United States ex rel. International Contracting Co. v. Lamont , 2 App. D.C. 532 ( 1894 )

Mr. Chief Justice Alvey

delivered the opinion of the Court:

Upon the statement of the case, three questions arise for consideration:

1. Whether the appellant is not effectually concluded, as to any supposed rights it may have had under its first proposal for the work, by making the second proposal therefor, and entering into the contract upon the basis of such last proposal.

2. Whether, as there was no contract made and executed as required by the statute, the whole subject-matter was not within the judgment and discretion of the Secretary of War, as to the right of having the formal contract executed, and therefore not the subject of mandamus. ,

3. Whether, by the terms and-conditions under which the first proposal was made^ there was not full reserved right and power in the Secretary of War to disapprove and reject the bid or proposal of the appellant.

1. With respect to the first of these questions, the position of the appellant is certainly anomalous. Upon the rejection by the Secretary of War of the first proposal by the appellant, the latter elected to become a bidder at-a second letting of the work, and at a different price, and has not only entered into the formal contract as required upon the basis of the second bid, but has partly executed the work under that contract; and it now seeks to revert back to its first proposal, and to have that formulated into a regular binding contract upon the United States; and thus have two subsisting contracts for the same work, and calling for compensation at essentially different rates. To justify this there must be shown to exist some peculiar and extraordinary element in the’ transaction, that would take it out of the ordinary course of affairs, and warrant a legal construction of the facts that does not often arise. There is no pretence that there was any mistake that led the appellant into the making of the second bid or proposal and the entering into the contract awarded thereon for doing the work. Nor is there the slightest ground for contending that there was duress, either legal or moral, which coerced the appellant into making the second bid, and complying with the terms of the specifications and conditions prescribed to those who desired to contract for doing the work, at prices supposed to be profitable to themselves.

The Government, in rejecting the first proposal and re-advertising the work for new proposals, put the appellant to its election, either to stand by its first proposal, and take the chance of maintaining it, or to waive all claim or pretension thereunder, and become a new bidder under the second offer of the work. This election the appellant made. If it did not intend to stand by the second bid or proposal in good faith, it ought to have refrained from bidding altogether at the second offer. A remedy was then open to it, and which would have afforded adequate redress, if the present claim was well founded. For, as said by the Supreme Court, in the case of Board of Liquidation v. McComb, 92 U. S., 531, 541, when a plain ministerial duty is threatened to be violated by some positive official act, “any person who will sustain personal injury thereby, for which adequate compensation cannot be had at law, may have an injunction to prevent it. In such cases the writs of mandamus and injunction are somewhat correlative to each other.” The court is not asked to displace the contract made on the second bid by the contract to be executed under the first proposal made; but .the two contracts are, according to the contention of the appellant, to coexist, and the Government to be held bound upon both, and made to respond for the difference in the price of the work between the two contracts. This cannot be done upon any well recognized principle of law. If the appellant had any valid objection to the provision of the contract that it actually signed, it should have refused to sign it. But, “having made it and executed it, the mouth of the appellant is closed against any denial that it superseded all previous arrangements.” Parish v. United States, 8 Wall., 489, 490.

2. The second question presented is equally conclusive as the first against the contention of the appellant, though upon- broader grounds. The contract initiated under the first proposal by the appellant for the work was never completed, as required by the statute, and therefore was never binding upon the Government. Rev. Stat. United States, Sec. 3744, which embodies the act'of Congress of June 2, 1862, Ch. 93, provides that:

“ It shall be the duty of the Secretary of War, of the Secretary of the Navy, and of the Secretary of the Interior to cause and require every contract made by them severally on behalf of the Government, or by their officers under them appointed to make such contracts, to be reduced to writing, and signed by the contracting parties with their names at the end thereof, a copy of which shall be filed by the officer making and signing the contract in the Returns Office of the Department of the Interior, as soon after the contract is made as possible, and within thirty days, together with all bids, offers and proposals to him made by persons to obtain the same, and with a copy of any advertisement he may have published inviting bids, offers or proposals for the ■ same. All the copies and papers in relation to each contract shall be attached together by a ribbon and seal, and marked by numbers in regular order according to the number of papers composing the whole return.”

All contracts,-of the class and character of the one alleged in this case, are required by the section of the statute just recited to be in writing and formally signed by the contracting parties; and in effect this provision of the statute prohibits and renders unlawful any other mode of making such contracts. Clark v. United States, 95 U. S., 539; South Boston Iron Co. v. United States, 118 U. S., 37, 42. The contract is not complete until reduced to written form and signed by the contracting parties, in the manner prescribed by the statute; and it is not within the power of the court, on mandamus, to declare that to be a completed and binding contract, which the statute declares in effect shall not be so without certain formalities. These formalities are intended for the protection of the Government, and to preclude all contentions as to what shall be regarded as valid contracts to bind the Government. But all the beneficial uses and protection afforded by the statute would be nullified, if the courts were to assume the right or power to compel the agents of the Government to give form and effect to alleged contracts, notwithstanding the mandatory effect of the statute upon the validity of the contract, and the opposition of the Government’s agents. In this case, no written agreement, such as that contemplated by the statute, was signed and executed by either of the parties. The local engineer, and the chief of engineers, it is true, both appear to have approved of the proposal of the appellant, and to have accepted the proposals so far as they were competent, and the appellant was notified of the fact. But the ultimate decision of the matter rested with the Secretary of War. Indeed, this application against the Secretary alone, concedes his authority to be paramount, and nothing that was done, either by' the local engineer in New York, or the engineer-in-chief in Washington, concluded the action of the Secretary of War. It was the duty of the latter to review the whole ground, and if he saw reason, before the formal contract, according to the statute, was completed, for the rejection of the proposal of the appellant, to reject it, and refuse to complete the contract United States v. Adams, 7 Wall., 463. And in doing this he was in the exercise of judgment and discretion that cannot be controlled by the mandate of the courts.

It is certainly the well settled principle of the decisions of the Supreme Court of the United States, that the writ of mandamus may issue where the duty, which the court is asked to enforce, is plainly ministerial, and the right of the party applying for it is clear, and he is without any other adequate remedy. But it is settled doctrine that the writ will not issue in a case where its effect is to direct or control the head of an executive department in the discharge of an executive duty, involving the exercise of judgment or discretion. This principle runs through all the cases in the Supreme Court, from Kendall v. United States, 12 Pet., 524, and Decatur v. Paulding, 14 Pet., 497, to the recent case of Redfield v. Windom, 137 U. S., 636, 644.

In the case of United States v. Black, 128 U. S., 40, it was said by the Supreme Court, speaking through the late Mr. Justice Bradley, “The court will not interfere by mandamus with the executive officers of the Government in the exercise of their ordinary official duties, even where those duties require an interpretation of the law, the court having no appellate power for that purpose; but when they refuse to act in a case at all, or when, by special statute, or otherwise, a mere ministerial duty is imposed upon them, that is, a service which they are bound to perform without further question, then, if they refuse, a mandamus may be issued to compel them.”

The cases upon this subject have been recently reviewed and the principle clearly stated, in the case of Noble v. The Logging R. Co., 147 U. S., 165, 171^*

It would seem to be too clear for question, that to examine and determine the question, whether the proposal of the appellant was sufficient, and conformed to all the specifications and conditions under which it was made for doing the work, did, of necessity, require the exercise of judgment and discretion. It was certainly more than the performance of a mere ministerial duty. Indeed, the very object of investing the Secretary of War with power of directing the making and of approving these contracts was that he should exercise judgment and discretion in the matter for the protection of the Government. And, upon the assumption that there was the exercise of judgment or discretion in the .final rejection of the proposal of the appellant, the question, whether the successor of the then Secretary of War would have the power to reverse that final determination of his predecessor, and direct the execution of the contract alleged, might be one of doubtful determination. The question arose and was discussed in some of its bearings, in the case of Noble v. The Logging R. Co., supra ; but we are not required to discuss or decide the question here.

It has been urged on the part of the appellant, that the Sec. 3744 of the Revised Statutes of the United States, has been modified by the subsequent legislation of Congress, as shown by the act of March 3, 1883, and the act of August 11, 1888, to the extent of dispensing with the formal execution of the contract as a prerequisite to its legality or binding effect, after accepting the proposal for doing the work or performing the service advertised. But we do not so read the provisions in the statutes referred to. They confer on the Secretary of War the powers of regulation and of prescribing forms for letting the work, but there is nothing that dispenses with the requirement that the contract shall be reduced to writing and signed b)r the parties thereto in accordance with the provision of the Sec. 3744 R. S. There is nothing in these later statutes that essentially conflicts with the former provision, and they stand well together.

3. Lastly, the third question presented must also be resolved against the contention of the appellant. As we have seen, in the instructions and specifications for the work, it was declared that any conditions, limitations or provisos attached to proposals would be liable to render them informal, and cause their rejection. And, by another article, right was reserved to the Government to reject any and all bids, and to waive any informality in the bids received. The proposal filed by the appellant departed from the terms of the specifications in respect -to the time for doing the work. The specifications required the work to be commenced on or before October i, 1892, and completed on or before December 31, 1893. Whereas, the proposal for doing the work was that -the work should be commenced 90 days after the awarding of the contract, and the entire work to be completed on or before the 1st of June, 1894 — thus extending the time for doing the work six months. Under the reserved right of rejection, the Secretary of War had the right and power to reject the proposal of the appellant; and nothing had been done by either the local engineer or engineer-in-chief that deprived him of that power. His authority was paramount. ,

It follows that the order of the court below denying the writ of mandamus and dismissing the petition must be affirmed.

Order affirmed.

* S. C., 20 D. C., 555.