IN ERROR to the Court of Appeals of the District of Columbia, to review a judgment of that court, affirming the judgment of the Supreme Court of the District of Columbia, dismissing the petition of the International Contracting Company, for a writ of mandamus addressed to Daniel S. Lamont, Secretary of War, commanding him to execute or cause to be executed articles of agreement in accordance with the proposal of said company, and its acceptance, etc. Affirmed.

Statement by Mr. Justice White:

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 chanuel; 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 advertise ment, 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 304] other within nine months thereafter. He also undertook to complete the entire work on or before June 1, 1894. In the event of an

Certiorari is the proper remedy. Love v. Vance, 97 Mich. 625.

Upon the refusal of an inferior court to grant an appeal to which a party is entitled as of right, a mandamus may be issued upon his motion, by the Kentucky court of appeals. Schmidt v. Mitchell, 15 Ky. L. Rep. 768.

Mandamus directing the United States circuit court to vacate or modify its decree entered upon the mandate on the disposition of an appeal is the proper remedy, if the mandate of the Supreme Court of the United States has been disregarded. Re City Nat. Bank, 153 U. S. 246 (38: 705).

Mandamus will be granted to compel a judge to grant an appeal in an appealable case, where he refuses merely on the ground that the issues raised have been repeatedly determined by the appellate court adversely to the moving party, and that the latter is through his motion seeking to abuse the right of appeal. State v. Whitaker, 45 La. Ann. 1299.

A trial judge who refuses to settle a bill of exceptions at the time fixed by him therefor, on the objection of the appellee's attorney that the written notice of presentation for settlement required by Cal. Code Civ. Proc. § 650, was not served, will be compelled by mandamus to settle the bill, where the appellee's attorney bad waived such notice by consenting to the time fixed by the judge, as in such case he is not vested with judicial discretion. Hicks v. Masten, 101 Cal. 651.

Mandamus will not be granted to compel a trial judge to sign a bill of exceptions stating that witnesses for the defense testified exonerating the accused, where the return avers that the statement does comport with the facts proved, and that the Judge is willing to sign a proper bill. State v. Voorhies, 45 La. Ann. 1218. 155 U. S.

U. S., Book 39.

epidemic prevailing in the locality, be 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, Lieutenant Colonel 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,

Mandamus lies to compel a board of mayor and aldermen to meet with the common council of a city, in joint convention, for the purpose of electing city officers in accordance with the provisions of the city charter. Littlefield v. Newell, 85 Me. 246.

Mandamus will not lie to compel a coroner to pay over to an administrator money found upon the person of the intestate, as a full, complete and adequate remedy exists at law by action therefor. Com. v. Walton, 3 Pa. Dist. Rep. 391.

Mandamus is the proper remedy to require the common council of a city to approve the bond of one appointed to office by the mayor, as such approval is a purely ministerial act. Speed v. Detroit, 97 Mich. 198.

Mandamus will lie to compel an auditing board of a town which has refused to consider an account presented upon its merits, on the ground that no part of it is a proper town charge, and has therefore rejected it altogether, to act upon such claim. Re Ryan, 6 Misc. 478.

Mandamus does not lie to compel a city or town suing to enforce its ordinance to pay the costs of such suit it case it is unsuccessful People v. Chapin, 48 Ill. App. 643.

One applying for mandamus to compel the payment of judgments against a city must show a clear legal right to have such payment made in the manner specified in the judgments. State v. New Orleans, 45 La. Ann. 1389.

Mandamus will not lie to compel a justice of the peace to pay over to the commissioners of fisheries moneys collected for fines imposed for violation of the fishery laws, since an adequate remedy exists by action. People v. Crennan, 141 N. Y. 239.

A peremptory mandamus will issue for the payment by a city of state and county taxes, where it has collected sufficient moneys for city, county, 11 161

however, will be deferred until the articles of | upon. It is respectfully suggested that if you 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 submit. ted to him. On the following day the Chief of Engineers sent this telegram to Colonel Gillespie:

305] "Washington, D. C., Sept. 24, 1892.
"To Colonel G. L. Gillespie, Engineer, Army
Building, 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 7 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

and state purposes to pay such taxes. Shields v. Paterson, 55 N. J. L. 495; Shields v. Grear, 55 N. J. L. 503.

Mandamus does not lie to compel county commissioners to strike from the tax list an additional assessment on property erroneously placed thereon, without notice to the person assessed. Baltimore County Comrs. v. Winand, 77 Md. 522.

desire to be heard upon the subject an oppor-
tunity is offered. Any representation you de-
sire 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.
L. A. Grant,

"Very respectfully,

"Acting Secretary of War. Post Building, 12 to 28 Exchange Place, New "The International Dredging Company' 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

| fused, notwithstanding a previous judicial determination in favor of such faction. Re Pollard, 55 N. Y. S. R. 155.

An order to compel the county clerk to print upon the official ballot of a party the name of a candidate for office must be denied, where the applicant received his nomination at the hands of a convention whose claims to regularity have been submitted to the supreme authority of the party within the state, and have by that body been de

Mandamus lies to compel the clerk of arrears to receive an assessment, with interest, after a sale of land invalid, because an excessive amount of inter-clared unfounded. Re Redmond, 5 Misc. 369. est was exacted. Lester v. McDaniel, 5 Misc. 190.

Mandamus does not lie to compel the attorney general of the state of New York to certify to the superintendent of insurance that the declarations and charter of a proposed sanitary insurance and Inspection company are in accordance with the requirements of law, under N. Y. Laws 1893, chap. 725, § 10, as his act in making the examination is judicial, and not ministerial merely. People v. Rosendale, 76 Hun, 103, reversing 5 Misc. 378, affirmed in 142 N. Y. 128.

Mandamus lies to compel the attorney general of the state of New York to certify that an action in which costs are awarded against the people of the state was brought pursuant to law, which certificate is expressly required by N. Y. Code Civ. Proc. 3241, as the act is purely ministerial. People v. Rosendale, 76 Hun, 112.

Mandamus will not lie to direct or control the head of an executive department in the discharge of an executive duty involving the exercise of judgment and discretion. United States v. Lamont, 22 Wash. L. Rep. 173.

Mandamus will not lie to compe! the commissioner of patents to register a trade-mark, where the application for registration has been denied on the ground that no trade exi- with foreign nations or Indian tribes, as required by statute to entitle a trade-mark to registration. United States v. Seymour, 22 Wash. L. Rep. 111, 66 Pat. Off. Gaz. 1167, reversing 21 Wash. L. Rep. 675, 65 Pat. Off. Gaz. 1221; writ of error dismissed in 153 U. S. 353 (38: 742), 67 Pat. Off. Gaz. 1191.

An order to compel the county clerk to print upon the official ballot the name of a candidate nominated by a faction of a party, whose claims have been submitted to the state organization of the party and by it declared unfounded, will be re

Mandamus is peculiarly the proper remedy to compel a town council to call new election, as required by statute, where a prior election is inoperative. State v. South Kingstown, 22 L. R. A. 65, 18 R. I.

-

Any citizen has the right to apply for a mandamus to compel the board of councilmen of a city to comply with a statute requiring it to redistrict certain wards so that each district will not contain more than four hundred electors. People v. Richmond, 5 Misc. 26.

A statutory provision that a village board shall consist of seven trustees is mandatory, and the election of a trustee to take the place of one resigned may be compelled by mandamus where power to call a special election in such case is conferred. People v. Whitestone, 71 Hun, 188.

A gas company occupying city streets with its mains may be compelled by mandamus to furnish gas to occupiers or owners of houses abutting on such streets, if they comply with reasonable regulations. Portland Natural Gas & O. Co. v. State, 21 L. R. A. 639, 135 Ind. 54.

Mandamus will lie upon the petition of a private corporation to compel the surrender of its records, books, and papers, which are unlawfully withheld by one of its former officers, where the property has been concealed and cannot be reached by ordinary legal process. State v. Davis, 54 Mo. App. 447.

Mandamus for the restoration of membership is the proper remedy for one who has been illegally expelled without notice from a corporation in which he has a property right consisting of a death benefit for himself and one for his wife. Lysaght v. St. Louis Operative Stonemasons Asso. 55 Mo. App. 538.

were irregular and improper, and that neither | Lamont in the supreme court of the District should be accepted."

Messrs. A. S. Worthington, Wm. Nelson Cromwell, Wm. J. Curtis, W. W. Dudley and L. T. Michener for plaintiff in error.

Mr. Lawrence Maxwell, Jr., Solicitor Gen. for defendant in error.

Mr. Justice White delivered the opinion of the court:

of Columbia, to compel him to execute and deAccordingly he ordered the work to be re- liver to the relator the contract for the work advertised. The new advertisement appeared under the specifications set forth in the first 306] on October 26, 1892. It called *for pro advertisement, and meeting with an adverse posals which differed from those contemplated decision, he first took his case to the court of by the first advertisement in several important appeals of the district, where the judgment beparticulars-first, in striking out the clause re-low was affirmed, and thence he brought it to ferring to the eight hour law; second, in this court by writ of error. 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 Much was said in argument at bar upon the the work as covered by the first proposals and question of when a contract is to be regarded specifications, and the bid made thereunder. as completed, under the circumstances here preBefore this suit was disposed of the bids under sented, and the discussion concerning the authe second advertisement were opened on De-thority of the Secretary of War to review the cember 1, 1892, and it was found that the re-action of an officer of engineers in such a case lator 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:

and to direct a new adjudication, has taken a wide range. We deem the consideration of both these points unnecessary in view of the relator's bids under the *second advertise [308 ment and specifications, and his contract to do the work at a less price and under new conditions. It is elementary law that mandamus will only lie to enforce a ministerial duty as contradis inguished from a duty which is merely discretionary. This doctrine was clearly and fully set forth by Chief Justice Marshall in Marbury v. Madison, 5 U. S. 1 Cranch, 137 [2: 60], and has since been many times reasserted by this court. See Kendall v. Stokes, 44 U. Š. 3 How. 87 [11: 506]; Brashear v. Mason, 47 U. S. 6 How. 92 [12: 357]; Recsido v. Walker, 52 U. S. 11 How. 272 [13: 693]; Holloway v. Whiteley, 71 U. S. 4 Wall. 522 [18: 335]; United States v. Seaman, 58 U. S. 17 How. 225, 231 [15: 226, 228]: United States v. Guthrie, 58 U. S. 17 How. 284 [15: 102]; "Washington, D. C., November 14, 1893. United States v. Edr.unds, 72 U. S. 5 Wall. "GENTLEMEN: I have the honor to acknow563 [18: 692]; Gaines v. Thompson, 74 U. S. 7 edge the receipt of your communication of No- Wall. 347 [19: 62]; Cox v. United States, 76 vember 4, 1893, in which, on behalf of the U. S. 9 Wall. 298 [19: 579]: United States v. International Contracting Company, you re- Schurz, 102 U. S. 378 [26: 167]; Butterworth quest me, 'as the Secretary of the Department v. United States, 112 U. S. 50 [28: 656]; Unitof War for the time being, to execute and de-ed States v. Black, 128 U. S. 40 [32: 354]; liver to that company a contract conforming in all respects to the proposal filed by said company with Lieutenant-Colonel Gillespie on 307] the 19th day of *September, 1892, and the acceptance thereof by the Secretary of War through the acting Chief of Engineers.'

"War Department,

"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,

"(Signed) Daniel S. Lamont, "Secretary of War." Upon this refusal, the relator commenced proceedings by a mandamus against Secretary

Brownsville Taxing Dist. v. Loague, 129 U. S. 493 [32: 780]; Noble v. Union River Logging R. Co. 147 U. S. 165 [37: 123].

The duty to be enforced by mandamus must rot only be merely ministerial, but it must be a duty which exists at the time when the application for the mandamus is made. Thus in the case of Ex parte Rowland, 104 U. S. 604 [26: 861], this court, speaking through Mr. Chief Justice Waite, said: "It is settled that more cannot be required of a public officer by mandamus than the law has made it his duty to do. The object of the writ is to enforce the performance of an existing duty, not to create a new one."

Moreover, the obligation must be both peremptory, and plainly defined. The law nust not only authorize the act (Kentucky v. Boutwell, 80 U. S. 13 Wall. 526 [20: 631]), but it must require the act to be done. "Amandamus will not lie against the Secretary of the

Treasury unless the laws require him to do to refund the money if that court should rewhat he is asked in the petition to be made to verse the decision of the court below, and hold do" (Reexide v. Walker, 52 U. S. 11 How. 272 that it was not due. The court said: "No [13: 693], see also Coz v. United States, 76 U. notice whatever could change the rights of the S. 9 Wall 28 (19: 579), and the duty must be parties so as to make the Bank of the United "clear and indisputable." Knox County States responsible to refund the money." Comrs. v. Arpinou, 65 C. S. 24 How. 376 -The whole case of this relator is covered by [16: 735]. Now, at the time that this applica- Gilbert v. United States. 75 U. S. 8 Wall. 358 tion was made for a mandamus against Secre-[19: 303], in which this court, through Mr. tary Lamont, the relator had entered into a con- Justice Miller, said: "If the claimants had 309] tract to do the work in question at a any objection to the provisions of the contract lower price than that mentioned in the first ad- they signed, they should have refused to make vertisement and bid, and on different terms. it. Having made it and executed it, their This contract had been entered into by him vol-mouths are closed against any denial that it untarily. We cannot perceive any duty which, superseded all previous arrangements." The under these circumstances, rested upon the Sec- claim that the purpose of the mandamus which retary of War to sign such a contract with the is bere asked is not to determine the existence relator as would be required by the mandamus of a contract, or of rights arising thereunder, which is prayed. It cannot be reasonably but only to require the furnishing of evidence, contended that be is under any obligation to simply changes the form of the contention sign two contracts with the same person for without affecting its real merits. If, as we the same work at a different price and under, have shown, there is no duty resting upon the different conditions. Nor can it be urged with Secretary to enter into the contract here claimed any greater reason that the relator was en- necessarily there can be no duty on his part to titled to have signed a contract to do work for put into the hands of the relator evidence of 19.7 cents per cubic yard, which he had sub- the contract having been entered into. sequently made a voluntary contract to do for Judgment afirmed. 13.7 cents per cubic yard, and upon conditions different from those mentioned in his first proposal. In order to justify the issue of the writ,

it would be necessary to hold that the GEORGE A. PEARCE, Plff. in Err., [311

STATE OF TEXAS et al.

(See S. C. Reporter's ed. 311-314.)

indictment.

second contract was void, and thereby to relieve the relator from obligations which he has assumed, and release him from the binding force of terms and stipulations to which he has subjected himself. Inasmuch as no such duty as that which the granting of this writ Surrender of fugitive from justice—sufficiency of would seek to enforce exists, and no right subsists in the relator which this writ could secure him, there is no ground for issuing it. The writ of mandamus cannot be used to set aside a contract which has been voluntarily entered into. Detroit Free Press Co. v. State, 47 Mich.

135.

1. In a case of surrender under the Act of Congress, of a fugitive from justice, where the in

NOTE 48 to extradition from another) state;

right to try person extradited for a different crime

from that for which he was surrendered; who are fugitives from justice; character of offense; demand for arrest and delivery of fugitives: surrender of fugitives, see note to Cook v. Hart, 36: 934.

As to when habeas corpus may issue, and when not, and from what courts, and by what judges; what may be inquired into by writ of, see note to United States v. Hamilton, 1: 490.

As to what questions may be considered on habeas corpus, see note to Ex parte Carll, 27: 288.

As to suspension of writ of habeas corpus, see note to Luther v. Borden, 12: 581.

Habeas corpus, when issued; what may be inquired into upon; right to discharge.

Judgments of courts, whether Federal or state,

But even if the writ of mandamus could be so perverted as to make it serve the purposes of an ordinary suit, the relator is in no position to avail himself of such relief. He entered cf his own accord into the second contract and has taken advantages which resulted from his, action under it, having received the compensa tion which was to be paid under its terms. Having done all this, he is estopped from denying the validity of the contract. Oregonian R. Co. v. Oregon R. & Nar. Co. 10 Sawy. 44. Nor does the fact that in making his second contract, the relator protested that he had rizia under the first better his position. If cannot be treated as void and attacked collaterbe had any soon rights and desired to maintain|aily on habeas corpus, even if error bas actually 310; them, he should have *abstained from supervened. Re Swan, 150 U. S. 637 (37: 1207). tting himself in a position where he voluntari One guilty of contempt is not y took advat age of the second opportunity to secure the work. A party cannot avoid the legal consequences of his acts by protesting at the time he does them that he does not intend to object himself to such consequences. In the case of Bank of United States v. Bank of Washington, 31 C. §. 6 Pet. 8 [8: 2991, certain pay-charge of a prisoner confined under a sentence in ments had been made to the first bank upon a decision by the court below, with notice that the payer intended to take the case to the Su preme Court of the United States, and would expect the payee, the Bank of the United States,

to be discharged on habeas corpus on the ground that the court in which the case was pending transferred it of its own motion, without lawful authority, to another district, since the order of transfer, if erroneous, is appealable. Re Whitmore, 9 Utah, 441.

Habeas corpus will not lie to compel the disexcess of the power of the court, since such error does not affect the jurisdiction, and a writ of error will lie to correct it. Re Bonner, 57 Fed. Rep. 184.

The Kansas supreme court may, on habeas corpus, examine the judgment or order of a district

judgment of that court, affirming the decision of the judge of the Forty Second District of the State of Texas, refusing to discharge upon habeas corpus George A. Pearce from the custody of the agent of the state of Alabama on an executive warrant issued by the governor of the state of Texas, for his delivery of to the state of Alabama to answer to certain indictments, and remanding said Pearce to the custody of said agent. On motion to dismiss or affirm. Affirmed.

See same case below, 32 Tex. Crim. Rep. 301.

The facts are stated in the opinion.
Mr. William L. Martin, Atty. Gen. of
Alabama, in favor of motion.

No brief filed in opposition.

under the statute of the demanding state, or was merely a failure to pay a creditor, where the quesRetion is in doubt, as the courts of the demanding state should, in the absence of special hardship or evidence of sinister purpose, construe their own laws and determine to what transactions they apply. Ex parte Hart, 59 Fed. Rep. 894.

One who has been sentenced to imprisonment for a specified time within the jurisdiction of the court, for the offense committed, is not entitled to a discharge on a writ of habeas corpus before the expiration of the sentence, on the ground that he was also sentenced to pay a fine in excess of the amount allowed for the offense. People v. Wood-person imprisoned in any state court, shall be worth, 78 Hun, 586.