in the indictment and that the Court is without jurisdiction, they will be rejected as not having proper foundation to rule the real issues in the case. It is suggested on behalf of the defendant that inasmuch as the Leasing Act itself did not prohibit Members of Congress from becoming applicants and holding leases under its terms they are not so restricted. I think this should likewise be rejected as the law under which the prosecution is brought, if applicable, is of long standing and should be held to control any leases in the future which fell within the limitations laid down by the Act of Congress. Doubt arises as to whether or not the Leasing Act itself is of such a nature that Members of Congress were prohibited from taking the benefits tendered. It is specific in regard to who might become applicants, non-competitive in its character, and apparently open to anyone who is a citizen of the United States and pays the fees required. In this respect it was somewhat like the descriptions of the exemptions enumerated in Section 433, supra, although it does contain matters which were to be carried out by the lessee if he continued to hold the property, either by paying rental, drilling the same, or assigning it. In Section 433, which purports to list the exemptions, it is noted that after the enumeration concerning the purchase or sale of bills of exchange or 'other property' where the same are ready for delivery, etc., it is here contended by defendant that the so-called other property should include the type of lease in controversy. In this respect I am inclined to the view that this cannot be sustained under the doctrine of 'ejusdem generis'.
Apparently the only case decided by the courts under this particular section of the law is United States v. Dietrich, 8 Cir., 126 F. 671, in an opinion written by Judge Van Devanter, later a Justice of the Supreme Court. It is singular in that both sets of counsel cite the case as sustaining their divergent contentions. The facts of that case, however, are so different than those in the case at bar that it can scarcely be held as an authority or solution for the problem before this Court. There a contract for the rental of a post office between the defendant and the United States was an issue. It was therefore an individual contract between the lessor and the government which continued to be held and from which he derived a direct profit and the Member of Congress was clearly within the prohibition of the statute and it was so held. In the case at bar the opportunity offered to the defendant was one of a general nature, open to anyone defined as eligible, non-competitive in its character and not entirely dissimilar to the offering of government bonds and other securities, including bills of exchange, clearly exempting members of Congress from its provisions. Aside from this single citation the balance of the cited authority is made up largely of opinions from heads of departments, Attorney Generals, and the like, under a varied set of circumstances.
So we are left with virtually no judicial construction of the statute which would specifically apply to the circumstances in this case. In effect it presents a situation which seems to be somewhat clouded in doubt. In addition is the doubt whether it was the intention of the Congress under all the circumstances to make the law applicable to a situation which we have before us. According to the Congressional Record, Congress is now discussing the matter of clarifying the law upon this identical point.
The question of intent on the part of the defendant enters strongly into the situation. It must be recognized that the old legal maxim that 'ignorance of the law excuses no one' and likewise that the statute does not specifically require intent to be shown as is provided in many statutes of a criminal nature. It must also be recognized that as a general rule the reliance of a defendant upon the advice of counsel does not relieve a defendant of criminal liability. There have been, however, variances in the application of this latter rule, depending upon the circumstances of the individual case. In my own view it here ought to be at least recognized as one of the elements of good faith on the part of the defendant and this was specifically mentioned in at least one of the reports of the officials of the Department through whose hands this controversy passed. Regardless of the rule that all defendants of whatever class and strata of life should be amenable to the law, only by the strictest technical legal construction can it be found that there was a criminal intent on the part of the defendant in this case to violate the law. He earnestly believed in his right to apply for and hold the lease under the provisions of the statute. He was and is a man of the highest type of character and occupies a position of honor and trust in the legislative department of the government and under these conditions and the entire surrounding circumstances to brand him as a man with a criminal intent to violate a law of his country seems to me to bring this case within the exception to the general rule, if there be any such exception. I am definitely inclined to the belief that under all these circumstances the defendant would never have been convicted by a jury of his peers and thereby branded as a criminal by a verdict of guilty. If the case were tried to a jury it could return its verdict without giving reasons or explanation for such action. The same duty having been imposed upon the Court by a waiver of jury it ought to follow that the Court has the same prerogative, although in the foregoing pages an attempt has been made to analyze the entire case and the issues involved so as to give the parties and their counsel the views which the Court entertains.
Whatever points have been presented in this litigation, I have a strong conviction that the statutes applied to the facts here presented leaves the matter shrouded in a degree of doubt as to their applicability, which, coupled with the fact that there is no actual showing of criminal intent under the particular circumstances on the part of the defendant, fully justifies the Court in rendering a verdict of not guilty and a judgment of acquittal.
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