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2d Session.

No. 98.

HENRY LITTLE AND JACOB FELCH.

[To accompany bill H. R. No. 756.)

FEBRUARY 23, 1855.

Mr. T. WENTWORTH, from the Committee on Commerce, made the

following REPORT.

The petitioners, owners of land on Woodbridge island, in Merrimack river, allege that the United States, in the years 1829 and 1830, erected near the mouth of said river a breakwater; that in 1845, in consequence of the original imperfection of the work, or of its subsequent . neglect by government, a breach was made in the breakwater by a storm, whereby the land of the petitioners was washed away, and a new channel for the river was made through the same, causing an injury to the petitioners of three hundred dollars

The evidence before the committee warrants the conclusion that the government is responsible for the damage, if the allegations in the petition be true.

The committee, therefore, report a bill appropriating three hundred dollars for the payment of the damages, if the petitioners can prove to the satisfaction of the Secretary of War thai the government is liable for the injury sustained.

2d Session. S

No. 99.

DANIEL SEARLE & CO.

[To accompany bill H. R. 762.]

FEBRUARY 23, 1855.

Mr. D. T. JONES, from the Committee on the Post Office and Post

Roads, made the following

REPORT.

The Committee on the Post Office and Post Roads, to whom was referred

the memorial of Daniel Searle & Co., report: That they concur in and adopt the report of the Hon. Elisha Whittlesey, First Comptroller of the Treasury, hereto appended, by which it appears that the memorialist was required by the Postmaster General to carry the mail on the routes therein named four additional trips per week for two winters, and that he is legally entitled to pro rata pay for said extra services. The committee therefore report a bill for his relief. THE CASE OF DANIEL SEARLE & CO.

TREASURY DEPARTMENT,

Comptroller's Office, March 4, 1852. This case is before me on an appeal from the decision of the Hon. J. W. Farrelly, Auditor of the Treasury for the Post Office Department.

The facts are set forth in the decision of the Auditor, the argument of Charles G. Sherman, esq., and in an abstract of evidence offered by Daniel Searle & Co.

Daniel Searle, J. J. Ray, Miller Harton, John H. Avery, Richard C. Stockton, and William B. Stokes, composed the firm of Daniel Searle & Co. A. Morgan, Isaac Thompson, Richard C. Stockton, William B. Stokes, John H. Avery, and Erastus Hathaway composed the firm of A. Morgan & Co. Daniel Searle & Co., in 1835, contracted to carry the mail on route No. 956, from New York to Morristown, in New Jersey. Also, on route No. 979, from Morristown to Milford, in the State of Pennsylvania. Also, on route No. 1157, from Milford to Owego, New York. So that these three routes made a continuous line of communication from the city of New York to Owego. The mail, by these contracts, was to be carried tri-weekly on routes Nos. 956, 979, and 1157.

A. Morgan & Co. were contractors for transporting the mail daily on route No. 774, which extended from Newburg, on the Hudson river, Owego. As the navigation of the Hudson river was interrupted by

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ice in the winter season, it was a matter of interest to increase the trips on routes No. 979 and No. 1157, and to accomplish it, the Postmaster General solicited improved bids. Daniel Searle & Co. made proposals accordingly, at the compensation of $3,000 per annum, as follows:

“Or we will make the following improvement on the line from Jersey City to Owego, New York, to wit: We propose to convey the mail by an express line of post coaches, from Jersey City to Newark, on No. 956, from Newark to Morristown, on No. 979, from Morristown to Milford, on 1157, from Milford to Owego; thence connecting with the line from Owego to Genesee, to be run daily from the 1st day of December to the 1st day of April, and through in 44 hours, for the compensation of $3,000, in addition to the foregoing sum of $5,980, on the same routes.

John H. Avery was a partner in each company. It is stated, and I think correctly, that when this improved bid was under consideration, the said John H. Avery suggested or proposed verbally to the Postmaster General, to transfer four trips weekly from route No. 774 on to routes No. 956, 979 and 1157 during the suspension of navigation. The improved bid was not accepted, but the suggestion or the verbal proposition was favorably received by the Postmaster General.

The letter of acceptance of S. R. Hobbie, Assistant Postmaster General, to Messrs. Daniel Searle & Co., on route No. 1157, is dated the 27th of October, 1835, and states on its face to be a conditional acceptance, and on the back leaf of the printed acceptance is written as follows:

“N. B. The following condition is annexed to this acceptance, viz : that route No. 774, from Newburg, New York, to Owego, shall be reduced to a tri-weekly route during the suspension of steamboat navigation on the North river, in each year, and that the four weekly trips curtailed on that route shall be transferred to and performed on routes No. 979 and 1157, making a daily mail over those routes to Owego. “ Your answer is requested immediately.

“Respectfully,

"S. R. HOBBIE, “NOVEMBER 7, 1835.

Assistant Postmaster General."

The contract for route No. 1157 is dated October 27th, 1835, the date of the acceptance as mentioned above; but across the outer margin, on the first page, is written the condition copied above.

The 13th article of the contract is as follows:

" That the Postmaster General may curtail the service or dispense with it entirely, he allowing one month's extra pay upon the amount deducted, in case he wishes to place on the route a higher degree of service than is contracted for, first offering the privilege to the contractor on the route of performing such higher service on the terms that can be obtained; or whenever he shall deem it expedient to lessen the service, or to leave such route, or any part of it, out of operation, or to convey the mail by steamboat or railroad cars, provided that reduction or compensation, in consequence of reduction of service, shall not exceed the exact proportion which the service dispensed with bears to the whole service."

The contracts for transporting the mail of the United States are so drawn as to leave the Postmaster General the full discretion to curtail or to add to the service, or to dispense with it altogether.

If the grade of service was lessened, the Postmaster General was restricted not to reduce the rate of compensation below the rate of service that was curtailed. He might keep the rate of compensation above the rate of reduction if he thought proper to do so. If he increased the rate of service, he was obliged to offer the service to the contractor for the compensation that another one would do the service for.

Within these limits the discretion of the Postmaster General is sovereign, and, in a machine so extensive and complicated, involving the convenience and interests of the people of the United States, it must necessarily be so.

It is to be observed, that neither in the note written on the acceptance copied above, nor in the condition written on the margin of the contract, also copied, is anything said about compensation. That is left to be decided according to the terms of the contract. Both were based on the supposition, as I think, that the two companies mentioned had an equal and joint interest in routes No. 774, and in Nos. 979 and 1157.

The contracts of Daniel Searle & Co., on routes Nos. 956, 979, and 1157, commenced January 1, 1836, and ended December 31, 1839.

On December 23, 1835, the following instruction was given to the postmaster in New York:

Post OFFICE DEPARTMENT, NORTHERN DIVISION,

December 23, 1835. SIR: During the winter season, or the suspension of steamboat navigation, you will forward the Owego mails via Jersey city and Milford. Respectfully, yours,

S. R. HOBBIE,

Assistant Postmaster General. G. L. GOUVENIER, Esq.,

Postmaster, New York city. No instructions during the winter of 1835–'36 were given to A. Morgan & Co. to transfer four trips from route No. 774 to routes Nos. 979 and 1157; but that company continued their daily trips from Newburg to Owego, and Daniel Searle & Co. increased their trips to daily trips, as designated in the note on the acceptance of their bid or proposal, and on the margin of the contract; but this was done by their own stock, and not by any transfer from route No. 774.

On December 2, 1836, Mr. Hobbie, First Assistant Postmaster General, wrote three letters to Daniel Searle & Co. By one of them they were informed they must run a seventh weekly trip between Newark and Morristown. It appears by a diagram obtained from the Auditor, Mr. Farrelly, that there were two routes between these places one was No. 956, and the other must have been numbered 955. This seventh day trip was to be on these routes jointly, for which a compensation of $50 was to be allowed per annum.

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