The United States, as the owner in possession of property,
cannot be interfered with behind its back; nor can the courts
compel the officer having the custody of such property to surrender
it in a proceeding to which the United States is not, and cannot be
made, a party.
Mandamus will not lie at the instance of one who in response to
advertisement has made the highest bid for a vessel to compel the
Secretary of the Navy to deliver the vessel.
The discretion of the Secretary of the Navy is not ended by
receipt and opening of bids for a condemned naval vessel even
though they
Page 231 U. S. 219
satisfy the condition prescribed. Mandamus will not lie to
compel him to accept the highest bid.
37 App.D.C. 282, affirmed.
The facts, which involve the jurisdiction of the court to issue
a writ of mandamus directing the Secretary of the Navy to carry out
the terms of a bid in response to advertisements for sale of a
naval vessel, are stated in the opinion.
Page 231 U. S. 221
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, c. 391, ยง 2, 22 Stat. 296; that
thereafter, the Secretary of the Navy advertised for proposals of
purchase under the Act of March 3, 1883, c. 141, 22 Stat. 599; 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,
sub nom. United States v. Meyer.
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
Page 231 U. S. 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;
International Postal Supply Co. v. Bruce, 194 U.
S. 601,
194 U. S. 606;
Oregon v. Hitchcock, 202 U. S. 60,
202 U. S. 69;
Naganab v. Hitchcock, 202 U. S. 473,
202 U. S.
476.
Judgment affirmed.
