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

the s 81 orre approved June 81 ls4s snd tina, this
statute hsyrg vested In tie Postmaster General the power
10 impoee zines or contractors at his discretion sub
ec ony TO the limitations in the prescribed his
action was conclusive and could not be reversed in
court Of law or equity. And i was insisted that
opinion refer 70 the provisions OF this act, and
that therefore, the claim Of the government ought
sustained and the injunction asked for in this might
be granted without repudatng the principles OF the AT
torney Generals opinion. insisted that the Post
master Generals action conclusive upon the parties
and upon the Court and that he had the power Of cons
derng and determining the absence Of the parties
be affected by his decision and without appeal not only
the amount o fine or reduction but whether the crcum
stances Of the particular case justified the exercise OF e
power 70 impoee q fine, order deduction under the
provisions Of this act Waving entirely the discussion
Of the question whether the Congress of the United
States by Law change the terms OF an existing con
tract to which the United States government Is party
not stopping 70 inquire whether the doctrine OF this Court
dicton must himself do equity, may or may not be
applicable 70 the case-not considering that this Court
as court Of equity does not lend its aid to enforce
penalties and forfeimres but may, perhaps, relieve
against penalties when imposed under q mistake in
gard 70 the facts OF the case and without aordng the
parties interested an opportunity to be heard In opposi
ton-thsre Is, think conclusive answer TO the argu
ment OF the learned Attorney Of the United States and
that is that ue has been imposed under
the provisions OF the referred TO- and probably for the
simple that case has arisen justng such &C
ton the part Of the Postmaster General Tho act re-
erred to enacs that to secure the regular
Of the mail To and from foreign counre the Postmaster
General be- and he liz hereby and required TO
impose fines contractors for any unreasonable
performance Of the TRIP provided that the ne for any
default shall exceed half the contract price
paid for the trip" Now the whole acton OF the govern
under contract with Collins and his associates aad
am right in the conclusion that the Secretary Of the
Navy on behalf OF the government unquaiedly and I'M
consented the substitution of that vessel
Tor the Pacific in the performance Of The mail service
qured under the existing contracts, the only question
manning Open and certainly only the right
n lie
whether there there was or unnecessary de-
lay in the departure OF the mails sent by the Ecsson
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 been insisted that the Ericsson twas not run
with reasonable rapicity. Indeed, IL was shown by
affidavit and virtually conceded that the contractors,
or those claiming under them bad procured good
steamer in respect to speed sze &C. as could be pro-
cured for the service had In good faith and with
mendabie energy diligence ana skill, earnestly endea
vored to carry out their contract There was therefore,
General under the act Of lsss, and ii is clear tina he
never, either form substance assumed to exercise
in the case OF the trips Of the 80 far as
the facts nave appeared upon the hes OF this motion
The power to impose fine is limited to the and for
the causes specified in the act and the power though
administrative power is far judicial its character
that appear that the clothed with the power
has assumed 10 exercise, and has in fact exercised it. II
must therefore, appear that the Postmaster Gcnera has
imposed fine for the prescribed cause-that he has
pleed the exercise OF the power in the particular Gaze,
that be has advised the head OF another department
TO make deduction from the pay OF contractor on the
ground thst an inferior service has been performed.
In this case no order or 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 OF letter addressed by that officer 10 the
iary Of the Navy under date OF June 80 1866 and the
statement in the opinion OF the Attorney General tina;
such letter was at that time addressed by the Postmas
ter General TO the Secretary This letter is in the follow
ing words
Posr OFFICE DEPARTMENT,
WASHINGTON, June 30. 1856. \
The Collins line have trips
Ssw Ssg York s % S,s
2sd OF April 2d of June 1856 inclusive -Four Of these
by Ericsson irregular steiner and not Of me class
STIPULATED for IN the sontrac sG,e BY rSsson Of The ME
per trip s0O6 The trips performed
1 ro sd @ s pr Sy % r
and by The Hasre line s2 500 and fifteen thousand dollars
ne Ericsson Il Is nerso5e that the sum Of
The lion j. c. Donsrs, Secretary Of The Navy
It will be observed that tho Postmaster General in this
letter entirely fails to notice the important fact that
Ericsson had been Internationally substituted for regu
lar steamer OF the Collins line IN the performance thus
mail service by the consent OF the Secretary OF the Navy
A fact important the recommendation made would
General If il had been within his official knowledge; and
such TACT had been duly considered by him. Il pro-
babe that such recommendation would have been made
But important feature OF this letter is 10 be
uced and that 49, that the Postmaster General does
state that there has been any unreasonable
delay in the departure OF the mails or in the performances
of any rptha he does not state that he has imposed
intends to impose any fine for any such delay; and that he
only advises and recommends that the Secretary Of the
Navy allow $50 600 for the two round trips performed by
the Ercssonceductpg $50 0o0 from the price
OF such trips and that be bases such advice and
mendaton, not on the ground OF unreasonable
cessary delay but the ground OF the inferior service
gwen the trips having been performed by an irregular
steamer and not Of the class stipulated for in the original
contract The fact that he did not attempt
exercise conferred by the
alluded to- sufficiently evidenced by these circumsan
ccs and by the fact that the deduction recommended
ceeced by 5000 the highest fine which he could have
imposed under that act appears from the opinion OF
the Attorney General that this letter Of the Postmaster
Auditor without any direction remark; and that the
Auditor struck OIL $4,000 accordingly, and like similar
deductions substantially the same grousds after
wards made When this action of the Postmaster Gene
raj madeno 70 Mr. Collins he addressed letter n
the Secretary of the Navy demonstrating against this
Notwithstanding that the substitution OF the Ericsson
had been consented 10 without any ntimaton that the
government would withhold any part Of the mail pay
and stating that having acted upon the absolute permission
employ another steamer Without any terms conditions
being imposed they trusted that the secretary would
consider the matter and direct the balance Of the last
usrter TO be RENTED On the 10th Of the month
Mr. Collins transmitted " tue Secretary OF the Navy
duplcae OF his letter July g. and requested early
reply On the 18th the Secretary OF the Navy acnow.
lodged the receipt OF the last mentioned wssters aud
added -
Noirepy bas been given 70 the first because is sl
der the consideration Of the Department When the
has been decided Won shall be informed Of the result
II shown py aiids,n tina, notice the matter
has been finally decided by the Navy Department has
been gwen. The Attorney Generals opinion shows that
II was pending before him late June 4, 1867, on
Inch day-some months after Mr.. Secretary Dobbn had
left tie dcrartment-he gave an opinion in favor of the
and evidence has been furnished that any
ra decision has since been made by the Secretary Of the
Navy. such decision has beer made, the neglect
20 give the promised notice 20 Mr. Collins has probably
been oned by the retirement from ONCE OF the Sec
Rotary who pr ed 10 give the notice and the
stance that the that -uoh promise had been made
has never been .,nuncsied to his successor. II will
thus be .eh the fact, IN legal point Of view.
may not be OF signiiCance-that there is direct
evidence upon a. int 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 writing, required Collins aud his
those claiming under him. 10 refund the balance
now claimed account OF advances made
said steamships money or out 81 the compensation
due for mail service, required by the provisions Of the
deeds Of before referred the letters Of the Dis
tct Attorney written under the instructions Of the Score
tary &C the Navy, not being strict and technical
plance with the conditions OF the deeds OF trust But
do not chose 20 rest my decision upon any technical
gro nd being entirely satisfied that the defendants have
right % insist that there larger due for maj
than On the