Show DAMNING THE DOLPHIN A Decision From the AttorneyGenera That the Government Cannot Accept Her H 11 t I 1 I Lacking in Three Fundamental I Re spectH Power Speed and Strength No Contract Exists and John Road Must Refund the Money The Uolphlu Cajniiot JUr Accepted WASHINGTON July 1 AltorneyjQenera 4t Garland has rendered a decision 6nth < three points relative to the acceptance of the Dolphin by the government submitted sub-mitted to him by Secretary Whitney Tin AttorneyGeneral holds that tho vessel cannot can-not be accepted that no contract exists between be-tween John Roach and the Government and that the largo sum of money paid him for the vessel may be recovered Garland says This vessel you inform me has been found defective in three particulars two of which are fundamental that is to say She does not develop the power and speed which 1thef contract calls for she is not staunch andstiff enoughfor therjservice expected of herand the general character of her workmanship does not come up to the requirements of the contract AS TO TIlE DIPEOT IN SPEED The act of Congress under which the vessel was built makes an appropriation for the construction of one dispatch boat as recommended recom-mended bv the Naval Advisory Board in its report of December 20th 1882 Upon reference refer-ence to that report it will be found that the board recommended the construction of one dispatch vessel or clipper to have a sea speed of fifteen knots and 1 take it as very clear that the recommendation became by force of this reference as much apart of this statute as though it had been reCIted therein word for word The contract contains no express covenant as to the speed of the vessel ves-sel unless one is necessarily involved in a stipulation for a collective indicated horsepower horse-power of 2300 but its very first covenant is to construct a dispatch boat in conformity with the aforesaid plans and specifications hereto annexed and in accordance with provisions pro-visions of the acts of Congress approved August 5th and March 3d respectively before be-fore mentioned and relating thereto and 1 i am of tho opinion that thi covenant bound the contractor as effectively to make a ship of the sea speed of fifteen knots as though I it had agreed to do sd in express words The Dolphin not having been constructed in strict conformity with the act of Congress in this respect the AttorneyGeneral assumes as-sumes that it would seem to follow that nothing short of an act of Congress could authorIze her acceptance Next considering the objection that the I vessel is iswANTING WANTING IN NECESSARY STBENGTH I And stiffness the AttorneyGeneral says If this defect exists as I must assume it is fatal whether due to the plan upon which I he vessel was built or not because by the ninth clause of the contractthe contractor and his sureties stipulate that tho vessel I constructed under this contract shall be sufficiently suf-ficiently strong to carry the armament equipment coal stores and machinery pre cribed by thenaval advisory board Manifestly I Mani-festly the Dolphin which I am bound to I assume in view of the report accompanying your communications isanything but sufficiently suffi-ciently strong and cannot for this reason alone be accepted by you under the contract ho defect mentioned being fundamental in character As to whether the government has been in any way estopped by acts of acquiescence ac-quiescence approval or acceptance by advisory ad-visory boards or others I am of the opinion hat the government stands unaffected by any such acts This must be the case neces arily if the law authorizing the building of I he dispatch boat is to have effect Its language lan-guage is that NO SUCH VESSEL ShALL BK ACCEPTED Unless completed in strict conformity with he contract with the advice and Assistance of the Naval Advisory Board Consequently no acceptance of a vessel not built itt strict conformity with the contract could bind the government Continuing at considerable length and citing prominent cases in support of his argument Garland concludes It follows hat NO CONTRACT EXISTS Between Roach and the United States and the large sums of money which have been paid Roach have passed into his hands without with-out authority of law and are held by him received for the as so much money held and use of the United States and may be recovered recov-ered from him and not only so but the money thus paid by officials holding a fiduciary fidu-ciary relation to the Government having gone into the Dolphin tho court of equity itself will entertain a proceeding against the ship |