The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-07-13
THE DOLPHIN DECISION.
Mr. WHITNEY CAN'T ACCEPTHER
Attorney Garland Reviews the
Law and the Contract Hereunder
and Recommends tho Vessels
acknowledgements News
The Dolphin Can't be :. ccepted

w ASH1NGIONJ July lL,-AJCOrD6y-
General Garland has rendered decis.
ion on three points, relative to the &C
ceptGnce Of the Dolphin by the gov
eminent, submitted to him by
Secretary Whitney. The Al.
torney-General holds that the
vessel cannot be accepted that
no contract exists between Mr.. John
Roach and the government, land that
the large sum Of money paid him for
the vessel may be recovered. Mr.,
Garland says:
"This vessel, you inform me, has
been found to be defective in three
particulars, two of which are funda-
mental; that is TO say, she does not
develop the power and speed which
the contract calls for; second, she Is
not staunch and stiff enough for the
service expected OF her, and
her workmanship does not come up 10
the requirements Of the contract. As
to the defect in the article OF speed
the act of congress under which the
vessel was built makes an apprOpria-
ton for the construction of one dis
patch boat ag recommended BY the
naval advisory board in its report Of
December 20, 1852. Upon reference to
that report II will be found that the
board recommended the construction
Of one dispatch vessel Of tho
clipper style, to have a
sea speed of 10 knots, and
| take it as very clear that the recon-.
mendation became, by force Of this
reference to it, as much part Of tho
statute as though it had boon recited
therein, word for word. The contract
contains no exrroes covenant ag 70 the
speed OF tho vessel, unless one is nee
essarlly involved in the stipulation for
a collective indicated horse power
OF 300, but ITS very first covenant is
TO construct dispatch boat lin con
formity with the plans and
specifications hereto annexed, and
IN accordance with the provisions
OF the acts of Congress,
approved August 5 and March 3, 1883,
respectively, before mentioned and re-
lating thereto, and / am OF opinion
that this covenant bound the contrRc-
tor as effectively as TO mako o ship 'Of
the sea speed OF 10 knots as though no
had agreed to do so in express wOrdes"
Tho Dolphin not having bsan con-
structed in strict conformity with the
act Of Congress in this respect, the at
torney-general assumes that it would
seem TO follow that nothing
short of an act OF Congress-
could authorize her acceptance.
Next, considering the objection that
the vessel is wanting In the necessary
strength and stiffness, the Attorney
General says: off this deficit exists,
as | must assume, it is fatal, whether
due to the plans upon which the vessel
was built or not; because, by the ninth
clause of the contract, the contractor
and his sureties stipulate that the yes
gel constructed under this contract
shall be sufficiently strong to carry
the armament, equipment, coal, stores
and machinery prescribed by the
naval advisory board"
Further considering this point, tho
attorney general says:
"Msnifestly, the Dolphin, which I
Nm bound to assume, In view OF the
report accompanying your commune
cation, is anything but sufficiently
strong, cannot, for this reason alone,
De accepted by you under the contract,
the deficit mentioned beng iuuda-
mental in character. The third obiec-
ton, as to the general character OF the
OF tho vessel, ! need not
stop TO consider, in view Of yourrepre-
that 1.-THE vessel is othorwiss
In accordance with the contract, this
can be readily dealt with 10y
you, tho contractor being ready and
willing to make tho vessel 1aLisl2c-
tory. As TO whether the goTerument
has been IN any way estJpu8d, or COM
by acts Og QcquieeCence,
approval or acceptance by the adj
yisOry board, l am Of opinion thai the
stands unaffected by
any such acts. This must be tho CpSe
If the law authorizing tho
building of dispatch boat ~ 10 have
effect. Its language IL that: no
such vessel shall be accepted unless
in strict conformity with
the contract, with the advice and as
sistance of the naval advisory board;
and consequently no acceptance OF q
vessel not built iu strict conformity
with the contract could find the gov
ernment. Neither the secretary OF
the navy, nor any officer undor him,
had any dispensing power oyer this
statute, the words OF which appearing
as they do In q context displaying
great sOlicitude for the protection OF
AAAt AlAAhAlA AAANAAt1lNI NAAAAAbA hb Aahtll
in any other sense than as mandatory,
a plain disregard Of the legis-
lative intention"
Coutinueing at considerable length
and citing prominent cases In support
of his arguments, Mr.. Garland con-
oludes;
ut follows, then, that no contract
exists between Mr.. Roach and
the United States and that
tho large sums Of money
which have been paid Mr.. Roach have
passed into his hands without author
ity of law sud are held by him
as so much money held
and received 10 the use OF the
United States, and may bo
recovered from him; and NOT only so,
but the money thus paid him by oni
Cials holding @ fiuduciary relation 60
the government, having goroln.o tho
ship Dolphin, court of
equity viii follow 10,
then and tor that purpose
a proceeding against tho
ship itself. In support OF this posi-
ton, need do no more than clio the
recent decision of the Supreme
Court of tho United States, IN
the case of the National
Bank vs.. Insurance Company
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