US SUPREME COURT DECISIONS

As mandamus will only lie to enforce a ministerial duty, as distinguished from a duty that is merely discretionary, and as the duty must exist at the time when the application is made, the Secretary of War cannot be required by mandamus to sign a contract for the performance of work by a party who is already under written contract with him to perform the same work for the government at a lower price and under different conditions.

In pursuance of an act of Congress making an appropriation for that purpose, an advertisement appeared August 6, 1892, inviting proposals for doing certain work in Gowanus Bay, New York. The work was divided into three parts, as follows: first, for Bay Ridge Channel; second, for Red Hook Channel; and, third, for Gowanus Creek Channel. The advertisement, moreover, stated the sums of money which were available for the work on each separate channel, and it was announced that the work must be commenced on October 1, 1892, and be completed on or before December 31, 1893. In answer to the advertisement, the relator bid upon the work. His proposition was to do it all at a uniform rate of 19.7 of a cent per cubic yard, "scow measurement," and with two dredge boats, one of which would commence work within ninety days from the awarding of the contract, and the other within chanrobles.com-red

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nine months thereafter. He also undertook to complete the entire work on or before June 1, 1894. In the event of an epidemic prevailing in the locality, he reserved the right to cease work until he should think it prudent to resume. The relator's bid was the lowest, and, on September 22, Lieut. Col. Gillespie, of the Engineer Corps, who had issued the advertisement as the engineer and officer in charge of the work, and at whose office the bids had been opened, addressed the relator the following letter:

"New York, N.Y. September 22, 1892"

"Mr. Joseph Edwards, President of the International Contracting Co., 16 Exchange Place, N.Y. City."

"Sir: The proposal of the International Contracting Co., opened in this office September 14, 1892, for dredging channels in Gowanus Bay, N.Y., 19.7 cents per cubic yard, has been accepted by the Chief of Engineers, U.S. army."

"After the contract for the work has been prepared, you will be notified to call at this office to sign it."

"The regulations require that any instrument executed by an incorporated company shall be under its corporate seal, and evidence should be furnished, also under the corporate seal, as to the official character of the person by whom it is executed, and that he is duly authorized to execute the same on behalf of the corporation."

"Please furnish this office with the names and addresses of your proposed sureties, each to justify in the sum of $45,000."

"A memorandum is enclosed containing instructions for the preparation of contractors' bonds. The execution of the necessary bond, however, will be deferred until the articles of agreement have been completed in every respect."

"Very respectfully,"

"G.L. Gillespie"

"Lt. Col. of Engineers"

On September 23, the Secretary of War called on the Chief of Engineers for the papers relating to the matter, and they were submitted to him. On the following day, the Chief of Engineers sent this telegram to Col. Gillespie: chanrobles.com-red

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"Washington, D.C. Sept. 24, 1892"

"To Colonel G.L. Gillespie, Engineer, Army Buildings, Whitehall Street, New York, N.Y.:"

"Do not proceed further with closing a contract with the International Dredging Company for Gowanus work until further instructions. Acknowledge receipt of this."

"Turtle, Engineers"

On October 7th the acting Secretary of War addressed the following letter to the relator:

"October 7, 1892"

"Gentlemen: The matter of the contract for dredging in Gowanus Bay is not yet settled, and the action of the department upon the bids received has not yet been determined upon. It is respectfully suggested that if you desire to be heard upon the subject, an opportunity is offered. Any representation you desire to make, either by writing or orally, by attorney or by any officer of your company, will be respectfully received and considered. It is hoped that you will be able to do this by Tuesday -- certainly not later than Wednesday -- of next week."

"Very respectfully,"

"L. A. Grant"

"Acting Secretary of War"

"The International Dredging Company, Post Building, 12 to 28 Exchange Place, New York City."

The Secretary of War acted upon the papers after hearing the relator, who claimed that his bid was final and could not be reconsidered, and decided that he had the power to refuse to consummate the contract upon the following grounds:

"First. That said acceptance of the bid of the relator was not properly made, and was not binding on the government."

"Second. That said bid, and the bid of the W. H. Beard Dredging Company (hereafter mentioned), which was the next lowest bid, were irregular and improper, and that neither should be accepted."

Accordingly, he ordered the work to be readvertised. The new advertisement appeared on October 26, 1892. It called chanrobles.com-red

Page 155 U. S. 306

for proposals which differed from those contemplated by the first advertisement in several important particulars -- first, in striking out the clause referring to the eight-hour law; second, in changing time for the commencement of the work, requiring it to be commenced on April 5, 1893, instead of October 1, 1892; and, third, by calling for its completion by August 1, 1894, instead of December 31, 1893. Pending this bid, and before any adjudication on it, the relator commenced, in the Supreme Court of the District of Columbia, a suit to compel Mr. Elkins, then incumbent of the office of Secretary of War, to sign a contract with him for the work as covered by the first proposals and specifications, and the bid made thereunder. Before this suit was disposed of, the bids under the second advertisement were opened on December 1, 1892, and it was found that the relator had again bidden for the work, this time offering to do it for 13.7 cents per cubic yard instead of 19.7 cents per cubic yard, which was his original bid. Being again the lowest bidder, he obtained the contract from the War Department for the work under the new specification. The mandamus proceeding remained pending on the docket of this Court, having been brought hither from the Supreme Court of the District of Columbia. When Mr. Elkins ceased to be Secretary of War, October 23, 1893, upon suggestion by counsel for the relator that the suit had consequently abated, it was dismissed. The relator then called upon Mr. Elkins' successor, Mr. Lamont, and demanded that he should sign the contract awarding the relator the work under the first specifications. This demand the secretary refused to comply with, in the following communication:

"War Department"

"Washington, D.C. November 14, 1893"

"Gentlemen: I have the honor to acknowledge the receipt of your communication of November 4, 1893, in which, on behalf of the International Contracting Company, you request me, as the Secretary of the Department of War for the time being, to execute and deliver to that company a contract conforming in all respects to the proposal filed by said company with Lieutenant Colonel Gillespie on the 19th day of September,

Page 155 U. S. 307

1892, and the acceptance thereof by the Secretary of War through the acting Chief of Engineers."

"Your request is respectfully declined for the same reasons that my predecessor declined to enter into such a contract, and the additional reason that the International Contracting Company are now under contract to do the work for about two-thirds the amount named in said proposal. I see no justification for entering into another contract with them or for paying them $100,000 more than their contract calls for."

"Very respectfully yours,"

"Daniel S. Lamont"

"Secretary of War"

Upon this refusal, the relator commenced proceedings by a mandamus against Secretary Lamont in the Supreme Court of the District of Columbia to compel him to execute and deliver to the relator the contract for the work under the specifications set forth in the first advertisement, and, meeting with an adverse decision, he first took his case to the Court of Appeals of the district, where the judgment below was affirmed, and thence he brought it to this Court by writ of error.