B-15234, MARCH 11, 1941, 20 COMP. GEN. 515

B-15234, MARCH 11, 1941, 20 COMP. GEN. 515

CONTRACTS - CONGRESSIONAL INTEREST - STATUTORY PROHIBITION APPLICABILITY A LEASE OF LAND BY A HUSBAND AND WIFE TO THE GOVERNMENT BECAME VOID BY OPERATION OF LAW, INSOFAR AS IT REMAINED EXECUTORY UPON THE HUSBAND'S ELECTION TO CONGRESS, AND ANY FURTHER PAYMENTS THEREUNDER WOULD BE IN DIRECT CONTRAVENTION OF SECTION 3739, REVISED STATUTES.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, MARCH 11, 1941:

I HAVE YOUR LETTER OF FEBRUARY 24, 1941, AS FOLLOWS:

YOUR ATTENTION IS INVITED TO THE FOLLOWING LEASES WHICH COVER THE CRESTVIEW, FLORIDA, INTERMEDIATE FIELD SITE 21, ON THE NEW ORLEANS 1JACKSONVILLE AIRWAY.

LEASES CAA2-968, DATED MAY 20, 1939, WITH ROBERT F. SIKES AND EMMA K. SIKES FOR 2.9 ACRES OF LAND, AND CAA2-970, DATED MAY 14, 1939, FOR 40.14 ACRES OF LAND.

LEASE CAA2-969, DATED MAY 15, 1939, WITH ALLEN P. AND ELLEN B. JONES, ROUTE 1, CRESTVIEW, FLORIDA, FOR 19.54 ACRES OF LAND.

LEASE CAA2-971, DATED JUNE 23, 1939, WITH LLOYD C. POWELL, CRESTVIEW, FLORIDA, FOR 4.25 ACRES OF LAND.

THE SITE FOR THIS INTERMEDIATE FIELD WAS CHOSEN AS A RESULT OF AN EXTENSIVE INVESTIGATION BY OUR AIRWAYS ENGINEERING DIVISION, MADE FOR THE PURPOSE OF SELECTING A FIELD SITE WHICH WOULD ADEQUATELY SERVE THE SECTION BETWEEN MOBILE, ALABAMA, AND MARIANNA, FLORIDA. SINCE A PRIMARY FIELD WAS REQUIRED IN THIS SECTION, IN VIEW OF THE FACT THAT THE FIELD WAS TO SERVE IN CONJUNCTION WITH A RADIO FACILITY, THE LOCATION OF THE FIELD WAS NECESSARILY RESTRICTED TO THE LOCALIZED AREA AND THERE WERE FEW ALTERNATE SITES AVAILABLE.

SECTION 204, U.S.C.A., TITLE 18 (SECTION 114 OF THE CRIMINAL CODE) PROVIDES IN PART:

"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 ON 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; * * *.'

SECTION 205, U.S.C.A., TITLE 18 (SECTION 115 OF THE CRIMINAL CODE) PROVIDES: "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. 3742; MARCH 4, 1909, C. 321, 115, 35 STAT. 1109).'

SECTION 206 OF TITLE 18 EXCEPTS CONTRACTS MADE FOR THE GENERAL BENEFIT OF AN INCORPORATED COMPANY FROM THE PROVISIONS OF SECTION 204 AND 205.

IT HAS COME TO THE ATTENTION OF THIS ADMINISTRATION THAT ROBERT F. SIKES, THE COLESSOR ON LEASES CAA2-968 AND CAA2-970 HAS RECENTLY BEEN ELECTED TO THE CONGRESS OF THE UNITED STATES FROM THE THIRD DISTRICT OF THE STATE OF FLORIDA.

ACCORDINGLY, YOUR OPINION IS REQUESTED AS TO WHETHER OR NOT THE PRIVITY OF THE CONTRACT RELATIONSHIP BETWEEN THE GOVERNMENT AND REPRESENTATIVE SIKES MAY SUBSEQUENTLY BE MAINTAINED. IN THIS CONNECTION, IT IS POINTED OUT THAT THE COST OF ESTABLISHING THIS INTERMEDIATE FIELD AT CRESTVIEW, FLORIDA, WAS APPROXIMATELY $28,000, WHICH COVERED CLEARING, GRADING, FENCING, LIGHTING, AND OTHER RELATED WORK. OPERATING QUARTERS WERE ALSO INSTALLED ON THE FIELD, AND THE RADIO STATION LOCATED THREE MILES EAST OF THE FIELD, WHICH PROVIDES RADIO RANGE COVERAGE AND COMMUNICATION FACILITIES, IS OPERATED FROM THESE QUARTERS.

NOW THAT THE RADIO STATION HAS BEEN ESTABLISHED AND PLACED IN OPERATION, IT IS EXTREMELY DOUBTFUL IF THE FIELD COULD BE RELOCATED TO A SUITABLE SITE WHICH WOULD BE SO LOCATED THAT ONE OF THE RADIO COURSES COULD BE ALIGNED WITH A FIELD RUNWAY. AS NOW LOCATED, THE WEST COURSE OF THE RADIO FACILITY IS ALIGNED WITH THE EAST-WEST RUNWAY OF THE FIELD WHICH MAKES POSSIBLE LETDOWNS AND INSTRUMENT APPROACHES TO THE FIELD UNDER ADVERSE FLYING CONDITIONS. IF A SUITABLE SITE COULD BE OBTAINED, IT IS ESTIMATED THAT IT WOULD COST $30,000 TO A RELOCATE THE FIELD AND PROVIDE THE SAME FACILITIES AS ARE NOW AVAILABLE.

AS A PRACTICAL MATTER, OUR ENGINEERS ARE DEFINITELY OPPOSED TO ANY ACTION RELATIVE TO RELOCATING THE FIELD TO ANOTHER SITE, FROM THE STANDPOINT OF CIVIL AVIATION AS WELL AS THE NATIONAL DEFENSE.

SECTIONS 204 AND 205 OF TITLE 18, U.S.C.A., THE FORMER QUOTED IN PART AND THE LATTER IN FULL IN YOUR LETTER, WERE, AS INDICATED THEREIN, TAKEN FROM SECTIONS 114 AND 115 OF THE CRIMINAL CODE, 35 STAT. 1109, PRIOR TO WHICH SIMILAR PROVISIONS APPEARED IN SECTIONS 3739 AND 3742, REVISED STATUTES, WHICH LAST-MENTIONED SECTIONS WERE DERIVED FROM THE ACT OF APRIL 21, 1808, 2 STAT. 484. THE PROVISIONS OF THE TWO SECTIONS REFERRED TO ARE PENAL IN CHARACTER AND, IN ADDITION, SAID SECTION 204 PROVIDES THAT ALL CONTRACTS OR AGREEMENTS MADE IN VIOLATION THEREOF SHALL BE VOID AND THAT ANY MONEY ADVANCED BY THE UNITED STATES UNDER ANY SUCH CONTRACT OR AGREEMENT SHALL FORTHWITH BE REPAID, DIRECTING THAT SUIT THEREFOR SHALL BE BROUGHT IN CASE OF FAILURE TO REPAY UPON DEMAND.

IT IS, OF COURSE, NO PART OF THE DUTY OF THIS OFFICE TO CONSIDER OR DETERMINE WHETHER, FROM A PENAL STANDPOINT, THERE HAS BEEN IN ANY GIVEN INSTANCE A VIOLATION OF THE TWO SECTIONS REFERRED TO, BUT IT IS UNDERSTOOD THAT YOUR INQUIRY IS WHETHER APPROPRIATED FUNDS MAY BE USED FOR PAYMENT OF RENTAL UNDER THE TWO LEASES WITH ROBERT F. SIKES AND EMMA K. SIKES--- WHO, IT APPEARS FROM THE LEASES REFERRED TO, ARE HUSBAND AND WIFE--- SINCE THE ELECTION OF MR. SIKES TO THE CONGRESS OF THE UNITED STATES.

THE TWO LEASES WITH MR. AND MRS. SIKES COVER A TERM COMMENCING NOVEMBER 30, 1939, AND ENDING JUNE 30, 1940, WITH AN OPTION TO THE GOVERNMENT TO RENEW THEM FROM YEAR TO YEAR, NOT, HOWEVER, BEYOND JUNE 30, 1960, FOR A RENTAL THEREIN STIPULATED. IT APPEARS THAT UNDER THE OPTION THE LEASES WERE RENEWED FOR THE CURRENT FISCAL YEAR ENDING JUNE 30, 1941.

THE PURPOSE AND EFFECT OF THE PROVISIONS OF SECTION 3739, REVISED STATUTES, AND OTHER RELATED STATUTORY PROVISIONS WERE DISCUSSED IN THE CASE UNITED STATES V. DIETRICH, 126 FED. 671, WHEREIN THE LATE MR. JUSTICE VAN DEVANTER, THEN A CIRCUIT COURT JUDGE, SPEAKING FOR THE COURT, SAID 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 EXERCISE 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 CONTRACT OR 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 TO BE 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 MEMBER OF CONGRESS. * * *

IT WAS URGED IN THE DIETRICH CASE THAT THE STATUTE IS WITHOUT APPLICATION TO A CONTRACT OR AGREEMENT ENTERED INTO WITH A PERSON WHO, SUBSEQUENTLY AND DURING THE LIFE OF THE CONTRACT OR AGREEMENT, IS DULY ELECTED AND BECOMES A MEMBER OR DELEGATE OF THE CONGRESS. HOWEVER, THAT CONTENTION WAS DENIED BY THE COURT INSOFAR AS CONCERNS THE EXECUTORY PART OF SUCH A CONTRACT OR AGREEMENT, IT BEING HELD THAT THE STATUTE APPLIED TO SUCH PORTION OF A CONTRACT AS REMAINS EXECUTORY, EVEN THOUGH LAWFUL WHEN ORIGINALLY ENTERED INTO. WITH RESPECT TO THIS PHASE OF THE MATTER, THE COURT SAID, IN PART---

* * * NOR IS IT NECESSARY, IN ORDER TO ACCOMPLISH THE PURPOSE OF THE STATUTE, TO INVALIDATE FROM THE VERY BEGINNING A CONTRACT OR AGREEMENT LAWFULLY ENTERED INTO, WHERE, DURING ITS LIFE, THE INDIVIDUAL WITH WHOM IT WAS MADE BECOMES A MEMBER OF OR DELEGATE TO CONGRESS. THE PURPOSE OF THE STATUTE IS THEN ACCOMPLISHED BY TERMINATING THE CONTRACT OR AGREEMENT INSOFAR AS IT REMAINS EXECUTORY, BUT WITHOUT EXTINGUISHING OR AVOIDING, EVEN IF THAT WERE PERMISSIBLE, THE RIGHTS OF EITHER PARTY ACQUIRED BY ITS LAWFUL PERFORMANCE, OR BY ITS BREACH, UP TO THAT TIME. * * * AND THAT---

* * * THE MOMENT, THEREFORE, THAT THE DEFENDANT BECAME A MEMBER OF THE SENATE, THIS CONTRACT WAS DISSOLVED--- HIS OBLIGATION TO FURTHER PERFORM IT AND HIS RIGHT TO FURTHER HOLD AND ENJOY IT WERE TERMINATED- - BY OPERATION OF LAW. HE THEN ASSUMED AN OFFICIAL RELATION TO THE GOVERNMENT WHICH RENDERED IT UNLAWFUL, AND THEREFORE INCOMPATIBLE, FOR HIM TO LONGER HAVE OR SUSTAIN CONTRACTUAL RELATIONS OF THIS CHARACTER. * * *

IT SEEMS APPARENT, THEREFORE, THAT THE LEASES WITH MR. SIKES, INSOFAR AS THEY REMAINED EXECUTORY, BECAME VOID BY OPERATION OF LAW AT THE TIME OF HIS ELECTION TO THE CONGRESS. ACCORDINGLY, ANY FURTHER PAYMENTS FOR RENTAL UNDER SAID LEASES WOULD BE IN DIRECT CONTRAVENTION OF THE STATUTE AND ARE NOT AUTHORIZED.