States v. Tyler, 105 U. S. 244, 26 L. Ed. 985. [ ants was reversed with directions to enter The fact that they may thereafter be called into the army does not make them "troops of the United States." Any male citizen may at some time be called into the service. judgment for plaintiff (95 Kan. 794, 149 Compare Alabama Great Southern Railroad Fourth. The furloughed soldier is, of course, a part of the army or troops of the United States; but his transportation back to the proper station, is not "transportation of troops" within the meaning of the land grant acts. The furloughed soldier travels for his own purposes. The government merely advances to him the cost of transportation and subsistence while on furlough; and does this, only if the soldier lacks funds to bear the expense himself. The advance must be repaid. Army Regulations, 1913, § 110. We have no occasion to consider whether persons not enlisted as soldiers, but forming a part of a moving army or detachment are to be deemed "troops of the United States" within the provision of the land grant acts; nor whether a soldier traveling for the purposes of the government, but not for any purpose connected with war *or the preparation for war, falls within the provisions. 19 Opinions of the Attorney General, 572. The judgment of the Court of Claims granting full compensation for carriage of persons within the six classes considered is Affirmed. (249 U. S. 308) 1. INDIANS 16(1)-LEASE-POWER. Act Feb. 8, 1887, § 5 (Comp. St. § 4201) declaring void conveyances and contracts regarding Indian allotted lands, does not prevent an allottee from leasing his land pursuant to Act June 25, 1910, § 4 (Comp. St. § 4221), and regulations of Secretary of the Interior adopted thereunder which authorize such leases under certain conditions. 2. INDIANS The writ of error before us is prosecuted by Miller and Cooney to reverse the judgment of the court below, sustaining the purchase by McClain, with a resulting liability in Miller and Cooney to McClain for the corn or its value. The case as made by the argument turns exclusively upon the correctness of the interpretation affixed by the court below to section 5 of the Act of 1887 (U. S. Comp. St. § 4201), to the effect that as by the law of Kansas a growing crop is a chattel, the sale to McClain was valid and not (Submitted Nov. 13, 1918. Decided March 31, in conflict with the following provision of MILLER et al. v. McCLAIN. 1919.) section 5: No. 19. 16(7)-LEASES-CROP RENTAL. Act Feb. 8, 1887, § 5 (Comp. St. § 4201), prohibiting conveyances and contracts regarding Indian allotted lands, does not prohibit an allottee from selling the crop rental reserved by him in a lease made pursuant to Act June 25, 1910, 4 (Comp. St. § 4221), and the regulations of the Secretary of the Interior made thereunder. F. T. Woodburn, of Holton, Kan., for plainMessrs. A. E. Crane, of Topeka, Kan., and tiffs in error. mott, and H. O. Caster, all of Topeka, Kan., Messrs. Robert Stone, George T. McDerfor defendant in error. In Error to the Supreme Court of the State of Kansas. Mr. Chief Justice WHITE delivered the opinion of the Court. Stat. 388, 389, c. 119), Mish-no, a member of Under the Act of February 8, 1887 (24 the Prairie Band of the Pottawatomies, was allotted land in Kansas, which was to be held in trust by the United States and subject to the restrictions on the power of the allottee to deal with the land, provided by that act. Mish-no leased the land for the year 1912 for a rental of one-half the corn and stalks to be produced. In May of that year' he sold his right to his share of the prospective crop to McClain, and in the autumn when the crop was made again sold his share to Cooney, who sold and delivered it to Miller. "And if any conveyance shall be made of the lands set apart and allotted as herein provided, or any contract touching the same, before the expiration of the time above mentioned [the trust period], such conveyance or contract shall be absolutely void." [1, 2] But we are of opinion that the solution of the case does not require a consideration of this question since it only exacts that we ascertain whether the particular contract in question was by law excepted from the operation of the prohibition of the Act of 1887, thus rendering an analysis and application of that prohibition negligible. As we have seen, what was sold to McClain was not an undivided share of a growing crop of the allottee, but was that portion of the total crop of the tenant fixed by the lease as due for rent. The lease, therefore, and the power to make it, was the criterion by which to determine the application of the prohibition of the Act of 1887. If it *be that the lease was inconsistent with Action by B. O. McClain against Robert Miller and another. Judgment for defend For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 608* that Act, it would follow that the stipula- | patent, or the heirs of such allottees who tion as to the rent which it contained would may be deemed by the superintendent in perish with the contract. If on the con- charge or any competency commission to trary it be that the lease was valid, the have the requisite knowledge, experience, authority to make it would include the right and business capacity to negotiate lease conto stipulate for the rental. As it cannot be tracts, to make their own contracts for leasquestioned that a contract leasing land is ing their lands." The scope of such regulaone touching the land, it is indisputable that tions is further made clear by the following the lease was void under the Act of 1887 provision dealing with the rental to result unless its validity may be excepted by some from the lease by the Indian of his allotted other statutory provision. land under the power given: By a course of legislation beginning in 1891 and extending to 1900 authority was conferred upon the Secretary of the Interior to sanction, when enumerated and exceptional conditions existed, leases of land allotted under the Act of 1887, and the pow er was given to the Secretary to adopt rules and regulations governing the exercise of the right (Acts of February 28, 1891, c. 383, 26 Stat. 794, 795; August 15, 1894, c. 290, 28 Stat. 286, 305; June 7, 1897, c. 3, 30 Stat. 62, 85; May 31, 1900, 31 Stat. 221, 229, c. 598). The general scope of the legislation is shown by the following provision of the Act of 1900, which does not materially differ from the prior acts: "That whenever it shall be made to appear to the Secretary of the Interior that by reason of age, disability, or inability, any allottee of Indian lands cannot personally and with benefit to himself occupy or improve his allotment or any part thereof, the same may be leased upon such terms, regulations, and conditions as shall be prescribed by the Secretary for a term not exceeding five years for farming purposes only." The regulations for the purpose of carrying out the power given prescribed a general form of lease to be used under the exceptional circumstances which the statute contemplated and subjected its execution and the subjects connected with it to the scrutiny of the Indian Bureau and to the express or implied approval of the Secretary. (See "Amended Rules and Regulations to be *Observed in the Execution of Leases of Indian Allotments," approved by the Secretary of the Interior March 16, 1905). The foregoing provisions were enlarged by the Act of June 25, 1910 (36 Stat. 855, 856, c. 431 [Comp. St. § 4221]), as follows: "That any Indian allotment held under a trust patent may be leased by the allottee for a period not to exceed five years, subject to and in conformity with such rules and regulations as the Secretary of the Interior may prescribe, and the proceeds of any such lease shall be paid to the allottee or his heirs, or expended for his or their benefit, in the discretion of the Secretary of the Interior." And the regulations of the Secretary which were adopted under this grant of power in express terms modified the previous regulations on the subject "so far as to permit Indian allottees of land held under a trust "The question of consideration, whether a cash rental or share of the crops grown on the land, shall be left to the determination of the lessor." (Regulations, approved Sept. 19, 1910.) The right of an allottee under stated conditions to lease and to stipulate for such rental as he deemed adequate, whether in money or crop, having been thus undoubtedly provided for by the statute and the regulations, the only question is, had the capacity of the allottee in this case been recog nized conformably to the statute and regulations so as to justify his exercise of the right? That question would seem to be free from difficulty for the following *reasons: (a) Because in the narrative statement of the testimony on behalf of the plaintiff it is said that, "Written permission had been givhis own allotment and he had leased the en by the government to Mish-no to lease same for the year 1912"; (b) because there is no denial or controversy as to the correctness of this statement; (c) because the court below in its opinion treated the matter as indisputable by stating, "Written permission was given him (Mish-no) by the government to lease his allotment"; and (d) because the fact thus stated clearly refers to the authority and capacity provided for by the Act of 1910 and the regulations thereunder, that is, not to the authority of the government to lease for the allottee, but to the right to give the allottee permission to lease his allotted land for himself as the result of a conclusion that he had capacity to do so. As it results that Mish-no, the allottee, had by virtue of the statute of 1910 and resulting regulations the power to make the lease and to stipulate for the rental for which it provided, it follows, as the greater power includes the lesser, that the contract for the sale of the growing crop made with McClain was also within the statute and regulations and excluded from the prohibition of the Act of 1887. For the reasons which we have stated we affirm the judgment of the court below which sustained a like conclusion, although we have not found it necessary to express any opinion as to the correctness of the reasoning by which the court below was controlled in its action. Judgment affirmed. #312 #332 (249 U. S. 331) rior on February 28, 1907. On September 5, LANE, Secretary of Interior, v. DARLING- 1913, the Secretary vacated the Sickler surTON et al. vey and ordered the reestablishment of the (Argued March 12, 1919. Decided March 31, Perrin line. The present bill to restrain the 1919.) No. 219. carrying out of this order was dismissed on motion by the Supreme Court of the District of Columbia but the decree was reversed and an injunction ordered by the Court of Appeals. [1] The bill, of course, is not a bill against the United States brought on the ground that it is claiming land *belonging to the plaintiffs. The bill does not seek to try the title. It is brought on the ground that the power of the Secretary is exhausted, and it may be doubted whether that is a matter with which the plaintiffs have anything to do. But however that may be, the whole proceeding on behalf of the United States is simply an effort to fix the boundaries of its own land. It is recognized, it was recognized when the Perrin survey was set aside, that the United States has no authority to change the Appeal from the Court of Appeals of the Hancock line; but it has a right for its own District of Columbia. purposes to try to find out where that line runs and the fact that its conclusions may differ from that of the owners of the Hancock grant does not diminish that right. So long as the United States has not conveyed its land it is entitled to survey and resurvey what it owns and to establish and reestablish boundaries, as well one boundary as another, the only limit being that what it thus *Mr. Assistant Attorney General Kearful, does for its own information cannot affect for appellant. the rights of owners on the other side of the Mr. Francis W. Clements, of Washington, line already existing in theory of law. If, as D. C., for appellees. the result of the survey adopted, the United States should give patents for land thought by the plaintiffs to belong to them, "the courts can then in the appropriate proceeding determine who has the better title or right. To interfere now, is to take from the officers of the Land Department the functions which the law confides to them and exercise them by the court." Litchfield v. Register and Receiver, 9 Wall. 575, 578 (19 L. Ed. 681); Minnesota v. Lane, 247 U. S. 243, 250, 38 Sup. Ct. 508, 62 L. Ed. 1098. 1. PUBLIC LANDS 28-RESURVEY-RIGHT OF GOVERNMENT. The owner of a grant bordering on government land cannot restrain the Secretary of the Interior from setting aside a later resurvey and recognizing an earlier one, where both resurveys were merely attempts to locate the boundary of the grant previously established. 2. PUBLIC LANDS OF SECRETARY. 28-Resurvey-PowER The power of the Secretary of the Interior to approve the resurvey of government lands is not exhausted by a single exercise thereof with reference to any survey, where the act is not directed to a third person. Bill for injunction by Joseph J. Darlington and others against Franklin K. Lane, Secretary of the Interior. Decree dismissing the bill was reversed, and injunction ordered by the Court of Appeals (46 App. D. C. 465), and defendant appeals. Reversed, with directions. Mr. Justice HOLMES delivered the opinion of the Court. *333 This is a bill in equity brought by the appellees to restrain the Secretary of the Interior from carrying out a resurvey of a part of the boundary of a Mexican grant. The plaintiffs hold the legal title to the grant and the adjoining land belongs to the United States. The boundary was surveyed by one Hancock and on June 22, 1872, the grant was patented. A bill to set aside the patent was [2] We know of no warrant for the notion dismissed in United States v. Hancock, 133 that the power is exhausted by a single exU. S. 193, 10 Sup. Ct. 264, 33 L. Ed. 601 ercise of it. Repeated retracement of lines, (1890). Doubts having arisen as to where a although, of course, exceptions, are well portion of the Hancock line on the northern known, we believe, to the Land Department, boundary ran, the Land Department employ- as, with the limitation that we have expressed one Perrin to make a resurvey. It found ed, there is no reason why they should not and reestablished the original monuments ex- be. The case is different when the act of the cept between Hancock's stations 20 and 25, Secretary is directed to a third person, as and attempted to fix the line between these for instance, the approval of a map of the also. In 1901 the resurvey was approved by location of a railroad over public lands, the Commissioner of the General Land Office, where the approval operates as a *grant. but in 1902 on an appeal, the Secretary of the Noble v. Union River Logging R. R. Co., 147 Interior reversed the approval and ordered a U. S. 165, 13 Sup. Ct. 271, 37 L. Ed. 123. See new survey of the line between stations 20 New Orleans v. Paine, 147 U. S. 261, 267, 13 and 25. This was made by one Sickler and Sup. Ct. 303, 37 L. Ed. 162. But this retracwas approved by the Secretary of the Inte-ing of the Hancock line is not directed to the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *334 term. plaintiffs, but, as we have said, is an inves- | plaintiff would have received from a sale of 15 tigation by the United States on its own ac- days' stationery supply to the department, but count. The plaintiffs gained no rights by the include the estimated profits for the 4-year approval of the Sickler line; they lose none by the substitution of the Perrin line. These acts were neither adjudications nor agree ments. The plaintiffs' rights were fixed before. Even after land had been sold with reference to a survey and plat that had been approved, this Court refused to restrain the Secretary from making a new survey in Kirwan v.. Murphy, 189 U. S. 35, 23 Sup. Ct. 599, 47 L. Ed. 698. See Lane v. United States ex rel. Mickadiet, 241 U. S. 201, 208, 36 Sup. Ct. 599, 60 L. Ed. 956; Northern Pacific Ry. Co. v. United States, 227 U. S. 355, 33 Sup. Ct. 368, 57 L. Ed. 544. We are of opinion that the decision of the Court of Appeals was wrong. Decree of the Court of Appeals reversed, with directions to affirm the Decree of the Supreme Court dismissing the bill. (249 U. S. 313) UNITED STATES v. PURCELL ENVELOPE CO. (Argued March 10, 1919. 1919.) No. 168. *Mr. Justice MCKENNA delivered the opinion of the Court. Action brought by appellee, the Purcell Envelope Company, which we shall designate as the Envelope Company, against the United States for damages for breach of an express contract. The Court of Claims rendered judgment for the Envelope Company for the sum of $185,331.76. The United States appeals. The findings of the court are quite voluminous, but it is only necessary to quote from them to the following effect: The Post OfDecided March 31, fice Department, through the Postmaster General, James A. Gary, invited by advertisement bids "for furnishing stamped envelopes and newspaper wrappers in such quantities as may be called for by the department during a period of four years, beginning on the first day of October, 1898." In pursuance of the invitation the Envelope Company submitted a bid in the manner and time specified in the advertisements of the department. The bid of the Envelope Company was accepted, and the following order entered: 1. UNITED STATES 65-CONTRACTS-WHEN COMPLETE. Where the Postmaster General accepted the lowest bid for furnishing stationery by a formal order, and the bidder signed a formal contract, with a surety whose responsibility was not questioned, the contract was complete, although the formal contract was not signed by the Postmaster General. 2. DAMAGES 124(4)-CONTRACTS-PREVENTION OF PERFORMANCE. Appeal from the Court of Claims. Action by the Purcell Envelope Company against the United States. Judgment for plaintiff (51 Ct. Cl. 211), and the United States appeals. Affirmed. Mr. Assistant Attorney General Frierson, for the United States. Mr. Arthur Black, of Boston, Mass., for appellee. 4. DAMAGES 124(3)-CONTRACTS. Under plaintiff's contract to furnish "in quantities as ordered" certain stationery "that it may be called upon by the Post Office De partment to furnish during the four years," the damages for a breach by the Post Office Department are not restricted to the expense of preparing to perform the contract and the profits *** (2) That the contract for furnishing the envelopes called for by the advertisement and specifications referred to be awarded to the Purcell Envelope Co., of Holyoke, Mass., as the lowest bidder for the government standard of paper, at the following prices a thousand, name • " Where the Postmaster General repudiated before performance his contract to buy stationery, the measure of damages is the difference between the contract price and cost of perform-ly: ance. 3. APPEAL AND ERROR 932(1)-PRESUMPTIONS-DAMAGES. Upon appeal from the Court of Claims, which had twice tried a breach of contract case against the Post Office Department, it will be assumed that the court, in fixing damages, gave proper consideration to elements affecting the cost of performance and to the fact that plain-ed tiff did not actually manufacture the goods covered by the contract. The department, before issuing the order, investigated the financial responsibility of the Envelope Company and considered it satisfactory. April 21, 1898, the department sent to the Envelope Company a "contract in quadruplicate," to be executed "at once" and return to the department. It was promptly returned as requested, signed by the president of the Envelope Company, with the Fidelity & Deposit Company of Maryland as surety in the sum of $200,000. *April 27, 1898, the department, by the Third Assistant Postmaster General, wrote to the Envelope Company as follows: "Your telegram of to-day is before me. As the Postmaster General has not yet signed the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes #315 $316 [1] For an affirmative answer to the first. contract awarded by the Department to your company for furnishing stamped envelopes dur-proposition the Envelope Company relies on ing the coming four years, but is holding the Garfielde v. United States, 93 U. S. 242, 23 matter in abeyance, I have to request that you L. Ed. 779, and on that case the Court of suspend all action under my letter of the 21st Claims rested its decision and considered that the case was supported by other cases which were cited. instant until further orders." The Envelope Company had, however, already made arrangements and contracts for the supplying to it of the necessary materials to fulfill the terms of the contract and was ready and willing at all times to fully perform it according to its terms. But neither the Postmaster General, nor any department or officer of the government made any call or request upon the Envelope Company to furnish or deliver the envelopes or wrappers which were the subject-matter of the contract and the company's plant was kept intact ready for the performance of the contract, remaining idle. The case may be considered as the anticipation of this-its prototype. It passed upon a transaction of the Post Office Department and decided that a proposal in accordance with an advertisement by that department and the acceptance by it of the proposal "created a contract of the same force and effect as if a formal contract had been written out and signed by the parties." And for this, it was said, many authorities were cited but it was considered so sound as to make unnecessary review of or comment upon them. July 22, 1898, the department, through Postmaster General Smith, the immediate successor of Postmaster General Gary, the latter having gone out of office, revoked and canceled the contract and declared it to be null and void. Prior to doing so the Postmaster General instituted an investigation through one of his proper officers into the business and financial standing of the Envelope Company and the report thereunder was unfavorable to the company. * An offer was subsequently made by two other companies to supply the Post Office Department, upon an emergency contract, stamped envelopes and wrappers of the kinds and qualities the government should need. The department declared that an emergency existed under section 3709, R. S. (Comp. St. § 6832), accepted the offer and entered into a contract in accordance therewith. *In resistance to the case as conclusive the government urges the qualification that "the court did not say, or assume to say, that the acceptance of the proposal in all [italics counsel's] cases constituted a contract, but held that it did in the present [that] case," and that "there was reason for the conclusion which does not obtain in the case at bar." We cannot agree, and in answer to the first qualification it is only necessary to say that the court expressed a principle, not, of On or about July 22, 1898, the Envelope course, applicable to all cases, but applicable Company, having received information that to like cases; and the present is a like case, the Postinaster General designed readvertis-identical in all that makes the principle aping for proposals, sought by a bill filed in plicable. And in so determining we answer the Supreme Court of the District of Co- the other objection of the government that lumbia to enjoin his action. The bill was there were features in the law in the Gardismissed August 15, 1898. The court, how- fielde Case which do not obtain in the pendever, was of opinion that a contract had been ing case, which constituted, if we understand executed but that the Envelope Company had counsel, the determination of the law against an efficient remedy at law. the act of the Postmaster General, his duty being merely ministerial. In the present case it is insisted his action is not so subordinate, that he has discretion, and when exercised it is paramount, his action being "quasi judicial," the contract not having been consummated, and that, therefore, it was within his power to review and set aside the decision of his predecessor. We are unable to concede the fact or the power asserted to be dependent upon it. There must be a point of time at which discretion is exhausted. The procedure for the advertising for bids for supplies or services to the government would else be a mockery-a procedure, we may say, that is not permissive but required (section 3709, R. S.). By it the government is given the benefit of the competition of the market and each bidder is given the chance for a bargain. It is a provision, therefore, in the interest of both government and bidder, necessarily giving rights to both and placing obligations on both. And it is not out of place to say that the government should be animated by a justice as anxious to consider the rights of the bidder as to insist upon its own. And, The total cost to the Envelope Company for materials and the manufacture and delivery of the envelopes and wrappers in accordance with the terms of its contract would have been $2,275,224.46. Deducting that sum from the contract price leaves a difference of $185,331.76, which represents the profit the company would have made if it had been allowed to perform its contract. For that sum judgment was entered. It will be observed from the recitation of the above facts that the case presents the propositions: First, was there a completed contract between the Envelope Company and the United States through its Postmaster General; and, second, if there was such contract, what is the measure of damages? #818 $319 |
