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Argument for Plaintiff in Error.

satisfy the conditions 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.

Mr. Albert N. Eastman and Mr. Charles Poe for plaintiff in error:

There was a binding contract for the sale of the cruiser to the relator.

The relator had carried out and performed everything which was to be done by him. He had paid the full purchase price. The minute the bids were opened and his proposal or bid was ascertained to be the highest and the money was paid, the statute required that the net proceeds of the sale should be covered into the Treasury, and the vessel be delivered to the purchaser, who could not have withdrawn his bid or retracted his offer after the sealed bids had been opened. As he was bound, under no principle of law, was the Secretary of the Navy released?

The case cannot be likened to a sale at public auction. Blossom v. Railroad Co., 3 Wall. 196, 206, does not apply.

This court has determined that no government property can be sold under statutes similar to the one in question except in the way prescribed by law. Steele v. United States, 113 U. S. 128.

Instead of likening this transaction to an auction sale, it should be likened to a sale by correspondence. Taylor v. Insurance Co., 9 How. 390; Benjamin on Sales, 7th ed., Bennett's Notes, p. 54, § 44; also p. 68, § 64; see also the American note on p. 76 of the same work.

Argument for Plaintiff in Error.

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No right to reject bids was reserved, and under the statute no right to reject bids could have been reserved.

Integrity of the Government demands it deliver this cruiser. If the Government does not make delivery, can it ever expect honest bids when it thus advertises? If the Government can thus refuse, equally so can the individual when the sealed bids are opened and he finds he has been foolish in bidding too much, or for other personal reasons of his own he desires to change his mind.

As the Secretary could only sell in this manner, the relator had a perfect right to rely on his rights under the statute and the Secretary cannot take advantage of a concealed purpose.

This is not such a contract as cannot be enforced for failure to comply with § 3744, Rev. Stat., as that section does not apply, and even if applicable before performance, as the contract has been performed § 3744 would not apply. St. Louis Hay & Grain Co. v. United States, 191 U. S. 159; Garfield v. United States, 93 U. S. 242.

The statute of frauds cannot be pleaded to an executed contract. Cleveland, C., C. & St. L. Ry. Co. v. Wood, 189 Illinois, 352, 355.

Section 3744 was passed in 1862 as a general act. Section 5 in 1883 as a special act to govern the sale of vessels, and, therefore, as the special statute is later, it will be regarded as an exception to, or qualification of, the prior general one. 36 Cyc. 1151. See also 1 Fed. Stat. Ann.

Mandamus is the appropriate remedy to compel its performance. No discretion was left to the Secretary of the Navy under § 5.

In Knight v. Lane, 228 U. S. 6, the writ was refused because the court held that the Secretary of the Interior had a discretion in the matter involved in that proceeding. In Parish v. MacVeagh, 214 U. S. 124, the court granted the writ against the Secretary of the Treasury because it held

that there was simply a ministerial function to be performed. See also Garfield v. Goldsby, 211 U. S. 249.

Mr. Morgan H. Beach, with whom Mr. Solicitor General Davis was on the brief, 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, c. 391, § 2, 22 Stat. 284, 296; that thereafter the Secretary of the Navy advertised for proposals of purchase under the act of March 3, 1883, c. 141, 22 Stat. 582, 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

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, 606.

Oregon v. Hitchcock, 202 U. S. 60, 69. cock, 202 U. S. 473, 476.

Naganab v. Hitch

Judgment affirmed.

STRAUS AND STRAUS, COMPOSING THE FIRM OF R. H. MACY & COMPANY, v. AMERICAN PUBLISHERS' ASSOCIATION.

ERROR TO THE SUPREME COURT OF THE STATE OF NEW YORK.

No. 19. Argued March 7, 1913.-Decided December 1, 1913.

One who sets up a Federal statute as giving immunity from a judgment against him, may bring the case here under § 709, Rev. Stat., now § 237 of the Judicial Code, if his claim is denied by the decision of the state court.

No more than the patent statute was the copyright act intended to authorize agreements in unlawful restraint of trade and tending to monopoly in violation of the Sherman Act.

The Sherman Act is broadly designed to reach all combinations in unlawful restraint of trade and tending because of the agreements or combinations entered into to build up and perpetuate monopolies. The act is a limitation of rights which may be pushed to evil consequences and may, therefore, be restrained. Standard Sanitary Mfg. Co. v. United States, 226 U. S. 20.

As the agreement involved in this case went beyond any fair and legal means to protect trade and prices, practically prohibited the parties thereto from selling to those it condemned, affected commerce between the States, it was manifestly illegal under the Sherman Act, and was not justified as to copyrighted books under any protection afforded by the copyright act.

Where the state court dismissed the bill solely on the ground that defendant's acts were not within the denunciation of the Federal statute on which plaintiff relied, the judgment will be reversed on

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Argument for Plaintiffs in Error.

that ground and it is unnecessary for this court to decide other Federal questions involved.

Quare, and not now discussed or decided, whether an original action can be maintained in the state courts for injunction and damages under the Sherman Act.

Judgment based on 199 N. Y. 548, reversed.

THE facts, which involve the construction of the Sherman Anti-trust Act and its application to agreements regarding the sale of copyrighted books, are stated in the opinion.

Mr. Wallace Macfarlane, with whom Mr. Edmond E. Wise was on the brief, for plaintiffs in error:

This court has jurisdiction to review the judgment of the state court, because that judgment decided against the plaintiffs in error a Federal right specifically set up and asserted by them in the state courts, which if decided in their favor would have required a contrary judgment. The state court erred in holding that the agreements, resolutions or combinations set forth in the complaint which were entered into by the defendants were not unlawful, illegal and contrary to the statutes of the United States, and more particularly of the statute passed on July 2, 1890, known as "An Act to protect trade and commerce against unlawful restraints and monopolies," in so far as concerns copyrighted books.

The agreements obviously restrain trade. They have been entered into by seventy-five per cent. of the publishers of the United States and by a large majority of the booksellers of the United States. They affect interstate commerce as well as intrastate trade and operate to restrain trade or commerce among the several States. Addyston Pipe & Steel Co. v. United States, 175 U. S. 211; Swift & Co. v. United States, 196 U. S. 375.

The Court of Appeals (177 N. Y. 473) in fact held that so far as uncopyrighted books were concerned, the com