B-11322, JULY 26, 1940, 20 COMP. GEN. 46

B-11322: Jul 26, 1940

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206) ARE TO BE CONSTRUED IN THEIR BROAD POPULAR SENSE AND NOT AS REQUIRING THAT THE PROHIBITION BE APPLIED ONLY TO TRANSACTIONS WHICH ARE STRICTLY AND TECHNICALLY WITHIN THE DEFINITION OF VALID AND LEGALLY ENFORCEABLE CONTRACTS. THE OPERATION OF A STATUTE IS TO BE RESTRAINED WITHIN NARROWER LIMITS THAN ITS WORDS IMPORT WHERE IT IS EVIDENT THAT THE LITERAL MEANING OF ITS LANGUAGE WOULD EXTEND TO CASES WHICH THE LEGISLATURE NEVER DESIGNED TO EMBRACE IN IT. UNLESS THERE IS A CLEAR MANIFESTATION TO THE CONTRARY. GENERAL WORDS NOT SPECIFIC OR LIMITED BUT FOLLOWING PARTICULAR DESCRIPTIVE WORDS ARE TO BE CONSTRUED AS APPLICABLE TO CASES OR MATTERS OF LIKE KIND WITH THOSE DESCRIBED BY THE PARTICULAR WORDS.

B-11322, JULY 26, 1940, 20 COMP. GEN. 46

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

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, JULY 26, 1940:

I HAVE YOUR LETTER OF JULY 13, 1940, AS FOLLOWS:

THERE IS ENCLOSED FOR YOUR CONSIDERATION A VOUCHER IN THE AMOUNT OF $3,090, LESS $3.50 FOR DOCUMENTARY STAMPS, COVERING PROPOSED PAYMENT TO CHARLES L. MCNARY, CORNELIA MCNARY, LADD AND BUSH TRUST COMPANY, AND WILLARD C. MARSHALL, ADMINISTRATOR OF THE ESTATE OF W. T. STOLZ, DECEASED. THE PAYMENT IS PROPOSED TO BE MADE AS FULL AND COMPLETE COMPENSATION FOR THE ACQUISITION BY THE BONNEVILLE POWER ADMINISTRATION IN THE NAME OF THE UNITED STATES OF AN EASEMENT AND RIGHT-OF-WAY OVER AND ACROSS CERTAIN PROPERTY IN MARION COUNTY IN THE STATE OF OREGON.

THE PROPOSED EASEMENT IS DESIRED BY THE BONNEVILLE POWER ADMINISTRATOR IN CONNECTION WITH THE CONSTRUCTION OF A TRANSMISSION LINE PURSUANT TO THE ACT OF AUGUST 20, 1937. THE ORIGINAL APPRAISAL OF THE EASEMENT SHOWED ITS VALUE TO BE $3,050. A REEXAMINATION OF THE PROPERTY SHOWED THAT AN ADDITIONAL TWO-TENTHS OF AN ACRE WAS INVOLVED AND THE APPRAISAL WAS THEREFORE INCREASED BY THE SUM OF $40.00. THERE IS ENCLOSED HEREWITH A COPY OF THE PRINCIPAL CONSTRUCTION ENGINEER'S REQUEST FOR ACQUISITION OF THE EASEMENT, A COPY OF THE APPRAISER'S REPORT, AND A COPY OF THE NEGOTIATOR'S CHECK SHEET, SHOWING THE FOREGOING FACTS.

ON JULY 24, 1939, AN OFFER TO CONVEY THE NECESSARY EASEMENT, AND TO ACCEPT THE SUM OF $3,090 AS FULL COMPENSATION THEREFOR, WAS SIGNED BY CHARLES L. MCNARY, CORNELIA MCNARY, W. T. STOLZ, ELLA M. STOLZ, AND BY LADD AND BUSH TRUST COMPANY, BY E. O. STADTER, TRUST OFFICER. A COPY OF THIS OFFER IS ENCLOSED HEREWITH. IN VIEW OF THE PROVISIONS OF TITLE 18, U.S.C., SECTIONS 204, 205, AND 206, THIS OFFER HAS NEVER BEEN ACCEPTED. HOWEVER, ITS TERMS ARE AGREEABLE TO THE BONNEVILLE POWER ADMINISTRATION AND TO HIS DEPARTMENT.

THE TITLE DOCUMENTS COVERING THE PROPOSED EASEMENT, TOGETHER WITH A PROPOSED FORM OF EASEMENT DEED, HAVE BEEN SUBMITTED TO THE ATTORNEY GENERAL OF THE UNITED STATES. IN AN OPINION DATED JULY 6, 1940, THE ATTORNEY GENERAL RULES THAT A VALID TITLE TO THE PROPOSED EASEMENT WOULD BE ACQUIRED UPON COMPLETION OF CERTAIN STATED STEPS. THE ATTORNEY GENERAL'S OPINION IS ENCLOSED HEREWITH, AND THE FOLLOWING TITLE DOCUMENTS ARE ALSO ENCLOSED:

1. CERTIFICATE OF TITLE DATED MAY 22, 1939, TOGETHER WITH LETTER FROM TITLE COMPANY DATED JUNE 15, 1939.

2. SUPPLEMENTAL CERTIFICATE OF TITLE, DATED NOVEMBER 28, 1939.

3. SUPPLEMENTAL CERTIFICATE OF TITLE, DATED JUNE 24, 1940.

4. TAX STATEMENTS COVERING SEPARATELY EACH UNDIVIDED HALF INTEREST IN THE PROPERTY.

5. CERTIFICATE OF INSPECTION AND POSSESSION, DATED JUNE 24, 1940.

6. PROPOSED FORM OF EASEMENT DEED. THE REQUIREMENTS OF THE ATTORNEY GENERAL ARE SUCH THAT THEY CAN AND WILL BE MET AT THE TIME OF FINAL CLOSING OF PURCHASE.

ACQUISITION OF THE PROPOSED EASEMENT IS NECESSARY AND IN THE INTEREST OF THE UNITED STATES. THE SUM OF $3,090 IS A FAIR AND REASONABLE COMPENSATION FOR THE PROPOSED EASEMENT. I RECOMMEND THAT, WITHOUT ENTERING INTO ANY CONTRACT, ACQUISITION OF THE PROPOSED EASEMENT BE EFFECTED BY A SIMULTANEOUS DELIVERY OF A DEED IN THE ENCLOSED FORM PROPERLY EXECUTED BY THE OWNERS OF THE LAND, AND OF A CHECK BY THE UNITED STATES IN THE SUM OF $3,090. THE ENCLOSED VOUCHER HAS BEEN DRAWN WITH A VIEW TO CONSUMMATING (SIC) THE TRANSACTION IN THIS MANNER.

IN ACCORDANCE WITH THE SUGGESTION MADE BY THE ATTORNEY GENERAL IN HIS TITLE OPINION, I AM REQUESTING A PREAUDIT OF THIS VOUCHER.

CERTAIN MINOR MATTERS SHOULD BE CALLED TO YOUR ATTENTION IN CONNECTION WITH THE ENCLOSED VOUCHER. YOU WILL NOTE THE " CERTIFICATE OF GRANTORS" ATTACHED TO THE VOUCHER HAS NOT YET BEEN EXECUTED BY THE LANDOWNERS. EXECUTION OF THIS CERTIFICATE WILL BE OBTAINED UPON RECEIPT OF NOTIFICATION OF YOUR APPROVAL OF THE PAYMENT. INASMUCH AS THE CERTIFICATE HAS NOT YET BEEN EXECUTED, THE DIVISION OF THE PROPOSED PAYMENT BETWEEN THE GRANTORS HAS NOT BEEN ASCERTAINED AND THE AMOUNTS OF THE VARIOUS CHECKS TO BE ISSUED ARE THEREFORE NOT STATED. MOREOVER, ALTHOUGH THE AMOUNT OF TAXES PRESENTLY DUE IS SHOWN BY THE ENCLOSED TAX CERTIFICATES, THE EXACT AMOUNT FINALLY TO BE PAID WILL NOT BE KNOWN UNTIL THE EXACT DATE OF CLOSING THE TRANSACTION IS KNOWN, SINCE EACH MONTH'S DELAY ADDS TO THE SUM DUE. THE AMOUNT OF THE CHECK TO BE ISSUED TO THE SHERIFF IS THEREFORE, UNSTATED.

PROMPT SETTLEMENT OF THIS MATTER IS URGENTLY NECESSARY BECAUSE OF THE REQUIREMENTS OF THE BONNEVILLE POWER ADMINISTRATION AND BECAUSE OF THE DESIRES OF THE LANDOWNERS. I THEREFORE RESPECTFULLY REQUEST THAT YOU GIVE THIS MATTER YOUR IMMEDIATE ATTENTION. PLEASE SEND YOUR SETTLEMENT CERTIFICATE DIRECTLY TO THE BONNEVILLE POWER ADMINISTRATOR, 811 N.E. OREGON STREET, PORTLAND, OREGON.

THE "SUGGESTION MADE BY THE ATTORNEY GENERAL IN HIS TITLE OPINION" (DATED JULY 6, 1940), REFERRED TO IN YOUR LETTER, IS AS FOLLOWS:

IT FURTHER IS TO BE NOTED THAT THIS OPINION IS LIMITED STRICTLY TO THE PRESENT STATUS OF THE TITLE TO THE INSTANT LAND, AND IN VIEW OF THE PROVISIONS OF TITLE 18, U.S.C., SECS. 204, 205, 206, IT IS ESSENTIAL THAT THE APPROVAL OF THE COMPTROLLER GENERAL BE OBTAINED AS A PREREQUISITE TO THE PAYMENT OF THE CONSIDERATION IN THE CONSUMMATION OF THE PURCHASE.

THE "PROVISIONS OF TITLE 18, U.S.C.A., SECS. 204, 205, AND 206," CITED BY THE ATTORNEY GENERAL, WERE TAKEN FROM SECTIONS 114, 115, AND 116 OF THE CRIMINAL CODE, 35 STAT. 1109, AS AMENDED, WHICH WERE DRAWN FROM SECTIONS 3739, 3740, AND 3742, REVISED STATUTES, WHICH, IN TURN, WERE DERIVED FROM THE ACT OF APRIL 21, 1808, 2 STAT. 484. AS THUS CARRIED FORWARD, ESSENTIALLY IN THEIR ORIGINAL FORM, OVER A PERIOD OF 132 YEARS SINCE 1808, SUCH PROVISIONS, AS AMENDED, ARE SET FORTH IN THE CITED 18 U.S.C.A. 204, 205, AND 206, AS FOLLOWS:

204.( CRIMINAL CODE, SECTION 114.) MEMBER OF CONGRESS INTERESTED IN PUBLIC CONTRACTS; CONTRACTS VOID. 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 $3,000. ALL CONTRACTS OR AGREEMENTS MADE IN VIOLATION OF THIS SECTION SHALL BE OID; 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 PERSONS SO FAILING OR REFUSING AND HIS SURETIES, FOR THE RECOVERY OF THE MONEY SO ADVANCED. ( R.S. SECTION 3739; MAR. 4, 1909, C. 321, SECTION 114, 35 STAT. 1109.)

205. ( CRIMINAL CODE, SECTION 115.) MAKING OFFICIAL CONTRACT WITH MEMBER OF CONGRESS. WHOEVER, BEING AN OFFICER OF THE UNITED STATES, SHALL ON BEHALF OF THE UNITED STATES, DIRECTLY OR INDIRECTLY, MAKE OR ENTER INTO ANY CONTRACT, BARGAIN, OR AGREEMENT, IN WRITING OR OTHERWISE, WITH ANY MEMBER OF OR DELEGATE TO CONGRESS, OR ANY RESIDENT COMMISSIONER, AFTER HIS ELECTION OR APPOINTMENT AS SUCH MEMBER, DELEGATE, OR RESIDENT COMMISSIONER, AND EITHER BEFORE OR AFTER HE HAS QUALIFIED, AND DURING HIS CONTINUANCE IN OFFICE, SHALL BE FINED NOT MORE THAN $3,000. ( R.S. SECTION 3742; MAR. 4, 1909, C. 321, SECTION 115, 35 STAT. 1109.)

206. ( CRIMINAL CODE, SECTION 116, AS AMENDED.) CONTRACTS NOT AFFECTED.

NOTHING CONTAINED IN SECTIONS 204 AND 205 OF THIS TITLE SHALL EXTEND, OR BE CONSTRUED TO EXTEND, TO ANY CONTRACT OR AGREEMENT MADE OR ENTERED INTO, OR ACCEPTED, BY ANY INCORPORATED COMPANY, WHERE SUCH CONTRACT OR AGREEMENT IS MADE FOR THE GENERAL BENEFIT OF SUCH INCORPORATION OR COMPANY; NOR TO THE PURCHASE OR SALE OF BILLS OF EXCHANGE OR OTHER PROPERTY BY ANY MEMBER OF OR DELEGATE TO CONGRESS, OR RESIDENT COMMISSIONER, WHERE THE SAME ARE READY FOR DELIVERY, AND PAYMENT THEREFOR IS MADE, AT THE TIME OF MAKING OR ENTERING INTO THE CONTRACT OR AGREEMENT. NOR SHALL THE PROVISIONS OF SUCH SECTIONS APPLY TO ANY CONTRACTS OR AGREEMENTS ENTERED INTO UNDER THE AGRICULTURAL ADJUSTMENT ACT (TITLE 7, CHAPTER 26), THE FEDERAL FARM LOAN ACT (TITLE 12, CHAPTER 7), THE EMERGENCY FARM MORTGAGE ACT OF 1933 (TITLE 12, CHAPTER 7), THE FEDERAL FARM MORTGAGE CORPORATION ACT (TITLE 12, CHAPTER 7), AND FARM CREDIT ACT OF 1933 (TITLE 12, CHAPTER 7), AND THE HOME OWNERS' LOAN ACT OF 1933 (TITLE 12, CHAPTER 11), AND SHALL NOT APPLY TO CONTRACTS OR AGREEMENTS OF A KIND WHICH THE SECRETARY OF AGRICULTURE MAY ENTER INTO WITH FARMERS: PROVIDED, THAT SUCH EXEMPTION SHALL BE MADE A MATTER OF PUBLIC RECORD. ( AS AMENDED JAN. 25, 1934, C. 5, 48 STAT. 337; JUNE 27, 1934, C. 847, TITLE V, SEC. 510, 48 STAT. 1264; AUG. 26, 1937, C. 821, 50 STAT. 838.)

IN OVERRULING THE DEMURRER TO AN INDICTMENT CHARGING A FORMER UNITED STATES SENATOR FROM NEBRASKA WITH A VIOLATION OF THE SAID SECTION 3739, REVISED STATUTES, UNITED STATES V. DIETRICH, 126 FED. 671, DECIDED JANUARY 8, 1904, THE PURPOSE AND EFFECT OF THESE STATUTORY PROVISIONS WERE STATED BY VAN DEVANTER, THEN CIRCUIT JUDGE, SPEAKING FOR THE COURT, IN PART AS FOLLOWS:

WE THINK IT IS ENTIRELY CLEAR THAT THE PURPOSE AND EFFECT OF THIS LEGISLATION IS TO ABSOLUTELY INHIBIT ALL CONTRACTUAL RELATIONS WITH THE UNITED STATES UPON THE PART OF ANY MEMBER OF OR DELEGATE TO CONGRESS THROUGH "ANY CONTRACT OR AGREEMENT MADE OR ENTERED INTO IN BEHALF OF THE UNITED STATES, BY ANY OFFICER OR PERSON AUTHORIZED TO MAKE CONTRACTS ON BEHALF OF THE UNITED STATES," SAVE IN THE INSTANCES SPECIFICALLY EXCEPTED BY SECTION 3740. THE COMPREHENSIVE CHARACTER OF THE INHIBITION IS MORE APPARENT WHEN IT IS CONSIDERED THAT IT IS NOT CONFINED TO CONTRACTS OR AGREEMENTS OBTAINED OR HELD THROUGH THE EXERCISES OF THE INFLUENCE INCIDENT TO MEMBERSHIP OF OR DELEGATESHIP TO CONGRESS, OR TO THOSE WHICH ARE NOT FAIR TO THE UNITED STATES, OR TO THOSE WHICH GIVE AN UNDUE ADVANTAGE TO A MEMBER OF OR DELEGATE TO CONGRESS. IT PLAINLY INCLUDES "ANY CONTRACT OR AGREEMENT," NO MATTER HOW FAIRLY OBTAINED OR HELD, HOW REASONABLE IN ITS TERMS, OR HOW ADVANTAGEOUS TO THE UNITED STATES. THE INHIBITION IS NOT ALONE AGAINST UNDERTAKING OR EXECUTING--- THAT IS, MAKING OR ENTERING INTO-- SUCH A CONTRACTOR AGREEMENT, BUT ALSO AGAINST HOLDING OR ENJOYING ONE- - THAT IS, HAVING OR RETAINING THE TITLE THERETO OR RECEIVING THE BENEFITS THEREOF. MOREOVER, THE LANGUAGE USED SHOWS GREAT CARE IN BRINGING EQUALLY WITHIN THE CONDEMNATION AND PENALTY OF THE STATUTE ANY INDIRECTION EMPLOYED FOR SUBSTANTIALLY ACCOMPLISHING WHAT IS WITHIN THE PRINCIPAL INHIBITION. A SUFFICIENT REASON FOR SUCH LEGISLATION IS THAT IT TENDS TO PRESERVE THE INDEPENDENCE OF THE LEGISLATIVE AND EXECUTIVE BRANCHES OF THE GOVERNMENT, AND TO FREE EACH FROM THAT INFLUENCE WHICH MIGHT COME TOBE EXERTED OVER IT BY THE OTHER IF THE OFFICERS OF THE EXECUTIVE BRANCH, ACTING ON BEHALF OF THE GOVERNMENT, COULD FREELY CONTRACT WITH MEMBERS OF AND DELEGATES TO CONGRESS. THE PURPOSE OF THE STATUTE IS TO EFFECTUALLY CLOSE THE DOOR TO THE TEMPTATION WHICH IS INCIDENT TO CONTRACTUAL RELATIONS BETWEEN THE GOVERNMENT AND MEMBERS OF CONGRESS. * * *

CLEARLY, IN THE PRESENT CASE, A CONTRACT FOR THE PURCHASE OF THE EASEMENT IS PROHIBITED BY THE STATUTE, NO MATTER HOW ADVANTAGEOUS OR DESIRABLE FOR THE GOVERNMENT. SEE 26 OP. ATTY. GEN. 537. THE QUESTION PRESENTED IS WHETHER, NEVERTHELESS, SUBSTANTIALLY THE SAME RESULT MAY BE LEGALLY ACCOMPLISHED BY A SIMULTANEOUS EXCHANGE OF THE PURCHASE PRICE AND THE CONVEYANCE IF NO PREVIOUS CONTRACT, AS SUCH, IS MADE. I THINK THE ANSWER MUST BE IN THE NEGATIVE. SUCH A TRANSACTION WOULD BE CONTRARY TO THE SPIRIT OF THE STATUTE AND THE PUBLIC POLICY EMBODIED THEREIN. THE LEGISLATION HAS BEEN ON THE STATUTE BOOKS FOR WELL OVER A CENTURY AND IT DOES NOT APPEAR THAT IN ALL THAT TIME IT HAS EVER BEFORE BEEN SUGGESTED THAT IT MIGHT BE SO APPLIED. TO SO HOLD WOULD, AS A PRACTICAL MATTER, OPEN THE DOOR TO THE EVILS WHICH THE STATUTE WAS DESIGNED TO RESTRAIN BY REMOVING FROM ITS OPERATION ALL TRANSACTIONS WHICH, STOPPING JUST SHORT OF PREVIOUSLY CREATING A STRICT EXECUTORY CONTRACT, MIGHT NEVERTHELESS BE CONSUMMATED PRACTICALLY AS THOUGH A CONTRACT DID IN FACT EXIST.

IN THIS CONNECTION IT IS TO BE NOTED THAT THE LEGISLATION IS NOT CONFINED TO "CONTRACTS" BUT, THROUGHOUT, EMPLOYS THE TERMS "ANY CONTRACT OR AGREEMENT," "CONTRACTS OR AGREEMENTS," AND, IN SECTION 115,"CONTRACT, BARGAIN, OR AGREEMENT.' IF THE WORDS "AGREEMENT," "AGREEMENTS," AND ,BARGAIN" ARE NOT REDUNDANT AND IS NOT TO BE PRESUMED, PLATT V. UNION P.R. CO., 99 U.S. 48; MONTCLAIR V. RAMSDELL, 107 U.S. 147; WIBORG V. UNITED STATES, 163 U.S. 632, THEN THE SWEEP OF THE LEGISLATION EXTENDS TO AGREEMENTS AND BARGAINS WHICH ARE NOT NECESSARILY CONTRACTS. THE WORD ,AGREEMENT" IS VARIOUSLY DEFINED, ACCORDING TO ITS CONTEXT. CONTRACTS ARE AGREEMENTS AND THE TWO WORDS ARE SOMETIMES USED SYNONYMOUSLY. BUT ALL AGREEMENTS ARE NOT CONTRACTS. AMONG THE DEFINITIONS GIVEN IN 3 WORDS AND PHRASES, PERMANENT EDITION, 11, ET SEQ., ARE THE FOLLOWING: THE WORD "AGREEMENT" DOES NOT NECESSARILY IMPORT ANY DIRECT AND EXPRESS STIPULATION, NOR IS IT NECESSARY THAT IT SHOULD BE IN WRITING. IF THERE IS A VERBAL UNDERSTANDING TO WHICH BOTH PARTIES HAVE ASSENTED, AND UPON WHICH BOTH ARE ACTING, IT IS AN AGREEMENT. HOLMES V. JENNISON, 39 U.S. (14 PET.) 540, 571, 10 L.1ED. 579, QUOTING VATTEL, P. 192, SECTIONS 152- 154; VATTEL, P. 218, SECTIONS 206, 218.

THE WORD "CONSENT" IS NOT AN EXACT SYNONYM OF THE WORD "AGREE," BUT ONE OF THE DEFINITIONS OF ,AGREE" IS "CONSENT," AND THE DEFINITION OF THE WORD "AGREEMENT" IS A CONCURRENCE IN AN ENGAGEMENT THAT SOMETHING SHALL BE DONE OR OMITTED. THE WORD "AGREEMENT" IS A COMING TOGETHER OF PARTIES IN OPINION OR DETERMINATION, THE UNION OF TWO OR MORE MINDS IN A THING DONE OR TO BE DONE, A MUTUAL ASSENT TO DO A THING, BUT THE ASSENT NEED NOT BE FORMALLY MADE; IT MAY BE INFERRED FROM THE PARTY/ACTS. * * * SMITH V. JONES, 194 S.E. 556, 560, 185 GA. 236.

THE WORD "CONTRACT," AS USED IN THE STATUTE OF FRAUDS, REQUIRING EVERY CONTRACT FOR THE SALE OF LANDS, TENEMENTS, AND HEREDITAMENTS, ETC., TO BE IN WRITING, LAWS 1869, P. 363, MAY BE SAID TO BE A BROADER TERM IN THIS REGARD THAN "AGREEMENT," AND TO MORE IMPERATIVELY DEMAND THE CONSTRUCTION THAT IT EMBRACES THE CONSIDERATION. A CONTRACT WOULD SEEM TO IMPORT SOMETHING MORE THAN AN AGREEMENT. IT IS DEFINED TO BE "AN AGREEMENT, UPON SUFFICIENT CONSIDERATION, TO DO OR NOT TO DO A PARTICULAR THING.' CONSIDERATION IS A NECESSARY ELEMENT TO THE CONTRACT. UNDER THIS STATUTE THE CONSIDERATION, AS WELL AS THE PROMISE ITSELF, MUST APPEAR IN WRITING IN A CONTRACT FOR THE SALE. PATMOR V. HAGGARD, 78 ILL. 607, 610.

THE TERM "AGREEMENT" INCLUDES DEEDS AND WILLS AS WELL AS CONTRACTS BETWEEN PARTIES. DAW V. NILES, 37 P. 876, 877, 104 CAL. 106.

"AGREEMENT," AS USED IN CIV. CODE, SECTION 696, PROVIDING THAT PAROL EVIDENCE OF THE CIRCUMSTANCES UNDER WHICH AN "AGREEMENT" WAS MADE IS ADMISSIBLE TO EXPLAIN ANY AMBIGUITY OR TO ESTABLISH ILLEGALITY OR FRAUD, INCLUDES DEEDS AND WILLS AS WELL AS CONTRACTS BETWEEN THE PARTIES. HICKLIN V. LE CLEAR, 22 P. 1057, 1060, 18 OR. 126.

"AGREEMENT" IS EXPRESSION BY TWO OR MORE PERSONS OF COMMON INTENTION TO AFFECT THEIR LEGAL RELATIONS, AND CONSISTS IN THEIR BEING OF THE SAME MIND AND INTENTION CONCERNING THE MATTER AGREED ON. SOUTHERN SURETY CO. V. PHILLIPS, 24 S.W./2D) 870, 872, 181 ARK. 14.

AN "AGREEMENT," AS DEFINED BY WEBSTER IS THE UNION OF TWO OR MORE MINDS IN A THING DONE OR TO BE DONE; A COMING OR KNITTING TOGETHER OF MINDS. ONE OF THE DEFINITIONS OF THE TERM GIVEN BY BOUVIER IS A COMING TOGETHER OF PARTIES IN OPINION OR DETERMINATION; THE UNION OF TWO OR MORE MINDS IN A THING DONE OR TO BE DONE; A MUTUAL ASSENT TO DO A THING. ANOTHER DEFINITION QUOTED BY THE LAST-NAMED AUTHOR IS THAT IT CONSISTS OF TWO PERSONS BEING OF THE SAME MIND, INTENTION, OR MEANING, CONCERNING THE MATTER. WOODWORTH V. STATE, 20 TEX. APP. 375, 382.

THE STATUTE IN RELATION TO HOMESTEAD ENTRIES IN FORBIDDING AN APPLICANT TO MAKE ANY "AGREEMENT" BY WHICH THE TITLE HE MAY ACQUIRE FROM THE GOVERNMENT SHALL INURE IN WHOLE OR IN PART TO THE BENEFIT OF ANOTHER, MEANS THAT THERE MUST BE A MEETING OF MINDS EXPRESSED IN SOME TANGIBLE WAY. ONE PARTY MAY HAVE INTENDED TO SELL, THE OTHER PARTY MAY HAVE INTENDED TO BUY, YET THIS WOULD NOT BE SUFFICIENT, UNLESS THE INTENTION OF EACH WAS IN SOME WAY COMMUNICATED FROM ONE TO THE OTHER, AND WAS UNDERSTOOD AND AGREED TO BY BOTH. UNITED STATES V. RICHARDS, 149 F. 443, 451.

WORD "ACCEPT" MEANS TO ADMIT AND AGREE TO; TO ACCEDE TO OR CONSENT TO; TO RECEIVE WITH PPROVAL; TO ADOPT; TO AGREE TO; AND IN PAST TENSE WORD IS COMMONLY USED TO SIGNIFY ASSENT AND AGREEMENT. WORD "AGREEMENT" IN ITS BROAD AND COMPREHENSIVE SENSE DEMONSTRATED BY GENERAL USAGE MEANS A COMING OR KNITTING TOGETHER OF MINDS; A COMING TOGETHER IN OPINION OR DETERMINATION; THE COMING TOGETHER IN ACCORD OF TWO MINDS ON A GIVEN PROPOSITION; IN LAW A CONCORD OF UNDERSTANDING AND INTENTION BETWEEN TWO OR MORE PARTIES WITH RESPECT TO THE EFFECT UPON THEIR RELATIVE RIGHTS AND DUTIES, OF CERTAIN PAST OR FUTURE FACTS OR PERFORMANCES; THE CONSENT OF TWO OR MORE PERSONS CONCURRING RESPECTING THE TRANSMISSION OF SOME PROPERTY, RIGHT, OR BENEFITS, WITH THE VIEW OF CONTRACTING AN OBLIGATION, A MUTUAL OBLIGATION. ROCHA V. HULEN, 44 P. 2D 478, 482, 6 CAL. APP. 2D 245.

THE TERM "AGREEMENT" IS OFTEN DEFINED AS SYNONYMOUS WITH "UNDERSTANDING," AND EITHER WORD, WHEN USED IN A QUESTION RELATING TO AN UNDERSTANDING OR AGREEMENT, CANNOT BE SAID TO CALL FOR A CONCLUSION OF THE WITNESS. GARRETT V. WESTERN UNION TEL. CO., 58 N.W. 1064, 1065, 92 IOWA, 449.

THE TERM "AGREEMENT," IN ITS USUAL POPULAR SIGNIFICATION, IS SYNONYMOUS ONLY WITH "PROMISE," AND MEANS NO MORE THAN THE UNION OF TWO OR MORE MINDS OR A CONCURRENCE OF VIEWS AND INTENTION. THIS CONCORD OR UNION OF MINDS MAY BE LAWFUL OR UNLAWFUL; WITH CONSIDERATION OR WITHOUT; CREATING AN OBLIGATION. STILL, BY THE UNIVERSAL UNDERSTANDING, IT IS AN "AGREEMENT," AND IT IS NOT THE LESS SO BECAUSE IT IS OPPOSED TO LAW, OR EVEN GOOD MORALS. IN SHORT, EVERYTHING DONE OR COMMITTED BY THE COMPACT OF TWO MINDS IS UNIVERSALLY AND FAMILIARLY CALLED AN "AGREEMENT" BY EVERY ONE WHO UNDERSTANDS THE USE AND MEANING OF LANGUAGE. OF THIS EVERY PERSON HAS INTUITIVE EVIDENCE, AND FREQUENTLY EMPLOYS THE TERM IN QUESTION TO MANIFEST THAT OPERATION OF MINDS DENOMINATED "MUTUAL ASSENT.' WHETHER A CONSIDERATION EXISTS IS A DISTINCT IDEA, AND ENTERS NOT INTO THE POPULAR MEANING OF THE TERM. THE WORD "AGREEMENT" IS USED MORE FREQUENTLY TO DENOTE A MUTUAL ASSENT OF MINDS WITHOUT LEGAL CONSIDERATION THAN IT IS TO DENOTE ONE'S PROMISE OR UNDERTAKING. LIKE MANY OTHER WORDS, IT IS SOMETIMES RESTRICTED OR LIMITED BY THE SUBJECT OF ITS APPLICATION. IF THE INQUIRY BE MADE WHETHER THERE EXISTS AN AGREEMENT WHICH THE LAW WILL ENFORCE, THE SUBJECT-MATTER LIMITS THE SIGNIFICATION OF THE TERM "AGREEMENT," AND GIVES IT A NEW AND PECULIAR MEANING. THE QUESTION DOES NOT REGARD THE BROAD AND COMPREHENSIVE INTENDMENT OF THE TERM, NOR ITS USUAL AND POPULAR MEANING, BUT THE OBJECT OF INQUIRY IS AN AGREEMENT OF A SPECIAL NATURE, DISTINGUISHED BY A LEGAL CONSIDERATION, AND ENFORCEABLE IN THE COURT OF JUSTICE. THE MIND, INFLUENCED BY THE POPULAR AND MOST FAMILIAR USE OF THE TERM "AGREEMENT," CONSIDERS THE LAW AS POINTING TO PROMISES ONLY; BUT IF, FROM ANY SOURCE, IT APPEARS THAT THE CONSIDERATION WAS MEANT TO BE EMBRACED, THE PECULIAR AND TECHNICAL SENSE OF THE LEGAL AND SUFFICIENT CONTRACT IS INTENDED. THE WORD ,AGREEMENT," IF THERE BE NOTHING TO LIMIT ITS MEANING, REGARDS PROMISES ONLY, AND NOT THEIR CONSIDERATION, AND HENCE, TO MAKE AN AGREEMENT VALID WITHIN THE STATUTE OF FRAUDS, THE CONSIDERATION NEED NOT BE EXPRESSED IN WRITING. SAGE V. WILCOX, 6 CONN. 81, 84.

CONSIDERING THE BROAD AND SALUTARY PURPOSES OF THE LEGISLATION HERE INVOLVED, THE TERMS ,AGREEMENT" AND "AGREEMENTS," USED IN CONJUNCTION WITH "CONTRACT" AND "CONTRACTS," MAY NOT REASONABLY BE VIEWED AS INTENDED IN ANY STRICT OR TECHNICAL SENSE, OR AS EXACTLY PARALLEL OR SYNONYMOUS WITH "CONTRACT" OR "CONTRACTS," BUT ARE TO BE TAKEN IN THEIR POPULAR SENSE AS INTERDICTING TRANSACTIONS OF THE SAME GENERAL CHARACTER THROUGH MEANS NOT RISING TO THE DIGNITY OF OTHERWISE VALID AND LEGALLY ENFORCEABLE CONTRACTS. IT IS DIFFICULT TO PERCEIVE HOW SUCH TRANSACTIONS MIGHT FINALLY BE CONSUMMATED WITHOUT SOME PRIOR UNDERSTANDING, MEETING OF THE MINDS, OR MUTUAL ASSENT. EXCEPT IN THE OPEN MARKET OR AT CONDUCTED SALES, PARTIES DO NOT ORDINARILY MEET, AND WOULD HAVE NO OCCASION TO MEET, FOR THE SIMULTANEOUS EXCHANGE OF MONEY AND PROPERTY WITHOUT SOME PRIOR "AGREEMENT," IF NOT A CONTRACT, AS TO PRICE AND TERMS.

SECTION 116 (18 U.S.C.A. 206, SUPRA) PROVIDES THAT THE PROHIBITION SHALL NOT EXTEND "TO THE PURCHASE OR SALE OF BILLS OF EXCHANGE OR OTHER PROPERTY BY ANY MEMBER OF OR DELEGATE TO CONGRESS, OR RESIDENT COMMISSIONER, WHERE THE SAME ARE READY FOR DELIVERY, AND PAYMENT THEREFOR IS MADE, AT THE TIME OF MAKING OR ENTERING INTO THE CONTRACT OR AGREEMENT.' ( ITALICS SUPPLIED.)

ON FIRST IMPRESSION THIS EXCEPTION MIGHT BE TAKEN AS EXTENDING TO TRANSACTIONS LIKE THE ONE HERE PROPOSED. BUT ON ANALYSIS IT SEEMS CLEAR THAT THE GENERAL TERM "OR OTHER PROPERTY" FOLLOWING THE PARTICULAR WORDS "BILLS OF EXCHANGE" IN THE PHRASE "BILLS OF EXCHANGE OR OTHER PROPERTY" MAY NOT BE GIVEN SUCH WIDE APPLICATION. A STATUTE SHOULD NOT BE SO CONSTRUED AS TO SANCTION AN EVASION OF THE WHOLE POLICY OF THE LAW UNLESS THE NATURAL MEANING OF THE WORDS OF THE ACT REQUIRE IT. AMERICAN FUR CO. V. UNITED STATES, 2 PET. 358. GENERAL WORDS IN A STATUTE MUST BE READ IN THE LIGHT OF THE ACT AS A WHOLE AND WITH DUE REGARD TO THE SITUATION IN WHICH THEY ARE TO BE APPLIED. UNITED STATES V. NICE, 241 U.S. 591. GENERAL EXPRESSIONS IN A STATUTE ARE TO BE RESTRAINED BY THE MORE SPECIAL AND DEFINITE INDICATIONS OF INTENTION FURNISHED BY THE CONTEXT. UNITED STATES V. JONES, 131 U.S. 1. THE OPERATION OF A STATUTE IS TO BE RESTRAINED WITHIN NARROWER LIMITS THAN ITS WORDS IMPORT WHERE IT IS EVIDENT THAT THE LITERAL MEANING OF ITS LANGUAGE WOULD EXTEND TO CASES WHICH THE LEGISLATURE NEVER DESIGNED TO EMBRACE IN IT. BREWER V. BLOUGHER, 14 PET. 178; UNITED STATES V. TRANS-MISSOURI FREIGHT ASSOCIATION, 166 U.S. 290; WASHINGTON MARKET CO. V. HOFFMAN, 101 U.S. 112; MCKEE V. UNITED STATES, 164 U.S. 287. GENERAL WORDS IN A STATUTE WILL BE GIVEN A NARROWER CONSTRUCTION WHERE NECESSARY TO EFFECT THE INTENTION OF THE LEGISLATURE. PETRI V. COMMERCIAL NATIONAL BANK, 142 U.S. 644; REICHE V. SMYTHE, 13 WALL. 162; UNITED STATES V. PALMER, 3 WHEAT. 610. AND UNDER THE FAMILIAR DOCTRINE OF EJUSDEM GENERIS, UNLESS THERE IS A CLEAR MANIFESTATION TO THE CONTRARY, GENERAL WORDS NOT SPECIFIC OR LIMITED BUT FOLLOWING PARTICULAR DESCRIPTIVE WORDS ARE TO BE CONSTRUED AS APPLICABLE TO CASES OR MATTERS OF LIKE KIND WITH THOSE DESCRIBED BY THE PARTICULAR WORDS. UNITED STATES V. STEVER, 222 U.S. 167; CUTLER V. KOUNS, 110 U.S. 720; UNITED STATES V. SALEN, 235 U.S. 237; UNITED STATES V. PENNSYLVANIA RAILROAD CO., 242 U.S. 208. IN THE LEGISLATION HERE UNDER CONSIDERATION THERE WOULD HAVE BEEN NO OCCASION TO USE THE SPECIFIC TERM "BILLS OF EXCHANGE" IF THE FOLLOWING GENERAL PHRASE "OR OTHER PROPERTY" WAS INTENDED TO COMPREHEND ALL PROPERTY, BECAUSE THE WORD "PROPERTY" WOULD HAVE INCLUDED BILLS OF EXCHANGE WITHOUT SPECIFIC PRIOR MENTION. CONSIDERING THE PURPOSE AND POLICY OF THE STATUTE AND APPLYING THE STATED PRINCIPLES OF STATUTORY INTERPRETATION, THE CONCLUSION IS REQUIRED THAT THE PHRASE "BILLS OF EXCHANGE OR OTHER PROPERTY" MEANS BILLS OF EXCHANGE OR OTHER PROPERTY OF SIMILAR CHARACTER--- THAT IS, HAVING A FIXED OR READILY ASCERTAINABLE VALUE AND WHICH ORDINARILY PASSES FROM HAND TO HAND AT TIME OF PAYMENT--- AND, THEREFORE, THAT THE EXCEPTION DOES NOT EXTEND TO THE PURCHASE OR SALE OF LAND OR INTERESTS THEREIN. EVEN IF THE MATTER WERE MORE DOUBTFUL, THE CIRCUMSTANCE THAT OVER THE LONG LIFE OF THE LEGISLATION THE EXCEPTION DOES NOT APPEAR EVER TO HAVE BEEN REGARDED AS EXTENDING TO LAND PURCHASES WOULD WEIGH MOST HEAVILY AGAINST A DIFFERENT CONCLUSION. SEE UNITED STATES V. GRAHAM, 110 U.S. 219, NEW YORK, N.H. AND H.R. CO. V. INTERSTATE COMMERCE COMMISSION, 200 U.S. 361; MCLAREN V. FLEISCHER, 256 U.S. 477. SEE, ALSO, THE ACT OF JULY 27, 1939, 53 STAT. 1128, WHERE ANY CONTRACT OR AGREEMENT FOR THE ACQUISITION OF ANY PART OF A CERTAIN POST OFFICE SITE WAS EXPRESSLY EXEMPTED FROM THESE STATUTORY PROVISIONS. MOREOVER, AS ALREADY STATED, IT IS DIFFICULT TO PERCEIVE HOW A LAND PURCHASE TRANSACTION MIGHT BE FINALLY CONSUMMATED WITHOUT SOME PRIOR "AGREEMENT" WITHIN THE CONTEMPLATION OF THE STATUTORY PROHIBITION.

ACCORDINGLY, I HAVE TO ADVISE YOU THAT THE PAYMENT AS PROPOSED TO BE MADE WOULD NOT BE AUTHORIZED. THE PAPERS TRANSMITTED WITH YOUR LETTER ARE RETURNED HEREWITH ON THE SUPPOSITION THAT ADMINISTRATIVE ACTION WILL FOLLOW WITH A VIEW TO THE ACQUISITION OF THE EASEMENT BY CONDEMNATION INSTEAD OF BY PURCHASE, UNLESS IT BE DETERMINED TO VARY THE LOCATION FOR THE NECESSARY RIGHT-OF-WAY.