be ascertained, estimated, and determined by | 556) dollars, in full therefor, payment to a board of naval officers, to be appointed by be made under the same conditions and re. the Secretary of the Navy, who shall revise quirements as exacted by the original consaid estimate and determine the sum or tract. sums to be paid the contractor for the additional work that may be required under this contract: And provided also, That no further payment shall be made unless such supplemental or modified agreement shall have been signed before the obligation arising from such change or modification was incurred and until after its approval by the party of the second part: And further provided, That no change herein provided for shall in any manner affect the validity of this contract."

The supplemental contract of June 16, 1893, contained, among other things, the following:

"This agreement, entered into this 16th day of June, 1893, between John Gillies, contractor, for the construction of a dry dock at the U. S. Navy Yard, Brooklyn, New York, party of the first part, and Norman H. Farquhar, Chief of the Bureau of Yards and Docks of the Navy Department, for and in behalf of the United States, party of the second part,

"Witnesseth: That, whereas, the Navy Department has decided to lengthen the said dry dock from six hundred (600) feet, as called for in the specifications forming a part of the contract for the construction of a dry dock at the above-mentioned location, entered into by the above-mentioned parties of the first and second parts on the 17th of November, 1892, to six hundred and seventy (670) feet from the outer gate sill to the coping at the head of the dock.

"And it is further agreed by the party of the second part that, in full and just compensation to the party of the first part, the sum of forty-five thousand five hundred and fifty-six ($45,556) dollars shall be paid for the additional labor and material necessary to extend the said dry dock, as heretofore agreed to, payments to be made under the same conditions and requirements as exacted in the original contract.

"And it is therefore agreed that the time fixed in the original contract for the completion of the said dry dock shall be extended three (3) months, on account of the extra labor necessary to carry out the extension of the said dry dock as called for by this agreement."

The supplemental contract of August 17, 1893, contained the following:

"This agreement, made and concluded this seventeenth day of August, A. D. 1893, by and between John Gillies, of the city of Brooklyn, in the State of New York, party of the first part, and the United States, represented by N. H. Farquhar, U. S. Navy, Chief of the Bureau of Yards and Docks, Navy Department, acting under the direction of the Secretary of the Navy, party of the second part,

"Witnesseth: That whereas it has been deemed desirable to change the location of the dry dock now being constructed at the U. S. Navy Yard at Brooklyn, New York, under contract with the said John Gillies, party of the first part, dated November 17th, A. D. 1892:

"Now, therefore, this agreement witnesseth that in consideration of the premises and for and in consideration of the payment to be made as hereinafter provided for, the party of the first part, for himself, his heirs and assigns, and his legal and personal rep

"And, whereas, a board of naval officers, consisting of Captain J. N. Miller, U. S. N., Civil Engineer P. C. Asserson, U. S. N., and Civil Engineer, F. C. Prindle, U. S. N., was ordered by, and did convene, by order of the Secretary of the Navy, in compliance with the requirements of paragraph 7, page 2, of the contract, to fix this additional compen-resentatives, agrees to and with the United sation to be allowed to said party of the first part for the additional labor and material required for said extension.

States that he will, in the construction of the said dry dock, change its location to one sixty-four (64) feet further inland than "And, whereas, said board of naval of that laid down and staked out when the said ficers, after careful and mature delibera- contract was entered into, and that he will tion, did fix the additional compensation to perform all the additional excavation necesbe paid said party of the first part for the sary at the entrance of the dry dock in consaid extension of the said dry dock at forty-sequence of the said change of location; also five thousand five hundred and fifty-six all the additional work necessary to ($45,556) dollars, and did allow an exten- lengthen the suction pipes provided to be sion of three (3) months' time on account of said extension of said dry dock:

"Now, therefore, the party of the first part does hereby agree to extend the said dry dock to a length of six hundred and seventy (670) feet, measuring from the outer gate sill to the coping at the head of the dock, in the same manner and under the same conditions as though said extension had been included in the original contract. "And it is further agreed by the party of the first part to accept from the United States, as a just compensation for said work of extension, the sum of forty-five thousand five hundred and fifty-six ($45,

laid from the present pump house, including the piping, round piles, sheet piles, timber, iron work, excavation and back filling, etc., and all other work incident to said change of location, supplying all the labor and ma terials therefor.

"And this agreement further witnesseth that the United States, party of the second part, in consideration of the stipulations, agrees that for the faithful performance of this agreement by the party of the first part there shall be paid to the said party of the first part the sum of five thousand and sixty-three dollars and eighteen cents ($5,063.18), United States currency, as full

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compensation. Said payment to be made in accordance with all the terms and conditions of payments as provided in the said contract and specifications.

"And the United States further agrees that the time limited by the said contract for the completion of the dry dock shall be extended for a period of eight (8) weeks on account of the said change in the position of the dry dock.

"It is also agreed that the provisions and conditions contained in the said contract and the specifications thereto attached, in regard to the character and quality of the materials and workmanship, shall apply to the work as herein modified.

"This agreement is made under the provisions of and in accordance with article 'seventh' of the said contract."

Before addressing ourselves directly to the question before us, it may be well to briefly examine some of the decisions of this court on the subject of the alteration of contracts without the assent of the surety.

the opinion of Thomas, J., in this case. 92 Fed. 299.

At the trial in the circuit court, it was contended, on behalf of the surety, that this proposition was applicable, and exonerated him by reason of the changes made in the original contract by the supplemental contracts of June 16 and August 17, 1893. It was claimed on behalf of the United States that the changes made in the original contract by the supplemental agreements were within contemplation of that contract, and *must be deemed to have been assented to in advance by the surety.

not within the scope of the 7th section, but to be such as to exonerate the surety from liability for the subsequent dereliction of his principal.

It was held by the learned trial judge that the government's position was well taken in respect to the supplemental agree ment of June 16, 1893, which he regarded as fairly within the meaning of the provisions in the 7th section of the contract, which refers to and provides for changes, alterations, or modifications in the plans and specifications, and, therefore, within the undertaking of the surety. But his view was otherwise Miller v. Stewart, 9 Wheat. 680, 6 L. ed. in respect to the alterations made by the 189, was an action on a bond conditioned for supplemental contract of August 17, which, the faithful performance of the duties of as respects the change of the site of the the office of deputy collector of direct taxes dock and the extension of the time of comfor eight certain townships in the fifth col-pletion of the contract, he held to be changes lection district of New Jersey, and it appeared that the instrument of the appointment, referred to in the bond, was afterwards altered, so as to extend to another township, without the consent of the sureties. It was held that the surety was discharged from his responsibility for moneys subsequently collected by his principal, the court saying, per Mr. Justice Story: That the liability of a surety is not to be extended by implication, beyond the terms of his contract; that his undertaking is to receive a strict interpretation, and not to extend beyond the fair scope of its terms; and that the whole series of authorities proceeded upon this ground. Miller v. Stewart was followed and approved in Leggett v. Humphrey, 21 How. 76, 16 L. ed. 54; Smith v. United States, 2 Wall. 219, 17 L. ed. 788.

In United States v. Boecker, 21 Wall. 652, 22 L. ed. 472, in the case of a distiller's bond, which recited that the person is about to be the distiller at one place, to wit, at the corner of Hudson street and East avenue, situated in the town of Canton, it was held that his sureties were not liable for taxes in respect of business carried on by him at another place, to wit, at the corner of Hudson and Third streets in the same town, even though he had no distillery whatever at the first-named place.

However, the proposition that the obligation of a surety does not extend beyond the terms of his undertaking, and that when this undertaking is to assure the performance of an existing contract, if any change is made in the requirements of such contract in matters of substance without his consent, his liability is extinguished, is so elementary that we need not cite the numerous cases in England and in the state and Federal courts establishing it. Many of these cases will be found cited in

We agree with the circuit court of appeals in thinking that if the learned judge's opin ion was sound in respect to the agreement of August 17, 1893, it is not necessary to determine whether the 7th section warranted so wide a departure from the plans and specifications of the original contract as was made by the agreement of June 16, 1893.

Coming, then, to the question of the effect on the responsibility of the surety of the supplemental agreement of August 17, we agree with the circuit court and the circuit court of appeals in holding that the alterations thereby caused were beyond the terms of the undertaking of the surety, and extinguished his liability. The 7th section had in view such changes as might be found advantageous or necessary in the plans and specifications. But the changes called for by the new agreement had no reference to the original plans and specifications, but changed the location of the dry dock, re quiring the contractor to make additional excavations and connections with the water, at an increased expense, and gave an increased time of performance.

A few cases, illustrating the principles involved, may be properly cited, and reference is made to the opinion of the circuit court, in which many more are cited.

In Mundy v. Stevens, 9 C. C. A. 366, 17 U. S. App. 442, 463, 61 Fed. 77, it was held by the circuit court of appeals of the third circuit that sureties for the payment by a contractor to a subcontractor of all moneys received for work under a government contract as provided in the contract were released by an alteration of such agreement

whereby the right secured to the original tion, cost, and time necessary for the comcontractors to deduct from the monthly pay-pletion of the work operated to release the ments 3 cents per yard for material dredged, subsequently was modified so that payments of 2 cents per cubic yard should be made monthly; and it was also held that, as the plaintiff had set forth the supplementary agreement in his statement of claim, he thereby made it part of his case, and the burden of proof that the change was consented to by the sureties was upon the plaintiff.

surety if made without his knowledge and consent, then the declaration put the plaintiff out of court, so far as the defendant surety was concerned, unless it was averred that the latter had knowledge of the changes and consented thereto. If the government's pleader had evidence of facts showing such knowledge and consent, and was surprised by the action of the trial judge in sustaining the demurrer, it was open to him to ask leave to amend the declaration by adding the necessary averment. This was not done, and we think it is too late to urge this objection in this court.

The judgment of the Circuit Court of Appeals is affirmed.

Mr. Justice Gray took no part in the disposition of this case.

Rowan v. Sharps' Rifle Mfg. Co. 33 Conn. 1, is an important case. There it was held by the supreme court of Connecticut that where a contract provided that the guns contracted for should be made "with all pos sible despatch," and a supplemental contract, made before performance, provided that 300 guns per week should be delivered for a certain period, and 600 per week afterwards, the surety was discharged, the court saying: "But it appears to us very clear that a contract to manufacture and deliver a large quantity of any description of goods in a reasonable time, and a contract to manufacture and deliver the same quantity either at a specified time for the whole or a specific quantity from time to Appeal-error to state court-Federal questime, monthly or weekly, as the case may be, are materially variant."

The supreme court of Indiana, in Zimmerman v. Judah, 13 Ind. 286, held that a supplementary agreement to put an additional story on a house released the surety for the contractor in the original contract.

Whitcher v. Hall, 5 Barn. & C. 269, is cited in the opinion of the circuit court. There it was held by the court of King's bench that a surety engaged for another to the plaintiff for the milking of 30 cows, at a given price each per annum, was released by a subsequent agreement without his consent, whereby the hirer was to have 28 cows for one half the year and 32 for the remainder.

A further contention is made in the government's brief that, even if such substantial changes were made in the contract as would release the surety if made without his assent, the fact of such changes should have been set up by the defendant as an affirmative defense by answer or plea, and not by demurrer.

The declaration set out, by attaching them as exhibits, the original and the two supplemental contracts, and it alleged that the changes effected by the latter were made "pursuant to, and in conformity with, para graph 'seventh' of the first contract." If, upon the face of the agreement of August 17, 1893, it appeared that substantial changes were made in the location of the proposed structure, requiring additional excavations and connections at an increased expense, and extending the time limited by the contract for the completion of the dry dock for a period of eight weeks, on account of the change in the position of the dry dock, and if, as is conceded by this objection, such substantial changes in the loca

(186 U. S. 304) THOMAS P. KENNARD, Plff. in Err.,

0.
STATE OF NEBRASKA.

tion.

A decision by the highest court of the state of

Nebraska, that the Pawnee reservation lands In that state are public lands within the meaning of the enabling act of April 19, 1864,

12 (13 Stat. at L. 47, chap. 59), does not bring into question the validity of that sec tion, so as to give the Supreme Court of the United States the right, under U. S. Rev. Stat. § 709, to review the judgment of the state court.

for plaintiff in error.

for defendant in error.

Messrs. F. N. Prout and Morris Brown

Mr. Justice Shiras delivered the opinion of the court:

In May, 1897, in the district court of Lancaster county, state of Nebraska, Thomas P. Kennard brought an action against the state of Nebraska, seeking to recover the sum of $13,521.99,-being 50 per cent of a certain sum paid by the United States to the state of Nebraska, and which plaintiff alleged had been so paid by reason of his services, as a duly appointed agent of the state, in pro

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*305

with the state is not for us to determine, un- | Nebraska were public lands within the less the record discloses that he has been meaning of the 12th section of the enabling deprived of some title, right, privilege, or act, did not bring into question the validity immunity secured to him by the Constitu- of that section-much less was it a decision tion of the United States, and unless it ap-against its validity. As, then, the plaintiff pears that such title, right, privilege, or im-in error specially set up or claimed no Fedmunity was specially set up or claimed ineral right, and as the judgment of the suthe state court. F. G. Oxley Stave Co. v. preme court of Nebraska did not impugn Butler County, 166 U. S. 648, 41 L. ed. 1149, the validity of any statute of the United 17 Sup. Ct. Rep. 709; Columbia Water States, we find nothing on which to rest a Power Co. v. Columbia Street R. Light & P. right to review that judgment, and the writ Co. 172 U. S. 475, 43 L. ed. 521, 19 Sup. Ct. of error is accordingly dismissed. Rep. 247.

J.

(186 U. S. 238) & POTOMAC TELEPHONE COMPANY, Appt.,

v.

FORREST MANNING and Harry E. Rupprecht, Trading as J. Forrest Manning & Company.

Appeal-final decree-statutes presumption that legislature acted advisedlylegislative regulation of telephone rates -reasonableness of rates.

1.

Looking into the record, we do not find in the pleadings, or in the petition for a hearing, any specific statement or claim by the CHESAPEAKE plaintiff in error of any right, title, privilege, or immunity secured to him by any provision of the Constitution of the United States. This, indeed, is admitted in the brief of the plaintiff in error, but it was claimed in the petition for allowance of a writ of error from this court, "that in the rendition of the judgment by the supreme court of the state there was drawn in question the construction of the statutes of the United States with reference to the lands of the Pawnee Indian reservation located in the state of Nebraska, and the act of Congress authorizing the admission of the state of Nebraska into the Union, passed April, 1864 (13 Stat. at L. 47, chap. 59), and that the decision of said supreme court was against the plaintiff in error in such construction," and that "said decision was necessary to the judgment given by the said supreme court, and without such decision and construction the said judgment could not have been given." And it is now contended that the plaintiff's right to recover was de 2. Congress will be presumed to have acted adfeated solely by the construction the state court placed upon the congressional acts, and that thus a Federal question appears in the record, giving this court power to review the decision of the state court.

3.

A decree of the court of appeals of the District of Columbia reversing a decree of the supreme court of the District which dissolved a preliminary injunction and dismissed the complaint in a sult to restrain a telephone company from discontinuing its service, and remanding the cause for the entry of a final Injunction in the language of the preliminary Injunction, with a proviso that it should operate until such time in the future as the telephone company should voluntarily withdraw from business in the District,-is a final decree for the purpose of appeal to the Supreme Court of the United States.

visedly and with full knowledge of the situation, in enacting the provision of the District appropriation act of June 30, 1898 (30 Stat. at L. 525, 538, chap. 540), regulating the rates which a telephone company may charge in the District of Columbia, although the committees appointed by each House to Investigate charges for telephone service in the District never completed their work and made no report.

Rentals received by a telephone company from private telephone systems installed by It must, together with the expenses thereof, be excluded from consideration in inquiring Into the reasonableness of the rates which telephone companies doing business in the District of Columbia are prohibited from exceeding by a provision in the District appropriation act of June 30, 1898 (30 Stat. at L. 525, 538, chap. 540).

But the validity of the acts of Congress referred to was not drawn in question by the facts of this controversy. Our jurisdiction to review the judgment of the state court rests upon § 709 of the Revised Statutes. It has often been held that the validity of a statute or treaty of the United States is not "drawn in question," within the meaning of § 709, every time rights claimed under a statute or treaty are controverted, nor is the validity of an authority every time an act done by such authority is disputed. Baltimore & P. R. Co. v. Hopkins, 130 U. S. 210, 32 L. ed. 908, 9 Sup. Ct. Rep. 503; Cook County v. Calumet & C. Canal & Dock Co. 138 U. S. 635, 653, 34 L. ed. 1110, 1116, 11 Sup. Ct. Rep. 435; Borgmeyer v. Idler, 159 U. S. 408, 40 L. ed. 199, 16 Sup. Ct. Rep. 34; Blackburn v. Portland Gold Min. Co. 175 U. S. 571, 44 L. ed. 276, 20 Sup. Ct. Rep. 222; Florida C. & P. R. Co. v. Bell, 176 U. S. 321, 328, 44 L. ed. 486, 490, 20 Sup. Ct. Rep. 399; Columbia Water Power Co. v. Columbia Electric Street R. Light & Power Co. 172 U. B. 488, 43 L. ed. 525, 19 Sup. Ct. Rep. 247. The decision by the supreme court of the Argued March 10, 11, 12, 1902. Decided state, that the Pawnee reservation lands in

4.

The prohibition against charging or receiving "more than $50 per annum for the use of a telephone on a separate wire," which is made by the District appropriation act of June 30, 1898 (30 Stat. at L. 525, 538, chap. 540), does not require a telephone company to furnish at that rate such additional equipment as wall cabinet and desk, auxiliary bells, etc., for which separate charges had theretofore been made.

[No. 363.]

June 2, 1902.

22 S. C.-56.