The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1885-07-14
THE DOOMED DOLPHIN.
Attorney : General Garland
Rejects the Vessel.
NOT ACCORDING TO CONTRACT
Disasters on The Lake-Engiand's
yices-Ihe Texas Trail
Opposing Russia
The .norphln. Rejected.

WAsHIYG1oS, July 12--Attorney- Ten
eral Garland has rendered decision on
the three points relative to the accept
ance of the Dolphin by government,
submitted to him by Secretary Whitney
The Acknowledgement holds that the
vessel cannot be accepted; no contract
exists between John Roach and the gov
eminent, and that the large sum OF
money paid him for the vessel may be
recovered. Garlandsays: 'This vessel,
you inform me, has been found defec-
tive in three particulars, two of which
are fundamental; that is, to say:
1-She does not develop the power
and speed which the contract calls for.
AShe is not staunch and stiff enough
TO- the service expected OF her. and
3-The general character Of her work
mauship does not come up to the re-
quirements OF the contract.
As to the defect in speed, the
act of Congress under which the
preparation for the construction of
one dispatch boat as recommended by
the naval advisory board, in its report
of December Doth, 1882. Upon reference
to that report il will be found that the
board recommended the reconstruction of
one dispatch vessel or clipper to have
sea speed of fifteen knots, and l take il
as very clear that the recommendation
became by force of this reference as
much part of the statute as though 1t
had been recited there in, word for
word. The contract con aims no express
covenant as to speak of the vessel I'M
less one is necessarily involved in the
stipulation for a collective indicated
horsepower, OF 1900, but its very first
covenant is to construct dispatch boat
in conformity with the aforesaid plans
and specifications hereto annexed, and
in accordance with the provisions of the
acts of Congress approved Au-
gust 5th, and March 9Th, 1888,
respectively, before mentioned and re-
lating thereto, and am of the opinion
that this covenant bound the contractor
as effectively as to make ship OF the sea
speed of fifteen knots. as though he had
agreed to do so in express words. The
Dolphin. not having been constructed
in strict conformity with the
act OF Congress in this respect.
the Acknowledgement assumes that
it would seem to follow that nothing
authorize her acceptance.
Next. considering the objection that
the vessel is wanting in the necessary
strength and stiffness, the Attorney
General says: IF this defect exists. as
1 must assume, it Is fatal, whether due
to the plan 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
sci constructed under this contract shall
be sufficiently strong 10 carry the arma
ment, equipment, coal, stores and ma
chinery prescribed by the naval advis-
DRY board. Manifestlv the Dolphin.
which | am bound to assume, in view
of the report accompanying your COM
munication, is anything but sufficiently
strong. cannot for this reason alone be
accepted by you under the contract. the
defect mentioned being fundamental in
character. AS to whether governn ent
has been in any way stopped by acts of
acquiescence, approval or acceptance
by the, advisory board, or others, | am
of the opinion that government stands
unaffected by any such acts. This
must be the case necessarily if the law
authorizing the building of the dispatch
boat is to have effect. Its language is
tudL no SUCH FeSSel S1dll DC dCctpCeQ
unless completed in strict conformity
with the contract, with the advice and
assistance of the naval advisory board
consequently no acceptance of vessel
not built in strict conformity with the
contract could bind government"
Continuing at considerable length,
and citing prominent cases in, support
of his argument, Garland concludes:
1T follows that no contract exists be-
tween Roach and the United States and
the large sums of money, which having
been paid Roach, have passed into his
hands without authority of law and are
so held by him as so much money held
and received for the use of the United
States and may be recovered from him,
and not only SO but the money thus
paid by officials holding a Judiciary re-
lation to the government having gone
into the Dolphin. A court of equity
will follow there and for that purpose
entertain proceeding against the ship
itself. In support Of this position need
do no more than cite recent decision
of the Supreme Coart of the United
States in the case of the National Bank
We In 70.