New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1885-07-13
GARLAND AND THE DOLPHIN.
REPLY TO THE SECRETARY OF THE NAVY.
DECLARING THE CONTRACT wrz Mr. soAcn

DEcLARING THE CONTRACT wrrr Nn ROACH
INOPERArvE.
WASHINGTON, July II. = Attorney-G General
Garland has rendered . decison on the threa uointe
relative to the acceptance Of the Dolphin BY the Govern
ment submitted to him by Secretary whitney, The
holds that the vessel cannot be accept
ed by the Secretary Of the Navy that valid contract
exists between John Roach and the Governments ana
that the large sum of money paid him for tbs vesssl
may be recovered Mr. Gariands opinion IL ~ fol-
lows:
"Your communication Of June IL requests my opinion
as to the gh and duties of the United States touching
the dispatch boat Dolphin recently constructed by John
Roach, under written contract entered into between
HIM and your predecessor, william f. Chandler. This
vessel you inform has been found to he defective in
three particulars, two Of which fundamenta that
is to say she does not develop the power and speed
which the contract calls for; she is stanch and s6
enough for the service expected OF and the general
character Of her workmanship does up to the
requirements Of the contract.
"As to the defect in the article OF speed the act Of
Congress under which the vessel built makes an
appropriation for the construction Of 'one dispatch
boat as recommended by the Naval Advisory Board
In Its report Of December 20. 1892 Upon
reference to that report 1t will be found, In
formed by you, that the Board recommended the
struction Of dispatch vessel or clipper 10 have
sea speed Of fifteen knots and take it very clear
that the recommendation became, by force Of this refer
to II, much part the though II had
been recited therein word for word
"The contract contains express covenant to tho
speed Of the vessel-uness Is necessarily involved
in the stipulation for collective indicated horss
power Of two thousand three hunircd-but its very
first covenant is to construct dispatch boat In con-
formy with the aforesaid plans and specifications here
to annexed and in accordance with the provisions Of the
acts OF Congress approved on August and March 3
1885, respectively before mentioned and relating there
IN, and th> han
contractor effectively to make ship Of the speed
OF fifteen knots though he had agreed to do In
press words 1t be said. possibly that the covenant
as to power and speed is not absolute, bus
qualified by the provision that II upon the trial trip tho
engines should not develop the full power called for by
the contract and the failure should not DO due to de-
fective workmanship or materials, the ship should DO
accepted by the Government nevertheless
Ths attempt to bind the to take from tho
contractors hands ship OF less power and speed than
what the act Of Congress peremptory requires is In my
opinion utterly null and without effect. It was to the
quality OF speed than to any other that Congress-
looking, the terms dispatch vessel clipper
used in the report OF the Advisory Board referred to 10
the law plainly show Congress deemed that the ser.
vice required swift vessel Of speed Of fifteen
knots and 1t directed such vessel to be contracted for
and built The contractor be heard to aege ig.
Of the law under which the contract was made
He bound TO know tho source and extent Of tho
tracted. individuals as well as cour t.
say tho Supreme Court, 'must take notice of
the Of authority conferred by law upon person
acting In official capacity aud the rule applies In
such that ignorance of the law furnishes ex-
cuse for any mistake or wrongful act.'
"wth full knowledge Of the statute authorizing the
construction OF dispatch boat Of designated speed.
and oshsr, and with the plans and specifications un.
der which the work to be done laid before him that
he might bid with intelligence and safety the contractor.
II he had nisxiynss whether vessel planned like tho
Dolphin would make the required speed. should have
sbsaIpcd fp sending In proposals. knowing AS he did,
Or ought 70 6ene. that ship defective In point os
speed could be accepted under the statute whatever
might be in other respects. Under any other
view the most imperative requirements OF Congress
would he liable all times TO be eyaded upon one pre-
text another cannot conceive how could be Sc
rousy urged that the United states Is bsund under tho
law In question from the contractor any other
sort the one orderedb Congress be built
namely. dispatch boat clipper OF asea speed OF M.
knots and the Dolphin having been found not to 10
of that description. as must assume, IL woud
seem follow that nothing short OF an act OF Congress
could authorize her acceptance.
:" to consider the next objection that tho
vessel wanting in the necessary strength aud Stiffness
II this defect exist must assume ii is fatal whether
due TO the plans upon which the vessel built or not
because, by the ninth clause OF tho contract the con-
and his suretes spulate that the vessel con-
strueted under this contract shall be sufficiently strong
to carry tue armament equipment COAL stores and ma
chinery prescribed by the Naval Advisory Board and
indicated by the annexed drawings aud specifications.
Now II ia too plain serious discussion that the con.
tractor has, by this covenant undertaken TO make ship
for specific purpose accordance with given drawings
and specifications aud has, to all intents
and purposes, warranted that the ship 80
agreed to built shall be sufficiently strong
for that purpose. In q word the contractor by THIS
covenant makes the plans the Advisory Board his own
and agrees construct vessel OF sufficient strength
according those plans Manifestly the the Doiphin'
which am bound to assume IN view OF the report ac-
ACCOMMODATING your communication Is anything bue
sufficiently strong. cannot. for this reason Alone 10
accepted by you under the Contract the deiect meu'
toned being fundamental In character
The objection as the general character OF tho
workmanship Of the vessel need not stop to consider
in view OF your representation that II the vessel is
otherwise IN accordance with the contract this objection
can be readily dealt with by you, the contractor being
ready and willing make the vessel satisfactory IN this
respect also
A TO whether the Government has been In anywiso
.sonued orcompromited by OF aeauiescence, ap-
nroya or acceptance by the Advisory Board or Others
am OF opinion that the Governmert stands unanected
nv any sucn acts This must be the case necessarily
IL the law authorizing the building OF dispatch boat
-, effect Its is that mo such vessel shall
he accepted unless cVmpleted In strict conformity WIN
the contract with the aayiee aud assistance o, ano
~, neei nor built in strict conformity with the con-
tract could bind Government Neither the secre'
arv I lie Navy nor any officer under hiiu had aDy us
asnr power over this statute, the words OF which, APP
pearmg as they do in context displaying great soiic
ds far the protection the public Interests cannot 30
tokeu i'm any other thar AS mandatory wltbous
Main isrs ard Of the legislative inteuton epowes
cncnt ,hip built under this law cannon be exercised
hc fact the ship was constructed III srcs
| conformity with the contract, ana .hs Iriv III,
Enumeration from any official quarter that the snip
| was 30 constructed wheE In truth II Was nos
Lends no validity whatever u pretended act OF accept
a u" n MAS not the Intention Of Congress that tho
United states should e forcciosed or concluded In any
such way that any departure from the sontac. sN
oant .uccialy provided FOR should be condo by tho
ssi or Judgment any official and that sIoui pe open
at ali tles show tnat vessel alleged 70 nave oes