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UNITED STATES EX REL. INTERNATIONAL CONTRACTING CO. V. LAMONT, 155 U. S. 303 (1894)

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U.S. Supreme Court

United States ex Rel. International Contracting Co. v. Lamont, 155 U.S. 303 (1894)

United States ex Rel. International Contracting Company v. Lamont

No. 639

Argued and submitted October 23, 1894

Decided December 10, 1894

155 U.S. 303

Syllabus

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 chanroblesvirtualawlibrary

Page 155 U. S. 304

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: chanroblesvirtualawlibrary

Page 155 U. S. 305

"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 chanroblesvirtualawlibrary

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 r