A-19821, SEPTEMBER 28, 1927, 7 COMP. GEN. 240

A-19821: Sep 28, 1927

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LEASES - RENT - CONGRESSMEN ELECT WHERE THE LESSOR OF PREMISES OCCUPIED BY THE GOVERNMENT IS ELECTED TO CONGRESS SUCH ELECTION OPERATES UNDER SECTION 114 OF THE ACT OF MARCH 4. IS SUFFICIENT TO RELIEVE HIM FROM VIOLATION OF SECTION 114 OF THE ACT OF MARCH 4. IT IS NO PART OF THE DUTIES OF THIS OFFICE TO DETERMINE WHETHER ANY PARTICULAR ACT IS VIOLATIVE OF THE CRIMINAL CODE OF THE UNITED STATES. SHOULD CONTINUE TO PAY RENTAL UNDER THE LEASE WHICH WAS ENTERED INTO PURSUANT TO THE ACT OF APRIL 24. BOHN WAS ELECTED A MEMBER OF CONGRESS AND IT IS UNDERSTOOD THAT SINCE MARCH 4. WHENEVER ANY SUM OF MONEY IS ADVANCED BY THE UNITED STATES. IN CASE OF FAILURE OR REFUSAL TO REPAY THE SAME WHEN DEMANDED BY THE PROPER OFFICER OF THE DEPARTMENT UNDER WHOSE AUTHORITY SUCH CONTRACT OR AGREEMENT SHALL HAVE BEEN MADE OR ENTERED INTO.

A-19821, SEPTEMBER 28, 1927, 7 COMP. GEN. 240

LEASES - RENT - CONGRESSMEN ELECT WHERE THE LESSOR OF PREMISES OCCUPIED BY THE GOVERNMENT IS ELECTED TO CONGRESS SUCH ELECTION OPERATES UNDER SECTION 114 OF THE ACT OF MARCH 4, 1909, 35 STAT. 1109, TO DISSOLVE THE LEASE AGREEMENT AND TERMINATES THE LESSOR'S RIGHT TO RENT FOR OCCUPANCY SUBSEQUENT TO THE DATE OF HIS ELECTION.

COMPTROLLER GENERAL MCCARL TO THE POSTMASTER GENERAL, SEPTEMBER 28, 1927:

THERE HAS BEEN RECEIVED YOUR LETTER DATED SEPTEMBER 6, 1927, YOUR FILE QMBM, IN REFERENCE TO LEASE DATED SEPTEMBER 18, 1924, BETWEEN THE UNITED STATES AND FRANK P. BOHN AND HENRY E. PERRY FOR THE RENTAL OF A PART OF A BUILDING OCCUPIED BY THEM AS A DRUG STORE AT NEWBERRY, MICH., FOR USE AS A POST OFFICE AT THAT PLACE AND YOU REQUEST TO BE ADVISED WHETHER AN AFFIDAVIT INCLOSED WITH YOUR LETTER TO THE EFFECT THAT THE FIRST-NAMED PARTY, ELECTED A MEMBER OF CONGRESS, HAS TRANSFERRED ALL OF HIS RIGHT, TITLE, AND INTEREST IN THE BUILDING, IS SUFFICIENT TO RELIEVE HIM FROM VIOLATION OF SECTION 114 OF THE ACT OF MARCH 4, 1909, 35 STAT. 1109.

IT IS NO PART OF THE DUTIES OF THIS OFFICE TO DETERMINE WHETHER ANY PARTICULAR ACT IS VIOLATIVE OF THE CRIMINAL CODE OF THE UNITED STATES, BUT YOUR QUESTION MAY BE PROPERLY ANSWERED WHEN REPHRASED TO INQUIRE WHETHER THE POSTMASTER AT NEWBERRY, MICH., SHOULD CONTINUE TO PAY RENTAL UNDER THE LEASE WHICH WAS ENTERED INTO PURSUANT TO THE ACT OF APRIL 24, 1920, 41 STAT. 578, ON SEPTEMBER 18, 1924, FOR A PERIOD OF FIVE YEARS, WITH THE PARTNERSHIP COMPOSED OF FRANK P. BOHN AND HENRY E. PERRY.

SUBSEQUENT TO THE DATE OF THE LEASE AND IN NOVEMBER, 1926, FRANK P. BOHN WAS ELECTED A MEMBER OF CONGRESS AND IT IS UNDERSTOOD THAT SINCE MARCH 4, 1927, HE HAS BEEN IN RECEIPT OF THE SALARY OF THE OFFICE AS A MEMBER- ELECT. SECTION 114 OF THE ACT OF MARCH 4, 1909, SUPRA, PROVIDED THAT---

WHOEVER, BEING ELECTED OR APPOINTED A MEMBER OF OR DELEGATE TO CONGRESS, OR A RESIDENT COMMISSIONER, SHALL, AFTER HIS ELECTION OR APPOINTMENT AND EITHER BEFORE OR AFTER HE HAS QUALIFIED, AND DURING HIS CONTINUANCE IN OFFICE, DIRECTLY OR INDIRECTLY, HIMSELF, OR BY ANY OTHER PERSON IN TRUST FOR HIM, OR FOR HIS USE OR BENEFIT, OR ON HIS ACCOUNT, UNDERTAKE, EXECUTE, HOLD, OR ENJOY, IN WHOLE OR IN PART, ANY CONTRACT OR AGREEMENT, MADE OR ENTERED INTO IN BEHALF OF THE UNITED STATES BY ANY OFFICER OR PERSON AUTHORIZED TO MAKE CONTRACTS ON ITS BEHALF, SHALL BE FINED NOT MORE THAN THREE THOUSAND DOLLARS. ALL CONTRACTS OR AGREEMENTS MADE IN VIOLATION OF THIS SECTION SHALL BE VOID; AND WHENEVER ANY SUM OF MONEY IS ADVANCED BY THE UNITED STATES, IN CONSIDERATION OF ANY SUCH CONTRACT OR AGREEMENT, IT SHALL FORTHWITH BE REPAID; AND IN CASE OF FAILURE OR REFUSAL TO REPAY THE SAME WHEN DEMANDED BY THE PROPER OFFICER OF THE DEPARTMENT UNDER WHOSE AUTHORITY SUCH CONTRACT OR AGREEMENT SHALL HAVE BEEN MADE OR ENTERED INTO, SUIT SHALL AT ONCE BE BROUGHT AGAINST THE PERSON SO FAILING OR REFUSING AND HIS SURETIES, FOR THE RECOVERY OF THE MONEY SO ADVANCED.

IT APPEARS THAT THE VOUCHERS FOR RENTAL OF THE PREMISES WERE SIGNED BY FRANK P. BOHN AND HENRY E. PERRY FOR THE PERIOD ENDING MARCH 31, 1927, WHILE THE VOUCHER FOR THE SUCCEEDING QUARTER ENDING JUNE 30, 1927, WAS SIGNED BY MARTENA BOHN AND H. E. PERRY. IN EXPLANATION THEREOF MR. BOHN SUBMITTED AN AFFIDAVIT DATED AUGUST 30, 1927, TO THE EFFECT THAT HE HAD TRANSFERRED ALL RIGHT, TITLE, AND INTEREST IN THE BUILDING TO HIS WIFE, MARTENA BOHN, THE DATE OF THE TRANSFER AND BONA FIDES THEREOF NOT BEING SHOWN.

IN VIEW OF THE PROVISION OF LAW HEREINBEFORE QUOTED IT MUST BE HELD THAT MR. BOHN'S ELECTION TO CONGRESS DISSOLVED THE CONTRACT AND TERMINATED HIS RIGHT TO RECEIVE ANY RENT THEREUNDER FOR ANY PERIOD AFTER THE DATE OF HIS ELECTION. UNITED STATES V. DIETRICH, 126 FED.REP. 671.

NO QUESTION WILL BE RAISED BY THIS OFFICE AS TO THE RENT HERETOFORE PAID, IF OTHERWISE CORRECT AND PROPER, AND WITH RESPECT TO THE RENTAL HEREAFTER, IF IT BE SHOWN FROM THE LAND RECORDS, ETC., THAT FRANK P. BOHN'S INTEREST IN THE BUILDING HAS BEEN IN FACT TRANSFERRED TO MARTENA BOHN, A NEW LEASE MAY BE ENTERED INTO WITH HER AND H. E. PERRY FOR THE PREMISES IN QUESTION, OR, THE RENTAL BEING LESS THAN $1,000 PER ANNUM, THE OCCUPANCY MAY BE CONTINUED UNDER AN INFORMAL AGREEMENT AS PROVIDED FOR BY THE ACT OF JUNE 3, 1926, 44 STAT. 688.