
    GAKFIELDE’S CASE.
    Selucius Garfielde v. The United States.
    
      On the Proofs.
    
    
      'The Post-Office advertises for proposals for carrying the mail from Portland, by Port Townsend and San Juan, to Sitka, 1,400 miles ; leave Portland on the 1st of every month, arrive at Sitka by the 10th; leave Sitka on the 13th, arrive at Portland by the 23d. “Proposals invited to begin at Port Townsend, 500 miles less.” The claimant’s bid is simply to carry the mail from Port Townsend, “under the advertisement of the Postmaster-General,” without proposing anything as to the entire route, nor specifying the times of arrival and departure on the partial route. The bid is accompanied by security binding the claimant to perform, if accepted. The Post-Office accepts the bid, stating, at the same time, that the formal contract will be forwarded for execution. Before the contract is sent, the acceptance is revoked and a contract awarded to a third party.
    
    When a bid which binds the bidder to perform is accepted, and he is ready and able to perform, the other party cannot escape liability by refusing to enter into the formal, written contract contemplated by the terms of his acceptance. He is liable to the same extent as he would have been had the formal contract been executed. (Affirmed. See Supreme Court cases, ante, p. 339.)
    
      The Reporters’ statement of the case:
    For the history of this case subsequent to the decision of the Court of Claims, see the report among the Supreme Court cases, p. 322, ante. The following are the findings of fact on which the appeal was taken and the judgment rendered:
    1. In conformity to the two hundred and forty-third section of tbe act of Congress entitled “An act to revise, consolidate, and amend tbe statutes relating to tbe Post-Office Department,” approved June 8,1872, the Postmaster-General, on tbe 1st day of October, 1873, published an advertisement inviting proposals for carrying the mails upon certain routes therein named from July 1, 1874, to June 30, 1878, among which was the route from Portland, Oregon, by the way of Port Townsend, Washington Territory, to Sitka, Alaska, numbered 43132, of which said advertisement so much as relates to said route was as follows :
    “Post-Office Department,
    “ Washington, October 1,1873.
    “Proposals will be received at the contract-office of this Department until 3 p. m. of February 2,1874, (to be decided ou or before March 2,1874,) for conveying the mails of the United States in the * * * Territory of Washington, from July 1, 1874, to June 30, 1878, on the routes and by the schedule of departures and arrivals herein specified : * * * *
    “43132. From Portland, Oregon, by Port Townsend, W. T., and San Juan, to Sitka, Alaska, 1,400 miles and back, once a month, in safe and suitable steamboats.
    “Leave Portland on the 1st of every month 5 arrive at Sitka by the 10th of every month.
    “ Leave Sitka on the 13th of every month; arrive at Portland by the 23d of every month.
    “Proposals invited to begin at Port Townsend, W. T., 500 miles less.
    “Present pay, $34,800 per annum.”
    2. In response to said invitation for proposals there were two separate bidders and no more, each of whose proposals was received at the Post-Office Department in due time, and was accompanied by the guarantee of two responsible citizens, the oath of the bidder, certificate of a postmaster, and a check on a solvent bank for the deposit required, according to the law and regulations.
    George K. Otis, one of said bidders, proposed to convey the mails with celerity, certainty, and security, from July 1,18.74, to June 30, 1878, on route No. 43132, from Portland, Oreg., by Port Townsend, W. T., and San Juan to Sitka, Alaska, 1,400 miles, and back, once a month, in safe and suitable steamboats, to leave and arrive at the times specified in said advertisement, for the annual compensation of $34,800. He made no “proposals to begin at Port Townsend, W. T., 500 miles less.”
    ' Selucius Garflelde, the claimant, the only other bidder, made the following proposal:
    “The undersigned, Selucius Garflelde, whose post-office address is Port Townsend, county of Jefferson, Territory of Washington, proposes to convey the mails of the United States from July 1,1874, to June 30,1878, on route No. 43132, between Port Townsend and Sitka, Alaska, under the advertisement of the Postmaster-General dated October 1,1873, in safe and suitable steamboats, ‘with celerity, certainty, and security,’ (law of June 8, 1872,) for the annual sum of $26,000.
    “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 laws and instructions attached to advertisement of mail-service.
    “Dated Port Townsend, W. T.. January 8, 1874.
    “SELUCIUS GAREIELDE, Bidder.”
    He made no proposal under the first part of the advertisement for carrying the mail between Portland, Oreg., by Port Townsend, W. T., and San Juan to Sitka, Alaska, twice a month, to leave and arrive as therein specified.
    3. On the 19th of February, 1874, said Otis addressed to the Postmaster-General a protest against awarding the contract to said Garflelde, ou two grounds: “First. That the bid or proposal of said Selucius Garflelde did not meet requirements of the two hundred and sixty-seventh of the regulations of the Department, which requires ‘that bidders shall 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.’ Second. That Mr. Garflelde was a Federal officer, a collector of customs at Port Townsend, and could not, therefore, enter into such a contract with the United States.” This protest was, on the 21st of February, 1874, referred by the Postmaster-General to the Assistant Attorney-General of the Post-Office Department for careful examination and his opinion in writing. On the 17th of March, 1874, the Assistant Attorney-General gave h:s written opinion that neither of the positions taken by Mr. Otis could be sustained, and said opinion was approved by the Attorney-General by bis indorsement in the following words:
    “Department of Justice,
    
      “April 3,1874.
    “ In so far as the foregoing opinion holds that the bid of Mr. Garfielde is not invalid on account of the advertisement, and that there is no law to prohibit the letting of the contract to him because he is collector of customs, I approve it; but as to the other matters therein I express no opinion.
    “GEO. H. WILLIAMS,
    
      “Atty. General.'”
    
    4. Some time in March, 1874, the following notice of acceptance was sent to said Garfielde:
    “ U. S. Post-Office Department,
    “Office of the Second Assistant
    “Postmaster-General,
    
      “Washington, D. G., March 2,1874.
    “ Sir : The Postmaster-General has accepted your proposal, under advertisement of October 1, 1873, for conveying the United States mail from July 1, 1874, to June 30, 1878, on (Washington Territory) route No. 43132, between Port Townsend and Sitka, Alaska, at $20,000 a year, ‘ with celerity, certainty, and security.’
    “ Contracts will be sent in due time to the postmaster at your place of residence, which you must execute and return to the Department by the first day of June; otherwise you will be considered a failing bidder, and the service will berelet at your expense.
    “You will request the postmaster at the beginning and end of the route to inform this office when you make the first trip.
    “ Respectfully, &c.,
    “ J. L. ROUTT,
    
      “Second Assistant Postmaster-General.
    
    “Mr. Selucius Garfielde,
    “ Port Toumsend, Jefferson Co., Washington Territory.
    
    
      “ Recorded and sent March —, 1874.”
    
      And on the 18th day of April, 1874, the following message was telegraphed to him :
    “ To Seltjcius G'areielde,
    
      “Collector, Port Townsend, W. T. :
    
    
      “ Acceptance of your proposal for mail-service, Port Townsend to Sitka, is suspended. Attorney-General has called for the papers to revise his decision.
    “ JNQ. L. ROUTT,
    
      “2d Assist. P. M. OenH.”
    5. On the 22d of April, 1874, the Attorney-General submitted to the Postmaster-General his written opinion, as reported in vol. 14, Opinions of Attorneys-General, 389, wherein he held that the proposal of Mr. Garfielde, under the circumstances of the case, was not entitled to be regarded as a bid after due advertisement made, such as would authorize a contract to be awarded thereon, for the reasons therein fully set forth.
    6. On the 28th day of May, 1874, the proposal of said George K. Otis was duly accepted by the Postmaster-General, and on the 30th day of said month a contract in writing was made with him whereby he agreed to carry the mails, according to the terms of said advertisement, from Portland, (Oregon,) by Port Townsend and San Juan, to Sitka and back, at $34,800 per year, commencing July 1, 1874, and ending June 30,1878; and the mails on said route are now carried under said contract.
    7. On or about the 8th of October, 1874, the claimant in person demanded of the Postmaster-General the fulfillmeut of the contract which he claimed had been entered into with him as stated in his petition, and the Postmaster-General denied and refused to comply with his said demand.
    8. The difference between the cost of carrying the mails as proposed by the claimant, (assuming that he was to carry them once a month and back, from Port Townsend to Sitka,) and the amount which he was, by said proposal, to receive therefor, making reasonable deduction for the less time engaged by him, and for release from the care, trouble, risk, and responsibility attending a full execution of the contract, would be fifteen thousand dollars per annum.
    9. Tbe form of advertisement in this case is in conformity to the usage of the Post-Office Department for many years past; tbe claimant having proved nine hundred and seven cases of similar advertisements previously published by the Postmaster-General.
    10. Among the instructions and regulations issued by 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, conformably 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 bo 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.” * * * #
    
      
      Mr. JB. F. Bice and Mr. Fbon 0. Ingersoll for the claimant:
    The Postmaster-General is authorized and required to advertise for proposals for carrying mails. (Postal Code, p. 44, sec. 243.) It is a presumption of law that the official acts of the Postmaster-General are regular and within the scope of his authority. (Boss v. Beed, 1 Wheat., 485; Strothers v. Lucas, 12 Pet., 437; Wilkes y. Dinsman, 8 How., 89; Den v. Hill, 1 McAllister, 480; Phila. & Trenton B. B. Oo. v. Thompson, 14 Pet,, 448; 8 Pet., 452, 464; 18 How., 87.)
    The Postmaster-General is authorized by law to decide ou the forms of all official papers and to prescribe regulations for the xierformance of official business in his Department. (Postal Code, p. 7, sec. 6. Eev. Stats., p. 25, sec. 161.) In this case, the advertisement, the bid, and the acceptance constitute a valid contract. (Tayloe v. Merchants’ Fire Ins. Go., 9 How., 390; Mayer’s Case, 5 O. Gis. R., p. 317; 1 Barn. & Aid., 681; 6 Wend., 103, 21 N. Y., 305.) Executive discretion, once exercised in a given case, is exhausted. (Madison v. Marbury, 1 Oranch, 5 O. Cls. R., p. 468.) Mutual promises constitute a sufficient ' consideration to support a contract. (Nott v. Johnson, 7 Ohio, 270; Leach v. Keaeh, 7 Clarke, 232 ; Aldrich v. Lyman, 6 R. I., 98; Frink v. Hugh, 29 Ill., 145.) In this case, the suspension of the acceptance and the making of a contract with Otis for the same service prior to the 1st day of June, 1874, constitute the breach ; and thereafter no act on the part of petitioner was necessary, the United States having put compliance out of their power. (Crabtree v. Messersmith, 19 Iowa, 182, and cases cited; Dupyster v. Pulver, 3 Barb., 284; Newcomb v. Brackett, 16 Mass., 161; 8 Md., 201; 2 Pet,, 102; 26 Wis.,' 514; 12 Ind., 274; Ohitty on Contracts, 738.)
    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 O. Cls. R., p. 106; 31 Yt., 585.)
    In the construction of statutes, the long-continued and uniform usage of a department 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. (United States v. Ship Becorder, 1 Blatch., 66, 218; Fdicards v. Darby, 12 Wheat., 210; United 
      
      States v. Lytle, 5 McLean, 9; United States v. Gilmore, 8 Wall., 330: 8 Op. Attorneys-General, 24; 1 Pet,, 230; United States v. State Banlt of North Carolina, 6 Pet., 39, 218 ; United States v. McDaniel, 7 Pet., 2.)
    
      Mr. A. T. Gray for tbe defendants :
    The law requiring public notice, by advertisement, to be given by tbe Postmaster General, before making contracts for carrying tbe mails, (Act June 8, 1872, 17 St. L., sec. 243,) provides that “such notice shall describe the route, tbe 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.” The reason of this provision is obvious. It would not do to leave the arrangement of those essential particulars to bidders. There would then be no definite standard by which to determine the lowest bid; and it is manifest that without such advertisement of schedule there could be no intelligent bidding, because of uncertainty as to the essential details of the service. In the volume containing the acts of Congress and also the regulations made by the Department in relation to the postal service, to which in every advertisement for mail proposals the attention of bidders is directed, on page 195, is the following regulation :
    “ 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.” And every proposal for mail-service contains a clause, as does that of claimant in this case, that it is made “ after careful examination of the laws and instructions attached to advertisement of mail-service.”
    In the foregoing regulation the phrase “ service strictly according to the advertisement” clearly means the service advertised by description of the route, (in this case No. 43132, from Portland, Oreg., by Port Townsend and San Juan, to Sitka, Alaska, 1,400 miles and back,) and by specifying, besides the frequency of the service, the time at which the mail is to be made up, and the time at which it is to be delivered. This is the service which, the regulation says, must first be proposed for, and the term “regular bid” is applied, in the regulation, to bids for such service, exclusively. Having made such proposal, bidders may then, if they desire, propose separately for “ different service.” It is optional to bid or not for tlie “ different service,” but a bid for that service is to be considered only when the bidder has put in the lowest “ regular bid,” that is, the bid for the regular service. Claimant filed no “ regular bid,” but proposed only for the “ different service” — that between Port Townsend and Sitka — and therefore his bid was not entitled to be considered, and the bid filed by Otis, being the lowest “ regular bid,” was entitled to acceptance.
    The Postmaster-General erred in accepting the bid of Gar-fielde; that acceptance being in violation of the law and the regulations made by the Department, binding both upon the Department and bidders for the performance of mail-service. A contract based upon that acceptance would have been invalid, and if claimant has suffered any loss by reason of tho award of a contract for the regular service — between Portland and Sitka — to Otis, it is damnum absque injuria, and no cause of action.
    
      
      The judgment was reversed on another ground. (See Supreme Court «ases, p. 322, ante.)
      
    
   Bichaudson, J.,

delivered the opinion of the court:

On the 1st day of October, 1873, the Postmaster-General published a notice and advertisement inviting proposals for carrying the United States mails, of which all that is material to the present case was as follows:

“ POST-ÜEEICE DePAUTMENT,
“ Washington, October 1, 1873.
“Proposals will be received at the contract-office of this Department until 3 p. m. of February 2, 1874, (to be decided on or before March 2, 1874,) for conveying the mails of the United States in the * * * Territory of Washington, from July 1,1874, to June 30, 1878, on the routes and by the schedule of departures and arrivals herein specified : * * * *'
“43132. From Portland, Oregon, by Port Townsend (W. T.) and San Juan, to Sitka, Alaska, 1,400 miles and back, once a month, in safe and suitable steamboats.
“ Leave Portland on the 1st of every month; arrive at Sitka by the 10th of every month.
“ Leave Sitka on the 13th of every month; arrive at Portland by the 23d of every month.
u Proposals invited to begin at Port Townsend, (W. T.,) 500 miles less.
“ Present pay, $34,800 per annum.”

George K. Otis made a proposal to carry said mails from Portland, by Port Townsend and San Juan, to Sitka, once a month, and back, according to the schedule of departures and arrivals specified in said advertisement, for the compensation of $34,800 per annum, but did not make a proposal to begin at Port Townsend.

Selucius Garfielde, the claimant, made a proposal under said advertisement to carry the mails from Port Townsend to Sitka, on said route No. 43132, for the annual compensation of $26,000, but did not specify the frequency of the service nor the times of departure and arrival.

The Postmaster-General accepted the proposal of the claimant, and gave him written notice accordingly. Subsequently, and before the time for making the formal written contract, he suspended his action thereon, and, upon receiving the opinion of the Attorney-General that the proposal of Mr. Garfielde was not, “ under the circumstances of the ease, entitled to be regarded as a bid after due advertisement made, such as would authorize a contract to be awarded thereon,” (14 Opin., 389,) he accepted the proposal of Mr. Otis, and entered into a contract with him to carry the mails from Portland, by Port Townsend and San Juan, to Sitka, on said route No. 43132, according to said advertisement, and refused to make any contract with the claimant, or to recognize any as having been made by the acceptance of his proposal in the first instance.

The petitioner brings this action to recover damages for non-fulfillment, on the part of the defendants, of thecontract which he maintains was made with him by the Postmaster-General by the acceptance of his proposal. It has frequently been held that when a bid has thus been accepted and the bidder is ready, willing, and able to perform his part of the engagement, the other party, accepting the bid and refusing to enter into a formal, written contract, is liable to the same extent as he would have been had the contract been written out in full and signed by both parties. (Adams’s Case, 1 C. Cls. R., p. 192; Mayer’s Case, 5 C. Cls. R., p. 317; Tayloe v. Merchants’ Fire Insurance Company, 9 How., 390; Mactier’s Admr. v. Frith, 6 Wend., 103; Pratt v. The Hudson River Railroad Company, 21 N. Y. Court of Appeals, 305.)

The defendants are therefore liable in this action if the Postmaster-General had authority, under the law and regulations, to accept, as he at first did, the claimant’s bid. When once lawfully accepted the contract would become binding on both parties, and the action of the Postmaster-General afterward, in refusing to acknowledge it and to perform his engagements thereby made, would be wrongful, and the claimant would be entitled to damages. But if the Postmaster-General exceeded his authority and undertook to make a contract in violation of law, then his act in accepting the proposal of the claimant was void, and there is no binding obligation on the part of the defendants.

The question presented for our determiuation, and upon which the decision must turn, is whether or not the words in the advertisement, “proposals invited to begin at Port Townsend, (W. T.,) 500 miles less,” are a sufficient compliance with the statute to authorize a proposal for that service alone by the claimant and an acceptance by the Postmaster-General.

The act of Congress of June 8, 1872, section 243, (17 Stat. L., 313,) provided “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.” * * (Rev. Stats., sec. 3941.) And then followed a provision, in section 265, “ that the Postmaster-General may enter into contracts for carrying the mail, with railway companies, without advertising for bids therefor.” * * (Rev. Stats., sec. 3942.)

Under similar provisions, applicable to all Departments of the Government, (Rev. Stats., sec. 3709,) this court has uniformly held all contracts void which were not made upon advertisements previously published. A compliance with the statute has been considered a condition-precedent, upon the performance of which only could a binding contract be made by the officers of the United States. The Government acts by its public officers, and their powers and duties are prescribed and limited by laws which they must strictly follow. These laws all parties dealing with public officers are bound to know, and in cases like this such parties have the means of determining for themselves how far the power of the officers extends, and if the latter attempt to bind the Government otherwise than as duly authorized, the United States are not liable. (Childs v. United, States, 4 C. Cls. R., p. 176; Wentworth v. United States, 5 C. Cls. R., p. 302; United States v. Speed, 8 Wall., 77.)

If an advertisement inviting proposals is a condition-precedent to the making of a contract, so is a compliance with the terms of the advertisement when prescribed by law, and it must be proved.

The claimant contends that the advertisement in this case was for two routes, or the same as two separate advertisements, in response to which he was right in bidding upon one of them only. If that be so, then there was a serious defect in the notice which invited proposals for the second route from Port Townsend to Sitka, in that it did not describe the time at which the mail was to be made up, the time at which it was to be delivered, and the frequency of the service, as required by statute. These are specified as to the main route from Portland set forth in the first part of the advertisement, but those specifications were not by direct reference made applicable to any service which was invited from Port Townsend, and in one important particular the two services would seem to require different specifications. The provision for the delivery of the mails once a month might apply equally well to both, but it cannot be supposed in this age, when Congress and the Post-Office Department are making such great effort and expending such a vast amount of money to secure swift transportation of newspapers, letters, and correspondence, that it was contemplated allowing the same time, ten days, for taking the mails 500 miles from Port Townsend as for taking them 1,400 miles from Portland to Sitka. „

This defectinthe advertisement the claimant did not attempt to cure in his proposal, by specifying the frequency of the service, and the times of departure and arrival of his conveyances, so that with both together those elements of a contract are left in doubt and uncertainty.

The number attached to the Portland route, “ No. 43132,” and the words “ present pay, $34,800 per annum,” together with the specifications for that route, being in exact compliance with the law, while for the other route there are no specifications whatever, show conclusively, we think, that but one route was intended to be offered for competition ; to propose for which was, by the regulations, absolutely necessary in order to constitute one a “ regular bidder.”

• Why, then, was the clause “ proposals invited to begin at Port Townsend, (W. T.,) five hundred miles less,” added? With the regulations of the Department before us, and in the light which they furnish*we think it is not difficult to determine for what purpose those words were inserted, and what are their force and effect. No. 267 of the regulations of the Department is as follows: “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.”

The range of proposals for such “different service” is wholly unlimited by this regulation, and parties making bids might waste their time and incur useless trouble in proposing a great variety of service never desired or contemplated by the Department, and contrary to its well-settled policy or previous determination. To obviate this difficulty, and to direct bidders’ minds to what “ different service ” the Postmaster-General would take into consideration, the clause was added to the advertised route, inviting proposals to begin at Port Townsend, merely as a suggestion to bidders, to be availed of under the two hundred and sixty-seventh regulation, in respect to such different service; and the frequency of the service and the times of departure aud arrival were purposely omitted, in order that bidders might make such proposals as to those particulars as they saw fit.

It was a convenient and useful suggestion directing the minds of bidders to the real wants and views of the Department, while not confining them withiu the narrow limits required by statute for the regular route. So, too, it was fair to all parties, conveying to them alike a knowledge of the kind of different service, which in the particular case had, perhaps, been contemplated, and whieh might prevent those who had otherwise obtained such information from gaining an advantage over others who had been less fortunate.

The fact that the for in of the advertisement used in this case was in conformity to the long-established practice of the Department, and that nine hundred and seven similar notices were found, confirms us in the opinion that a clause thus added, such as that now under consideration, must have been and was adopted on account of the rule which we have cited, and as a suggestion thereunder, for we cannot believe that successive Postmasters-General would regard it as a compliance with the law, which expressly required the frequency of the service and the times of departure and arrival' to be specified. It is more reasonable to suppose that this practice of the Department originated and continued in operation through a series of years from a careful consideration of the regulations, than from a careless and loose execution of the express requirements of the statute.

The practice of the Post-Office Department in relation to the acceptance or rejection of bids under such advertisements was not proved, and we are not informed of the construction usually adopted by that Department in such cases.

These views dispose of the claimant’s case. He bid only for the special, incidental, or “ different service,” suggested by the advertisement, and as he did not first propose for service strictly according to the advertisement, his bid, by the regulations, could not be taken into consideration. The bid of George K. Otis was the only regular bid, “ strictly according to the advertisement,” and the contract was rightly awarded to him under the law and the regulations, which alike require that the award shall be made to the lowest bidder. The Postmaster-General having erred in accepting the bid of the claimant, had a right and it was his duty to correct his error. His act in accepting the claimant’s bid was in violation of law, and of no force and effect, and the petitioner acquired no rights thereby.

The judgment of the court is that the petition be dismissed.

Nott, J.,

dissenting:

It cannot be doubted at this day that the heads of the Executive Departments are something more than ministerial officers, nor that they are what the Supreme Court has termed “ executive officers.” (Decatur v. Paulding, 14 Peters’s R., 497.) It is also beyond dispute that the law and policy of the United States confide to the head of an Executive Department the construction of statutes relating to the business of his Department, and that the construction of such a statute is an executive and not a ministerial act, as to which the judiciary cannot revise his judgment by mandamus nor interfere with his discretion. (Brown’s Case, 6 C. Cls. R., p. 186.) It has, moreover, been determined by the Supreme Court that a “ long stanching construction,” given to a statute by “ the Department tohose duty it was to act under it,” followed by the implied recognition of Congress, will forestall the consideration that the judiciary might give to “ the construotion of the statute were the matter res nova.” (Mrs. Alexander’s Case, 7 C. Cls. R., p. 205.)

The decision of the court in the case now before us goes, as I understand it, entirely upon the technical point that the advertisement for proposals for the mail-service from Port Townsend to Sitka did not literally and technically comply with the terms of the statute, and that the Postmaster-General erred in the construction which he and his assistants gave to the statute and to the advertisement when they awarded the contract to the claimant. But the claimant has produced a great number of advertisements from the files of the Post-Office, running- back more than thirty years, which do not differ from the one before us in form or substance, and the defendants have failed to show that one of them was ever questioned by any person, or held insufficient by the Department. I, therefore, dissent from the implied proposition that the judiciary can revise the action of the head of an Executive Department in regard to the construction of a statute largely directory in its character, the administration whereof has been confided to his discretion. I also dissent from the secondary proposition, that the advertisement was absolutely void under the statute.

The object of the statute was to invite competition, and the object of the advertisement was to inform bidders of that as to which they might compete. It described a mail-service within specified times, and under certain conditions, to a designated I>lace from either of two starting-points. In the body of the advertisement Portland was designated as the place where the service should begin ; in the second invitation, it was expressly stated that the service was “ to begin at Fort Townsend.” What would have been gained by repeating the times and conditions over again, except a mass of words, I am unable to understand. It is possible that the Post-Office Department advertised for one thing and wanted another, but that has nothing to do with the certainty of the advertisement. Neither can the terms of the contractor’s proposal, nor a subsequent misunderstanding or disagreement as to the terms of the contract, affect this question. All that the statute intended the advertisement to accomplish was to invite competition for something, and that something was to be learned from its terms. If the contractor’s proposal did not conform to the Department’s construction of the advertisement; if he proposed for one thing when the Department meant another, the latter was at liberty to reject the bid. But when the contractor’s bid conformed to the terms of the advertisement, and imposed no new conditions* and the Department advisedly accepted the bid as it stood, the only resulting question is whether the advertisement sufficiently complied with the purpose of the statute, in securing competition for the thing advertised. The advertisement itself answers that question. Every person desiring to compete could learn from it the frequency of the service, the length of the route, the intermediate points of delivery — in short, all that competition could require as elements for an estimate. These innumerable advertisements of the Post-Office Department cannot be subjected to such critical construction as the one before us; and if their informalities really render contracts founded upon them absolutely void, I am afraid that the draughting of them will have to be taken out of the hands of ordinary executive officials and made the work of the Attorn ey-General himself.

As to the legal existence of a contract here, the question was carefully considered and expressly decided in Adams's Case, (1 C. Cls. R., p. 192,) wherein it was held that if a party furnishes sureties, and binds himself for the performance of his bid, if accepted, the contract becomes mutual and binding from the moment of acceptance, although a formal, written contract is to be subsequently executed.

As to the amount of damages which the claimant should recover, it is not free from doubt but that his case is ruled by the decision of the Supreme Court in the Reeside Mail Contract Case, (7 C. Cls. R., p. 89.) But upon this point it is needless to express an opinion.  