The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1885-07-17
DEFENDING THE DOLPHIN.
Ex-Secretary Chandler Attacks the Opinion
of Acknowledgement Garland.

'Ths may seem to be an extraordinary de-
cision, but it was not difficult to an Attorney
general who, when requested, wiped out an
amendment of the United States Constitution
with the utmost promptness. Lawyers, business
men, and ar-minded citizens must judge OF the
SoundnesS of is present position. 1t depends,
apparently, upon the proposition that IL was an
essential and fundamental condition OF the act
of Congress that the Dol phin should have fifteen
knots sea speed (which Secretary Whitney says
she has not reached); that the contract omitted
to require the contractor to produce this speed,
and, on the contrary expressly provided that
failure to reach 300 horse power should not
prevent acceptance of the ship if the materials
and workmanship were good, and that this omls
sion was a fatal defect, and rendered the con-
tract wholly imperative and void from the be-
ginning. The law Of Aug. 5, 1882. authorized
certain ships to be built under certain conditions
and limitations, and they were to have the nlen-
est attanable speed The act of March s. 1893,
contained the following appropriations: OF sn ae
construction of a cruiser Of not less imam 4;1oO
tons displacement, now specially autnorlzeo n ny
law; two steel cruisers of not more than 3,0oO
nor less than 2 500 tons displacement each. ana
one dispatch boat, as recommended by the Naval
Advisory Board in its report or Dec. 70, 1857,
ST., 100000
of Dec 20, 1892 had recommended all the above
vessels usir this language with respect to the
dispatch boat: Also one dispatch vessel or
clipper, to have a speed of fifteen knots to
inch breech loading rifle and four revolving
guns The law Of March B. had however, also
provided that proposals should be invited from
ship builders, and the construction be let to the
lowest and most responsible bidder subject to
all such provisions for due completion as the
Secretary of the Navy should provide, and in ali
respects in accordance with the provisions OF
the act Of March 3. The act of Aug. had re-
qulred the organization of Naval ADVISORY
Board and also provided as follows: Neither
here 9OtIOrIZpd
shall be contracted for or commenced until full
and complete detail drawings and specifications
thereof in all its parts, including hull engines and
boiler shall have been provided or adopted by
the Navy Department and shall have been APP
proved in writing by said board or oy major
ity of the members thereof and by the Secretary
of the Navy.
''In the face of these provisions will any
sound jurSt or unprejudiced person having com
mon sense say that the Navy Department was
bound to insert in the contract, and insist upon
q guarantee by the contractor that the dispatch
boat should prove to have sea speed OF fifteen
knots, and that the contract would be absolutely
null and void without such guarantee? The idea
is preposterous. The plans for the engines were
designed and adopted by the Navy Department
and advisory board, and the bidders had nothing
to say about them to do with them.
Nr. Garand's and Mr.. Whitney's assumed fun
damental condition of the statute is nowhere
contained in its terms 1t appropriates for four
ships as recommended by the Naval Advisory
Board in its report They turn to the report
and find that the board recommended that the
dispatch boat should have a sea speed of fifteen
knots, and then they say such speed is vital
prerequisite to be absolutely guaranteed
in any contract for construction which
may be made although by the express
terms of the law the designs of the
ship in detail, were to be made by the depart
ment, and the contractor was to have nothing to
say or do about them. The fundamental propo-
sition is weak and slender, with no foundation
In To pf ~ Mn En pIA and owe
'tke contractor, if he had misgivings whether
vessel planned like the Dolphin would make the
required speed, should have abstained from
sending in proposals. Can this be the serious
proposition of intelligent lawyer! The Navy
Department carefully considered the question
whether under the law of Congress authorizing
the new ships, bidders could be required to
guarantee speed, or any other result besides
good work and materials, and in view of the
absolutely mandatory provisions of the law that
the department should provide beforehand the
designs in al their details, it was decided that
guarantees could fairly be expected except of
good materials and workmanship. Upon that
decision the officials who made it can afford to
stand, however severely Mr.. Roach may be
oppressed because he did not either insist upon
their making better bargain for the govern
ment or else abstain from sending IN his pro-
posals.
'Itswould seem as if the newspaper report of
Mr.. Garlund's opinion must be incorrect At
first he is made to say of the clause in the con-
tract that the ship should be built in accordance
with the provisions of the acts of Congress- L
am of opinion that this covenant bound the
contractor as effectively to make ship of sea
speed of fifteen knots as though he had agreed to
do so in express words But later he says Of
the clause which provides that the contractor
shall not be respo -sible for failure to develop
2, 800 horse power if it is not due to defective
workmanship or materials: The obvious inten-
ton of all this to relieve the contractor of all
duty and respons blity as to the speed and
of +ha CHI in nd ba fol
lows that the contract exists between Mr. Roach
and the United States and that he must pay
back all moneys received by him, and hand over
the Dolphin as security that he will. This
reasoning cannot be the work of good lawyers.
If Mr.. Roach did guarantee speed. as effective
" as if he had agreed to do so in express
words, the contract cannot be absolutely void.
because elsewhere IS clause which relieves him
from guarantee of horsepower. The law alb
solutely required a guarantee of~Speed,' says
Mr. Garland; it is in the contract as if in ex-
press words, he also says; but he further says
that there is clause dispensing with quantity
of horse power which the law says nothing
about. Therefore the contract is absolutely void
under the law requiring speed. Perhaps two
lawyers wrote opinions for the Department of
Justice on these questions; one holding that
speed was guaranteed, and that therefore, the
Dolphin must be rejected, and the other holding
that speed was not guaranteed, and, therefore,
the contract was void, and she must be rejected
and the Attorney general and Mr. Whitney liked
the conclusions of both opinions so much they
determined to put them both together and pro
mulgate them to wondering world. Those who
choose to accept Mr.. Garland's opinion as good
law may find some excuse for the treatment by
Mr.. Whitney of the advisory board and Mr..
Roach, but by all others it must be considered
unjust and oppressive
''Let it be noted that this wicked assault upon
Mr.. Roach by two newly hedged Cabinet Minis
tiers reveling i'll misused power. is perpetrated
solely for the assumed reason that the Dolphin
has not fifteen knots sea speed, when in fact on
every ono of her several trial trips she has
reached fifteen knots, ard the last trip was made
at sea in pursuance to the orders of Mr.. Whit
ney; but Mr.. Whitney, enraged at the result
says the sea was not high enough, and fifteen
knots sea speed means seventeen and one-half
knots when there is not a high sea, and upon
this arbitrary assumption the whole fabric of
outrage committed by him is built, while even
the packed board organized by him to condemn