OCR Interpretation


Omaha daily bee. (Omaha [Neb.]) 187?-1922, January 09, 1904, Image 2

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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

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