[231 U.S. 218, 219] Messrs. Albert N. Eastman and Charles Poe for plaintiff in error.
[231 U.S. 218, 221] Mr. Morgan H. Beach and Solicitor General Davis for defendant in error.
Mr. Justice Holmes delivered the opinion of the court:
This is a petition for a mandamus directing the Secretary of the Navy to deliver the United States cruiser Boston to the petitioner. The petition alleges that after survey, condemnation, and appraisal the cruiser was stricken from the Naval Register under the act of August 5, 1882, chap. 391, 2, 22 Stat. at L. 296, U. S. Comp. Stat. 1901, p. 1058; that thereafter the Secretary of the Navy advertised for proposals of purchase under the act of March 3, 1883, chap. 141, 22 Stat. at L. 599, U. S. Comp. Stat. 1901, p. 1059; that the petitioner bid more than the appraised value, sending a certified check for the whole sum bid; that when the bids were opened on the day fixed, the petitioner's was the highest, but that the Secretary refused to deliver the vessel, and sent back the check, which the petitioner holds subject to the Secretary's order. The answer admits the facts, but sets up that the bid is not an acceptance of an offer, but is itself only an offer, subject to be accepted or not, at the discretion of the Secretary, and that the Secretary never accepted the petitioner's bid, the government having decided to lend the cruiser to the governor of Oregon for use by the naval militia of that state. The petitioner demurred, but the petition was dismissed on the ground that the discretion of the Secretary was not ended by the receipt and opening of the bids, even though they satisfied all the conditions prescribed. 37 App. D. C. 282.
We see no sufficient reason for throwing doubt upon this premise for the decision, but there is another that comes earlier in point of logic. The United States is the [231 U.S. 218, 222] owner, in possession of the vessel. It cannot be interfered with behind its back, and, as it cannot be made a party, this suit must fail. Belknap v. Schild, 161 U.S. 10 , 40 L. ed. 599, 16 Sup. Ct. Rep. 443; International Postal Supply Co. v. Bruce, 194 U.S. 601, 606 , 48 S. L. ed. 1134, 1137, 24 Sup. Ct. Rep. 820; Oregon v. Hitchcock, 202 U.S. 60, 69 , 50 S. L. ed. 935, 938, 26 Sup. Ct. Rep. 568; Naganab v. Hitchcock, 202 U.S. 473, 476 , 50 S. L. ed. 1113, 1114, 26 Sup. Ct. Rep. 667.