The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1858-04-02

the Of Congress approves June II lS4e. sud thai TITS
statute having vested tie Postmaster General the power
10 impose zines or contractors at his discretion sub
iec only 70 limitations in the act prescribed, his
action was conclusive, and could no, be reversed ~
the learned Attorney General had omitted, in his
opinion, TO refer 70 the provisions OF this act and
that therefore, the claim Of the government orgo
sustained and the Injunction asked for in this might
be granted without repudang the principles OF the AT
torney Generals opinion. was insisted that tue Post
master Generals action conclusive upon the parties
and upon the Court and that be had the power OF cons
derng and determining in the absence Of the parties TO
the amount q ane or reduction but whether the crcum
stances OF the particular case justified the exercise OF NE
power 70 impoee fine, or order deduction under the
Of the question whether the Congress OF the United
States can by Law change the terms OF an existing con
tract to which the United States government party,
not stopping 70 inquire whether the doctrine OF this Court
that one who invoices the exercise OF ts equitable urs
diction must himself do equity, may may not be
applicable 10 the case-not considering that this Court
court Of equity does not lend its aid TO enforce
penalties and forfeiiuree but may, perhaps, relieve
against penalties when imposed under mistake IN re-
gard 70 the facts OF the case, and without aordng the
parties Interested opportunity TO be heard In oppos
tion-thsre Is, think conclusive TO the argu
ment OF the learned Attorney Of the United States and
that u.s. that fine has been imposed under
the provisions Of the act referred TO- and probably for the
simple reason that case has arisen justify ing such &C
ton the part OF the Postmaster General Tho act re-
ierred to enacts that to the regular Transmission
Of the mail TO and from foreign counrie the Postmaster
General be- and he hereby authorized and required 70
ccssary delay in the departure Of such mails or In tho
performance Of the "TRIP; provided that the fine for any
default shall exceed half the contract price
paid for the trip" Now the whole acton Of the govern
ment that the trip made by the Ericsson
under the contract with Collins and his aad
right in the conclusion that the Secretary OF the
Navy, behalf OF the government unquaedly and
condonay consented to the substitution Of that vessel
the Pacific in the performance of The mail service re.
qured under the existing contracts the only question
manning open and certainly the only far the right
to impose fine under this statute is concerned, is
rhatha
lay in the departure OF the mails sent by the Encsson
or in the performance Of her trips No such
delay has been shown. II has not been pretended
that the mails did not depart at the proper time,
has it been insisted tina, the Ericsson twas not
with reasonable rapitfy. Indeed, II was shown by
affidavit and virtually conceded that the contractors,
or those claiming under them, bad procured good a
steamer in respect to speed sze &C. as could be pro-
cured for service and had In good faith and with COM
mendabe energy. diligence ana skill, earnestly endea-
vored to carry out their contract There was therefore,
for the exercise Of the power Of the Postmaster
General under the act Of lSs, and it is clear tha' he
never either form substance assumed to exercise
the OF the trips Of the Ercssonat least
the facts nave appeared upon the hearing OF this motion
The power 10 impose ue is limited to the and for
the causes specified in the act and tho power though
administrative power, far judicial in its character
thar must appear that the officer clothed with the power
has assumed TO exercise ard has fact exercised it,
must therefore, appear that the Postmaster Gcnera has
imposed line for the prescribed cause-tha he has com
peted the exercise OF the power in the particular case
not that be has advised the head OF another department
to make deduction from the pay Of contractor the
ground that an inferior service has been performed.
In this case no order adjudication OF the Post
master General imposing tine has been shown, and
the only evidence of the action OF the Postmaster
General which has been furnished this hearing, Is
the copy oil letter addressed by that officer to the
fery of the Navy under date OF June 80 1856 and the
statement the opinion of Attorney General tina,
such letter at tnt time addressed by the Postmas
ter General TO the Secretary This letter in the follow
ing words
PoSr OFFICE Dgp,RrxESre
Washington, June "a. 1856. \
sIR-Tbe certificate the files this show that
Of ed tVe he
New York and Liverpool carrying the United States
se OF -Four s sss
be n nG S AND ss pa q % cs
stipulated for In the contract ADVISE by of the nfe
sS per round Trip o for the four trips perfoT%ed
s h round e af BY
and by the Hasrr line $l2 500 and fifteen thousand dollars
Ericsson Is therefore, recommended that the sum Of
thirty thousand soOo be eeduced from the mail pay Of
Swan A 'e gASEs 64MpsE Iien
The lion. j. C. Dossrs, Secretary OF the Navy.
will be observed that the Postmaster General in this
letter entirely fails 10 notice the important fact that the
Ericsson had been Internationally substituted for rcgu
lar Of the Collins line the performance Of this
mail service by the the Secretary OF the Navy
fact important TO the recommendation made would
strikes me have been referred TO by the Postmaster
General If II had been within his official knowledge and
such lac, had been duly considered by him. 1t is not pro-
bable that such recommendation would have been made
But more important feature of this letter is 10 be
ced and that u.s. that the Postmaster General does not
state that there has been unreasonable unnecessary
delay 10 the departure of the mails or in the performance
of rpthat he does not state that he has imposed
intends impose any fine for any such delay and that he
only advises and recommends that the Secretary Of the
Navy allow $50 600 the round trips performed by
the MISUNDERSTANDING $50 0o0 from the price
OF such trips and that he bases such advice and
mendaton, not the ground OF unreasonable
cessary delay, but on the ground OF the inferior service
given, the trips having been performed by irregular
steamer and not Of the class stipulated for In the original
contract The fact that he did not assume attempt
TO any power conferred by the OF ls4s before
alluded TO, IL sufficiently evidenced by these crcumstan
and by the fact that the deduction recommended
ceeccd by 81 900 the highest fine which he could have
imposed under that act. II appears from the opinion OF
the Attorney that this letter OF the Postmaster
General sentrom the Navy Department to the Fourth
Auditor struck OIL Sc 900 accordng and like similar
deductions on substantially the same grounds after
wards made. When this action OF the Postmaster Gene
raj madelsno 70 Mr. Collins, he addressed letter n
the Secretary Of the Navy demonstrating against this
misunderstanding that the substitution OF the Ericsson
had been consented TO without any ntmaton that the
government would withhold any part Of the mail pay
and stating that having acted upon the absolute permission
70 employ another steamer without terms conditions
being imposed they trusted that the secretary would re-
consider the matter and direct the balance Of the last
usrter to be RENTED On the 10th Of the same month
Mr. Collins transmitted W tue Secretary OF the Navy
dupcae Of his letter q July 8, and requested early
reply. ON the 17th the Secretary Of the Navy acknow
ledeed the receipt Of the last mentioned twss,ers aud
added
Soireply has neen given the first because is sll
has boen dec co Won shall be informed Of the result
II II shown by afida' that notice that the matter
been given. The Attorney Generals opinion shows that
was pending before him AZ late as June 4, 1867, on
which day-some months after Mr. Secretary Dobbn had
loltthe derartmenthe gave opinion in favor of the
contractors and evidence has been furnished that
na decision has since been made by the Secretary Of the
Navy II such decision has beer made. the neglect
a. give the promised notice 90 Mr. Collins has probably
been oned by the retirement from Of the
retary who pr Led to give the NOTICE; and the
stance that the that -uch promise had been made
has been municsicd tO his successor. II will
thus be seen-a ch the fact, IN legal point of view
may not be Of signihCsnce-that there Is direct
evidence upon a. nj that the Secretary of the Navy las
coDcurred not concur in the opinion OF the At
torney General has been shown that the Secretary
Of the Navy has, ting, required Collins and his
cates those claiming under him 10 refund the balance
claimed account OF advances made
said steamships money, or out OF the compensation
due for mail service required by the provisions Of the
deeds Of trust before referred the letters Of the Dis
ct Attorney written under the instructions Of the Score
tary &C the Navy, no, being strict and technical com
plance " IN the conditions Of the deeds OF trust But
DO not Oh Jose 20 rest my decision upon any technical
gro nd being entirely satisfied that the defendants have
right n ipsst that there larger due for mau
vQt airn pfoff "A