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THE OMAIIA DAILY REE: flATTTRDAY. .tASUAKX P, 1901.
TELB. I1I-6M. WE CLOSB SATURDAT8 AT I P, X. Trading with this store is a good habit. X More broken lines of underwear have been added to this clearing Balo for Saturday. Women's Silk and Wool Union Buit. eautiful quality our regular WOO suit. Sat urday your choice at $2.fl0 milt. Women's Vega Bilk Awing Rlhbed Union Suits, white only, buttoned to the waist line, our r;ular 12.50 quality, Saturday' pries, (1.76 suit. Womrn'a Onclta Union Suits, small sixes only, color pray, our regular $1.50 quality, , Saturday'! price, 8fle ault Women's Fine Medium Weight Ecru Cotton Veals and rants, tl.00 quality, reduced to 6c each. Women's mark Wool Tights, small all eg, our regular W 25 and $3.80 qualities, Sat urday's price, $1.M each. , , Hoys' Heavy Fleeced Cotton Shirts and Drawers, sizes, worth up to 35c, Satur day's price, 15c each. HOSIERY. Our Hosiery Sale has been a great sue ceaa. More hers for those who want them at the reduced price. If you wear else 8H you will find a large line of styles to select from In llsles and cottons, plains and fan cles Hosiery worth up to tec In this Janu ary sale, 29c. Per Pair. (Y. M. C. A. Building, Corner for or on account of agreeing to nay or paying certain -um. of money to film or Performing contracts for him during the months of July, AugUNt, Brptemher and October, 1901, under a contract maile with Mm as a member of congress whereby Jacob Fisher was to be appointed post master. Applies to Both Caaea. - He explained that the nolle was Intended to spply to both the bribery cases against Fisher and to so affect the remaining brib ery Indictment against Senator Dietrich which had no material dliTjrenre from the one under which he v found not trutlty. The court then rendered Us decision on the demurrer filed by the defense in 'the leasing case against Dietrich, the conclu sion being that "a contract, although val idly made by one who becomes a member of congress, ipso facto terminates on the date such member takes the oath of office, and he Is deterred from any further right to enjoy the lease and Is subject to the pains and punishment of the statute.' Bummers said that one government wit ness was (n a hospital at St. JoBeih and another government witness was attending hln, and Wanted until 2 o'cloilt before tak ing up the case. The court expreimed Itaelf as very much disinclined to grant any de le yi. but conceded a recess of .twenty m'.iutes. During this time tho following nolle In the last case remain'.iig agnlrst Dlitrlch was prepared and filed by the dis trict attorney. Files Ilia Last Nolle. In this case, wherein the defendant la charged with holding and enjoying a cer tain contract or lease with the government of the United States while a senator In violation of section 8739, the contract re ferred to In the Indictment seems to have been entered Into on the 4th day of April, IU01. The delendant, under the construction by the court of section 1781, did not be come a senator until December 2, 1901. Therefore, from April 24, 1901, to December z. iu, ne aid not no:a and enjoy the con tract In violation of the law. While It Is true the government can prove that the oeienauni neiq ana enjoyea me contract on the date charged In the Indictment, It is also true that a short time thereafter the record discloses the defendant executed a deed to the pretnl.es described In the con tract to his .daughter, and, that he held and enjoyed the contract for only a short time after he took the oath as senator. The government has never In this dis trict, to my knowledge, placed a man on trial for what might be deemed a technical .violation of the law. . I would not ask a jury to return a verdict of guilty against a man under any indictment unless I be lieved such a verdict to bo In the Interest ofjustlce. Therefore, In view of the construction placed by your honors upon section 17X1, as to the time the defendant assumed the atatua that made the holding and enjoying of the contract a violation of the law, I desire at this time to enter a nolle prosequi In this case. That was all. The court announced that all cases placed upon the docket for the special assignment had been disposed of and the talesmen were excused until V o'clock Saturday morning, when the regu lar ordea of cases will be taken up by the district court. Judge Van Devanter leaving the bench. Order for Acquittal. Following la the decision of Judge 'Van Devanter In full, holding that Dietrich was not a member of congress when the lease was made and Instructing the jury to acquit hlmf We have given as careful and as ex haustive attention tS the question which was submitted to us ye.lerday as the time Intervening would permit, and, while we have arrived at a conclusion, at which we are quite agreed and which seema to us to be the correct , one, we have not had the time -to reduce our reasona for It to writing and In that form which we would be giud to leave upon the records of the court end ' among Its fllesv The formal opinion will be prepared and left among the Aloe as evidence of those views which In our consultation have led us to the opin ion which we announce. The offense with which defendant Is here charged Is that of agreeing to receive and receiving while a member of the eennte a part of the congress of the United Btat'os a valuable ronalnVratlon from one Fisher for procuring and aiding him to procure SATURDAY WILL BE A BUSY DAY ft OUR Boys' Suit and Overcoat Section Clearance Sale BOYS' SUITS AND OVERCOATS A GREAT BIG SEASON HAS LEFT MANY BROKEN LINES. For you the garments are just aa 'good. Here's prices to move them quickly. i 160 BOYS' Sl'ITS-Wortk $400, $4.50. ,. $&.uo and lomt worth IsoO all agea 1 , to Is years; nearly all styles, j oi your choice .OJ ISO BOYS' SriTS-6ults worth $4.C, W60 and $7.60. Note the sav- 1 it lug, now "' -0 HOYS' SUITS Here are suits worth $K.w and t00. America's V J fi lineal, now -. Od BOYS' OVERCOAT8-In this Ot aule H5. U-iA and BOYS' COASTER REEFERS- gQ TOM O' SHANTERS AND 1 TOgUES-Now 't . GIRLS' and CHILDREN'S CLOAKS -doing- fast at the CLEARING BALE PRICES. . NtW PHONE NO. I70U Bee, Jan. 7, 1M. Underwear Specials For Saturday, Sixteenth and Douglas &y the office of pontmnster at Hastings, Neb. The statute under which the Indictment is found is section I7K1 of the Revised Stat utes. It has two separate and distinct pro visions In It, as separate and distinct as if they were announced either In separate sections of the same statute or announced In separate and distinct statutes. The one Is, omitting unnecessary verbiage not here applicable, "every member of congress or officer or agent of the government who takes, receives or agrees to receive any money or other valuable consideration for procuring or aiding to procure any con tract, ofllce or place from the government." The persons who are there prohibited from doing the Inhibited acta are persons who are members of congress. The time during which the Inhibition la Inoperative upon any given person Is while he la a member of congres. The other provision In this section Is "every member of congresa who takes, re ceives or agrees to receive any money or other valuable conslleratlon after his elec tion as such member for his attention to services, actions, vote or decision on any question, matter, c-c.e or proceeding which may then be pending, or made by law or under the onns Hutlon, be brought before him in his official capacity, or In his place as euch member of congress, shall oe deemed guilty of a misdemeanor." As to Its Application. The persons against whom this statute Is directed are not nly those who have the status of a member of congress, but those who have the status of one who la elected to congtcss. The period of time during which the inhibition Is operative against those upon whom It does operate begins with the date of the election and contlnuea from then until the person steps Into the office, and from then on during his con tinuance during office. The period Within which the Inhibition is thus operative under this latter provision of this section Is by the express terms of the statute enlarged so as to embrace not only the Incumbency of the office, but that preceding period of time during which It Is fairly certain, rea sonably probable, that the person will be likely to step Into that office. The two acts, or kinds of acta, that are Inhibited are quite different. Those inhibited by the first part of the section are the procuring of a contract, of an office, or a place, meaning by that I suppose some subordinate agency or position under the government of less dignity than that which la usually called an orcice. We find no place In the statutes counsel has cited none where It Is made the duty of a member of congress, or of a member elected, to procure contracts, to procure offices, to procure places, for. his constitu ents or others. We find no plHCe'ln the statutes where members of congress are accorded, as a natter of law, any greater privileges, or any greater authority, In respect of those matters than are other people. There Is. however, a matter of which we all take notice, that persons oc cupying such situations are accorded a greater and higher degree of Influence; that their support la much more potential ihan Is that of one who has not obtained either a membership In congress or an election to congress. Matters that Are Inhibited. With respect to the matters that are In hibited by the latter part of the section they are only acts which pertain to such' duties as are by law expressly cast upon membera of congress. They go to the ques tion of voting, to the question of deciding (it questions, matters, causes or proceed ings which may then be pending; that la at the time of their election, or which may by law or under the constitution ho hm. ... before them In their official capacity. Jt seems fairly clear that the latter 'art of this section relates only to the Inhibition of receiving, or agreeing to receive, a bribe in L-uiincv-iiuii wiiii muse matters, which will come before one aa a memher nt gress, upon which he will be required to vote, to decide, to exercise Judgment; while the first part bf the section relates, not to matters mh respect to which he has any affirmative duty, but relate, to matters which he may or may not enter upon at ... . ..,. "in; rapeci 10 me niter, tho.e where by the law he liaa m am-.,: tlve duty. It Is said that he may not at any time after an election, after h. e.-..t step toward his Incumbency of ofllce has been crossed, take, receive, or agree to re ceive any compensation for the purpose of affecting him I.i the discharge of his duty. With respect to those matters whl h he may or may not do, where there la no affirmative duty Mating upon him, it mnnui receive or scree to re i?" l "X b.r,l" vh"e member. nuur i mo un oi in. unitea mates mere are no crimes, save those that are declared py congress. By the common '.aw of Eng land, which haa become the law of most of our slate., offense, known and recog nized at common law, have becotno offensei here. But under the distinct and separate government of the United States, aa con- irsuinnnguianea rrom state government, there Is no common law crime: there are none save those that are prescribed bv congress. W'a An not mat, Ih. l. T Is not any function of the court, even to suggust what the law ought to be, nor Is It any function of Judge, to suggest what mo wuuiu line me law 10 De, us a matter of opinion upon their part. The law of the United Htatea am mail, hv ennirreaM: they are construed by the courts of the United 8tatrs. Here congress in the exer cise of its Judgment and authority, has choaen to say that members of congress who take, receive or agree to take or re ceive a bribe for procuring or aiding In the procurement of an office, ahall be pun- i.nea. 10 I lie common man, it u repulalve - h..v.., .1 ..111 alt viukCI V. 1.111, ( citisen, should take money or become venal in ine matter or procuring or aiding in the procuromeni oi a public onice. Power of Coavress. It would be competent for congress, In all probability, to mike It a penai onense. tor anyone, uiieiner an olticer or individual citlxeii, to take or receive, or to agree to receive, a monled or other valuable com penaatlon for procuring or aiding In the procurement ot an office for another. But It is not suggested here that congress has exercised Its full power. No one can con tend, or in fairnesa suggest thut tils statuto Is as broad aa the nower of con- gre.a In the premises. Instead of aaylng "that everyone who takea a bribe for pro curing an office for another, 'or In aiding another to procure an office (I sneak ot an office under the federal government), In stead ot aaylng thut congress has said that members or congresa, or officer, or agents ..f Ih. 1'.,U.4 1.1 u ... .1.. ihl. Vi u 1 1 l.d punished. It has thus not gone to the full extent of It. aulhirlty. but naa been for rea.ona to It satisfactory, content to describe that offenaa only In rented to member, of congreaa, officers or agents of the I lilted Etules. Words in a statute, and especially In i criminal matute. are to be given that In terpretation and meaning which ordinar ily pertains to them; they are to be under stood a. tbey are ordinarily underaiojd whjn not emoloved In a statute. An exception to this rule is ihst where by the context, by the surrounding lan iiiiii of the atatute. there la thut which (nillcute. that word, capable perhap. of different meanlnga are uaea in some pur iiruUr anil aDetTul meaning. In some liar' tower or broader aen.a. than that In which It I. ordinarily underatood that then. In older to give full effect to the other lan guage In connection with which It is used It will be given thut broader or narrower meaning which will then make the entire enactment nurmoiuoua. Din nere. in mu ft rt iirovtaton. w have nothing which r. fleet, upon the aenae In which the word. nn-mtier. of emigre, were uaea. .uve ine word, themselves. The meaning tin which thfM wnnia "mt'iiibern of conare..' would ha ordinarily under.iood la that of a puraon who ha baa a aditililvd to cvnjfrea a Der soa wlto toaa been' admitted to wtaU-- ux hlp the sdvantsges of membership In ion. greas; a person who has assumed the duties and responsibility Incident to membership In congress: a terson who has advanced thst far that he cannot receive, assumed responsibilities which he cannot cast off: one who has assumed a duty which must be performed. Voice of Constitution. ..on. uutiri ine -,riiU I U 11111 n 1111 iimi 10 controlling upon congress, controlling up'm us, controlling everywhere, upon everybody In this country it is declared that the two separate houses of congress shall be the exclusive Judges of the qualifications, elec tions and returns of their respective mem bers. Hy the statement made, by the dis trict attorney in this case, that that which he proposes to prove, or that which the tacts will permit him iirove. It ai'tiears that defendant was elected a member of congress on March 'a, iwl; that there was no session of the senate of the United States from that lme hence forward until December 2, 11; hat upon the date last named the defend nt atu'eared In the senate, and tinon being duly and favorably passed upon, lie was ad mitted to take the oath, become n member of thut body and to assume the privileges, aavuntnges ana responsibilities or inai membership. Until that time the question r nis qualifications, the question ot ine returns respecting his election, the ques tion of his election itself, hud not been and could not have been passed upon by anyone authorised to pass upon It for the United States. Until then It was not known and could not be known whether he would ver be bermlttcd bv virtue of that elec tion to occupy a scat In the United States senate, participate In the proceedings of that body, to assume any of the responsi bilities or duties incident to membership therein or to receive anv of the privileges or advantages that might come from that membership; until then it could not be Kmwn whether he would be permitted to set for the peoDle of the state of Nebraska as one of th"lr chosen representatives. He wss noi permitted by any law oi ine United States to net as a representative of the state of Nebraska, In renpect of those things which hy law act until his election had also been paused upon favorably by the senata of the United States. Arguing Vltnl Point. It may be. and tirobnblv Is true, that It upon the 2d of Deceufber he had appeared at the senate of the l ulled states and h id taken his seat as a member of thit body and had proceeded to vote upon questions there pending and otherwise to pel form the functions of a member or tnut body, men he would be a member of the senate, rtc- ognlzed by the senate as such, a member by the acqulesence of the senate In the sense that was mentioned by tho district attorney when he spoke of a de facto of ficer. It may be that the fact that his cre dentials were not in suitable form; It may be that the fact hat he did not take liny oath, that that was omitted or n gli cted, or nat the oaui which he took was not trie prescribed oath, would not now be lniiilr.'d Into on the trial of him fur any offense committed at a time when he was hi the senate, recognized by tho senate as a member and admitted by it to participate In Its proceedings as a member. But there Is no suggestion here, and there cannot be, that there was any acquiesence on the nart of the senate, or anything which directly or Indirectly bound the senate to the idea, or the defendant himself to tne idea, or the relation that would now from his being a member of the senate under the laws of this country. One doee not become an officer by virtue of an ap pointment or by virtue of an election, either under the f.overnments of the re- ipective states or under the government of he United States, it requires also un ac ceptance, an assumption of duties on the part of the officer elected or appointed. It Is optional with one who Is merely elected or appointed to public office whether he will accept, it is not usual that such electldns or appointments are defined, but It is In fact true they are at times. This defendant, as appears, was urn b".-.iii'i iil utti niuie ui ri uui anna, n. I the time when he was elected a senator. One cannot be an officer of a state and a member of congress at one and the same time. Yet he continued for a time not stated here to be the governor of Ne braska and discharged the duties of that office. So long as he did that It was Im possible under the constitution of the United States that he could be a member of the senate. It was optional with him whether he would surrender the office of governor of Nebraska and accept that of a senator of the United States. He chose, so long aa he did remain In the office of gov ernor of Nebraska, to be governor. He could have served his entire term as gov ernor of the state of Nebraska. Having been duly elected and Inducted Into that office, the election by the legislature of Nebraska did not oust him from it, and could not oust him from it without the further action In accepting- the office -of United States tnator. Had he remained as governor of Nebraska, I tak it from what waa said, lits term would have con tinued beyond the time when the matters here rharaed against him occurred, and it cou'.d not, with any plausibility, be said that during that time he waa a senator In congress as well as governor of Nebraska. The option upon his part to accept or de cline the ofT.ce of senator to assume the duties and responsibilities of that office, or to decline their assumption, continued ud until that time when he should appear be fore the senate of the United States, and in fiursuance of their favorable action respect ng his qualifications and election, then as sume the duties of the office either by then taking tne oatn tnat was prescribed, or by then entering Into the performance of those duties which are dv law cast upon a mem ber of that bedv. Ud until that time It was optional witn him wnether. ne would ever become a member of the senate or whether he would ever assume any of the duties and responsibilities of that ofllce. Still at Liberty to Decline. After the commission of everv act here charged, the defendant was still at liberty. u ins juugmeni anouio. incline mm in tnat way. to decline the then offer which had been given to him by the legislature of the state of Nebraska to become Its represen tative In the senate of the United State.. Upon the second day of December, 19ul, tile defenant could have written a letter to the governor of this state and the president of the senate, If he had chosen ho to do, and have said that he had concluded not to accept the election which had been he stowed upon him by the legislature of the state of Nebraska. Had there been an extra session of the senate of the United States an any time between the date of his election and the date when In fact ho as sumed the duties of the office of senator, and when they called the roll of the mem bers of the senate In that body, and found that Nebraska was not represented by Its quota of two senators, It would not nave been within the power of the senate to have sent for this defendant as a member of that body and compelled his attend ince. I'd until December 2. 19;1. he had not as sumed that.relotlon to that holy which Im posed upon him any duty to attend Its rat ions, and no duty to participate In the re. sponKlhllltle. and delil erntlona of that bod. until he was free either to paitidpate in the proceedings of that body by first seek- I Ing their favorable action upon hi. election and then assume the duties, or by declining altogether to accept tne election. Bo it is clear, as It seems to us, that every one of tho.e things which la complained of in this Indictment had become a complied transaction before the defendant ever be came a member of the senate. Whether those arts are criminal (by criminal I uae the word In the sense of Inhibited by the statutes of the United Stales without le aped to the view In which they may be held at the bar of public opinion), to be criminal these acts must have been In- hlblted at the time when they took u ace. and at that time every element must t.avo been present to inject in:o thern the charac ter or criminality. No subsequent adtnu slon of the defendant 4o the senate of the United States ss a member: r.o sub.eutient Lactlnn upon his part or upon the part jf anyooay else in re.peci or a mutter not a part of these art. charged, could rrlate backward so as to n.uke violative of the statute that which when it occurred did not violate It. Whether a given act Is or t. not a crime must be determined by the facta which exist at the 1'me when the act Is committed and hy iniKe which siih- quently and naturally ;low from it. Inded there are very few exceptions In whb li anything occurring after the date of the act by tne person charged will have anv In fluence in determining whether an act a criminal or nol. It la true that in the case of homicide, where one I. wounded bv the act of another, that If he dlea within a limited period thereafter, In law It has lllie effect ea if the death lmmr';atelv followed the Infliction of the wound. Hut the ad mis.lon of the defendant to the sena'e of the United States, his qualification there as a member of that bou), oi. assumption of the duties a. a member of that body, n no afiiae louowea a. i" n-.iu ai result and consequence ot auy of the acts charged here. We find, upon examination of the stat utes. It I. true, that by auction 38 of tl.e Revised Statutes representatives and dale. gates who havo not ua.umed their duties as members of emigres, are spoken of as repre.entHtlve. and delegstes-elert. That Is the explanation in which all of vou would ordlnirll understand their situation to be. We speak of ex-metnhere of con gress, we speak of members-elect, snd we then speak of members of congress, nnd by thoae different term, we convey differ ent meanings, but they are meanings that are as well understood smong thoie who are not versed In the laws of the country as they are bv lawyer and judges. Yon speak of members of churches, you speak of those who have been member., you siak of th'iae who are seeking member ship, but when you apeuk of a member you aix'Mk of one whoa relation at the time I. such that he la a comonent part of the Doov to won n ine membership relate. We And that In this very section eon gr-s 1ms distinguished between memberst and members-elect, in that, Inrespect of those things which senators and repre sentative are bv common consent ier mltted to do, but which are not enjoined upon them by any law, we have a statute regulating their conduct, and it speaks of them a members, Indicating the situation. The person must have come within the operation of that statute. Then, In re spect of other matter which pertain to the dlschargo of the duties of a member cf congress, duties enjoined by lsw, congress has chosen to speak of them as members elected as well aa members, or as members from the time of their election. Now, thou, 1 read the next section, or a, part of It, as Indicating that a different meaning is Intended when a different situ ation Is described. Section 17S3 says no senator, representative or delegate, after his election and during his continuance In office, shall do certain acts there named, and if they .hall be done by him, or any of them, that a penalty shall be Imposed. You will see that congress has thus deliberately In tho one instance spoken of members of congress us the peoplo against whose wrongful acts it is legislating. You will see that In the other Instance It des ignates senators, representatives or dele gates, after their election and during their continuance In office, as the persons whom it Is Intended to embrace within the resell '' the legislative inhibition. So section . 1 think It Is, also contains provisions Inhibiting the doing of certain acts by a rervon elected to congress, whether the act be done at any time before or after the assumption of duties by him. Mean Active Member. find, then, that where congress' de-llberately-and Its act must all be treated as deliberate deliberately, In one section or in one statute, speaks of a member of con- fxess, that it means a member in the sense n which that word would ordinarily be ac cepted, nnd that when in some other cctiii It i peaks of n person elected to congress snd Inhibits the doing of certain acts by hint at any time subsoqucnt to his election, that it means altogether a different thing, snd a broader time is comprehended than when It simply uses the words "member of congress." , Our view Is, therefore, that this defendant did not have that status at the time when the acts are charged against him here charged to have been committed, which would give to him the status which it was necessary that he should have to como within the prohibited terms of thin stat ute. The resuit of that conclusion is that, and under the statement made by the dis trict attorney of what his evidence will be, that we must Instruct tho Jury to find the defendant not guilty upon the chargu em braced In this Indictment. Gentlemen of the Jury It results from, thit which has Just been stated In your presence that If all the evidence which the presecullon has In hand and which has been described to you were now here Introduced and before you, that It would appear that the defendant had not ob tained that official relation to the United States which It waa necessary that he should havo ohtnined in older that ho should come within tho terms of this stat ute, and In that event we would be com pelled to Instruct you to find him not guilty; and since the district attorney has laid before you n clear and precise state ment of whnt his evidence will be. and tint this appears from that statement, It renders It unnecessary to have all that evidence detailed before you. because the result which ultlmutely would have to be reached Is now quite clear. It will be, th?rafore. your duty tb find a verdict of not gulltv. The first gentleman here will sign It as foreman. This act upon your part Is under the Instructions of the court and must be In response to the court's act. Knles Agrnlnst the Demurrer. Judge Van Devanter ruled against the demurrer of the defense to the . charge against Senator Dietrich of holding and enjoying an agreement between himself and the government while a member of con gress In this language: We have carefully considered the de fondant's demurrer to the Indictment charging: him under section 3739 of the Re vised Statutes of the United States, with holding and enjoying, while a tenator In congress, an agreement between himself and the United States for the use r.nd oc cupation for purposes of a United States postofflce, of a building and lot In Hastings, Neb., owned by him. The agreement was entered Into prior to the time when the defendant heebie a senator In congress, but Is charged to have been held and enjoyed by him eubse quently to his becoming a senator. The question presented by the demurrer In whether a f eruon who enters Into a law ful agreement with the United States, and who subsequently, and during the life of the agreement, becomes a senator In con gress, can thereafter lawfully hold and enjoy the agreement. . Section 8739 provides: "No member oC ir delegate to congress ahall rilrertlv or iadlrectlv himself, or by any other person In trust for him, or for his Use or benefit or on bis account, under take, execute, holJ or enjoy, In whole or in part, any contract or reement made or entered Into In behalf of the United States by any officer or persoi authorized to maks contracta on behalf of the United States. Every person who violates this section shall be .deemed guilty of a misdemeanor and shall be fined $3,000. All contracts or agree ments made In violation of this section slfa't be void." Another section, F741. also provides: "in every such contract or agreement to be made or entered Into, or accepted by or on behalf of the United States, there ahall be Inserted an express condition that no member of or delegate to congress shall be admitted to any nhare or part of such con tract or agreement, or to any benefit to arise '.hereupon." We think it Is entirely clear that the ef fect of this legislation, is to inhibit a mem ber of congress, during bis incumbency of that office, from having any contractual relation with the United States. It does net seem to be questioned, and we think It cannot be questioned, that the effect of this InglHlntlon Is to Inhibit 1 the making of an agreement between a member of con gress and the United States, and (2) the -assignment or transfer to a member of con- fxess of anv Interest In or benefit to arise rom any agreement with the United States. There Is also a clear Inhibition against the holding or enjoying by a member of con press Of an agreement with the United States. But It Is urged on behalf of the defendant that this inhibition relates only to agreement orlainallv made by a mem ber nf comrrasa In (violation of the statute and to agreements with the United States assigned or transferred to such member, and Is without application to an agree ment which comes to be hold by a senator, not through any unlawful aci in n origi nal making or In a subsequent assignment or transfer thereof, but through the lawful and subsequent election as a member of congress of the Individual with whom the agreement was lawfully made. ( Baal of Argument. This argument Is based upon the theory: I) That a statute should not be construed o avoid or Invalidate an agreement, lawful at the time of lta making. And 12) that the provision that "All contracts or agreement made In violation of tills section thall be void," Indicates a purpose to avoid or nul (fy only such agreements as are unlawful at their Inception and to leave unaffected and In full operation all agreements lawful at the time of their making. We do not accede to this view or tne statute; giving effect to all of Its provision, it unmistakably declurea It to be against public policy that a member of congress during nis Incumbency of that office ahall enter Into, sustain or enjoy contractual re lations with the government. The prohibi tion goes not only against the making of such agreements by a member, but also against his acquisition of . any Interest In such an agreement lawfully made with another, and even more, it wholly prohibits htm from holding or enjoying any sucn agreement. There ere strong reasons why the pro vision declaring void, that Is of no effect or force whatever from their beginning, agreements made in violation of the staiuiti should not have been extended or made applicable to agreements valid at the time of their making. Where an agreement with the United States, valid when made. Is subsequently attempted to be assigned or transferred to a member of congress, the purpose of the statute and the Inter vals of the government are better sub served bv merely avoiding tho assignment or transfer and by leaving the inulvlduil with whom tho agreement has originu'ly made fully charged with the performance of his obligation thereunder. It would not be w.se Wi such an Inatsnce to declare the agreement Itself void from the beglnnli g, or. at all. If su.ti were the effect of the statute, an Individual having such an agreement with the United States, the per formance of which had through chmged conditions become burdensome or incon ,SAY, HAVE YOU HEARD ABOUT Co-Lon-Co ? venient, could avoid the fulfillment of h a lawful obligations through an assignment or transfer to a member of congress. Now, Is It necessary or denlrnble. In order to accomplish the purpose of the statute, to wholly avoid or render null from the beginning an agreement lam-fully ehtered Into, were during Its life, the Indi vidual with whom It was lawfully made be come a member of rona-ress. In so fnr as such an agreement ha been performed b- lure me individual with whom it was rra'ie become such a member, It would be alto gether Inequitable to attempt to exting uish or avoid tho rights of either party acquired by the performance or breech of the agreement up to that time. The purpose of the statute would be fully ac complished and satisfied by terminating or dissolving the agreement only to the extent that It then remains executory. Rnle I General. It Is a general rule, recognlied by many courts, national and state, ttmt where per formance of an agreement, lawful In Its In ception, becomes unluwful by any subse quent event, the agreement Is thereby dls solved. In so far as It remalna executory, and both parties are excused from Its fur ther performance In that regard. When tho agreement In question was made with tho defendant the statute to which we hwve re ferred became an eaaenttal nart of the agreement as such ss if it were copied atj length therein. In effect the agreement, when Interpreted In the light of the stat ute, and of the rule of decision referred to, derlnred as effectively as If the words were written In the agreement that It shou'.d never have been held or enjoyed by a mem ber of congress; that If It should be subse quently assigned or transferred to such member, the assignment or transfer would be null and without effect, and that If the defendant with whom It warn made, during the life of the agreement should become a member of congress, the happening of that event would render the further holding and enjoying bv him of the agreement un lawful and would thereafter excuse bolh him nnd the United States from Its further performance In so far as It remained ex ecutory. It seems' to us that the contention of the defendant. If sustained, would prevent the statuto from fully accomplishing it pur ptwe, nnd that the statute Is readily sus ceptible of an Interpretation, as herein given, which enables It to reach every situ ation within its purimso or Intent, and t hi s without prejudice or Injury to the Inter ests of anyone. The demurrer Is, therefore, overruled. Dietrich Leaves City. Senator Dietrich and his secretary, Henry Smith, left Omaha this afternoon for Hast ings, where the senator plans to spend a week or so trying to catch up with his official business. He has been unublo to attend to It since the Indictments were brought against him and much work lias accumulated. Just as soon ns he can get his affairs in shape he will go to Washing ton and resume his seat In the senate. The means he will take to vindicate himself and his acts In the eyes of the publlo are under confederation nnd will be announced later. General Con In Statement. General Cowln, attorney for Senator Die trich, last night made this statement as to tho course pursued by the defense: We demurred to the conspiracy Indict ments, for the reasons stated by Judge Van Devanter In delivering the opinion of the court sustaining the demurrer, us fol lows : ' "The Indictment Is challenged by a de murrer upon the ground that agreeing to . ccelve a bribe und agreeing to give one under such circumstances are acta speclll caly nrohlVied by section 1781, nnd that, therefore, such an agreement Is taken out cf and excepted from the general section f-441. If section 1781 was In terms confined to prohibiting the receipt of such a bribe by a member of congress and the giving of euch a bribe by an applicant for office, or other person, then we would be of the f pinion that the Indictment, In charging a conspiracy or I greement to do that which Is prohibited, would charge an offense pun ishable by section 5149; nut, since section 1781 In terms prohibits an agreement to accept or give such a bribe, ss well as the acceptance or payment thereof, we are of the opinion that such tin ngreement be tween the bribe taker nnd the bribe givers can not be mode the subject for a prosecu tion for conspiracy under section 6440." There waa a .separate Indictment ngalnst Senator Dietrich pending In court, charging him as a member of congress with agree ing to receive money or valuable consid eration for procuring the appointment of fisher as postmaster, and a separate In dictment against Fisher charging him with agreeing to give the same. These were the Same uareements as charsred In the con spiracy Indictments, thus reeking to pot the defendants twice In jeopardy for the same alleged offense. When the demurrer to the conspiracy In dlctments were Interposed Senator Dietrich had already been arraigned and plead not fiullty to the separate indictment against ilm. consisting of six founts, nnd had de manded a speedy trial thereon and was then ready for trial. After sustaining the demurrers the case of United States against Charle 11. Die trich, on the last mentioned indictment, was called for trial, a Jury was empanelled and opening statement made by counsel for the respective parties. Howr Summer Pnt It. In the opening presentation of the case to the Jury upon the part of tho United States, it was stated by the district at torney, that Mr. Dietrich was elected sena "y. ho, Nebraska legislature March 28, 1!U1; that there was no session of congress between that time and the assembling of congress December 2. 1801. at which time Mr. Dietrich took the oath prescribed by law and qualllled as United States senator. This statement necessarily presented the question whether Mr. Dietrich was a mem ber of congress within the meaning of the first paragraph of section 17K1, between hi election and his qualification, and. showed clearly a failure of proof to establish the offense charged, If It should be held that Mr. , Dietrich was not a member of con gress during that time, because it was during that time all the transactions al- leea iook place. rom the first it was the determination of Senator Dietrich to bring this bribery Indictment to trlul upon the facta as to the alleged transactions, but with this statement we were confronted with the question us to whether that could be done. No consent, agreement or stipulation upon the part of Senator Dlotrlch, as to his status between his election and his qual ification could change the actual status aa presented by the district attorney, and tho United States circuit court, not being an Investigating committee, would not receive such ngreement or stipulation wllh rcsprct to a status different from the fnVt. any more than It would receive a stipulation as to Jurisdiction In a criminal case. It was evident, therefore, that under the statement of the district attorney, if he proved everything that his statement contained, at the end of his proof the court would be compelled to -direct the Jury to return a verdict In favor of the defendant, If the court should hold that Dietrich was not a member of congress nt the time of the alleged acts complained of. Two Coarse for Defense. Under these circumstances the defense had two courses to pursue; first, It might refrain from making objection to the In troduction of the testimony on behalf of the .prosecution, and thereupon the prose cution could Introduce all lta testimony? but at the conclusion thereof, having failed to show that Mr. Dietrich qualified until after the acta complained of in the indict ment, the court would have required a presentation of the question ns to whether an offense had been proved, und would have determined thut question then and there without proceeding further. As the court finally determined that Mr. Dietrich wus not u member of congress within tha meaning of section 1781, had the defense pursued the course above Indicated, a ver dict would have been rendered for the de fendant, but all the testimony on the part of the prosecution would have been In the case, in the record and presented to the publlo without any opportunity on the part of the defendant to Introduce one word of testimony In defense. Second The other course to pursue, end which 1 took the responsibility of adopting waa to present the question as to whether Mr Dietrich waa a member of congress under sect-. u 17M during the times alliaed In the indictment, before any testimony waa introduced, busing my objection to the Introduction of any testimony upon the statement of the district attorney. In the nature of a demurrer thereto. Hy th course If the court should determine that IT CURES CATARRH. STOMACH and KIDNEY DISEASES. CHRONIC RHEUMATISM AND ECZEMA IT DOES THE WORK IT'S PLEASANT TO TAKE If your druggist does not keep 'It call or write CO-LON-CO COMPANY, Kruf Theater Bid., OMAHA. Mr Dietrich w.s a member of cong'rsss, then all the testimony would go In, that for the prosceutli.n us well a f.r the di fense: If tho court should determine that Mr. Dietrich wn not a member of con gress during that time, then no testimony could go In, either on the part of the prose cution or on the part of the defanav. To have pursued sny other course, as the curt finally ruled. Would have allowed nil the testimony on the part of the prosecu tion to go In and none on the part of thj defense, and It was nut In the power of the defense by agreement, stipulation or other wlsn to put lr. any testimony. These are the reasons why the qurn lcn ss to whether Mr. Dietrich wa. a member of congress, was presented by me before the Introduction of any testimony. Van Devanter' Chornr. Judge Van Devanter, In charging the Jury, said: "It results from that which has Just been stated In your presence that If all the evi dence which the prosecution haa In hand and which has luen described to you were now here Introduced and before you, that It would appear that the defendant had not obtained that official relation to the United States which It was necessary that he should have obtained In order that he should come within the terms of this statute, nnd In that event we would be compelled to Instruct you to llnd him not f;ullty; and since the district attorney has aid before you a clear and precise state ment of what his evidence will be, nnd that thin appears from that statement, It renders It unnecessary to have nil that evi dence detailed before you, because the re sult which ultimately would have to be rcachc-d Is now quite clear. It will be, therefore, your duty to find a verdict ot not guilty." n was. therefore, utterly Impossible for Senator Dietrich, under any circumstances, to introduce any testimony In the case. JOHN C. COWIN. JURY TAKES ANOTHER VIEW In Drlags (nip ft I Decided that Congressman's Incumbency Follow Election. NEW VOrtK, Jan. 8. Former Congress man Drlggs, who was convicted here yes terday of receiving compensation for aiding In the procurement of a contract with tho government, in his defense said, although he had been elected ns congressman, he had not taken his sent at the time of the alleged improper transaction. Mr. Drlggs' attorney contended throughout that his client was not a congressman until he had actually taken the oath of office, but the prosecuting attorney maintained that the defendant was n member of congress from March 4, when the preceding house of rep resentatives adjourned. , Judge Thomas left Irto the Jury to decide whether tho term as congressman had no tnally begun at the time In question and the Jury brought In a verdict of guilty. SEARCH WOMEN FOR WEAPONS Chicago Court M ill Take No Chances at Car Barn Bandit' Trial. CHICAGO, Jan. 8 The searching of spec tators for veapons at the trial of the ear barn bandits was today extended to women. Mrs. Van Dine and Mrs. Neldetmelr. mothers of two of tho men on trial, were among those forced to go into an ante room, where the police matron, searched all women fuspected to see If there might be any weapons which may be used In effecting the escape of the bandits. To Cor n Cola In One Day Take Laxative Bromo Quinine Tablet. All flrugglsts refund the money If It falls to cure. E. W. Grove a signature) Is on each box. 25c HYMENEAL halfant-McCalloeb. PLATTSMOUTH. Neb., Jan. 8.-(8pec!aI.) William F, Chalfant and Mis Delia M. McCulloch were united In marriage by Rev. D. . A. Toutsy, pastor ot the Christian church, at his home yesterday. ., K'alker-Horner. UlMojf, la., Jan. 8. (Special.) A quiet horn wedding occurred af the home of Dr. J. B. Homer of this city, when his daugh ter Qrare was united In marriage to Mr, D. J. Walker. - A Sore Never Matters After Porter's Antiseptic Healing Olls ap plied. Relieves pain Instantly and heals at the came time. For man or beast. Price, 55c. DIED. ROCCO Mrs. Marlon, nge. 79 years, at the family residence, 'J4 South Twerty eighth street, January 8, JW4, fcfter an illness of a few weeks. , Funeral notice later. STECKER Mrs. Julia D., slater of the late Joseph F. Sheely, ot tho residence of her niece. Mrs. Nellie Sheely Patterjon. liXU South Twenty-eighth street, on Wednes day, Jar.uary 6. iA. fcged 78 years. Funeial Saturday. January t, nt 2 p. m. Intei ment at Prospect Hill. j"rlends in vited. ALEXANDER SADD . HEADQUARTERS FOR VEGETABLES AT LOW PRICES nest Colorado Potatoes. .8ic per bushel Turnltg 20c per bushel Carrots, per bushel Market House, Stalls 13 and 26 IT'S TEN CENTS T7L TJ- Only Entertaining What 1 O ilat Food Magazine. Send for copy. 10 cent or II. (Hi n year. Reliable Health Arllnle. Table Stories, Jesis, Poem. Clever Toa.ta. A good friend to brighten your leisure mo ments. Full of novel suggestions o entertaining. Th. Iowa H-alth Bullet!. ULjt "Oor tioma. would b. hMlthl.r an4 happier It lta. Inmate, wer. ivudrra of Ihll worthy publication." WHAT TO EAT (Monthly Maratlnel Washington St. sad Filth Ave., Chicago For Menstrual Suppression from aar taaa at oat ".!.. PEN-TAN-GOT .nova iimiwi ail v.mv - II . box: I koiaa. It. M u la Omaha bj SMrnw. McCooi.aU Orus C. stall nton tlltH. Tr.ua .luwllaa AMI IK. UK NTS. nnvnx. one ok the safest liU I U Zi THEATERS IN AMERICA. i: Means of Exit ASH KSTOS CURTAIN. MATINEE TODAY TO NIQHT PI 21 I In His New Play, 1 1 lit THE MAN MURPHY FROM MISSOURI A Splendid Co. With KOROTHV BHERROD SUNDAY, MONDAY, TLEBDAX iNIUMIS Special Matinee Tuesday, . .'THK UMAR'f HKT." " The greatest of all colored artists. Thursday, Friday, Saturday Matinee and Night, Sundsy Matinee and Night, Jan. 17, THE SlLTAS-OK-811,1." C"ftlaHTOIt Telephone, 15S1. Every Night Matinee Thur., Sat., Sun. MODERN VAUDEVILLE. -Lillian Burkhart & Co., Annie Abbott, Stuart Barne. Irene Franklin. Armani Tito Troupe. Arnlm tt Wagner, Lew Weils and the K'nodrome. Prices 10c, c. ouc. Tonight at :15. flATlNEE SATURDAY Beat Seat lottti Wiliian In OMLY A SHOPGIRL 29 uents Sunday Matin Dvlma Herman In "Tb Charity Nurse " OMcW wW aTaaawawaaawwawjaaa aCX-X-afea W. G. JERRIMS, Pres. OriAHA'S POPULAR PRICED v TAILORINQ HOUSE. ARE YOU 9 SKEPTICAL you fear that the gar ments we offer you at $18, $20 and $25 during our January clcaning-up sale will not sat isfy you you think that the ma terial, workman ship or linings must i necessarily be inferior on ac count of the low price TTfoO you think there's some trick about it 'TI1EN convince yourself 1 quickly by first care fully examining the excel lent woolens we offer! ASK to see the linings that will be used In your garments! THEN insist upon seeing a sample of our finished garmentsl 11TFLL tske chances on ff getting your order after you have done all ttilsl THERE'S no secret about It! IT'S simply Mcoll's way of getting rid of hundreds of remnants-short lengths single suit patterns and surplus stock at the end of the season. TRIE! There's mighty little profit in It for us but in return we gain several hnndred new friends whose trade we hold per manently. WE mean to be generous with you; If we fail . to please you in material fit ting trimming or workmanship you have a perfect right to refuse the garments. 0LR window Is an Index of what you'll find on our tables. TAIL W. G. JEHKEMS, Pr)lJnl 209-211 South Hth 5t. I o 9 O QMs