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appellant with the United States, September 23, 1910, for the construction of the west end of the new canal at Sault Sainte Marie, Michigan, which was authorized by the River and Harbor Act of March 2, 1907, chap. 2509, 34 Stat. at L. 1073, 1098. The petition details the specifications, but the misrepresentation is alleged to be that they and the contract represented that a portion of the work would be done in the "dry" and a portion in the "wet," whereas it was impossible to do any of the work in the

Horgan v. New York, 160 N. Y. 516, 55 N. E. 204; Water Comrs. v. Robbins, 82 Conn. 623, 74 Atl. 938; Watson v. Brown, 113 Iowa, 308, 85 N. W. 28; Westerman v. Corder, 86 Kan. 239, 39 L.R.A. (N.S.) 500, 119 Pac. 868, Ann. Cas. 1913C, 60; Henry W. Abts Co. v. Cunningham, 95 Neb. 836, 146 N. W. 1036; Davis v. Mitchell, 72 Or. 165, 142 Pac. 788; Hale v. Philbrick, 42 Iowa, 81; Faribault v. Sater, 13 Minn. 223, Gil. 210; Henderson v. Henshall, 4 C. C. A. 357, 7 U. S. App. 565, 54 Fed. 320; Dushane v. Benedict, 120 U. S. 630, 636, 30 L. ed. 810, 811, 7"dry," and it was all done in the "wet," Sup. Ct. Rep. 696.

Assistant Attorney General Riter argued the cause, and, with Solicitor General Beck and Mr. H. L. Underwood, filed a brief for appellee:

There was no misrepresentation on the part of the United States.

Slaughter v. Gerson, 13 Wall. 379, 20 L. ed. 627; Dawe v. Morris, 149 Mass. 188, 4 L.R.A. 158, 14 Am. St. Rep. 404, 21 N. E. 313; Sawyer v. Prickett, 19 Wall. 146, 160, 22 L. ed. 105, 107; Farwell v. Colonial Trust Co. 78 C. C. A.

22, 147 Fed. 480; McGovern v. McClintic-Marshall Co. 269 Fed. 911.

Were there misrepresentation, it is not available to appellant, since it investigated conditions before entering into the contract.

at a cost greatly exceeding what it would have been had it been done the other way.

work to be done in the dry, it was necesFor the purposes of permitting the sary to construct certain cofferdams, and this was especially provided for by the specifications. One of the cofferdams was known as the West cofferdam, and was to be built as a contract item, and connected the rock spoil bank (extending along the north side of the work) with the old Northwest pier. The latter pier was constructed by another contractor partly before and partly after the date the company entered into its contract with the United States. The company was a bidder [8] for the work, the specifications of which were published and accessible. When the contract in suit was entered into, that prior contract was in progress but not completed, and was not completed until after the company had begun work on its contract.

Southern Development Co. v. Silva, 125 U. S. 247, 259, 31 L. ed. 678, 683, 8 Sup. Ct. Rep. 881, 15 Mor. Min. Rep. 435; Farrar v. Churchill, 135 U. S. 609, 616, 34 L. ed. 246, 250, 10 Sup. Ct. Rep. The company, it alleges, made all rea771; Farnsworth v. Duffner. 142 U. S.sonable inquiries and investigations up43, 47, 48, 35 L. ed. 931, 933, 12 Sup. on the site of the contract between the Ct. Rep. 164; Shappirio v. Goldberg, 192 date of advertisement and the date of U. S. 232, 241, 242, 48 L. ed. 419, 424, submitting its bid, and, by its president 425, 24 Sup. Ct. Rep. 259. and chief engineer, inspected the conditions. The work under the previous [7] Mr. Justice McKenna delivered contract of March 23, 1908, was then the opinion of the court:

This is an action to recover damages for a breach of contract growing out of an alleged misrepresentation.

The appellant essayed recovery upon a petition to which a demurrer was sustained; it then filed an amended petition which was subjected to a like disposition, and then a second amended petition. Demurrer by the government being sustained to that, appellant declined to amend again, and judgment was entered dismissing the petition. From the ruling this appeal is prosecuted.

The last petition is, as the others were, a very voluminous paper. It is enough to say that it sets forth a cause of action based upon a contract entered into by

in progress.

The company estimated and believed, as it had a right to do, is its allegation, that the specifications of that contract had been and were being duly and properly performed. If they had been so performed, is the further allegation, the company would have been able to perform under its own contract, in the dry, such portions of the work as were required by the contract to be done in the dry.

It was only during the progress of the work that the company discovered that the previous contract had not been carried out and that the work was defective. In consequence, extraordinary and expensive means had to be resorted to

for a continuance of the work, and the work was greatly delayed beyond the time that the company would have had to take if the conditions had been as shown by the specifications of the previous contract, and had the work been performed by the previous contractor according to the specifications.

This expense continued until July 3, 1913, and the description as dry work in the specifications was, by reason of the conditions existing at the site of the work, a misrepresentation of the character of the work to be done, and induced on the part of the company a lower bid than would have been made if the conditions had been properly described.

[9] Owing to the leakage coming through the old Northwest pier, it was not practicable for excavation to be made in the dry. Notwithstanding, the engineer in charge compelled the work to be done as contracted for, and the company sustained damages in the sum of $366,052.67, for which it prayed judg

ment.

It is contended that the circumstances detailed amount to a representation by the United States that the work could be done in the dry, but that it was impossible to so perform it, and that, therefore, the resulting expense should be discharged by the government, and that the court of claims erred in dismissing the petition.

To these assertions the government opposes denials: (1) There was no misrepresentation. (2) If there were, it is not available to the company, since it had investigated conditions before entering into the contract. (3) There was no misrepresentation as to the method by which the excavating could be done.

these

In considering the opposing contentions there must be taken into account certain provisions of the contract. It is therein provided that "it is understood and agreed that the quantities given in specifications are approximate only, and that no claim shall be made against the United States on account of any excess or deficiency, absolute or relative, in the same. No allowance will be made for the failure of a bidder or of the contractor to estimate correctly the difficulties attending the execution of the work.

consult the plats on file in the United States engineer's office at Sault Sainte Marie, Michigan, and obtain such available information as will assist him to make an intelligent bid; and the failure of a bidder to make such examination [10] may be held to be sufficient reason for rejecting his bid.

"The contractor must construct and maintain all the necessary cofferdams, furnish suitable pumping plant, and do all the pumping required to unwater all areas where work is to be done in the dry, and no special payment will be made therefor, the above work and expense being considered as incident to the general work covered by the contract prices of other items.

"The United States assumes no responsibility whatsoever for loss of life, property, or contractors' time due to the failure of any part of the cofferdams, dikes, or pumping plant."

In supplement of these provisions of the contract, the following provisions of the company's proposal upon which the contract was awarded are pertinent: "We make this proposal with a full knowledge of the kind, quantity, and quality of the plant, work, and materials required

The repellent effect of those provi sions, and the contentions of the company, would seem to need no comment, and the effect is reinforced by other considerations. The contract of the company was made September 23, 1910, and at that time, according to the averments of the petition, work on the prior contract was in progress and had been in progress two years. And it is averred that the company "made all reasonable inquiries and investigations upon the

site of the contract between the date of

advertisement, July 30, 1910, and the date of submitting its bid, August 29, 1910, by the president and chief engineer of the company personally inspecting the The work under the preconditions. vious contract of March 23, 1908, was then in progress and uncompleted." The company was undoubtedly impelled to this investigation by the requirement of its contract to inform itself of the conditions, and that no allowance would [11] be made for the failure to estimate correctly the difficulties at"It is expected that each bidder will, tending the execution of the work. Its prior to submitting his bid, visit the site investigation may or may not have been of the work, examine the local condi- adequate. It, however, took its chances tions, inform himself as to the acces- on that. But in reality there was no sibility of the work, ascertain the char- representation by the government, nor acter of the material to be excavated, is it alleged that the government had

spoke with certainty as to a part of the conditions to be encountered by the claimants," and of those, it was said: "The government may be presumed to speak with knowledge and authority."

In Christie v. United States, 237 U. S. 234, 59 L. ed. 933, 35 Sup. Ct. Rep. 565, "there was" (we quote from the opinion) "a deceptive representation of the material, and it misled." The claimants in the case, it was said, were forced to rely upon the information furnished them by

knowledge of the conditions, or means of knowledge, superior to the knowledge of the company. The latter acquired knowledge only by the aid of divers as its work progressed. Such being the situation, does not the case present one of misfortune rather than misrepresentation? It is true that the government's proposal was for a certain part of the work to be done in the dry, but it made no representation of the conditions that existed enabling it to be so done or precluding it from being so done. The specifications which were untrue, and company had no relation with the government through the other contract. The company assumed that it had been properly performed, but the government did nothing to create or direct the assumption, or induce confidence in it.

Such being the situation, the company insists, nevertheless, that the government is liable, and cites, among other cases, Hollerbach v. United States, 233 U. S. 165, 58 L. ed. 898, 34 Sup. Ct. Rep. 553; Christie v. United States, 237 U. S. 234, 59 L. ed. 933, 35 Sup. Ct. Rep. 565; United States v. Atlantic Dredging Co. 253 U. S. 1, 64 L. ed. 735, 40 Sup. Ct. Rep. 423; United States v. Smith, 256 U. S. 11, 65 L. ed. 808, 41 Sup. Ct. Rep. 413, and insists that though the asserted representations of fact in the present case differ somewhat from those made in the cited cases, they are the same in principle, and that the provisions in ¶ 23, that "the work required to complete this portion [the portion of the proposed canal lying between certain cross sections] of the canal should be performed in the dry," was not only a mandate, but was necessarily a representation that conditions would be encountered which would enable the work to be done in the dry.

A systematic explanation of the cases would extend this opinion to too great a length. They all declare the principle [12] that the government will be liable in the same circumstances that private individuals would be liable, but, necessarily, neither is liable if neither make representations.

In Hollerbach v. United States, 233 U. S. 165, 172, 58 L. ed. 898, 901, 34 Sup. Ct. Rep. 553, the government was held liable because "the specifications

436

known to the officers of the United States to be untrue. To the extent that they were untrue, claimants recovered. As to other conditions which might or might not have been foreseen, it was to be supposed, it was said, "that contemplation and judgment were exercised not only of certainties but of contingencies, and allowance made for both at the time of the bid, with provision in the bid."

In United States v. Atlantic Dredging Co. 253 U. S. 1, 64 L. ed. 735, 40 Sup. Ct. Rep. 423, the representations made by the government were deceptive in that the test borings gave information to the government not imparted to bidders, of materials more difficult to excavate than those shown by the maps and specifications. The case is instructive, as it considers other cases and the grounds of their decisions.

The elements which existed in each of the cited cases are absent from the case at bar. In the case at bar the govern ment undertook a project and advertised for bids for its performance. There was indication of the manner of performance, but there was no knowledge of impediments to performance, no misrepresentation of the conditions, exaggeration of them, nor concealment of them; [13] nor, indeed, knowledge of them. To hold the government liable under such circumstances would make it insurer of the uniformity of all work, and cast upon it responsibility for all of the conditions which a contractor might encounter, and make the cost of its projects always an unknown quantity. It is hardly necessary to say that the cost of a project often determines for or against its undertaking. Judgment affirmed.

258 U. S.

WESTERN UNION TELEGRAPH COM, Constitutional law-
PANY, Plff. in Err.,

1. The repeal by Ky. Act of March 14, 1916, of all laws empowering telegraph companies to condemn the right of way of railway companies, had the effect of abat ing such a condemnation proceeding begun under the authority of Ky. Stat. § 4679c, and, at the date of such repeal, pending on appeal from a judgment in favor of the telegraph company, followed by payment of the award into court.

[For other cases, see Statutes, III. c, in Di

gest Sup. Ct. 1908.]

Statutes - effect of repeal on pending

suit-eminent domain.

judicial power

encroachment on

repeal of statute pending suit - eminent domain.

3. Construing the repeal by Ky. Act of March 14, 1916, of all laws empowering telegraph companies to condemn the right of way of railway companies, as applicable to a condemnation proceeding begun under authority of Ky. Stat. § 4679c, and pending at the date of such repeal on appeal from a judgment in favor of a telegraph company, followed by payment of the award into court, does not render such 1epealing act invalid as a legislative interference with judicial proceedings. [For other cases, see Constitutional Law, III.

a, 2, in Digest Sup. Ct. 1908.] Constitutional law - due process of law repeal of statute pending suit -vested right-eminent domain.

construing the repeal by Ky. Act of March 4. Due process of law is not denied by 14, 1916, of all laws empowering telegraph companies to condemn the right of way of. 2. The application of Ky. Act of railway companies, as applicable to a conMarch 14, 1916. repealing, without any demnation proceeding begun under authorsaving clause, all laws empowering tele-ity of Ky. Stat. § 4679c, and pending at the graph companies to condemn the right of date of such repeal on appeal from a judg way of railway companies, to a condemna- ment in favor of a telegraph company, foltion proceeding pending on appeal from a lowed by payment of the award into court. [For other cases, see Constitutional Law, IV. judgment in favor of a telegraph company, b, 8, b; IV. e, in Digest Sup. Ct. 1908.] followed by payment of the award into court, was not precluded by the provision of Ky. Stat. § 465, that no new law shall be construed to repeal a former law as to Argued January 4, 1922. Decided Febany right accrued or claim arising under the former law, or in any way whatever to affect the right accrued or claim arising before the law takes effect.

[For other cases, see Statutes, III. c, in Di

gest Sup. Ct. 1908.]

Note.-On effect of repeal of statute, on pending action-see note to United States v. Tynen, 20 L. ed. U. S. 153.

On what constitutes due process of law, generally- -see notes to People v. O'Brien, 2 L.R.A. 255; Kuntz v. Sumption, 2 L.R.A. 655; Re Gannon, 5 L.R.A. 359; Ulman v. Baltimore, 11 L.R.A. 224; Gilman v. Tucker, 13 L.R.A. 304; Pearson v. Yewdall, 24 L. ed. U. S. 436; and Wilson v. North Carolina, 42 L. ed. U. S. 865.

On condemnation of right of way for telegraph or telephone line along railroad right of way-see note to Western & A. R. Co. v. Western U. Teleg. Co. 42 L.R.A. (N.S.) 225.

Abrogating the right of eminent domain

pending suit or proceeding.

There is very little authority as to validity of a statute abrogating the right of eminent domain pending a proceeding to condemn property. In the few cases upon the question there is no disagreement with the principle an

[No. 259.]

ruary 27, 1922.

N ERROR to the District Court of the United States for the Western District of Kentucky to review a judg

nounced in the decision in WESTERN U. TELEG. Co. v. LOUISVILLE & N. R. Co., that such a statute is valid as to proceedings in which no rights have vested in the company seeking to condemn.

But it is otherwise as to rights that have vested.

In Rochester & L. O. Water Co. v. Rochester, 176 N. Y. 36, 68 N. E. 117, a statute enacted pending a contest between a water company and a city, as to the right of the water company to lay water mains across the streets, by which statute the control of the city over this right was considerably enlarged, was held inapplicable to the proceeding, the application to the pending proceeding being held to render the statute invalid. The water company had perfected its organization and paid the state the taxes imposed therefor, it had caused surveys to be made and a map filed, locating its route, and had entered into a contract for the construction of its plant, including the laying of its pipes, and had acquired its right of way, and had entered into contracts for the