tion." In United States v. Thompson, 93 | between this court and some of the state U. S. 586, 23 L. ed. 982, which came here from the highest court of Maryland, and in which suit the United States was a party, seeking payment of a debt it held against an insolvent partnership, the court said: "It is not contended that this decision is repug-state court to accept those views as denying nant to the Constitution, or any law or treaty of the United States; but the argument is that, as the check of McFreely & Hopper was not paid, it did not pay their debt. Whether this is so or not does not depend upon any statute of the United States, but upon the principles of general [522]law alone. We have many times held that we have no power to review the decisions of the state courts upon such questions. Bet hell v. Demaret, 10 Wall. 537, 19 L. ed. 1007; Delmas v. Merchants' Mut. Ins. Co. 14 Wall. 666, 20 L. ed. 757; New York L. Ins. Co. v. Hendren, 92 U. S. 287, 23 L. ed. 709; Rockhold v. Rockhold, 92 U. S. 130, 23 L. ed. 507." In San Francisco v. Scott, 111 U. S. 768, 28 L. ed. 593, 4 Sup. Ct. Rep. 688, referring to the question as to the effect of an alcalde grant of the pueblo title, and which was decided by the supreme court of California, it was said: "This does not depend on any legislation of Congress, or on the terms of the treaty, but on the effect of the conquest upon the powers of local government in the pueblo under the Mexican laws. That is a question of general public law, as to which the decisions of the state court are not reviewable here. This has been many times decided."

*courts upon certain questions of general law. [523]
But it has never been supposed that anyone
has such a vested interest in the views of
this court upon questions of general law
that he may complain of the refusal of a
him an "immunity" existing or belonging to
him, in virtue of an "authority exercised
under the United States." In Winona &
St. P. R. Co. v. Plainview, 143 U. S. 371,
390, 36 L. ed. 193, 199, 12 Sup. Ct. Rep. 530,
536, which came to this court from the highest
court of Minnesota, it was said: "The fact
that the supreme court of Minnesota, in the
present cases, did not acquiesce in the cor-
rectness of the decision of the circuit court
of the United States, did not constitute a
Federal question. Neither the Constitution
of the United States nor any act of Congress
guarantees to a suitor that the same rule
of law shall be applied to him by a state
court which would be applied if his citizen-
ship were such that his suit might be
brought in a Federal court."

Let it be observed that the jurisdiction of the state court, as between the parties and as to the subject-matter, is not disputed. The question before it was as to the extent of the liability of the sureties in the injunction bond. The decision of that question did not depend, in any degree, upon the Constitution or statutes of the United States. It depended entirely upon the meaning of the words of the bond, and the principles of law applicable to such an instrument. It was manifestly, therefore, a question of general law as distinguished from Federal law. Upon such a question the state court was entitled to give effect to its own views. The question could not become a question of Federal law by reason alone of the fact that the bond was executed under the authority of the circuit court; for, as already said, neither the order under which the bond was taken, the validity of the bond, nor the authority of the court was disputed. Nor could it become a Federal question because of any decision by this court in cases theretofore decided between other parties. Suppose this court had not, prior to the trial of this case, expressed any opinion upon that question of general law. Could it then have been contended that the judgment complained of denied any Federal immunity? If not, then the Federal immunity now claimed arises entirely from the failure of the state court to take the same view of a

Or, suppose two actions were brought in the Federal court (there being diversity of citizenship in each case), one on an injunc tion bond, executed in a circuit court of the United States, and the other upon a like bond executed in a state court. What would be the ruling as to the measure of damages? Would the court disallow counsel fees in the first case and allow them in the second case where the highest court of the state had established the principle that counsel fees could be recovered? Each branch of the latter question must, upon the principles of the opinion just delivered, be answered in the affirmative. But they cannot be so answered without placing the decisions of the courts upon a question of general law on the same basis as a legislative enactment prescribing the measure of damages in suits on injunction bonds.

Being unable to assent to the principle that a Federal immunity arises when a state court, in determining a question not involv ing the Constitution or laws of the United States nor the validity of an authority exercised under the United States, reaches a conclusion upon a question of general law different from that announced in prior cases by this court, and denying our authority to compel a state court to disregard its own views upon a question of general law, I am[524) constrained to dissent from the opinion and judgment.

Mr. Chief Justice Fuller and Mr. Justice

Brown concur in this opinion.

SAMUEL MONROE and David M. Richardson. Late Copartners Trading as Monroe & Richardson, Appts.,

V.

UNITED STATES.

(See S. C. Reporter's ed. 524-530.)

question of general law which this court Public contracts-approval of chief engi

took in prior cases between other parties.

neer of army.

There has been a wide difference of opinion The approval of the chief of engineers of the

United States army, required by a contract
for constructing a canal, which contains an
express provision that the contract shall be
subject to the approval of such engineer, is
a future approval of the contract as written,
and cannot be satisfied by the engineer's pre-
vious acts, such as his authorization of the
acceptance of the contractor's bid, and the
furnishing of a blank on which to make the

contract.

[No. 98.]

Submitted January 14. 1902.
March 10, 1902.

Captain Marshall, acting under an authori ty contained in a letter from the chief of engineers of the United States army.

On the 20th day of July, 1892, Captain Marshall forwarded to claimants the formal contract annexed to and forming part of the petition, and bonds to be executed within ten days thereafter, all which claimants fully executed and returned to the said engineer on the 28th day of July, 1892, which formal contract was duly signed by Captain Marshall. The form of the contract had been prepared by the chief of engineers Decided and forwarded to Captain Marshall for use in such cases.

"Immediately upon receiving notice of the

APPEAL from a judgment of the Court acceptance of their said bid, claimants be

of Claims dismissing a petition by contractors against the United States. Affirmed.

See same case below, 35 Ct. Cl. 199.

gan preparation for the commencement of
said work. They shipped their plant from
Portsmouth, Ohio, to Rock Island, Illinois;
rented and furnished a boat and had the
same taken to Rock river, in the vicinity of
the work, to be used as a boarding house for
men employed on the work; built stables
for their teams; hired men and teams; pur-
chased a large amount of plant, consisting
of shovels. plows, scrapers, and the like:
and generally equipped themselves in
proper *manner to expeditiously perform the [526]
work; and commenced the work with men
and teams about the 1st day of August,

a

Statement by Mr. Justice McKenna: The appellees brought suit against the United States in the court of claims for the sum of $25,485.89, for expenses incurred and for damages. The latter consisted of losses suffered by them by the breach of a contract entered into by the United States through W. S. Marshall, captain in the corps of engineers. The contract was made in pursuance of an advertisement made by "On the 6th day of August, 1892, withthe United States, inviting proposals for constructing a canal to be known as the Illi-out fault on their part and while the work nois & Mississippi Canal, upon the terms, the United States and their contract abrowas progressing, claimants were stopped by conditions, and specifications set forth in an exhibit which was attached to and made a part of the petition. The

contract contained the following lause: "This contract shall be subject to approval of the chief of engineers, United States army." There was no averment that the contract had been so approved, and the United States demurred. The demurrer stated: "Not only does the contract itself, a copy of which is attached as above, fail to show that the same was ever approved by the chief of engineers, U. S. A., but the [525] testimony in the case fully and conclusively shows, and the same is not denied by the claimant, that said contract has never been approved by the said chief of engineers, U. S. A., in any manner whatsoever."

It was prayed that the petition "be quashed and the action be dismissed accordingly."

The action of the court is expressed in the following order: "Allowed in part and judgment for defendants on findings of fact filed."

As a conclusion of law from the findings the court ordered the petition dismissed and a formal judgment was entered accordingly. 35 Ct. Cl. 199. This appeal was then taken. The findings of fact are as follows:

On or about the 25th of May, 1892, the United States through W. S. Marshall, a captain in its corps of engineers, advertised for proposals for constructing a canal to be known as the Illinois & Mississippi Canal. The claimants submitted a bid to do certain parts of the work. The bid was accepted by

1892.

that they had contracted to do readvertised, gated against their consent, and the work for the alleged reason that by the act of August 1, 1892, no work could be prosecuted by the United States without a stipulation in the contract binding the contractor not to permit his workmen to labor more than eight hours per day, and the United States refused to permit claimants to continue the work either under the terms of the contract or under the terms of the law of August 1, 1892, but immediately, and against the protest of claimants, readvertised and let the said work to other parties.

"In the prosecution of said work under said contract, prior to the abrogation thereof on August 6, 1892, claimants expended the sum of $678.21, which has not been paid to them.

"By reason of the abrogation of said contract claimants lost the following sums expended and were deprived of the following profits which they would have made in the execution of said work: Expenses incurred Profits if they had been permit. ted to perform....

.......

$678 21

7,150 00"

Mr. John C. Fay submitted the cause for appellants.

Assistant Attorney General Pradt and Mr. Franklin W. Collins submitted the cause for appellee.

Contentions of counsel sufficiently appear in the opinion.

[526] *Mr. Justice McKenna delivered the 'is not apposite. In that case the facts were opinion of the court:

We agree with counsel that the question in the case is a narrow one. It is not de nied that the approval of the chief of engineers was necessary to the legal consummation of the contract. It is, however, in sisted that the approval was not required to be formally expressed, but could and did [527] consist of *acts preceding the written instrument, though the latter contained the terms and covenants of the parties. In other words, it is contended that the advertise ment, claimant's bid made under competition, which was submitted to the chief of engineers, who, after some correspondence with the engineer in Chicago in relation thereto, had in writing directed it to be accepted, the preparation of the formal contract on a blank furnished by the chief of engineers, its execution by both the officer in charge and the claimants, in due form and in strict accordance with the provision of § 3744 of the Revised Statutes, constituted an approval.

that the Secretary of War, through the Commissary General, "authorized Major Simonds, at Louisville, in October, 1864, and during the late Rebellion, to buy hogs and enter into contracts for slaughtering and packing them to furnish pork for the army. On the 27th of October, Simonds, for the United States. and Speed, made a contract by which the live hogs, the cooperage, salt, and other necessary materials, were to be delivered to Speed by the United States, and he was to do the work of slaughtering and packing. The contract was agreed to be subject to the approval of the Commissary General of Subsistence. No advertisements for bids or proposals were put out before making the contract, nor did the contract contain a provision that it should terminate at such times as the Commissary General should direct. After the contract was made, Simonds wrote-as the facts were found under the rules, by the court of claims, to be-to the Commissary General, informing him substantially of its terms; but no copy of it nor the contract itself was presented to the Commissary General for formal approval. The Commissary General thereupon wrote to Simonds, expressing his satisfaction at the progress made, and adding: "The whole subject of porkpacking at Louisville is placed subject to your direction under the advice of Colonel Kilburn."'"

After reciting those facts this court said by Mr. Justice Miller: "We are of the opinion that, taking all this together, it is a finding by the court as a question of fact that the contract was approved by that officer; and inasmuch as neither the instrument itself nor any rule of law prescribes the mode in which this approval shall be evidenced, that a jury would have been justified in finding as the court did.”

We are unable to assent to this view. It is the final written instrument that the statute contemplates shall be executed and signed by the parties, and which shall contain and be the proof of their obligations and rights. And it was such written instrument that was to be approved by the chief of engineers. The approval was to be a future act. The provision of the contract was: "This contract" (that is, the instrument to which the contracting officer and the claimants attached their signatures and seals) "shall be subject to approval of the chief of engineers of the United States army." The approval, therefore, did not consist of something precedent, but was to consist of something subsequent. That which preceded was inducement only, and contemplated an instrument of binding and remedial form, and hence to contain cove- In United States v. Speed, therefore, the nants imposing obligations and giving acts which were held to constitute an ap rights and remedies, containing provisions proval of the contract relied upon were sub-[529; for the time of performance and the manner sequent to the contract, and referred to it. of it; provisions for changes and for extra In the case at bar it is stated in the opinwork-indeed, of the provisions which pru-ion of the court of claims that after the dence and necessity require and those which contract was signed it was mailed "to the the statutes of the United States might re-chief of engineers in Washington for his quire. And the final right to see that this approval." and that "it was immediately was done, the parties agreed, should be de- disapproved and returned to the officer (envolved on the chief of engineers, and it was gineer in charge at Chicago) with instrucnot satisfied by prior instructions. In oth-tions to readvertise the work." er words, a final reviewing and approving The declaration, in the opinion of the judgment was given to the chief of engin- court of claims, that the contract was dis eers, and was given by a covenant so ex-approved, is asserted to be incorrect by pressed as to constitute a condition prece-claimants, and the findings are quoted to dent to the taking effect of the contract. show that the contract was abrogated, not If the covenant did not mean that, it was disapproved. That is undoubtedly the exidle. Construed as prospective, it had a pression of the finding, but its meaning is natural purpose. The engagement of the manifest. An order to the officer in charge [528]parties did not end with the bid and its ac- to abrogate the contract was certainly a ceptance. The performance of the work was very definite and unmistakable disapproval to be secured, and the final judgment of of it. At any rate, there was no approval what was necessary for that, as we have al- of it, and that was a necessary condition to ready said, was to be given by the chief of its final effect and obligation. engineers.

The case of United States v. Speed, 8 Wall. 78, 19 L. ed. 449, cited by appellant,

It is further urged that the terms of the contract were not disapproved, and that the action of the chief of engineers was "for the

2.

3.

for the first time on motion for rehearing is
usually too late.

The fact that a state court, in deciding a
Federal question, erroneously declares that no
Federal question exists, does not preclude a
review of its decision on writ of error from
the United States Supreme Court.

alleged reason that by the act of August 1,
1892, no work could be prosecuted by the
United States without a stipulation in the
contract binding the contractor not to per-
mit his workmen to labor more than eight
hours per day." It may be assumed that
the chief of engineers considered that the
contract took effect by his approval, and
that if he approved it he would incur the
penalties of the statute. But, however that
may be, the reasons for his action is not
open to our inquiry. The contract was not
approved, and how can the legal consequence
of that he escaped? We could not have
compelled the approval of the contract, and
we cannot treat it as approved, and adjudge 5. The rule of the Federal courts must govern
rights as upon the performance of a condi-
tion which was not performed.

This case has some features of hardship. They are, however, explained and somewhat lessened by the facts stated in the opinion of the court of claims. It is there stated:

"The contract bears date the 19th July, 1892. It provides in terms that the contractors 'shall commence work on or before the 1st day of August, 1892,' but it appears by evidence aliunde instrument was not mailed to the contractors for signa ture until the 20th July, 1892; that it was [530]returned for corrections; *that it was not finally mailed for signature until the 27th of July, 1892, and that it was not signed by the contractors until some day between the 27th of July and the 1st of August, 1892. On the faith of the agreement executed by the contracting officer, but without his knowledge or direction, the contractors proceeded to make ready for their work and, indeed, performed, to some extent, incurring

thereby a loss of $678.21."

And, further, that "the work was done without the knowledge or direction of the officer in charge, and no benefit resulted thereby to the defendants" (United States). Judgment affirmed.

1.

The actual decision of a Federal question in denying a rehearing is sufficient to give Jurisdiction on writ of error to a state court from the Supreme Court of the United States. although an attempt to raise that question NOTE.-On Federal jurisdiction over state courts; necessity of Federal question-see notes to Hamblin v. Western Land Co. 37 L. ed. U. S. 267, and Kipley v. Illinois ex rel.

Akin, 42 L. ed. U. S. 998.

As to what is a Federal question; when considered-see note to Re Buchanan, 39 L. ed. U.

B. 884.

4.

The Kansas city court of appeals is the court to which a writ of error will be issued by the Supreme Court of the United States to review a Federal question decided by it, when the supreme court of the state has de cided that it cannot review the decision. Attorneys' fees cannot be allowed as dam. ages on an injunction bond given in a Federal

court.

as to the allowance of attorneys' fees on an
injunction bond given in a Federal court,
though the action on the bond is brought in
a state court.

[No. 148.]

Argued and Submitted January 29, 30,
1902. Decided March 10, 1902.

to Kansas Court of Appeals for the State of Missouri to re view a decision in favor of the plaintiff in an action on an injunction bond. Reversed. See same case below, 77 Mo. App. 652.

Statement by Mr. Justice White:

was

in the state circuit court of Cooper county,
The action below was brought by Elliott
Missouri, against the railway company,
plaintiff in error herein. Recovery
sought upon an injunction bond given in an
equity cause in a suit in the circuit court
of the western district of Missouri. The
of the United States for the central division[531]
railway company was complainant in the
circuit court of the United States, as the re-
equity cause, and Elliott was defendant. The
sult of a mandate of the circuit court of ap-
peals, entered an order dissolving the in-
junction, and thereupon this action was
commenced. The damages which it was al-
leged were embraced in the condition of the
bond were averred to consist of payments
made for attorneys' fees, traveling and oth-
er similar expenses of the plaintiff, asserted
to have been disbursed during the course of
the litigation in the United States court.

The answer consisted of a general denial, and alleged that the equity suit in which the bond was given was made necessary to enable the defendant to make its defense to an action at law, which had prior to the equity suit been brought against the railway company by Elliott. The cause was tried by the court without a jury. It appeared on the trial that in dismissing the bill in the equity cause the statutory allowance to attorneys and other costs had been taxed, and paid by the complainants in the equity cause in the United States circuit court. No objection was interposed at the trial to evidence introduced for the plaintiff as to the value of attorneys' services and the other sums disbursed for the expenses alleged in the petition. At the close of the

A motion for a rehearing was thereafter filed, in which, among other things, it was contended that the cause involved a Federal question, "for the reason that the controversy in this suit arises under the authority of the United States, and under the laws of the United States governing and applicable to United States courts," and the court was asked in the event that it should refuse to Clements v. Berry, 11 How. 398, 13 L. ed. grant a rehearing, to transfer the case to 745: Factors' & T. Ins. Co. v. Murphy, 111 the supreme court of the state of Missouri, U. S. 738, 28 L. ed. 582, Sup. Ct. Rep. "for the reason that a Federal question is 679; Dupasseur v. Rochereau, 21 Wall. 130, involved, and because the subject of the con- 22 L. ed. 588; Embry v. Palmer, 107 U. S. troversy of this suit arises under the au- 3, 27 L. ed. 346, 2 Sup. Ct. Rep. 25; Palmer thority of the United States and under the v. Hussey, 119 U. S. 96, 30 L. ed. 362, 7 exercise of such authority, and under the Sup. Ct. Rep. 158; Etheridge v. Sperry, 139 laws of the United States governing and U. S. 266, 35 L. ed. 171, 11 Sup. Ct. Rep.