United States v. Dietrich

• Decision Date: 08 January 1904
• Citation: 126 F. 671
• Parties: UNITED STATES v. DIETRICH.
• Court: U.S. District Court — District of Nebraska

126 F. 671

UNITED STATES v. DIETRICH.

United States Circuit Court, D. Nebraska.

January 8, 1904

Indictment under section 3739 of the Revised Statutes (U.S.Comp.st 1901, p. 2508) charging that the defendant, while a senator in Congress from the state of Nebraska, did 'hold and enjoy' a contract theretofore entered into between himself and the United States for the use and occupation, for purposes of a United States post office at Hastings, Neb., of a lot and building owned by the defendant. The time when the offense was committed is stated to have been December 20, 1901, but the time when the contract was entered into is not given. In support of a demurrer to the indictment, the defendant contended (1) that in the absence of anything to the contrary, it should be assumed that the contract was entered into prior to his becoming a senator-- at a time when it could have been entered into lawfully-- and (2) that his subsequently becoming a senator did not affect his obligation to perform the contract or his right to hold and enjoy it.

W. S Summers, U.S. Atty., and S. R. Rush, Asst. U.S. Atty.

John C. Cowin and R. A. Batty, for defendant.

Before VAN DEVANTER, Circuit Judge, and MUNGER, District Judge.

VAN DEVANTER, Circuit Judge (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 United 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):

'Sec 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 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 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.' 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 members of Congress. The government's interest in the construction or renting of buildings, or in the purchase of supplies, is not made secure merely by making a contract therefor. An important step in that direction is taken when a contract is made with a competent and reliable contractor upon suitable terms, but this must be followed by performance according to the terms and spirit of the contract. The duty of insisting upon and securing proper performance is not less important than that of making the contract in the first instance, and the personal interest, adverse to the government, of a member of or delegate to Congress, in this matter of performance, would be calculated to have the same effect upon the character of the accepted performance that the like relation would have upon the character of a contract entered into while it existed. For a member of or delegate to Congress to hold or enjoy such a contract or agreement with the United States seems to us to be equally within the letter and purpose of the inhibition, irrespective of when or how he comes to be a party to it. But it is urged on behalf of the defendant that the inhibition against holding and enjoying relates to contracts or agreements originally made with a member of or delegate to Congress in violation of the statute, and to contracts or agreements originally made with another person and afterwards assigned or transferred to such member or delegate, and that it is without application to a contract or

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