The sun. [volume] (New York [N.Y.]) 1833-1916, 1903-10-23

OPINION
on THE GLOVE DEALS.
Says Government Has No Right to Demand
Repayment Of Money Paid IAttauer on
Contracts statute Of Limitations
Saves Him From Criminal Prosecution.

WASHINGTON, Oct. 22.-The opinion Of
the Attorney General in the case of Con-
gressman l.. N. Littauer Of Gloversville,
n. Y, who was shown to be bene-
ficiary in contracts made by others for
furnishing gloves to the army, was made
public by the War Department to-day.
The Attorney General holds that the Gov
eminent has no right to demand the re-
payment Of money obtained by Mr.. Littauer
under these contracts, and also that Mr.
Littauer cannot be prosecuted criminally
because the statutory period Of limitation
has expired. The opinion is addressed to
the Secretary of War and says:
SIR have the honor to acknowledge
the receipt of your letter dated Aug. $. 1908.
In which you state that case has arisen
in the administration Of your department.
opinion as to the application Of the act Of
April a. 1908 e Stat l.. 4s4j. which was EN-
bodied in the revision of the laws as Section
$3.50 of the Revised Statutes.
The provision of law referred to reads as
10 member of or delegate to Congress shall.
person In trust for him, for hts use or benefit,
or on his account. undertake. execute. hold or
meni made or entered into in behalf Of the United
States by any oiicrr or person nuth9rlzed to make
contracts on Denal1 OF tnt UnWtG states.
Every person who violates this section shall be
deemed guilty OF misdemcanor and shall be fined
5000 AT contracts or agreements made In VIC
any sum OF money Is advanced on the part OF the
United States, In consideration Of any such con
tract or agreement II shall be forthwith repaid:
and In case OF refusal or delay TO repay the same,
when demanded by the proper officer Of the depart
ment shall have been made or entered into. every
person so refusing or del aging. together with his
surety or suretics shall be forthwith prosecuted
q n an n
SO advanced.
Your inquiry Ia this: II a contract under
tered into in Violation of the above section
and Ia completely executed on both sides.
the. articles contracted for having been
delivered and the consideration paid at the
| time of the delivery, what portion of the
consideration. If any. is subject to demand
| for repayment?
entirely on the sense in which ConEress
| used the word advance" or some form Of
| It, Did 1t use it in its legal sense or in a
broader sense. including not only advances.
| the delivery of the thing, or the perform
ance OF the work, contracted for? The word.
and well understood meaning in law.
| An advance" in connection with con.
tract is, something. paid in anticipation Of
| the consideration paid in advance" of thu.
| delivery OF the thing. or the. performance Of
the work, bargained for: II is. therefore.
Significance except where the contract is
in an .executory. state. II the thing con-
| tracted for was delivered ard the considera-
| tion paid at the time Of the delivery. IN other
words, II the contract has been executed.
| there can, Of course. be no such thing as an
| advance" in the legal sense of the word.
Hence IL follows that in the case you
| put which is the case of an executed con-
| tract-the Government having received and
| paid for all it contracted for.-you are not
authorized by Section $3.50 Of the Revised
| Statutes TO demand the repayment OF any
| portion OF the consideration paid by the
Government il the term advance, as used
| In that section, is to be understood III its
general legal conception.
In the case before me there is not trace
the term advance" in any other sense than
that in which it is generally employed; on
the contrary, there is every reason TO oe!teve
that i used it in its ordinary Legal aceep,a,1od
by the Government in this transaction could
be rec9vered-.the contract having been
ceived and used the articles contracted for
that would be equivalent to reading into
the statute an additional pensltymthat is;
needed II to ssow hat that cannot be done
Again, 1t Is a well known principle, that
where contract has been ,, executed TIE
on the ground that the contract. was void
the party paying the consideration having
got full value for its" thls) money, as you
| say it appears the Government did in the
am Of the opinion. therefore, that in the
| case you state no part OF the CONSIDERATION
! mand for repayment
There is no occasion for me, TO determine
| whether the transaction called in question.
| and which you say Ia the only one wherein
there is any evidence OF violation of law,
presents sufficient ground for. criminal
! Statutes, since the statutory period Of limi-
tation within which such prosecution could
be brought elapsed more than year asoo.,
SUBSCRIBED by such determination. An
affirmative opinion could not be followed
| BY vindicaton of the law: negative. one
validity and propriety Of methods Of deal
| ing with the Government in cases where,
| after all, the form Of the transaction Is not
= .ol ,tat