The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1885-07-13
THE DOLPHIN.
Attorney General CarIand's Opinion
on Mr.. Roach's Contract.

WASHINGTON, July 12-Attorney General
Garland has rendered decision on the three
points relative to acceptance of the Dolphin
by, the government submitted to him by Sec;
retary Whitney. Thei Attorney General
holds that the vessel cannot be accepted by
the Secretary of the Navy; that no contract
exists between John Roach and the govern
ment, and that the large sum of money PAID
TO hlm for the vessel may be recovered. Inc
opinion of the Attorney General atfirms that
the Dolphin has been found defective In
three particulars, two of which are funda-
mental. That is to say, she does not develop
the power and speed called for; she is not
stiff and Staunch enough for the service re-
CURED of her, and the general character of
her workmanship does not come up to the
requirements called for. The government,
the opinion declares, stands unaffected ana
Is not pledged by any acts of acquiescence or
approval on the part of its advisory board.
Neither the Secretary of the Navy nor any
officer under him has any dispensing power
over the statute providing for the construct
Ion OF this vessel. The provisions of the con-
tract binding the United States to accept the
vessel on approval of the naval advisory
board are the Attorney General thinks, void
and imperative.
Mr.. Garland concluded: "There is a ques-
tion of very great Importance and that is
whether there was any valid contract at all
between Mr.. Roach and the United States.
AS we have seen the secretary of the navy
had no power to contract for despatch boat
that would not make Is knots at sea OF to ac-
cept any not built in strict conformity with
the contract he was authorized to enter into.
But the 9th clause of the contract provides
that should the engines of the vessel con-
tracted for fail to maintain successfully on
the trial trip for six consecutive hours pow
er of 2300 horses the vessel shall be accepted,
nevertheless if it appear satisfactorily that
the shortcoming was not owing either to de-
fectiVe workmanship or material The OBJ
vious intention of this was to relieve the con-
tractor of all duty and responsibility as to
the speed and power of the ship and make it
feasible to force upon the United States
ship wanting in the prime quality of speed
gress authorized and was desirous to secure.
1t needs no further discussion to show that
whatever was thus attempted was wholly
out of the question. The stipulation which
was intended to relieve the contractor of re-
sponsibility for the power of the engines and
as necessary consequence for the speed of
the ship, forms most important part of the
consideration moving to him from the gov
ernment. 1t is impossible to say what was
its bearing on the whole contract, nor is it
material to do so, inasmuch as it and other
covenants of the government constitute an
entire and individual consideration the in
validity or illegality of any element of which
must, if necessary, vitiate the whole and
abrogate the contract. 1t follows then that
no contract exists between Mr.. Roach and
the United States, and that the large sums
of money paid him have passed into his
hands without authority of law and are held
by him as so much money had and received
to the use of the United States, and may be
recovered from him.