advertisements for proposals, was to secure the notice of the intended post-routes, the service required, and the manner of its performance. It was not intended that the advertisements should be subject to such criticism as is given to pleadings in courts..
    
      IV. The Post-Office regulations providing that the Postmaster-General may discontinue a mail-service before the expiration of the contract, and that for such discontinuance one raontlfs pay is to be deemed the full indemnity, limits the damages which the contractor should recover where the Postmaster-General, after accepting his bid, wrongfully refuses to award to him the contract, and thereby prevents him from performing.
    V. An indemnity agreed npon as the amount to be paid, should a contract be canceled by one of the parties during performance, must afford the measure of damages for his refusing to let it be carried into effect.
    
      The Reporters'’ statement of tbe case:
    This case is remarkable in having been decided on tbe merits in both courts at the same term — in the Court of Claims on the 14th of February, 1876, and in the Supreme Court on the 8th May following. The appeal immediately taken from the judgment of the court below was submitted on printed arguments in the Supreme Court and promptly decided. Subsequently a motion was made by the claimant to correct the amount of damages allowed ; which motion was denied.
    For the findings of fact on which the appeal was heard, see the report of the case in the Court of Claims cases, (post.)
    
      Mr. Ebon C. Ingersoll and Mr. B. F. Rice for the appellant:
    Appellant claims that the facts constitute a contract between the United States and himself, and the breach thereof on the part of the United States entitles him to damages. (Adams’s Gase, 1 C. Cls. B, 192; Tayloe v. Merchants’ Fire Insurance Company, 9 How., 390; Mayer’s Gase, 5. C. Cls. R., 317 ; 1 Barn. & Aid., 681; 6 Ward, 103; 21 N. Y., 305 ; Crabtree v. Messersmith, 19 Iowa, 182, and cases cited; Dupyster v. Palver, 3 Barb., 284; Newcomb v. Braelcet, 16 Mass., 161; 8 Md., 201; 2 Pet., 102; 26 Wis., 514; 12 Ind., 274; Chitty on Contracts, 738.)
    To this proposition the Court of Claims, in their written opinion, assent, provided the Postmaster-General had authority, under the law and regulations, to accept the claimant’s bid. But they finally reach the conclusion that the Postmaster-General in this case undertook to make a contract in violation of law, and that, therefore, his act in accepting claimant’s bid was void, and did not bind the United States.
    
      This conclusion seems to be based upon the assumption:
    That the advertisement for service on route 43132, “to begin at Port Townsend, Wash., 500 miles less,” for which alone appellant tendered a proposal, is notan advertisement fulfilling’ the requirements of the law, in that it has no schedule of arrivals and departures annexed ; and
    That the acceptance of such bid by the Post-Office Department is in violation of the 267th regulation of the same Department, and is void for the reason that appellant did not first propose for the service from Portland to Sitka, and afterward put in a separate bid from Port Townsend to Sitka under the invitation contained in said advertisement.
    Both of these conclusions are believed to be erroneous, and a departure from well-settled principles of legal construction under the uniform practice of the courts.
    Full and fair competition is the means aimed to be secured by the statute, through which the end, economy and efficiency, can best be reached. Such competition fully provided for, the will of the law-maker is satisfied, the purpose of the statute secured. In construing the law regulating postal contracts, it follows that whatever in such statutes is necessary to secure fair and full competition is mandatory; the remainder, directory. The law, in prescribing the essential thing to be done, is mandatory ; in regulating the manner of doing it, directory. (Cooley on Constitutional Limitations, 74, 78, and authorities there cited; Potter’s Dwarris, 224-226, note.)
    A public notice of the letting, which should, with reasonable certainty, reach those who may desire to compete for the service to be performed, together with a description of the route, and the period through which the contract is to extend, is essential to full and fair competition. As the frequency of the service and the number of points of delivery are elements entering into the calculations of each bidder, and constituting a part of the basis of cost upon which his estimates are formed, these become essentials of the public notice required, and should be set forth with reasonable certainty. These elements are all found in the body of the advertisement, and constitute no part of the schedule of arrivals and departures.
    Admitting, for the purposes of this argument, that the law requiring a schedule of arrivals and departures is mandatory, the question arises whether, under his authority to prescribe the form of all oficial papers in his Department, the Postmaster-General has, in the form adopted, made the published schedule of route 43132 reasonably applicable to the modified route as there advertised. If so, the advertisement and the contract under it are legal. The advertisement in this case is one of the elements of the contract; and the rule of law is “that, if a contract is susceptible of two interpretations, one legal and the other illegal, that one shall be given which makes the contract valid, for every presumption is in favor of the legality of the contract.” (30 Miss., 516; 21 Ill., 258; Ohitty on Con., 6 Am. ed., 639 ; Williams v. Hast India Company, 3 East., 192.) This rule and presumption make the schedule applicable to the route from either starting-point, and the proposal of appellant “strictly according to the advertisement;” thus removing it entirely from the operation of the 267th regulation.
    Again, putting the advertisement, the proposal, and the acceptance together, which, as is claimed, constitute the contract, and applying the rule that, in the construction of agreements, the plain, ordinary, and popular sense and application of the terms used shall prevail, and it cannot be doubted that this contract was lawful and complete. Who could doubt the applicability of the schedule to the service from Port Townsend to Sitka, as well as to that from Portland to Sitka ? Then it follows that the bid of appellant was strictly in accordance with the advertisement, and the advertisement strictly legal. Had there been no advertisement there could have been no contract. But an advertisement having been published, its construction and applicability alone remain to be determined; and as, when published, it becomes an element of the contract itself, the rule just cited becomes the law governing its interpretation.
    In conclusion, upon this branch of the case it may be stated that the record shows this advertisement to be in conformity to the long-established and uniform usage of the Department ; that the Postmaster-General, after mature consideration, accepted appellant’s proposal, thereby announcing and presumably following the construction which had been placed upon such advertisements; that this acceptance was indorsed by Assistant Attorney-General Spence, of the Post-Office Department; and, if the opinion of the Attorney-General cited in the record means anything, it approves this action of the Department also. This acceptance, deliberately made, a month having been taken for its consummation, completes the com tract between the United States and appellant, and renders the former liable for any subsequent breach. The Attorney-General prepared and submitted another opinion subsequent to the acceptance of appellant’s proposal (14 Op. Att’ys-Gen., 389) at variance with his former opinion, the reasons for which do not seem to fully appear in the document itself.
    The second assumption of the court below, upon which its judgment in part rests, is that the acceptance of appellant’s bid by the Post-Office Department is in violation of the 267th regulation of that Department, and void for the reason that appellant did not first propose for the service from Portland to Sitka, and afterward put in a separate bid from Port Townsend to Sitka, under the invitation contained in said advertisement. .
    The 267th regulation is as follows:
    “ Sec. 267. Bidders should first propose for service strictly according to the advertisement, and then, if they desire, separately for different, service 5 and if the regular bid be the lowest offered for the advertised service, the other propositions may be considered.”
    The true interpretation of this regulation depends upon a proper construction of the term “ service.” A careful examination of the postal code and regulations will lead to the conclusion that the term “ service” relates to the work to be done on a given post road or route, the trips back and forth conveying the mails, and not to the length of the trips nor to the time in which the trips are to be made. A post-road is a line between two given points intersecting intermediate post-offices. This road or route, as advertised, controls the length of the trips, which cannot be changed or curtailed until after contract made, and then only by virtue of the terms of the contract itself. The time in which trips are to be made is always referred to by the term “speed” or “expedition.”
    The 267th regulation requires that “bidders should first propose for service strictly according to the advertisement, and then, if they desire, for different service.” A fair construction of the language of the regulation leads to the conclusion that the “ different service ” must be service not advertised. It would not be a fair interpretation of language to construe this regulation to mean that bidders should first propose for service strictly according to tbe advertisement, and then., if they desire, for service according to the advertisement also.
    Again, the terms “increase of service,” in the language of the Department and the law, invariably mean an increase of the number of trips within a given time, and not to an extension in length, for this is absolutely controlled by the law establishing the route, and by the advertisement, until after contract made, or, in case of river, lake, or coast routes, by the advertisement itself. Nor do they relate to the time in which the trips are to be made, for that is always referred to by the term “ speed” or “expedition.”
    The only legal aud consistent view which can be taken of the 267th regulation is, that it authorizes bidders, who have submitted proposals for the advertised service, to put in separate bids for more or less frequent trips upon the route advertised, for an increase or diminution of service, and the Department agrees to consider the separate proposition of the lowest bidder for the advertised service. This view is in entire harmony with the object of the law in inviting competition, and at the same time fixes a legal limit to departmental discretion. By the regulation itself, the Postmaster-General can consider the separate proposal of the lowest regular bidder only, and can accept it only in the event that the bid for the greater or less number of trips than the number advertised for falls within the limitation contained in section 260 of the postal code, (Revised Stats., sec. 3960,) which provides that “ compensation for additional service in carrying the mail shall not be in excess of the exact proportion which the original compensation bears to the original service.”
    This being the only construction of which the 267th regulation admits, without placing it in direct conflict with the will of the law-maker, it follows that it is the correct one, and that the regulation in question has nothing whatever to do with the case at bar. The Department advertised for proposals for carrying the mails for a specified length of time upon a certain, definite, distinctly-numbered route, stating the frequency of the trips and the time of arrival aud departure. It then, in the same advertisement, invited proposals for service on this same route, to commence at either of the two starting-points on the route; the one five hundred miles nearer the point of destination than the other, aud expressly declared that the mail was to be carried upon that route “by the schedule of departures and arrivals herein specified.” It would seem that language like this, standing in the connection it does, could receive but one construction — a construction so plain and natural that both appellant and the Postmaster-General understood it in the same way, and both acted upon it. This action would have been final and conclusive had it not been for an after-thought of the then Attorney-General, who took the trouble to advise the Department, in a second opinion, that its action in following the uniform construction and practice of thirty years and awarding a contract was in violation of law. Apparently convinced that the advertisement standing alone was valid, and that the schedule applied to the route from either point, the Court of Claims were constrained to bring in the 267th regulation, to give a different and adverse construction to the language of the advertisement itself.
    Aside from all other considerations, the facts that the Postmaster-General published a notice in the form approved by himself; that appellant tendered a proposal under that notice; that the Postmaster-General, after due consideration, accepted that proposal; and that the action of both parties to the contract shows that they understood the advertisement alike, seem conclusive. For the purposes of a contract, the joint and harmonious understanding of the parties thereto, at the time it is made, becomes the authoritative rule of interpretation of all ambiguous .parts of it. It is not pretended that the United States, the appellant, or any other person was misled or injured by the construction placed upon the advertisement by the Department and appellant; and in order to nullify and abrogate the contract made under it, a construction exceedingly technical must be adopted, and a departure from the long-established usage of the Department commenced.
    The heads of Department are limited in their action by well-defined boundaries of statutory enactment, but within these landmarks are large fields for the exercise of executive discretion. Having published a notice for proposals for mail-service in the form -which his judgment approved, and which, by long-continued usage in the office, had become not only well understood, but a part of the common law of the Department, the Postmaster-General accepted the proposal of appellant for service under that advertisement, and thereby exercised and exhausted his discretion in that respect and for the purposes of that case. {Madison v. Marbury, 1 Crunch, 5 C. 01s. R., 468.) The appellant tendered a bid under that advertisement in accordance with the invitation thereof. This the proposal tendered abundantly shows. This proposal the Postmaster-General accepted, understanding it in the same way; otherwise he would have rejected it. The advertisement is within the legal discretion of the Postmaster-General, and therefore valid; and, for the purpose of this case, the mutual and concurrent understanding of the parties becomes the rule of interpretation.
    The doctrine is well settled that where an executive officer is required to do a particular thing, and the form or manner of doing it is expressly left to his discretion or judgment, the form adopted by him will be held to be lawful if, by legal intendment or relation, its parts can be understood and construed in harmony with the statute. The last opinion of the Attorney-General, in holding that such a form should be so construed as to render it illegal and the contract void, is believed to stand alone among the emanations from well-trained, logical, and eminent minds.
    In what respect, then, did the Postmaster-General, in awarding this contract to appellant, overstep the boundaries of departmental discretion as fixed by law ? Not in failing to advertise, for this tlie record shows he did. Not in the form of the advertisement, for that is by the law expressly confided to Ms judgment. Not in inviting proposals for the service, to commence at an intermediate point between the termini, for by the law he may curtail the length of trips in the interests of economy whenever, in his judgment, the public interests will thereby be promoted; not in considering appellant’s bid, for he had invited just such proposals; not in awarding the contract to appellant, for the law compelled him to accept the proposal of the lowest bidder tendering sufficient guarantee of performance. Then it would seem to follow that the judgment of the court below can be sustained only by rejecting for informality an “ official paper,” the form of which, by law, is confided to the judgment of the officer who published it; or by holding that the invitation for service to commence at Port Townsend bears no relation to the terms and conditions of the advertisement of route 43132, with which it stands associated, and of which it forms apart — a conclusion which is believed to be at variance with all sound principles of legal construction, and certainly in conflict with the mutual understanding of the parties who, in good faith, acted under it.
    It was argued in the court below, on behalf the United States, that if the appellant was entitled to recover at all, the measure of damages would be one month’s pay, to which a contractor is entitled upon discontinuance of service under the 263d regulation of the Department. This position is believed to be wholly untenable, that regulation having no reference to a contract broken by the United States, and it would be void if it had any such reference. It is a part of each contract that the Department may discontinue any service in whole or in part by allowing one month’s extra pay upon the portion discontinued ; but no contract can provide for its own breach, as such provision would constitute an alternative condition of the coutract itself; nor is it pretended even that there has been any discontinuance of service on this route. The record shows that the service has been continued under the subsequent contract with Otis, so that the position assumed, in point of law or fact, does not appear to have any bearing upon this case, and requires no further discussion.
    The following propositions, with the authorities in support thereof, complete appellant’s case:
    In this case the suspension of the acceptance and the making of a contract with Obis for the same service prior to the 1st day of June, 1874, constitute the breach ; and thereafter no act on the part of the petitioner was necessary, the United States having put compliance out of its power. (Crabtree v. Messersmith, 19 Iowa, 182, and cases cited; Dupyster v. Pulver, 3 Barb., 284; Newcomb v. Braclcett, 16 Mass., 161; 8 Md., 201; 2 Pet., 102 ; 26 Wis., 514; 12 Ind., 274. Ohitty on Contracts, 738.)
    The measure of damages is the difference between the contract-price and the cost of performance. (Speed’s Case, 7 0. Ols., 97; Ciarle v. The Mayor, 4 N. Y., 338. Adams’s Case, 1 0. Ols., 106, 342; Cunningham v. Dorsey, 6 Cal., 19; 7 Cush. Mass., 522 ;■ 13 How., 344.)
    In executory contracts, terminated by the Government without the fault of the other party, it should place him in as good condition as he would have been by performance. (Wormer’s Case, 4 0. Ols., 259; Woodruff & Bouchard’s Case, 7 0. Ols., 605, 472.)
    
      An executory contract, terminated by the Government without the fault of the other party, entitles him to sue for the entire damages, both past and prospective, accruing by reason of the breach. (Stille v. Jenkins, 3 Green. N. J., 304; Adams's Case, 1 C. Ols., 106; 31 Vt., 585.)
    In the construction of statutes, the long-continued and uniform usage of a department of the Government will not be departed from by the courts, unless it appear to be in plain and palpable violation of the letter and spirit of the law. (Untied States v. Ship Recorder, 1 Blatch., 66, 218; Edwards v. Darby, 12 Wheat., 210; United States v. Lytle, 5 McLean, 9; United States v. Gilmore, 8 Wall., 330; 8 Op. Atttorneys-General, 24; 1 Pet., 230; United States v. State Bank North Carolina, 6 Pet., 39, 218; United States v. McDaniel, 7 Pet., 2.)
    
      Mr. Assistant Attorney- General Smith for the appellees :
    In the administration of the Post-Office Department, for the purpose of identifying the lines and modes of conveyance by which and the termini between which mails are to be harried, and the intermediate points at which they shall be left and received, the country has been divided into routes designated numerically. Every such route thus has a distinct existence or identity. That from Portland, Oreg., to Sitka, Alaska, via Port Townsend, Wash. Ter., and San Juan, is 43132, over which the mails are carried, necessarily almost, in steamboats. This number, then, indicates a route with established termini and a stoppage at but two intermediate points. Its length is fourteen hundred miles, viz: five hundred from Portland to Port Townsend, and nine hundred from the latter place to Sitka.
    By the Act June 8, 1872, (ch. 335,) the statutes relating to the Post-Office Department were revised, consolidated, and amended, and prior statutes repealed. To conform to this legislation the regulations of the Department were also revised and codified, and a volume was issued by that Department, authenticated by the signature of the Postmaster-General, April 5, 1873, containing these laws, regulations, and instructions. To this compilation reference is made. The necessity for advertising for contracts to carry the mails arises wholly from the statute provisions of the aforesaid Act June 8,1872, (ch. 335, § 243,) and is not affected by any regulations. This section (243) is found in 17 Stats., 313, and upon pages 88 and 89 of tbe compilation. It provides, “That before making any contract for carrying the mail, other than those hereinafter excepted, the Postmaster-General shall give public notice, by advertising once a week for six weeks in one or more, not exceeding five, newspapers published in the State or Territory where the service is to be performed, one of which shall be published at the seat of government of such State or Territory; and such notice shall describe the route, the time at which the mail is to be made up, the time at which it is to be delivered, and the frequency of the. service; and the Postmaster-General shall direct, by special order in each case, the newspapers in which mail-lettings or other proposals relative to the business of his Department shall be advertised, and no publisher shall be paid for such advertisements without having been requested by the Postmaster-General to publish the same.”
    What was meant by this requirement, that the times of making up and of delivering the mail should be stated, can be seen by reference to the Act March 3,1825, (ch. 64, § 10, 4 Stats., 104,) in force from its date up to the enactment of the consolidated laws relating to the Post-Office of June 8, 1872. This act of 1825 made it the duty of the Postmaster-General to state in his advertisement “ the places from and to which such mail is to be conveyed, the time at which it is to be made up, and the day and hour at which it is to be delivered.” When we consider the subject-matter we at once see the importance of the speediest transit consistent with safety and regularity, and that this has been recognized in the legislation of Congress for half a century.
    Under these statutes, upon the 1st day of October, 1873, advertisement was made for proposals for carrying the mails over the various routes in the States and Territories near and beyond the Pocky Mountains, and among them, for a monthly mail over this route 43132, described by its termini and intermediate stops, its distance, mode of transportation, and times of departure from and arrival at each terminus; after these was added this line: “ Proposals invited to begin at Port Townsend, Wash. Ter., 500 miles less.”
    George K. Otis made a bid for carrying the mail monthly each way over this route, according to the times stated in the schedule, at the rate previously paid, $34,800 per annum. He made no proposal to start at Port Townsend. Mr. Garfielde, the claimant, proposed to carry the mails between Port Townsend and Sitka, for $26,000 per annum, without specifying the frequency of the service, nor the times of departure and arrival. He made no proposal to carry the mail over the then existing route 43132. These facts are to be taken in connection with sectiou 267 of the Post-Office Eegulations, found upon page 195 of the before-mentioned compilation, which says:
    “ Sec. 267. Bidders should first propose for service strictly according to the advertisement, and then, if they desire, separately for different service; and if the regular bid be the lowest offered for the advertised service, the other propositions may be considered.” Section 269 (same page) requires that the service be distinctly stated in the b.d. The contract office and division of the Post-Office Department is under the charge of the Second Assistant Postmaster-General, and to it “is assigned the business of arranging the mail-service of the United States, and placing the same under contract.” * * * “ It pre-
    pares the advertisements for mail-proposals, receives the bids, and has charge of the annual and occasional mail-lettings, and the adjustment and execution of the contracts.” (Postal Laws and Regulations, 148, § 3.)
    As the dissenting opinion of Mr. Justice Nott gives to the action of the Second Assistant Postmaster-General, in notifying Garfielde of the acceptance of his bid, the full effect of a completed contract, we will first consider the extent of and limitations upon the power of the Postmaster-General, treating, for the moment, the act of his subordinate as if it were his own; though we think we can show hereafter that, taking the claimant’s statement of the law, Mr. Routt exceeded the authority delegated to him.
    Conceding the position of Judge Nott, that the heads of Departments cannot be compelled by mandamus to perform in a particular manner an act in relation to which a choice of the means of its execution is confided to their discretion, nor to give to a statute any peculiar construction, it by no means follows that when, in the ordinary course of litigation, the question of the existence and validity of a contract, depending upon the effect to be given to a statute, comes before a court, the judiciary are to be bound by the view of the law which, from his conduct in a single instance, (or in many instances,) it is assumed that the head of a Department indulged. In the cited case of United States v. Alexander (12 Wall., 117) it was the subsequent legislation of Congress, indicative of its intention in the origiual enactment, that determined the correct interpretation of the pension act then under consideration. If the Commissioner of Pensions and the Second Assistant Postmaster-General can preclude, by their action alone, the Supreme Court from declaring the true meaning of the law— i. e., the intention of the law-makers — we do not know to what grade of clerkship this tribunal is subordinate. “A mistaken opinion of the legislature concerning the law does not make law.” (Postmaster-General v. Parly, 12 Wheat., 148.)
    The head of each Department is authorized to make such regulations for the conduct of its etnployés and its business as are “ not inconsistent with law.” Whether they are so or not, in any given instance, is not left to their framer finally to decide, but it is a judicial question when.it arises in the course of litigation. It is only when “not inconsistent with law ” that this court has held that these regulations have the force of law.
    The substance of the whole matter is stated in United States v. Wright, (11 Wall., 648,) that the decision of the Postmaster-General as to the existence of facts upon which he is to exercise his discretion is conclusive, but of course it is not so as to the law. This was the advice given by Attorney-General Cushing to the President, November 23, 1853, (6 Ops., 226.)
    That Mr. Justice Nott could cite Decatur v. Paulding (14 Pet., 497) to show that construction of a statute by the head of a Department is such an exercise of discretion as not to be interfered with by the judiciary in any such sense as that the court cannot declare his construction correct or erroneous, as they may find it to be, is an instance of the very different ideas that legal men may draw from the same opinion. True, he states correctly the position of this court in that case, “ that the judiciary cannot revise his judgment by mandamus or interfere with his discretion;” but he goes on with his inferences as though the declaration was that the Cabinet minister’s decision is final, and not reviewable even in a case of ordinary litigation like the present. It is only in the discharge of his official routine duties that his discretion is not to be directed by mandamus; as to ministerial acts he maybe so guided. In that case (14 Pet., 516) the court say: “ The interference of the courts with the performance of the ordinary duties of the Executive Departments of the Government would be productive of nothing but mischief.”
    Upon the preceding page (515) is stated the occasion for any examination of the correctness of the statutory construction adopted by the head of a Department. “If a suit should come before this court which involved the construction of any of these laws, the court certainly would not be bound to adopt the construction given by the head of a Department. And if they supposed his decision to be wrong, [or right,] they would, of course, so pronounce their judgment. But their judgment upon the construction of a law must be given in a case in which they have jurisdiction, and in which it is their duty to interpret the act of Congress, in order to ascertain the rights of the parties in the cause before them. The court could not entertain an appeal from the decision of one of the Secretaries, nor revise his judgment in any case where the law authorized him to exercise discretion or judgment. Nor can it by mandamus act directly upon the officer, and guide or control his judgment or discretion in the matters committed to his care in the ordinary discharge of his official duties.”
    We humbly submit that the general principles applicable to contracts between individuals must be restrained, where the Government is a party, by the degree of authority conferred by law upon its agents by whom they are, or are claimed to be, made. Since every citizen is presumed to know the laws he has helped to make, (and in this case Mr. Garfielde states that he had given them and the regulations made under them careful examination,) the United States are only bound to the extent they have actually given power to him who professes to be acting as their agent. (Lee v. Munroe, 7 Granch, 366; Hunter v. United States, 5 Pet., 188; Johnson v. United States, 5 Mason, 425; United States v. City Banlc, 6 McLean, 130; 9 Atty. Gen. Ops., 18.)
    Though it is very true that the same principles apply to contracts made with the Government as to those made with individuals, yet the mode and power of contracting is very different. It is limited and defined by statute. Thus the Aet June 8, 1872 (§ 209) gave to the Postmaster-General the power to “ contract for the transportation of the mails to and from any post-office;” but the section, printed above, (§243,) required that “ before making any contract for carrying the mail” he should give the notice containing the items stated, being a description of the route, times of arrival and departure, and the frequency of the service, &e. When the statute confers a power, the regulative provisions which it imposes on its exercise are essential and imperative. The observance of the prescribed forms and duties is a condition precedent to the power to contract. Such conditions always require literal compliance with their terms. The claimant throughout speaks of the advertisement as part of the alleged contract, whereas it was only an essential prerequisite to the ability to make any contract, and not part of the contract when made. Between individuals the proposal and its acceptance would (unless some law repugnant thereto intervened) constitute a contract; but they do not with the Government, unless there has been an advertisement, and such a one as the statute prescribes; what Mr. Attorney-General Cushing calls “ advertisement in due form.” (6 Ops., 226.)
    The Postmaster-General is the agent of the United States, possessing the power to bind his principal only sub modo, in the precise manner indicated by the statutes, known equally to him and to those who deal with him. He is authorized to contract with regard to but one subject, postal facilities; and as to that, only in those instances where he has given the specific notice'required by law. This is a limitation upon and a condition precedent to the exercise of his agency. The statute creates all the power that is possessed, and those who act under it must clothe all their proceedings with the prescribed solemnities. This is the case with all bodies that, like the United States, have only a legal existence, and can only act through agents. {Head, v.Prov. Ins. Oo., 2 Oranch, 168, 169; Leominster Canal v. Shrewsbury By., 3 Kay & J., 654; Brooks v. Cock, 3 Ad. & El., 141; Cope v. Thames Dock Co., 3 Exch., 841; Biggie v. By. Co., 5 ib., 442; Cornwall Co. v. Bennett, 5 H. & N., 423.)
    In, various instances the prescribed form is held essential to the validity of a contract. So, in the case of a mortgage, by the terms of the English merchant shipping act of 1854, (Liverpool Bank v. Turner, 2 De G., F. & J., 502,) where Lord Campbell said, (p. 508 :) “I cannot doubt that the legislature intended these and no other forms were to be used.” (Bex v. Jeffries, 4 T. B., 767; Davidson v. Gill, 1 East, 72.) That an award of official commissioners must correspond with tbeir advertisement, see King v. WashbrooTc, (4 B. & C., 732.)
    It is not alleged that the contract set up by Mr. Garñelde is void for want of consideration, mutuality, or memorandum in writing; but that the Postmaster-General had not taken those steps which would authorize him to contract with anybody for the conveyance of mails between Port Townsend and Sitka as an independent route.
    Time, certainly, is the very essence of these contracts. “Celerity,” as well as certainty and security, was to be assured in the engagement for carrying these mails. Now, what time was to be made, what rate of speed is deemed celerity, in the advertisement and claimant’s proposal as to mails starting at Port Townsend ? If ten days was sufficient celerity in going over one thousand four hundred miles, it certainly could not be so for nine hundred.
    Let us see what are the elements of an advertisement sufficient to authorize a contract. First, it must “describe the route.” Is that done? Can this court say, from the advertisement, proposal, and acceptance, whether or not Mr. Garfielde would have been under obligation to diverge upon every voyage a long distance from the most direct line between the termini, to land and receive mails at San Juan ?
    Second, it must state the time of taking and that of delivering the mail. - What were these, under the alleged contract? To show that any were indicated, the claimant is driven to the preposterous supposition that they were to be the same, whether the distance to be traversed was one thousand four hundred miles or only nine hundred; and that this rate of speed would be “ celerity,” though he says it is only six miles an hour for the longer distance. It would be three and three-fourths miles an hour under his bid, as he claims it. He does not notice the fact that if the boat started from Portland she would lose some of her hours putting into Port Townsend and San Juan; and, therefore, that there is more time required for the whole route 43132, as compared with his offer, than would be indicated by the ratio of 14 to 9. Allowing a day for each divergence, the speed would be seven and three-tenths miles per hour on route 43132. True, the calendar days of departure may (or may not) be of small consequence; but those occupied in the transit are very important.
    
      Third, “ the frequency of the service.” Claimant now says that the service was to be performed once a month each way, but he did not say so in his proposal, nor was this stated in the line inviting proposals. The claimant admits that “ had there been no advertisement there could have been no contract ; ” but it is not merely an advertisement, but one couched in terms conformable to law, that is requisite. Suppose the end sought be precisely what he alleges; yet it can only be attained by the means Congress has indicated as appropriate and necessary to accomplish the desired purpose.
    But the statute does not stand alone. The regulations of the Post-Office Department as to bids explain the whole advertisement consistently with law. Section 267 requires bidders first to “ propose for service strictly according to the advertisement,” i. e., such advertisement as the law requires; and then, if they desire, separately for different service; and “ if the regular bid be the lowest offered for the advertised service, [not otherwise,] the other proposition may be considered.” This line at the end of the advertisement of route 43132 indicated for what “ different service” regular bidders might propose with a prospect that their proposition would be considered. This was the sensible, view taken by the Court of Claims. The Portland-Sitka route, 43132, was evidently the “ advertised service,” and proposals for that were the £i regular bids.” The reason for requiring propositions from all bidders for the advertised service first is plain. It was to establish a standard of comparison by which it could be ascertained who was entitled to the contract as the “lowest bidder.” Otherwise, there would be a competition of routes, schedules, and bids. No such indiscriminate, absurd jumble is invited, nor could any valid contract be based upon such an advertisement. The claimant filed no ‘‘regular bid,” and therefore was not entitled to have his proposals considered.
    The allusion to the usage of the Department is unfortunate for the claimant. The researches among its files showed that “ at least nine hundred and seven similar advertisements have been published,” but that in no single instance does it appear that a contract has been awarded to one who was not the lowest responsible bidder for the advertised service upon the regular route. That no contract was ever made with one not the lowest regular bidder for advertised service, is evident from the regulations, (section 267,) and from the omission of the claimant, through whom these explorations of the records were made, to show any such instance. The usage to advertise thus is immaterial, even if a usage to contract could be material, in view of the statute.
    This regulation (section 207) we have shown to be essential to the proper determination of the fact who is the lowest' bidder. All the high functionaries who have dealt with this matter have applied to it this rule, because it is only by observing these rules that the vast business of the Department can be properly conducted.
    Mr. Justice Wayne, in giving the opinion of this court, in United States v. Roberts, (9 How., 517,) said:
    
      “ There cannot be either security or efficiency in the business of the Post-Office Department, unless its receipts and disbursements are made upon a fixed plan. It must be executed, too, with uniformity and rigor. The duties of its officers must be definitely prescribed, and enforced without relaxation. Nor will there be either safety or justice for the country if the forms enjoined for receiving and paying money are permitted to be disregarded by its deputies.”
    Should the court, by any possibility, come to the question of damages, the finding of the court below that these were $15,000 a year, upon a contract for $26,000, was erroneous, in view of the right of the Postmaster-General, under the Postal Regulations, 194, § 263, to “ discontinue or curtail the service, in whole or in part, * * * allowing as a full indemnity to the contractor one month’s extra pay.” This provision is made part of every mail-contract, so that if Mr. Garfielde was entitled to any contract, it was one subject to this contingency, which would be the utmost limit of his damage, had he shown himself entitled to recover anything.
   Mr. Justice Hunt

delivered the opinion of the court:

The Court of Claims holds that the proposal on the part of Garfielde, and the acceptance of the proposal by the Department, created a contract of the same force and effect as if a formal contract had been written out and signed by the parties. Many authorities are cited to sustain the proposition. We believe it to be sound, and that it should be so held in the present case.

' That court held that the contract alleged by the petitioner was invalid, for the reason that the Postmaster-General exceeded his authority in making .it without the previous publication required by the Act June 8, 1872. (17 Stat. L., p. 313, § 243.)

That act required “ that before making any contract for carrying mail * * * the Postmaster-General shall give public notice * * *; such notice shall describe the route, the time at which the mail is to be made up, the time at which it is to be delivered, and the frequency of the service.”

Among the instructions issued by the authority and official Sanction of the Postmaster-General are the following, which were referred to and proved or admitted by the parties at the trial:

“Special Notice. — All instructions and regulations promulgated by the Postmaster-General, conformable to law, for the guidance of persons employed by the Department, are entitled to the same respect and obedience as acts of Congress.” * *
“Sec. 263. The Postmaster-General may order an increase or extension of service on a route, by allowing therefor a pro-rata increase on the contract-pay. He may change schedules of departures and arrivals in all cases, and particularly to make them conform to connections with railroads, without increase of pay, provided the running-time be not abridged. He may also order an increase of speed, allowing, within the restrictions of the law, a pro-rata increase of pay for the additional stock or carriers, if any. The contractor may, however, in case of increase of speed, relinquish the contract, by giving prompt notice to the Department that he prefers doing so to carrying the order into effect. The Postmaster-General may also discontinue or curtail the service, in whole or in part, in order to place on the route a greater degree of service, or whenever the public interests, in his judgment, shall require such discontinuance or curtailment for any other cause; he allowing, as a full indemnity to. the contractor, one month’s extra pay on the amount of service dispensed with, and a pro-rata compensation for the amount of service retained and continued.”
' “Sec. -267. Bidders should first propose for service strictly according to the advertisement, and then, if they desire, separately for different service; and if the regular bid be the lowest. offered for the advertised service, the other proposition may be, considered.”
“ Sec. 275. The law provides that contracts for the transportation of the mail 'shall be awarded to the lowest bidder tendering’ sufficient guarantees for faithful performance, without other reference to the mode of such transportation than may be necessary to provide for the due celerity, certainty, and security thereof.” * * * * *

The notice in the present ease called for proposals for carrying the mails on route No. 43132, from Portland, Oreg., to Sitka, Alaska. The distance was stated to be 1,400 miles, the duty was required to be performed each way once in each month, in safe and suitable steamboats, by the way of Port Townsend and San Juan. The time of departure and arrival at each terminus was specified, and ten days were allowed for the passage. It was then added, “Proposals invited to begin at Port Townsend, (W. T.,) 500 miles less.”

We are of the opinion that this was a sufficient notice under section 243, (supra,) that proposals were desired for carrying the mail from Port Townsend to Sitka. The rigorous and strained construction which would defeat it, would defeat the reasonable intent of the statute. Bach terminus was given, to wit, Port Townsend and Sitka, as was the route to be followed, to wit, by way of San Juan, and the length of time to be occupied, to wit, ten days for the whole distance, of which this distance bore the proportion of nine to fourteen, and the time of making up and delivery upon the same principle. The steamer should leave Portland on the first day of every month; of the ten days allowed for the passage to Sitka, five-fourteenths would be occupied in reaching Port Townsend and nine-fourteenths would be allowed for the residue. The whole time and the whole number of miles being given, it was a simple arithmetical question of when the steamer would leave Port Townsend and when on its return it would reach that port.

The object of the statute was to secure notice of the intended post-routes, of the service required, and the manner of its performance, that bidders might compete, that favoritism should be prevented, that efficiency and economy in the- service should be obtained. It was not required that papers of this character should be drawn as if they were subject to the criticism or dissection of a demurrer in a court of law.

Accordingly, it appears that this notice for the abridged distance is in conformity to the usages of the Post-Office Department for many years past, proof having been made of nine hundred similar advertisements published by the Postmaster-General. Long practice and constant usage favor the construction we have given to these proposals.

Great aid is also given by the 263d regulation, above recited. It is there provided that the Postmaster-General may, in his discretion, change the schedule of departures and arrivals, without increase of pay, if the running-time be not abridged. Under this authority he has the power to name the precise days of the month on which the steamer of Mr. Garfielde, the claimant, should leave Port Townsend or Sitka, or both of these places. The supposed defects in the advertisement are capable of a remedy, if needed, under this authority.

The damages are regulated by the same section. The claimant states, in his proposal, that he has full knowledge of the laws and regulations of the Department on the subject of mail-transportation. He no doubt knew that this regulation provided that the Postmaster-General could discontinue entirely the service for which he proposed, whenever in his judgment the public interests required it, and that for such discontinuance one month’s pay was to be deemed a full indemnity to the contractor. There was reserved to the Postmaster-General the power to annul the contract when his judgment advised that it should be done, and the compensation to the contractor was specified. An indemnity agreed upon as the amount to be paid for canceling a contract must, we think, afford the measure of damages for illegally refusing to award it.

The judgment of the Court of Claims is reversed, and the case is remitted to that court, that a judgment may be awarded to the appellant for a sum equal to one month’s compensation under the proposal made by him and accepted by the Postmaster-General.  