of February 9, 1903, authorizing the building, constitute a binding contract between claimants and the United States. The nominal sum of $350 was named in the programme of competition as compensation for the efforts of the competitors, and the additional inducement of permanent employment was expressly proffered the successful architect in the event of subsequent legislation authorizing the construction of the building in accordance with the said programme.

The "additional inducement" was the real consideration offered by the defendant to the claimants, subject to a future negative condition; namely, that no adverse action should be taken by Congress, and unless such adverse action were taken, the agreement was final and complete.

Appellants, at request of defendant, undertook to make plans for the building, to use their professional knowledge, skill and labor, things which prior to the agreement they were not bound to do. This consideration is sufficient: Newell v. Page et al., 10 Gray, 366; Devecmon v. Shaw, 69 Maryland, 199; Hamer v. Sidway, 124 N. Y. 538.

For cases similar to this see Walsh v. St. Louis Exposition &c. Assn., 16 Mo. App. 502; affirmed, 90 Missouri, 459; Palmer v. Board of Education, 220 Pa. St. 568. 575: Molyneaux v. Collier, 17 Georgia, 46.

Admitting that the offer of the Secretary was ultra vires Congress could, of course, ratify it. The act of 1903, passed by Congress, as above indicated with the proceedings of the Secretary before it and without negativing his course in any way was clearly such a ratification.

It was so recognized by the Secretary of Agriculture, who upon the passage of the act of February 9, 1903, called upon the claimants for its performance. Claimants performed fully under such contract so far as permitted by the Secretary of Agriculture, and without default on their part and without just cause, were prevented from completing the performance.

The compensation had been fixed by the programme of competition, and any change in this matter was a violation of the claimants' rights and a breach of the agreement. Smithmeyer v. United States, 147 U. S. 342.

The measure of the damages which the claimants are entitled to recover for the breach of their contract, is the compensation which the contract awarded them, and which they would have received had they been permitted to complete their performance of it. 8 Amer. & Eng. Ency. of Law, 633; Wicker v. Hoppock, 6 Wall. 94, 99; Thompson v. Wood, 1 Hilton (N. Y.), 93; 2 Sedgwick on Damages, 8th ed., 272, citing Hunt v. Test, 8 Alabama, 713; Baldwin v. Bennett, 4 California, 392; Lake Shore Railway Co. v. Richards, 126 Illinois, 448.

In this case the architect's office must continue and be maintained at the same expense, though part of the anticipated and agreed compensation fails.

No successful or serious attempt has been made to in any way justify the arbitrary and unjustifiable action of the defendant in discharging the claimants without cause, and preventing their completing the contract.

Mr. John Q. Thompson, Assistant Attorney General, with whom Mr. George M. Anderson was on the brief, for the United States.

MR. JUSTICE HARLAN, after making the foregoing statement, delivered the opinion of the court.

This statement of the controlling facts is quite sufficient to show that the judgment below was right. We perceive no ground whatever for a judgment against the United States. Nothing done under the act of March 2d, 1901 created any obligation upon the part of the Secretary of Agriculture, as representing the United States, to proceed under the plans made by the appellants for the construction of the building

referred to in that act. The "Programme" of competition devised, under that act, by the Architect of the Treasury, under the direction of the Secretary, contemplated the payment of $350 to each of the ten competing architects, in full compensation for their services in preparing and submitting designs. That amount was paid to the appellants. And they were expressly informed by the above act that the plans and recommendations of the Secretary were to be transmitted to Congress. Besides, the Programme of competition explicitly stated that the act did not provide for a building, but only for designs to be approved by Congress. The Secretary was without authority under the act of 1901 to make any binding contract for the erection of the proposed building; and Congress, it seems, took no action in reference to the designs prepared by the appellants under that act. Nothing more was done by either side until Congress, by the act of February 9th, 1903, made independent provisions for the erection of a building for the use of the Department of Agriculture, at a cost not exceeding $1,500,000. But no contract was made under that act with the appellants. On the contrary, the minds of the parties never met as to the terms of any contract in execution of the provisions of the act of February 9th, 1903. The appellants declined to accept the contract prepared and submitted by the Department. Clearly, the appellants were not entitled, simply because of the acceptance of their plans, prepared under the act of 1901, to construct the building provided for in the separate, independent act of February 9th, 1903; and as no contract was made with them by the Secretary under the latter act, they have no cause of action against the United States.

Judgment affirmed.

217 U.S.

Syllabus.

WEEMS v. UNITED STATES.

ERROR TO THE SUPREME COURT OF THE PHILIPPINE ISLANDS.

No. 20. Argued November 30, December 1, 1909.-Decided May 2, 1910.

A paramount governmental authority may make use of subordinate governmental instruments, without the creation of a distinct legal entity as is the case of the United States and the United States Government of the Philippine Islands.

Under the Philippine Criminal Code of Procedure a public offense need not necessarily be described in the information in exact words of the statute but only in ordinary and concise language, so as to enable a person of common understanding to understand the charge and the court to pronounce judgment.

A charge describing the accused as a public official of the United States Government of the Philippine Islands and his offense as falsifying a public and official document in this case held sufficient. Carrington v. United States, 208 U. S. 1, distinguished:

The provision in Rule 35 that this court may at its option notice a plain error not assigned, is not a rigid rule controlled by precedent but confers a discretion exercisable at any time, regardless of what may have been done at other times; the court has less reluctance to disregard prior examples in criminal, than in civil, cases; and will act under the Rule when rights constitutional in nature or secured under a bill of rights are asserted.

Although not raised in the courts below, this court will, under Rule 35,

consider an assignment of error made for the first time in this court that a sentence is cruel and unusual within the meaning of the Eighth Amendment to the Constitution or of the similar provision in the Philippine bill of rights.

In interpreting the Eighth Amendment it will be regarded as a precept of justice that punishment for crime should be graduated and proportioned to the offense.

A provision of the Philippine bill of rights taken from the Constitution of the United States must have the same meaning, and so held that the provision prohibiting cruel and unusual punishments must be interpreted as the Eighth Amendment has been.

What constitutes a cruel and unusual punishment prohibited by the Eighth Amendment has not been exactly defined and no case has heretofore occurred in this court calling for an exhaustive definition.

While legislation, both statutory and constitutional, is enacted to remedy existing evils, its general language is not necessarily so confined and it may be capable of wider application than to the mischief giving it birth.

The Eighth Amendment is progressive and does not prohibit merely the cruel and unusual punishments known in 1689 and 1787, but may acquire wider meaning as public opinion becomes enlightened by humane justice, and a similar provision in the Philippine bill of rights applies to long continued imprisonment with accessories disproportionate to the offense.

While the judiciary may not oppose its power to that of the legislature in defining crimes and their punishment as to expediency, it is the duty of the judiciary to determine whether the legislature has contravened a constitutional prohibition and in that respect and for that purpose the power of the judiciary is superior to that of the legislature.

It is within the power of this court to declare a statute of the renal Code defining a crime and fixing its punishment void as violative of the provision in the Philippine bill of rights prohibiting cruel and unusual punishment.

In determining whether a punishment is cruel and unusual as fixed by the Philippine Commission, this court will consider the punishment of the same or similar crimes in other parts of the United States, as exhibiting the difference between power unrestrained and that exercised under the spirit of constitutional limitations formed to establish justice.

Where the statute unites all the penalties the court cannot separate them even if separable, unless it is clear that the union was not made imperative, by the legislature; and in this case held that the penalties of cadena temporal, principal and accessories, under art. 56 of the Penal Code of the Philippine Islands are not independent of each other,

Where the minimum sentence which the court might impose is cruel and unusual within the prohibition of a bill of rights, the fault is in the law and not in the sentence, and if there is no other law under which sentence can be imposed it is the duty of the court to declare the law void.

Where sentence cannot be imposed under any law except that declared unconstitutional or void the case cannot be remanded for new sentence but the judgment must be reversed with directions to dismiss the proceedings.

In this case the court declared § 56 of the Penal Code of the Philippine