
    ROBERTS’ CASE. Marshall O. Roberts et al., Trustees, &c., v. The United States.
    
      On the Proofs.
    
    
      Contractors perform certain extra service, subject to the approval of Congress. After suit brought, but before trial, Congress pass a private aet referring the claim to this court, and directing the. court “to examine the same and determine and adjudge whether any, and if any, what amount is due said trustees for said extra service,” the aot also prescribing a rule for the measure of damages. The claimants insist that this act recognizes the validity of the claim and the, value of the services, and merely refers it to the court to ascertain and award the amount of the damages according to the prescribed rule.
    
    A private aot which refers a claim to the Court of Claims, and' directs the oonrt “ to examine the same, and determine and adjudge whether any, and if any, what amount is due said trustees for said extra service,” does not thereby ratify the extra service, although it at the same time prescribes a rule for the measure of damages, and the extra service was rendered with the understanding that it was to bo subject to the approval of Congress. Act lilh July, 1870, (16 Stat. L., p. 53, private acts chap. 288.) Private acts are to be strictly construed, and especially so as to prevent the entrapping of the government by fixing a liability whore the intention of the legislature wras only to authorize an investigation.
    
      Mr.R.M. Convine and Mr. Thomas Wilson for the claimants:
    Claimants were engaged,-in 1851, in carrying- out the written contract of A. G-. Sloo, in the transportation of the mails in their steamships, between New York and New Orleans, touching at Havana twice monthly each .way; and also between Havana and Chagres twice monthly. There is nothing claimed in these proceedings on account of that service. What is claimed is compensation for service rendered by them in addition to those performed under that contract, for the transportation of the-■mails from New York to Chagres direct, commencing on 13th August, 1851, and running to the 18th October, 1859, eight years and two months, and from New Orleans to Chagres and back for the space of two years and two months, to wit: from the 16th July, 1852, to 20fch September, 1854, two trips in each month each way on both lines. During all this time the service required by the contract was continued, except the part of it between Havana and Chagres, which was suspended during the direct service between New Orleans and Chagres.
    The Postmaster General desired to have the mails carried by the claimants in their ships over this new line, and the claimants -were willing to do it, but not without compensation. The Postmaster General did not feel himself authorized to agree to pay for it out of the department -fund, but at last consented that the wrhole matter of compensation might be referred to Congress, and they could determine what the compensation should be, but in the mean time the mails should be made up and sent by this new route. There is, and can be, no claim, and none was asserted by the Postmaster General or Secretary of the Navy at the time, that the claimants were bound to cany the mails on this direct route, by force of anything contained in the then existing contract, for the compensation they were then receiving for carrying the mails' over the contract routes. The claimants were willing to undertake the service, and leave it to Congress to determine equitably the amount of their compensation. The minds of the parties met on this proposition, viz, that the mails should be carried over this new route, and the parties carrying them should go to Congress for their pay. It was agreed that they should be paid, but the amount of the pay was not determined.
    The original contract in spirit, if not in letter, reserved to the government the right to exact the performance of such service from the claimants, the mode of compensation being therein provided. That provision, when the contract was submitted to Congress, as it was after being made, received the sanction of Congress, as is shown by its silent acquiescence, if not by its positive acts.
    Thus the agreement was sanctioned by the legislative department, and the acts of the Postmaster General and the Secretary of the Navy in the most distinctive manner affirmed and ratified it. Nay, more. The policy of the arrangement was approved and adopted, and the claimants permitted to go on, year after year, in the performance of the new service, without a word of objection, the government all the while receiving the profits and fruits of the service without paying one cent for them. In thelanguage of the Senate committee’s report, to be found on page 3, of the Document No. 63, “This improved service it was not. only proper for the government to supply, but was, under the circumstances, a duty of the government.”
    It thus appears that; the service was performed with a distinct understanding on the part of both parties that payment was to be made for it.
    The service having been rendered and the fruits of it accepted by the government, and the claimants never having been paid for it, the question is, wdiat was it really worth, and what should be 'allowed for it? By what rule shall the compensation be measured ?
    There are several ways of arriving at this result:
    1st. The original contract prescribed a rule which may be adopted, if the court shall be satisfied that that provision of the original contract governed the parties in making the new arrangement. If that should be adopted, the claimants would be allowed at the rate per annum of $290,000 for the vdiole time the mail was carried from New York to Ohagres direct, making-eight years and two months, producing’ the sum of $817,756 80; and for carrying the mails from New Orleans to Ohagres direct, for two years and two months, viz, from the 16th of July, 1851, to 20th September, 1854, the sum of $145,305 60, full contract price per annum; but from this must be deducted the discontinued service from Havana to Ohagres, $115,389 20, leaving-due claimants $26,916 40 per annum on that account, contract price; but they claim but one-half this sum, viz: $29,159 43 for this service, making in all claimed for the whole extra service, $846,916 23, by this rule.
    2d. But if the court should hold that the amount should be ascertained by the quantum meruit rule, then, bj- reference to tbe testimony, it will be seen that the claimants could have occupied the space used for the mail matter carried on this direct route with express freight at rates far more remunerative, and that “ carrying the mails is entitled to greater compensation than carrying freight of equal bulk; * * * and that it was worth at that time, under all the circumstances, $20,000 per mouth to carry the mails between New York and Aspinwall, and $17,000 between New Orleans and Aspinwall.”
    3d. That is. to say, for New York and Aspinwall, ninety-eight months, $1,960,000; and for New Orleans to Aspinwall, two years and two months, $442,000; but from these sums must be deducted the time of the discontinued service between Havana .and Aspinwall.
    
      Mr. Alexander Johnston (with whom was the Assistant Attorney General) for the defendants:
    I. There ivas no contract for compensation for any services outside of those performed and to be performed under the terms of the Sloo contract. There was not only no express contract, but both the Post Office and Navy Departments carefully guarded against doing or saying anything that could possibly be so construed as to raise an implied contract. The testimony relied upon to prove a contract runs all one way, and is perfectly conclusive in proving that there was no contract at all.
    II. It does not appear that the claimants performed any services either under or outside of Sloo’s contract. On the contrary, it appears that the United States Mail Steamship Company, a corporation, performed all the services.
    III. If there was any agreement at all, it was an agreement made by the claimants, or, rather, by the United States Mail Steamship Company, with themselves, that they would apply to Congress for additional compensation. Neither the Navy nor Post Office Department ever agreed to submit the question of additional compensation to Congress; on the contrary, both departments gave notice in advance that they would not favor an application of that kind.
    If the court should ever reach the question of damages in this case, it must be borne in mind that the claim is not for carrying a greater amount of mail than was contemplated by the Sloo contract, but for making an additional number'of trips. It does not appear that any vessel carrying the mail ran for that putrpose alone; on the contrary, it distinctly appears that both the direct lines of steamers.were established for other purposes, and were run before any mail was carried on them; and that, when the direct line between New Orleans and Aspinwall was found not to be jmofitable to the company, it was discontinued, without complaint on the part of the United States.
   Drake, Oh. J.,

delivered the opinion of the court:

Yery few questions of law arise in this case. The case addresses itself rather more to us as a quasi jury than as a court.

The conclusions of l;aw arrived at by the court upon the facts are briefly stated in the finding prepared by the court and now filed.

There is one point, however, upon which we deem it proper to express more than the mere conclusion of law, and that is, the effect to be given to the Act 14th July, 1870, “Por the relief of tlie tmstees of Albert G. Sloo.” That act is as follows:

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

It is urged by the claimants’ counsel that this act recognizes the validity of their claim and the value of the services, and refers to this court merely the duty of ascertaining- and awarding the amount of damages, under tlie rule contained in thepro-viso. We cannot yield to this construction of the act, nor can we suppose that it was the intention of Congress to give any such effect to, it.

This is a private act, which the claimants procured to be passed. It was passed more than four years after this suit was brought, and when the trial of the case was not very distant, and the whole case would be submitted to our adjudication.

If Congress knew of the pendency of this suit, it is not to be supposed that it intended to compel this court to decide it in favor of the claimants, without regard to the merits of the case, when, for many years, the claimants had vainly tried to obtain the passage of an act to pay them for the service which is the foundation of the suit. If Congress did not know of the pend-ency of this suit, it is equally inconceivable that it would refer a case to us to “determine and adjudge,’7 and in the very act of reference command us to determine and adjudge it in a particular way.

We are “directed to examine the claim and determine and adjudge whether any, and, if any, what amount is due said trustees for said extra service.” This language goes to the very root of the case. To determine and adjudge whether any amount is due thfem, necessarily involves the examination of the case in every point of view, and implies every exercise of judicial function of which, as a court, we are capable, and every judicial faculty which we can command. He who would restrict the power thus giyen us to determine and adjudge must show the restriction toticlem verbis ; it can never be shown by construction.

The jnmnso does not militate against this view. It does not limit the previous power to determine and adjudge whether any amount is due, but merely indicates the rule of damages, if we determine and adjudge something to be due.

We reiterate, in this connection, our previously expressed views in regard to the construction of private acts of the legislature. They are always to be strictly construed, and never to be forced beyond their plain import.- Most especially are they to be so construed as to prevent the entrapping of the government by fixing upon it liability where the intention of the legislature was only to authorize an investigation and determination of the question of liability. If Congress desires a claim to be paid, it can so order by an act requiring its accounting officers to pay it, without reference to this court. If it wishes the decision of this court upon the mere question of the amount due to a .party, it can employ apt words to limit us to that specific inquiry. But when it refers a case to us to decide whether any amount is due him, we must decide that i>recise point at the threshold of tbe case, and no latitude of construction of particular words or phrases in the act, to dispense with our performance of that plain duty, is allowable in favor of the party for whose, benefit, and through whose efforts, the act was passed. Against him, the rule of strict construction is always to be enforced.

Loring, J.,

dissenting:

On the whole case, I am of opinion that the evidence estab-' lished a right of action in the claimants under the act referring the case here.

Nott, J.,

dissenting:

The construction of the court gives no effect to an act of Congress. Congress having passed the private act for the relief of the claimants, with knowledge of the facts, as appears by the reports of their committees, and while the claimants’ suit upon the same cause of action was actually pending in this court, must be deemed to have thereby ratified the additional service, and referred the claim to this court for the ascertainment of the damages, if any, according to the rule expressly, prescribed by the act.  