The opinion
Downey, Judge,
concurring:
I concur fully in all that has been said by the Chief Justice in the opinion of the court. Perhaps a word more might be added with reference to the theory presented in those cases in which the railroad companies injected into their proposals to carry the mails “ upon the conditions prescribed by law and the regulations of the department ” an exception with reference to Order 412, that the subsequent delivery of mails to such railroad for transportation by the United States gave rise to a contract in which Order 412 was not embodied. The contention might have force if the transaction rested there. But it did not. The Postmaster General specifically declined to permit any exception as to Order 412 and insisted that the contract should be subject to all the regulations of the department, as in its terms it was, and if effect is to be given to subsequent action of either of the parties, as it undoubtedly must be, it is to be found in the voluntary acceptance by the railroad companies of the mails for transportation under these circumstances, after the specific refusal of the Postmaster General to modify terms, and which action can not be interpreted otherwise than as an acceptance of a contract which was subject to and in which were embodied all the regulations of the department applicable thereto. The service was performed under such a contract, compensation was paid and accepted thereunder, and it seems idle now, because of an antecedent protest or an attempted but rejected modification of terms, to contend that the contract is something else than as entered into or is in some respect not binding upon one party thereto. It is difficult to see any basis upon which, after having entered into a contract not tainted with fraud or duress, performed service thereunder and received compensation therefore in accordance with its terms, the court can now be asked to write and enforce a different contract. The equities of rule 412 are capable of demonstration, the inherent and unex-hausted discretion of the Postmaster General is as evident *319 as it was necessary, but in my judgment, while other and related matters are proper subjects of discussion, we have to do, in the last analysis, with a contract relation and must leave the parties where, by their contract, they have placed themselves.