126 F. 671 | U.S. Circuit Court for the District of Nebraska | 1904
(after stating the facts as above). The argument of counsel for the government, as well as for the accused, having proceeded as if this indictment directly presented the question whether one who lawfully enters into a contract with the Ünitéd States, and subsequently, and during the life of the contract, becomes a senator in Congress, may continue to hold and enjoy that contract, we will, for the purposes of this decision, treat the indictment as if it specifically charged facts from which this question would necessarily arise. The pertinent statutory provisions are [U. S. Comp. St. 1901, pp. 2508, 2509] :
“See. 3739. No member of or delegate to Congress shall directly or indirectly, himself, or by any other person in trust for him, or for his use or benefit, or on bis 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 behalf of the United States. Every person who violates this section shall be deemed guilty of a misdemeanor, and shall be fined three thousand dollars. All contracts or agreements made in violation of this section shall be void; and whenever any sum of money is advanced on the part of the United States, in consideration of any such contract or agreement, it shall be forthwith repaid; and in case of refusal or delay 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, every person so refusing or delaying, together with his surety or sureties, shall be forthwith prosecuted at law for the recovery of any such sum of money so advanced.
“Sec. 3740. Nothing contained in the preceding section 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, where the same are ready for delivery, and payment therefor is made, at the time of making or entering into the contract or agreement.
“Sec. 3741. In every such contract or agreement to be made or entered into, or accepted by or on behalf of the United States, there shall be inserted an express condition that no member of or delegate to Congress shall be admitted to any share or part of such contract or agreement, or to any benefit to arise therefrom.”
When this contract between the United States and the defendant was entered into, the statute to which we have referred was then in existence, and became an essential part of the contract, as much so as if it had been copied therein at length. As was said by Mr. Justice Swayne in Walker v. Whitehead, 16 Wall. 314, 317, 21 L. Ed. 357:
“The laws which exist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it. This embraces alike those which affect its validity, construction, discharge, and enforcement.”
In legal contemplation the contract declared in unmistakable terms (1) that if the individual with whom it was made was then a member of or delegate to Congress it should never be of any legal effect; (2) that it should never be held or enjoyed by any member of or delegate to Congress; and (3) that no such member or delegate should ever be admitted to any share or part thereof or to any benefit to arise therefrom. In other words, the. statute and the contract declared an utter incompatibility between being a member of or delegate to Congress, and being at the same time charged with a duty to perform the contract and clothed with a right to receive any benefit therefrom. 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. The rule governing such a case is much the same as that applicable to the holding of two incompatible public offices, which is that where a person holding one office accepts and enters upon the discharge of the duties of another and incompatible office he thereby vacates the first. We are entirely convinced that the statute covers the case assumed by counsel to be stated in this indictment. This view gives reasonable effect to every portion of the statute, and permits it to have operation upon every case equally within the mischief intended to be guarded against or suppressed. To the suggestion that in practical operation this view will result in loss or injury to persons who become members of or delegates to Congress while holding and enjoying contracts or agreements with the United States, we answer that such cases are not of frequent occurrence, and that the acceptance of a- seat in Congress is entirely voluntary. ' In any event, the statute, being plain and unambiguous in terms, and being within the authority of Congress, must be administered by the courts as it is written. Counsel for defendant have referred us to an opinion given to the Secretary of the Navy by Mr. Attorney General Rodney August
The demurrer is overruled.