The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1885-07-16

WASHINGTON, July 2,-Attorney-
General Garland has rendered decis-
ion on three points, relative to the &C
coptnnce o. the Dolphin by the gov
ernment, submitted 20 him by
Secretary Whitney. Tho Al
torney-Goneral holds that the
vessel cannot DO accepted; that
no contract exists between MIR. John
Roach and the government, land that
the largo sum Of money paid him tor
tho vessel may bo recovered. Mr..
Garland says:
"This vessel, you inform me, has
boon found to DO 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, sho is
not staunch and stiff enough for The
service expected of her, and
third, the general character OF
her Workmanship does not come up to
the requirements OF tho 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 as recommended By the
naval advisory hoard in its report OF
December 20, 1857. Upon reference to
that report it will DO found that the
board recommended the construction
of one dispatch vessel of the
clipper style, TO have
sea speed of 10 knots, and
/ take ii as very clear that the rscom-
mendation became, by force OF this
reference to 1t, as much q part OF the
statute as though it had been recited
therein, word for word. The contract
contains no EXPRESS covenant as TO the
speed of tho vessel, unless one is nee
essarlly involved in the stipulation for
collective indicated horse power
OF Q, 800, but its very first covenant is
TO construct dispatch boat lin cor
formity with the plans and
specifications hereto annexed, and
in accordance with the provisions
of the acts of Congress,
approved August and March }, 1883,
respectively, before mentioned and re-
latiug thereto and / am OF opinion
That Ihis covenant bound the contrac-
tor as effectively rs to make ship 'of
the sea speed OF is knots as though he
had agreed to do so in express Words
The dolphin not having been con-
structed in strict conformity with the
act of Congress in this respect, the at
torney-general assumes that 1t 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: "If this deficit exists,
as must assume, it is fatal, whether
due to the plans upon which the vessel
was built or not; becsuse, by the ninth
clause of the contract, the contractor
and his sureties stipulase that the ves-
sci constructed under this contract
shall be sufficiently strong to carry
the armament, equipment. coal, stores
and machinery prescribed by tho
naval advisory board"
Further considering this point, The
attorney general says:
"Manifestly, tho Dolphin, which
am bound to assume, in view OF the
report accompanying your communl-
cation, is anything but sufficiently
strong, cannot, for this reason alone,
be accepted by you under the contract,
the deficit mentioned being funda-
mental in character. The third objec-
ton, as to the general character OF the
workmanship of the vessel, need not
stop 10 consider, i'll view OF your repre-
sentation that il the vessel is otherwlss
in accordance with the contract, this
objection can be readily dealt with by
YOU, tho contractor being ready and
willing to make the vessel satisiac-
tory. As to whether tho government
has been in any way estOpped, or com
compromised by acts OF acquiescence,
approval or acceptance by the al
visory board, am of opinion that the
government stands unaffected by
any such acts. This must be the case
necessarily, if the Law authorizing the
building Of a dispatch boat is to have
effect. Its language Is that: mo
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 a
vessel not built lin strict conformity
with the contract could find the gov
eminent. Neither the secretary OF
tho navy, nor any officer under MIN,
had any dispensing. power oyer this
statute, the words OF which appearing
as they do In context displaying
great solicitude for the protection OF
the public interests, cannot be taken
in any other sense than as mandatory,
without plain disregard of the legis-
lative Intention"
Continueing at considerable length
and citing prominent cases in support
of his arguments, Mr.. Garland con-
cludes:
at follows, then, that no contract
exists between Mr.. Roach and
the United States and that
the large sums OF money
which have besn paid Mr.. Roach have
passed into his hands without author
ity of law and are held by him
as 30 much money held
and received to the use of the
United States, and may be
recovered from him; and not only so,
but the money thus paid him by Off.
Gals holding a fiuduciary relation to
the government, having gone into the
saaRI,v p0lp viii a follow sSpf' e. {,
hen and tor that purpose
entertain proceeding against the
ship itself. In support OF this posi-
ion, / need do no more than cite the
recent decision of the supreme
Court of the United States, In
he case of the National
Bank vs.. Insurance Company"
Locking After National Defenses
WASHINGTON, July 12.-Secretary |
5ndicott left Washington tonight for