
    THE PACIFIC MAIL STEAMSHIP COMPANY v. THE UNITED STATES.
    [No. 16864.
    Decided November 28, 1892.]
    
      On the Proofs.
    
    The claimant carries the Australian mail from 1875 to 1885. The Postmaster-General fixes the compensation at the “ sea postages” authorized by the Revised Statutes, §' 4009. The service is sirbject to discontinuance at the end of any voyage. The mails are sealed and the claimant has no means for knowing their contents, or ascertaining the amount of the sea postages. The Department furnishes statements of “ the amount of the sea postage on the mails sent.” In 1885 the claimant discovers that it has not been paid the full amount of the sea postage. In 1886 it presents its claim for the unpaid difference. In 1890 the claim is referred to this court.
    I. The compensation for transporting the mails to a foreign port is entirely within the Postmaster-General's discretion, subject however to the limitation of the Revised Statutes, § 4009, that it shall not exceed “the sea and United States inland postage."
    
    II. Sea postage is the difference between the total postage and the United States inland postage, plus the inland postage of the foreign receiving country when charged and all intermediate transit charges when made.
    
      III. Where a mail carrier lias no means of knowing tlie amount of compensation to which, he is entitled, and accepts what is i>aid to him on the assurance that it is the full amount of the agreed compensation, he is not concluded hy his acquiescence.
    IV. The Postmaster-General may fix the compensation at less than the sea “pottages," but where he does fix it at that rate he can not pay less.
    Y. The statute of limitations is not suspended hy the fact that a mail carrier is ignorant of the amount due him and dependent on the Department for information, and that he relies upon statements which profess to give the amounts due, hut do not.
    
      The Reporters’ statement of tlie case:
    The judgment iu this case was not entered until February 28,1893. The following are the facts as found by the court:
    I. From October 9,1875, to the 20th of September, 1885, both dates inclusive, plaintiff regularly carried the United States mails from San Francisco, Cal., to the Australian colonies and the Fiji Islands and (until December 31,1881) to the Sandwich Islands. For the outward mail (i. e., the United States mails from San Francisco to Australia and the Sandwich and Fiji Islands) carried by plaintiff, defendants agreed to pay as service was performed and plaintiff agreed to accept as compensation for the transportation, the “ sea postages ” authorized by section 4009, Revised Statutes. No agreement for any fixed period of service was entered into between plaintiff and defendants other than that the same should be a trip-to-trip service, subject to stoppage or discontinuance at the end of any one voyage. Bach of the statements of account received by plaintiff from the Post-Office Department (thirty-seven in number) contained the following statement, after the amount stated as due plaintiff: “ Being the amount of sea postage on the mails sent.”
    II. In January, 1874, the mails described were being carried by a foreign company subsidized in Australia. January 20, 1874, the following order was addressed by the Superintendent of Foreign Mails to the postmaster at San Francisco. Plaintiff never knew of this order:
    “Post-Office DepaktseeNt,
    Office of FokeigN Mails,
    “ Washington, D. 0., January 20th, 1874.
    
    
      “Sis,: Referring to my letter (31051) of the 7th instant, advising you of the transmission of mails from Great Britain to New South Wales by way of the United. States, I have now to inform you that all mails from the United States for Australia, New Zealand, the Sandwich Islands, and the Fiji Islands may be forwarded by the new line of colonial mail packets, sailing from San Francisco every fourth Saturday, beginning on the 31st January instant.
    “The rates of postage chargeable upon correspondence so forwarded will be as follows:
    
      “For the Sandwich Islands. — (1) On letters, 6 cents for each single rate of one-half ounce; prepayment compulsory; letters so prepaid in either country are delivered free of all postage charges whatsoever in the other.
    “ (2) On newspapers 1 cent per 2 ounces or fraction thereof; other printed matter, 4 cents per 4 ounces or fraction of 4 ounces; prepayment compulsoty; each country collecting its own postage only on printed matter of all kinds whether sent or received.
    
    
      “For Few Zealcmd. — On letters, 12 cents per each single rate of one-half ounce; newspapers, 2 cents each; other printed matter, 4 cents xier 4 ounces or fraction thereof; prepayment comptilsory.
    
    
      “For Feto South Wales. — On letters, 12 cents per single rate of one-half ounce; newspapers, 2 cents each ; other printed matter, patterns, and samples of merchandise, 4 cents per each 4 ounces or fraction thereof; prepayment compulsory.
    
    “ Letters exchanged in the mails between the United States and New Zealand and New South Wales, if fully prepaid in one country are delivered free of all postage charges whatsoever in the other. Letters posted unpaid or prepaid any amount less than one full single rate of postage, can not be forwarded, but insufficiently paid letters, on which a single rate or more has been prepaid should be forwarded, charged with the deficient postage for collection on delivery. Letters for New Zealand and New South Wales, respectively, may be registered on prepayment of a registration fee of 10 cents per letter, in addition to the postage. Bach country collects its own postage only, on printed matter of all kinds, tohether sent or received, and if such matter is not fully prepaid at the office of mailing in either country, it can not be forwarded.
    
      “For all other colonies of Australasia and the Fiji Islands.— On letters, 10 cents per each single rate of one-hall ounce; newspapers, 2 cents each; other printed matter 2 cents per each 2 ounces or fraction thereof, prepayment compulsory, being the United States postage only.
    “The same postage charges are to be collected at the office of deliveiy in the United States on matter received.
    
    
      “ The amounts of United States sea postage to be allowed by this Department to this newline of steamers for the conveyance of the mails in question will be as follows :
    “ On letters sent to the Sandwich Islands, 3 cents per single rate of one-balf ounce; on letters sent to New Zealand and New South Wales, respectively, 6 cents per each single rate of one-haif ounce ; on letters sent to mid received from other Australian colonies, and the Fiji Islands, respectively, 7 cents per single rate of one-half ounce.
    “ You will please forward to the auditor of this Department the usual ‘ duplicates of mails ’ sent and received by the new line of steamers in question.
    “ I am, very resiiectfully, your obedient servant,
    “Josephs. Blacicfan,
    “ Superintendent.
    
    “ P. M., San Francisco, Cal. ”
    The following order was sent from the same official to the same official March 6,1878. Plaintiff never knew of this order.
    “ Post-Office Department,
    “ Office of Foreign Mails,
    “ Washington, D. G., March 6th, 1878.
    
    “Sir: The auditor for this Department has called my attention to the circumstance that in making up statements of the sea postage on the mails conveyed between San Francisco and the countries and colonies hereinbelow mentioned, your office inserts the rates following, viz: On letters to Auckland [New Zealand), Melbourne (Victoria), Sydney (New South Wales), 7 cts. per rate; on letters to Honolulu (Hawaii), 2 cts. per rate; on letters to the Fiji Islands, 2 cts. per rate; on newspapers, &c., 6 cts. per pound; on unpaid letters from Auckland, Melbourne, and Sydney, 7 cts. per rate; on letters from the Fiji Islands, 2 cts. per rate, and on newspapers, &e., supposed to be from the Fiji Islands, 6 cts. per pound.
    “I have, therefore, to call your attention to the inclosed extract from my letter to your office of the 20th January, 1874, No. 31163, and the copy, also inclosed, of my letter of 25th May, 1875, No. 35098, in which your office was advised of the rates of sea postage allowable on the correspondence in question.
    “No change has occurred in the rates referred to other than that indicated in my letter of May 25,1875, excepting that the colony of Queensland having since that' date entered into postal relations with' the H. S. by a postal convention in which the same rates of postage fixed by the conventions with New Zealand and New South Wales are established, the rate of sea postage payable on letters sent to that colony is the same as that allowed on letters sent to New Zealand and New South Wales.
    “The sea postage on letters for and from other Australian colonies not in postal relations with the U. S. is the same as on letters for and from the Fiji Islands, and no allowance is to be made for tbe sea conveyance of newspapers, &c., for or from any of tbe countries or colonies named.
    “I am, very respectfully, your obt. servt.,
    “Joseph TL Blackean, Supt.
    
    “P. M., San Francisco, Cal.”
    III. Tbe outward mails thus conveyed by plaintiff aggregated 1,771,286 rates of letters, weighing (estimated) 20 tons, and printed matter, newspapers, books, pamphlets, etc., weighing (estimated) 300 tons.
    IY. The respective destinations of said mails were—
    
      (a) For the Australian colonies under postal treaty with the United States, viz: New Zealand, New South Wales, Queensland, and Victoria. Bates of letters, 1,279,535-J.
    
      (b) Fur all other Australian colonies and the Fiji and Sandwich islands. Bates of letters, 491,753.
    (c) All of the printed matter to the different Australian colonies.
    Y. Plaintiff has been paid at following rates on letters, nothing having been paid on newspapers or other printed matter, to wit:
    On letters to Australian colonies under postal treaty with the United States (New Zealand, New South Wales, Queensland, and Victoria), 6 cents per one-half ounce or fraction thereof:
    On letters to other Australian colonies and the Fiji Islands, 2 cents per one-half ounce or fraction thereof.
    On letters to the Sandwich Islands, 3 cents per one-half ounce or fraction thereof.
    YI. No allowance has thus far been made plaintiff for transporting the printed matter included in said mails, but the total amount of the postages collected thereon has been retained by the defendants. Neither the weight of books, pamphlets, etc., conveyed, nor the amount of postage collected thereon as distinct from that collected on newspapers, can be ascertained or computed, as defendants (who alone knew the contents of the printed-matter bags) kept no record; nor is there means now of ascertaining what proportion of newspapers was sent from news agencies and offices of publication or what proportion was in the class of transient newspapers. It was intended by tbe Superintendent of Foreign Mails that the compensation paid, based upon the letter rate fixed as hereinbe-fore shown by Ms orders, should compensate plaintiff for conveying the entire mail, including printed matter. Plaintiff was not aware of this intention or of the course pursued under it.
    VII. After plaintiff’s predecessor discontinued the mail service plaintiff performed the same and was paid therefor from time to time by the Post-Office Department; these payments were understood by plaintiff to be based upon “sea postage,” a term used in the accounts of the Post-Office Department, which term plaintiff understood to mean the difference between the whole amount of postage charged and the amount of United States inland postage. In August, 1885, plaintiff discovered that it had not been paid at the supposed rate; thereupon it protested and made claim.
    VIII. The total postages collected by the United ¡States on said mails between May 6, 1880, and September 26, 1885, was, on letters, $116,181.76; on newspapers, at 2 cents each, and on boot packets and periodicals, at 4 cents per 4 ounces, $72,-345.45; no part of said sums has been paid as inland postage to the receiving country, or for intermediate transit charges. The sum of $57,546.22 has been paid plaintiff for carrying letters. Of the said sum of $116,181.76, the total domestic postage on letters was $25,828.85, leaving for other exj)euses $90,352.91, out of which the above-stated amount has been paid plaintiff; the balance, to wit, $32,806.69, remaining in defendants’ possession.
    Calculated in the same manner as above, the claim for the whole period, from October 9, 1875, to September 26, 1885, would stand as follows:
    On letters. $43,508.89
    On newspapers, estimated, (see finding xxv). 28, 858.42
    On other printed matter. ■ 22,674.47
    95,041.78
    The total postal charges on said mails were as follows:
    To the Australian colonies under postal treaty with the United States, viz, New Zealand, New South Wales, Queensland, and Victoria: On letters, per half ounce or fraction thereof, 12 cents; on newspapers, 2 cents each; other printed matter, 4 cents per 4 ounces or fraction thereof.
    To the Australian colonies not under postal treaty with the United States and to the Fiji Islands: On Jetters, per half ounce or fraction thereof, 5 cents; on newspapers, 2 cents each; on other printed matter, 2 cents per 2 ounces (4 cents per 4 ounces).
    To the Hawaiian Kingdom, Sandwich Islands, from October 9,1875, to December 31,1881: On letters, per one-half ounce or fraction thereof, 6 cents: newspapers, United States domestic rates: other printed matter, 4 cents per 4 ounces or fraction thereof.
    X. The United States inland or domestic postage rates during the same period were as follows:
    From October 9,1875, to September 30, 1883, on letters, per half ounce or fraction thereof, 3 cents.
    From October 1,1883, to June 30,1885, on letters, per half ounce or fraction thereof, 2 cents.
    From July 1, 1885, to September 30, 1885, on letters, per ounce or fraction thereof, 2 cents.
    From October 9, 1875, to September 2G, 1885, on transient newspapers, books, pamphlets, periodicals, etc., 1 cent for each 2 ounces or fractional part thereof; the weight on newspapers and periodicals was increased to 4 ounces from June 9,1884.
    Newspapers and periodicals sent by publishers and office of publication, 2 cents per pound.
    XI. All of the outward mail in question, except that dispatched July 4,1880, by steamer Oity of Sydney, was delivered to plaintiff at the San Francisco, Gal., post-office in bulk and in sealed bags or sacks. Prior to August, 1885, plaintiff did not know, and was not officially or otherwise advised, of what portion thereof was letter mail and what printed matter; nor did it knowhow the several payments made to it on account of their transportation had been computed; it was not until after the filing of the petition herein that plaintiff was officially or otherwise advised that the printed matter thus conveyed by it included books, pamphlets, etc.
    XII. Plaintiff’s services in conveying said mails were recognized and payments made it therefor under section 4009, Devised Statutes.
    XIII. For the fiscal years embraced within the period from July 1,1875, to June 30,1886 (within which period the claim in question accrued), the appropriations for foreign mail service, and out of which complainant was paid for services in question, aggregated $2,862,143.99, of which there was expended $2,521,346.88, leaving unexpended and now covered into the Treasury, $340,796.11.
    XIY. Bates have been established and paid for this kind of service by the Postmaster-General, which have been called in the Postoffice Department “sea postage.” These rates were ■ a part only of the difference between the United States postage and the inland rates. Similar rates, also called “ sea postage,” are now paid for this kind of service. In the case now under consideration, it was understood by the Postmaster-General that “sea postages” paid plaintiff under that designation was the total postage, less the United States inland postage.
    XY. On November 29, 1878, the colonies of New South Wales and New Zealand entered into a contract with claimant for mail service for a term of eight years, from November, 1875, between said colonies and San Francisco, to perform thirteen trips per annum, for the annual compensation of $72,500, and at its expiration the contract was extended for a further term of two years (to November, 1885), at the compensation of $50,000 per annum. This contract stipulated that “contractors,“shall be entitled to the benefit of and receive any subsidies or payments which the contractors may be able to induce any government, other than as aforesaid, to agree to pay for the conveyance of mails over the aforesaid routes.”
    XYI. The allowances made plaintiff’s successors under the same provisions of law for similar services were $20,000, $50,000, and $60,000 per annum, respectively; the allowances to plaintiff did not average $9,000 per annum.
    XYII. The claim now in issue was first presented to the Post-Office Department Máy fi, 1886; it remained pending therein until December 24, 1890, when it was referred by the Postmaster-General to this court in accordance with the provisions of section 1063, Bevised Statutes.
    XYIII. The amount claimed by plaintiff as quantum meruit ($51,668.02 for the whole period, and $37,143.97 for the period beginning six years before May 6, 1886) for its services in transporting the printed matter included in said mails would be less than the allowances made the United States and Brazil Steamship Line for similar services during the same period, . and for similar services rendered by claimant’s immediate successor..
    
      XÍX. From February 2,1874, to November 9,1875 (except one trip made by plaintiff October 9,1875), the mail service on the route in question was performed by plaintiff’s immediate predecessor, the Australian and American Steamship Company, a foreign line, and the payments made said company therefor were dated May 13, 1878 (fourteen months after the first .payment to plaintiff), and March 13, 1879, respectively.
    XX. All the mail in question, except that dispatched July 4, 1880, was conveyed by plaintiff from the San Francisco post-office to plaintiff’s steamship dock, and no compensation has been made to plaintiff therefor.
    XXI. The custom of the Post-office Department has been to allow and pay postage on newspapers and other printed matter to the steamship companies performing the ocean service.
    XXII. The following is an extract from a letter from the Superintendent of Foreign Mails to the Postmaster-General, dated June 12,1886:
    “ Case N~o. 2 is a claim for $91,393.28, additional compensation for the conveyance, from October 9th, 1875, to September 2Gth, 1885, of mails ‘from San Francisco to New Zealand, New South Wales, Queensland, and Victoria — otherwise the Australian colonies,’ upon the ground that the company has not been paid the full sea postage on the letters, and has been paid nothing on the other articles contained in the mails referred to.
    “The rates named in this statement are the rates which were paid for the service. It is true that there is no record in this office of a formal and general order of the Postmaster-General fixing said rates, but they are. the rates which were allowed and paid for similar service prior to and at the time the ‘Pacific Mail Steamship Go.’ undertook the same, and were paid each quarter to that company upon separate orders of the Postmaster-General, each bearing his signature, in the form now in use, with which you are familiar.” .
    The following was sent by plaintiff’s attorneys to the Postmaster-General :
    “Office of McGrew & Small,
    “ Washington, D. C., Jcmuary 3,1890.
    “Hon. JOHN Wanamaker,
    
      uPostmaster- General:
    
    “Sir: In behalf of our client, the Pacific Mail Steamship .Co., we have the honor herewith to again make application for the balance due said company for transporting mail matter ' originating in the United States from San Francisco, Cal., to New Zealand, New South Wales, Queensland, and Victoria, designated as the Australian colonies, from Oct. 9th, 1875, to Sept. 26th, 1885, inclusive, as shown by the following official statement furnished by the Sixth Auditor:
    Amount of sea and U. S. inland postage received by tlio United States on mails conveyed from San Francisco, Cal., to the Australian colonies (above named) from Oct. 9, 1875, to Sept, 26, 1885:
    1,279,539 rates of letters, at 12c. $153,554.66
    4,890,523 rates of papers, at 2c. 97,810.46
    Amount paid Pacific Steamship Co.:
    1,279,539 rates of letters, at 6c;. $76,772.34
    4,890,523 rates of papers — nothing.
    - 76,772.34
    Difference and amount still due Pacific Steamship Co... 178,582.78
    “ This application is made under sec. 4009, It. S., the Pacific Mail Steamship Go. believing itself to be justly and legally entitled to the maximum limit of compensation — the sea and U. S. inland postage — which the Postniastcr-G-eneral is thereby authorized to allow for said service. Considering the great distance — 7,210 miles — the mails in question were conveyed and the rates allowed foreign steamship companies during the same period for transporting the same character of mails across the Atlantic and to Brazil, 3,000 and 5,000 miles, respectively, the claim of onr client, we submit, is both right and reasonable.
    “ It is our understanding that no order has yet been made by the Postmaster-General fixing the rate of compensation for said services, and that until late in 1885 or early in 1886, the Pacific Mail Steamship Co. was not advised of either the number of letters or papers conveyed by it or the rate at which its compensation had been computed. Also that almost immediately on receipt of official information on these points the company made application for the allowance of the difference— 3 and 4 cents — between the amount the company had received and the sea postage for letters and 1 cent per rate on newspapers. This application has not, it seems, been in any way responded to, and, as will be observed, the company now enlarges its claim by applying for the difference between what it has been paid and the sea and inland postage, namely, on letters 6c. from Oct. 7,1875, to Sept. 30,1883, when postage on inland letters was reduced from 3 to 2c., and 7c. from Oct. 1, 1883, to Sept. 27,1885; on papers, 2c. from Oct. 9,1875, to Sept. 26, 1886.
    
      u Attention is respectfully called to the application made by the Pacific Mail S. S. Company, under date of April 2,1886, now on file in your department, to which, as we have stated, no reply was received. That application gives in detail the official data upon which this claim is based, and discloses the following facts, viz:
    
      “ 1. That the Pacific Mail S. S. Company was not paid the compensation which was allowed and paid to other steamship companies for similar services in transporting letter mails.
    “ 2. That nothing was paid to the Pacific Mail S. S. Company for the transportation of newspapers.
    “ This discrimination in favor of foreign lines of steamers and against an American company was, we submit, unreasonable and unjust, and ought now to be remedied by the Department. The U. S. Government has received in the settlement of its postal accounts with Great Britain every dollar of the amount now claimed by this company, and it was certainly not contemplated by either of the Governments to make the high rates of postage a source of revenue at the expense of the steamship companies, other than the actual inland postages.
    “ We are aware that there is now no appropriation applicable to the payment of this claim, the appropriations having been either exhausted or carried into the Treasury unex-pended; but the company desires the allowance of its claim with a view of having it certified in the usual manner to Congress by the Sixth Auditor for reappropriation.
    “ Soliciting your early attention to this matter, we are, “Yery respectfully,
    “ The Pacific Mail Steamship Co., “By McGkew & Small, Attorneys.”
    
    XXIII. The following letter was sent to the president of the plaintiff corporation by the Superintendent of Foreign Mails:
    “Post-Office Department, “Office of Foreign Mails,
    “ Washington, D. G., Aiigust 22nd, 1885.
    “Sir: I have to inform you that the Postmaster-General has recognized the service of steamers City of Sydney, Australia, and Zealandia, of the 1 Pacific Mail Steamship Company,’ in transporting mails between San Francisco and New Zealand, New South Wales, other Australian colonies, the Fiji Islands, etc., and from Australia, etc., for Chicago and New York via San Francisco, three outward and three inward trips, from 12 April to 15 June, 1885, inclusive, at the sum of two thousand eight hundred and seventy-six dollars and forty-eight cents($2,876.48), being the amount of sea postage on the mails conveyed, and that the same will be referred to the Auditor for payment to you at New York, N. Y.
    “The separate earnings of each steamer are stated on the sheets hereto annexed.
    “ I am, very respectfully, your obedient servant,
    “ Nicholas M. Bell.
    
      “Superintendent Foreign Mails.
    
    “ J. B. Houston, Esq.,
    “ President1 Pacific Mail S. S. Go.,’ New Yorlc, JY. Y.”
    
    
      
      Outward. Ratos of letters. Rates of letter's. Number o* papers. 1,921 1,709 1.671 15,454 15,753 13, 393 5,301 45,100 54,833 58,435 58, 683 161,951 1885. April 12. City of Sydney . May 10. Australia. June 6. Zealandia. Total. Inward. 1885. Received at San Francisco. Received at Chicago. Received at New York. Total No. of rates of letters. April 20. Australia. May 21. Zealáiulia.. June 15. City of Sydney. 566 511 890 242 260 171 201 226 156 1, 009 997 1,217 1,967 583 3,223 RECAPITULATION. Outward: 5,301 rates of letters at 2 cents per rate. $106.02 45,100 rates of letters at 6 cents per rate. 2,706.00 Inward: 3,223 rates of letters at 2 cents per rate. 64.4S Total sea postages. 2,876.48
    XXIV. November 6, 1885; plaintiff received the sum of $3,749.86 for its postal services, a sum calculated upon the same rate, as above shown, without protest other than as hereinbefore shown. At this time plaintiff did not know the weights of the mails previously conveyed by it or how the compensation had been computed. August 27,1885, the plaintiff requested of the Auditor of the Treasury for the Post-Office Department a statement giving the number of pounds of letters and pounds of papers conveyed each trip and the compensation allowed. The Post-Office Department estimates for ocean transportation were based upon the allowance of the sea postage only.
    XXV. The postmaster at San Francisco, under the direction of the Post-Office Department, made the following report: “I have had the honor to receive your communication of March 5, 1891, asking me to make an estimate as nearly as possible of the relative amount of postage collected on newspapers at 2 cents for each 2 ounces, sent by the steamers of the Pacific Mail Steamship Company to Australia during the ten years intervening between October 9, 1875, and September 26, 1885. Iii compliance with, your instructions I beg leave to state as follows, basing my figures upon the most careful estimates which it has been possible for me to make,” viz:
    Amount of newspaper postage collected.. $58,151.58
    Amount collected on "books, pamphlets, etc., other than newspapers .-. 45,184.47
    Assuming the newspapers did not exceed the maximum weight for singlerates on domestic transient newspapers mailed by individuals, sea postages on printed matter for the period from May 6, 1880, to September 26, 1885, would amount to $36,172.73. Newspapers sent, from offices of publication or from agencies were carried at a lower rate of domestic postage than transient newspapers mailed by individuals.
    
      Mr. William Small for the claimant.
    
      Mr. Henry M. Foote (with whom was Mr. Assistcmt Attorney-General Cotton) for the defendants.
    The Post-Office Department in its construction of the statute and treaties has uniformly held and applied the law as authorizing the Postmaster-General to fix and determine any rate of compensation to be designated as “ sea postage” for carrying the mails.
    This authority is not only obvious from the statute, but is supported from the long uninterrupted practice of the Department as shown by official letter of March 28,1892.
    There was, therefore, no error of law of mistake in fixing the rate of compensation which claimant voluntarily accepted for its services, although the sanie was designated “sea postage.” The Postmaster-General in his communication of February 21, 1891, removes all doubts upon this subject when he says:
    “That there was no “sea postage” collected on printed matter, and in view of the low rates-of sea postage at which the mails for other destinations were conveyed, it seems not improbable that the allowance of 6 cents per half ounce of the letters for the sea conveyance of the entire mails for the conventional colonies of Australasia, was considered to be a reasonable compensation for said conveyance, and an equitable division of the rates collected, as it devoted one-half of the postage collected on the letters for the United States territorial transit of the mails to San Francisco, and the other half for their sea conveyance from San Francisco.”
    Referring- to section 4009, it will be seen that the Postmaster-General is given a discretion to pay a maximum or minimum compensation for this service. He could have paid the total United States postage, which necessarily included the “ sea postage,” or he was authorized to fix any fractional part of the same and designate it as “sea postage.” This authority has never in a single case, so far as I can learn, been questioned. Claimant’s immediate predecessor carried these mails for nearly two years at the same rate, and no complaint has ever been made that it did not receive all that was contracted to be paid. What legal or equitable right has claimant now to contend for 5 no express contract to plead, and no fraud shown to have been practiced upon it? For ten years it continued to perform this service and receive the compensation established nearly two years before it began the service and subsequent^, in 1878, republished. During all this time no protests were filed as to its inadequacy, and it was at liberty to discontinue the service at the end of any one trip. It is not to be presumed that all this time it was ignorant of the rate of compensation paid. The two orders showing this fact were of easy access, and it is presumed were known and fully understood at the time service began.
    It was not the exercise of a ministerial duty upon the part of the Postmaster-General in determining this rate of compensation ; but it was the exercise of a discretion, and as such is final and conclusive upon the claimant.
    There are two principles which control this case and which preclude a recovery. The one which we have just stated has become too familiar to the court for me to quote authorities 5 it was recognized by the Supreme Court in the case of Garrióle v. Lamar (116 U. S., p. 423). And at the last term of this court the doctrine was applied in the case of John A. Barrie, No. 17102, where the facts in controversy were almost identical with these here.
    It is also clear that no rule of law or practice can be successfully urged against the power of the Postmaster-General to limit and define as “sea postage” any fractional part of the total United States postage in cases of this character. This bas been a long prevailing custom in the Department, and ocean transportation of mails is now being done and settlements made therefor in harmony with this practice. Claimant’s contention, if allowed to prevail, would bring confusion where now exists a settled order of things, and open long-settled accounts and incur a liability to pay many millions of dollars to those who never contemplated extra compensation.
    But in case my first proposition of law should be considered untenable, I interpose the further proposition, that is: That the rate of compensation having been established prior to the performance of the service, claimant was bound to know the nature and rate of such compensation for the entire service, and hence there was an implied agreement to perform the service at the rate of compensation already established.
    It is hardly necessary to enter into a discussion of the familiar doctrine of implied contracts. The principle is fully stated in the case of Ogden v. Saunders (12 Wheaton, p. 340).
    In the case of Sceva v. True (53 N. EL, p. 829) this doctrine is asserted and very many cases cited in support of it.
    I say, therefore, that independent of section 4009 of the Be-vised Statutes, and disregarding its 'provisions entirely, that here was a compensation offered claimant for this entire service; it knew all about its nature and character; it agreed impliedly to accept it and perform the service; it Can not now repudiate or question such authority any more than a tenant can question the authority of a landlord who has given him the benefits of a possession.
    There is but one more feature of the case to which I desire to call the attention of the court. In my fifth request for findings the court will observe that the whole amount claimed is $94,518.25, and that of that sum but $70,209.33 falls within six years from the date when the claim was first presented to the Department for settlement. There remains, therefore, the sum of $24,308.92 over which the court has no jurisdiction by reason of the inhibition contained in the statute of limitations (.Finn’s Oase, 123 TJ. S., p. 227).
   Davis, J.,

delivered the opinion of the court:

During July, 1875, certain Australian colonies contracted with the plaintiff herein to transport the mails between their ports and San Francisco at a fixed annual compensation. From October 9,1875, plaintiff also carried tbe outward mail from San Francisco to tbe same Australian ports and to tbe Sandwich and Fiji islands, succeeding in this service a foreign steamship company. It is now alleged that plaintiff has been insufficiently paid for tbe transport of these outward mails, and this allegation presents tbe issue in this case.

It appears froiñ tbe findings that for transporting these mails defendants agreed to pay tbe “sea postages” (authorized by section 4009, E. S.) upon tbe mails conveyed; this was to be a trip-to-trip service, not fixed as to period, and subject at any time to stoppage or discontinuance. Mails were delivered to plaintiff corporation at tbe San Francisco post-office, and were thence conveyed by it to tbe dock. These mails were delivered by defendants sealed, and plaintiff bad no method of knowing their contents by examination, or of discerning which of tbe bags contained letters, which newspapers, and which other mailable matter.

To the Government officers, plaintiff trusted for information as to the amount mail matter carried by it; and from time to time payments were made upon official statements of the Post-Office Department in Washington, which plaintiff received in the belief that they were based upon full “ sea x>ostag'es ” for the weight of letters, or newspapors, or other matter carried. These payments were made from time to time until, finally, the company requested more specific information as to the method in which its compensation had been calculated; the response led to an immediate protest as to the jmethod adopted, and in due course the question presented arrives in this court through a reference by the Postmaster-General under section 1063 of the Bevised Statutes.

It is a fact that pdaintiff was to carry what mails it did carry for the “ sea postages; ” we must, therefore, first determine what “ sea postages ” are.

The important statute upon this subject is section 4009 of the Kevised Statutes, which provides:

“For transporting the mail between the United States and any foreign port, or between ports of the United States touching at a foreign port, the Postmaster-General may allow as compensation, if by a United States steamship, any sum not exceeding the sea and United States inland postage; and if by a foreign steamship) or by a sailing vessel, any sum not exceeding the sea postage, on the mail so transported.”

The Postmaster-General by this statute may allow for the transport of transoceanic mails in a United States steamship, any sum he may deem right, provided it do not exceed the “ sea and United States inland postage.” The compensation, therefore, is entirely within the Postmaster-General’s discretion, subject to limitation as to the maximum.

It seems that when the Australian company, plaintiff’s predecessors, were carrying the mails, they were paid certain rates of postage arbitrarily fixed by the Post-Office authorities (not by the Postmaster-General), which rates were prescribed in-orders to the postmaster at San Francisco. These orders were apparently still in force when the plaintiff began its trip-to-trip service; but of their existence plaintiff was ignorant. Defendants say that these orders fixed the amount of “sea postage;” that is, defined the meaning of the term “ sea postage.” Before considering this, contention we note, first, that the orders were not made by the Postmaster-General or, so far as appears, by his direction ; second, that they were unknown to plaintiff until this contention began.

Suppose the orders freed from these objections, still we come back to the question, what is “sea postage” ? The Postmaster-General had a perfect right to fix as compensation to the Australian line, a foreign company, any sum he chose “not exceeding the sea postage;” the fact that he allowed an arbitrary sum did not make that sum “sea postage;” the allowance simply fixed the rate at which the company was to be paid, and that rate was subject to one limitation, it must not exceed “ sea postage.”

As to these two orders (in conclusion) they were not made by the Postmaster-General; they were unknown to plaintiff; they do not assume to define “ sea postage,” but simply fix the compensation which the Australian line was to receive, which it must be assumed in the absence of proof to the contrary, did not exceed “sea postage,” but did not necessarily equal it.

What “ sea ” postage is seems clearly enough indicated by the statute (Sec. 4009, It. S.) when it draws the distinction between “sea” postage and “United States inland postage.” “Sea postage” is a varying factor; inland postage is fixed and always definitely ascertainable. The sum of “ sea” and “ inland” postage is the total postage; “inland” postage subtracted from the total leaves the “ sea ” postage.

This hypothesis omits any “ inland ” postage charge made by the receiving Government or any intermediate possible transit charges which, it might be urged, should (with the United States “inland” postage) be deducted from the total cost in order to arrive at the net “ sea” postage; this we think a sound contention, and we define “ sea ” postage to be the difference between the total postage and the United States “ inland ” postage plus the inland postage of the foreign receiving country (when charged), and plus all intermediate transit charges (when made).

(See following treaties: Great Britain, 16 Stat. L., pp. 783 and 851, 853; Prussia, ibid., p. 963; Belgium, ibid., pp. 900 and 924; Mexico, ibid., p. 1102 and 1206; Venezuela, ibid., p. 1105; Postal Unions, Paris, Lisbon, and Berne, 25 Stat. L., p. 1339, 1874.)

The Postmaster-General had the right to fix plaintiff’s compensation; he fixed it at “sea” postage, and as we now find the true meaning of this term, a rule is presented for determining plaintiff’s compensation.

As plaintiff was ignorant of the fact that (during several years) it was receiving less than “ sea ” postage; as the Department knew that it was paying an arbitrary rate which it described to plaintiff as “sea” postage; as the amount due plaintiff under any theory of the law could alone be known to defendants, plaintiff not having access to the sealed mail bags and being ignorant of the previous orders, we can not give importance to defendants’ argument, that, as plaintiff accepted without protest from time to time the lower compensation fixed in the orders herein-above cited, it is presumed to have known the nature and character of the compensation and is now estopped from obtaining anything in addition thereto. Nor do we assume to invade "the Postmaster-General’s right of discretion; that right he exercised when he awarded plaintiff “sea” postage for the service in question; our only duty now is to see that the Postmaster-General’s..order is respected and that the plaintiff shall receive the postage awarded by that principal executive officer.

The difficulty with the contention made on behalf of defendants is, that under section 4009 the Postmaster-General can not define “sea postage;” that term is understood by the statute to have a fixed meaning; the power of the Postmaster-General is absolute as to tbe amount of compensation be may allow tbe American steamship, subject to a maximum limitation, made up of two factors, one fixed, tbe other ascertainable; in this case tbe agreement was for “ sea” postage, and we now ascertain what “sea” postage is; be might have allowed a less sum or be might have allowed United States “ inland” postage also; be did not see fit to do this.

We do not attach force to tbe argument that under this construction of tbe contract tbe bargain was not advantageous to tbe Government, principally because of tbe distance between tbe great eastern cities and San Francisco. Tbe Postmaster-General bad tbe whole matter absolutely under bis control; during tbe period now under consideration United States steamships were by law forced to take tbe United States mails whether they wished to do so or not (sec. 3976 and sec. 4203 É. S., repealed June 26,1884, cb. 121, Yol. 23, Stat. L.); and moreover to take them at such rate as tbe Postmaster-General chose to allow (subject to a maximum limitation only); further tbe agreement with this plaintiff company was only for a trip-to-trip service terminable at any time; we can not and should not assume (nor have we reason to do so) that tbe Postmaster-General in allowing this plaintiff “seapostage” was negligent of tbe public interest. He bad despotic power — we do, not doubt be used it fairly and wisely.

As to tbe contention that plaintiff was bound to know tbe rate of compensation allowed to its predecessor, we have already discussed tbe orders fixing this rate, but if binding under other circumstances they did not bind this plaintiff, for they did not assume to allow “sea postage,” but an arbitrary rate (quite within tbe Postmaster-General’s power to fix), while plaintiff was allowed a different rate, to wit, “sea” postage.

Finally, we must decide upon tbe date when tbe statute of limitations began to run against this claim. For tbe plaintiff it is urged that it did not commence to nan, at tbe earliest, until August 7, 1885, when jfiaintiff first learned tbe manner in which payment has been computed by defendant’s officers.

It is urged that plaintiff trusted these officers, was necessarily ignorant of tbe kind of mails carried, and bad a right to assume that tbe allowances were “computed on tbe basis of tbe total sea postages on tbe mails conveyed; further, that defendants so assured plaintiff, and it bad no means of verifying sucb assurances and declarations until the necessary and material facts were communicated to it by defendant.” These facts being “peculiarly within the knowledge of defendants,” counsel argue that defendants are estopped from taking advantage of their own failure to disclose them; that the principle of running accounts “should apply,” and as the service was continuous the statute did not begin to run until the last payment, to wit, November 6,1885.

This case is very similar in principle to that of Green reported in 17 Court of Claims Reports (pp. 174,et. seq.). The service performed by plaintiff was a trip-to-trip service; at the end of each trip, therefore, the postage became due and the statute began to run, for there was then a complete service. This conclusion it is sought to avoid by the plea of a concealment fraudulent in law (o.f course there is no claim of fraud in morals in the case) which suspended the bar of the statute. The substantial facts which support this contention of plaintiff are that it did not know the contents of the mail bags which were sealed, and that defendants represented that they paid “ocean postage.”

True, the plaintiff could not open the bags and learn their contents, but nothing prevented the weighing of the mail upon the dock or on board ship and such a course would have naturally put plaintiff upon inquiry as to the character of the mail bags’ contents; ignorant as it was of the amount of letter and newspaper mail carried, such an inquiry would have immediately shown that the return from the Government was inadequate compensation upon plaintiff’s theory of “ ocean ” postage. Reasonable vigilance in 1875 would have led to the course taken in 1885, when a demand made upon the department for the details of its statements of account resulted in a frank explanation of its theory of compensation. Plaintiff, it is true, could not under the circumstances have made out a correct account; but plaintiff had within its control the méans of discovering that (upon its theory of law) it was being underpaid.

Therefore after the first statement of account it was put upon inquiry and was bound to proceed in the exercise of its rights. No intent to deceive is shown upon the part of defendants’ officers. They acted honestly upon their understanding of tbe law. They believed they were paying “ocean” postage and, in the accounts, stated plaintiff’s credit under that head. Further, this action is not founded upon fraud, but upon contract and an “unintentional error or oversight on the part of the Department” (Angelí on Limitations, sec. 185). We conclude that the statute began to run at the end of each trip, and plaintiff can recover only for tjie period beginning six years prior to the presentation of his claim to the Post-Office Department.

Cause remanded to trial calendar for computation of amount due, in accordance with this opinion, and for such further proceedings as may be necessary to that end.

Nott, J., did not sit in this case and took no part in the decision.  