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by the steamers going direct to Chagres, wrote as follows: “In answer to your letter of the 7th instant, I have to say that you will make up and forward mails by Mr. Law's direct steamers to Chagres; with this understanding, however, that this drpartment does not thereby become responsible for any additional expense.” On the 9th of August, 1851, Marshall 0. Roberts, on behalf of the contractors, informed the postmaster at New York, by letter, that the mails for Chagres, both direct and vid Havana, would be carried by the United States Mail Steamship Company upon the terms and in the manner theretofore stated to the Post-Office Department; viz., compensation for any extra or additional mail-service to be submitted to Congress without requiring a prior stipulation to pay from the department. This letter being transmitted to the Postmaster-General, with a request for directions as to sending the mails by the direct steamers, he returned a despatch giving directions to send them.

Upon the footing of this correspondence, the extra service by the direct steamers was commenced on the 13th of August, 1851.

A temporary suspension of the trips having occurred from some cause, further correspondence on the subject took place in 1852, in which the Secretary of the Navy, as well as the Postmaster-General, participated. But the general result was, that the matter was left substantially in the same position as before ; namely, that, while the departments declined to make themselves responsible for any compensation for the extra service, the contractors were to be left free to apply to Congress for such allowance as it might deem just and reasonable. The contractors never gave up a claim for an allowance; but they consented to perform the service in reliance upon the justice of Congress, and with the distinct understanding that they should not prefer any claim against the departments. It is unnecessary to reproduce all the correspondence that ensued. Its general purport and effect are as stated. Mr. Law, in a letter to the Postmaster-General dated 15th of June, 1852, referred to his previous letter of July 21, 1851, quoting the passage relating to compensation, in which he said, “We are entirely willing to perform the additional service, in the confident expectation that a sense of justice will induce Congress

to make such further provision as may be considered a suitable compensation for it;” and, to avoid any misunderstanding which might arise from expressions contained in the Postmaster-General's communication, he adds,

“ While it has not been the intention of this company to hold either of the departments liable, directly or indirectly, for any additional mail-service beyond the conditions of the contract, but to perform it subject entirely to the decision of Congress, I desire respectfully to say that I do not feel authorized to place the company in a position that would preclude it from applying for or accepting such additional allowance as in the judgment of Congress might be considered equitable.

Upon this understanding, the service in question continued to be performed until September, 1859; and no compensation therefor has ever yet been allowed by Congress, although application has persistently been made.

From the tenor of this correspondence, it is clear that the proprietors of the Sloo contract did not rely upon that clause in it (which has been referred to) providing extra compensation for conveying mails, when required by the government, on any steamship which might be run on the routes named in the contract, beyond the number of trips therein specified. Had they relied on this clause, they would not have relinquished their claim against the department, and consented to look to Congress. Indeed, the service performed by the steamers running on the direct route between New York and Chagres, or Aspinwall, was not embraced in the terms of that provision. The route was not the same, but a different one.

The question, therefore, is, whether, doing the service they did, upon the footing on which they did it, and supposing it not to be embraced within the letter of the contract, the contractors are entitled in law or equity to compensation for that service. The service performed directly under the contract, and within its terms, has all been settled for, and the accounts closed. This is specifically found by the Court of Claims. But the question of this extra-service has never been settled, but is still open and undetermined. Application, as before stated, was persistently made to Congress for an equitable allowance; but, for some reason or other, the subject was always postponed or

delayed, until finally, on the 14th of July, 1870, Congress passed an act entitled “ An Act for the relief of the trustees of Albert G. Sloo," the tenor of which is as follows:

“ Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the claim of the trustees of Albert G. Sloo, for compensation for services in carrying the United States mails by steamers direct between New York and Chagres, and New Orleans and Chagres, in addition to the regular service required under the contract made between the said Albert G. Sloo and the United States, be, and the same is hereby, referred to the Court of Claims; and the said court is hereby directed to examine the same, and determine and adjudge whether any, and, if any, what amount is due said trustees for said extra service; provided that the amount to be awarded by said court shall be upon the basis of the value of carrying other firstclass freight of like quantity with the mails actually carried between the same ports at the same time."

In the mean time, several years prior to the passage of this act (to wit, in 1866), as soon as the disturbances incident to the civil war had been allayed, the appellants had presented their claim before the Court of Claims. But they were met by embarrassments arising from the peculiar form which their stipulations with the government had assumed. They had agreed to submit to the arbitrament of Congress, and Congress had never acted in their case. Under these circumstances, the act referred to was passed. The claimants thereupon filed an amended petition, setting up the act.

The counsel for the government contend, that, whilst this act might be used to support proceedings commenced after its passage, it cannot aid proceedings already commenced. We think, that under the peculiar circumstances of this case, its well-known history, and its frequent consideration by Congress itself, the act was intended to validate the application to the Court of Claims then in progress, and to refer the whole matter to that court. It enacts that the claim be, and it hereby is, referred to the Court of Claims; and that the said court is hereby directed to examine the same, and determine and adjudge, &c. The words of that act are apposite to validate the proceedings already commenced; and, as those proceedings

had in view the very object sought by the act, it would be a strain of technicality to turn the claimants out of court, and to compel them to commence anew.

In view, then, of the circumstances and history of this case, the correspondence between the parties, and the act of Congress referred to, what are the rights of the appellants ?

If this were a controversy between private parties, we do not think that there could be a particle of doubt that the contractor would be entitled to demand compensation upon a quantum meruit for the performance of the service in question. Circumstances arose after the performance of the contract had commenced, which neither of the parties had anticipated or dreamed of, requiring an increase in the amount of service, and a change in the manner of performing it, which could not be brought under the literal provisions of the contract. But it was of the greatest consequence that the service should be performed; and the contractors, under the exigencies of the case, were willing to depart from the literal stipulations of the instrument, and do the necessary work, relying upon Congress to provide suitable compensation. As before said, if this were a controversy between individuals, there could not be the slightest hesitation on the subject. It would present a clear case of departure from the terms of a contract by the mutual consent of the parties, and the performance of extras by the contractor, for which he would be entitled to the reasonable value of the work performed. The service was performed on one side; it was accepted and received on the other; and, whilst the agents of the government declined to incur any specific responsibilities, they agreed that the question of compensation should be settled between the contractors and their principal.

This is, in short, the whole case; and whilst, as a general thing, it may be true that government ought not to be bound unless prescribed rules and forms are complied with, yet where a necessary public service has been performed at the request of the proper government agents and under the expectation of compensation, and with reliance upon Congress to fix the amount, and where Congress, upon application made to it, bas referred the matter to the Court of Claims, we think that that court is authorized to make and adjudge such an allowance as

is required, ex æquo et bono, by all the circumstances of the

case.

It is true that Congress did not determine, in express terms, that the parties were entitled to any compensation, but referred it to the court to decide " whether any, and, if any, what amount is due." Still we think it is plain that Congress principally intended to refer to the adjudication of the Court of Claims the amount of compensation to which the claimants were entitled, and for that purpose prescribed the principle by which it should be estimated ; but even if it was intended to refer the whole subject, the right to compensation, as well as the amount, the claimants, under the circumstances of the case, are, in our judgment, entitled to compensation. The decree is reversed, and the record remanded, with direc

tions to proceed according to law, and award compensation to the claimants upon the principles directed by the act of 1870.

MR. JUSTICE SWAYNE, with whom concurred MR. JUSTICE Davis and MR. JUSTICE STRONG, dissenting.

I dissent from the judgment of the court in this case. In my opinion, it makes a contract where the parties made none.

FARNSWORTH ET AL., TRUSTEES, v. MINNESOTA AND PACIFIC

RAILROAD COMPANY ET AL.

1. On the 3d of March, 1857 (11 Stat. 195), Congress passed an act granting

certain lands to the Territory of Minnesota, for the purpose of aiding in the construction of several lines of railroad between different points in the Territory. The act declared that the lands should be exclusively applied to the construction of that road on account of which they were granted, and to no other purpose whatever; and that they should be disposed of by the Territory or future State only as the work progressed, and only in the manner following: that is to say, a quantity of land, not exceeding one hundred and twenty sections for each of the roads, and included within a continuous length of twenty miles of the road, might be sold; and when the governor of the Territory or the future State should certify to the Secretary of the Interior that any continuous twenty miles of any of the roads were completed, then another like quantity of the land granted might be sold; and so, from time to time, until the roads were completed. Held, that the

VOL. II.

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