The Montgomery tribune. (Montgomery City, Mo.) 1892-1910, 1904-01-15
WHICH DECISION
IS CORRECT ONE?
Senator Dietrich Acquitted and
briggs Convicted.
SAME POINT IN BOTH CASES
10 nm Elected senator ar ncpresenta-
tive IN Ofnr.r he lure Ue-
fore Taking the OmrinI
Oath Or Motif

bmhha, Ned, Jun. W inc
United States circuit court convened
Judge ~VanDcyantor handed down n de-
cision sustaining the demurrer intor-
posed by counsel for United States
Senator Dietrich. The demurrer was
made to tho Introduction Of evidence,
on the ground that Dietrich was not
actually n member Of the sonatc when
tho alleged bride took place. The eff
feet Of the decision In that n man IL
not nm actual member Of congress from
the time Of his election until he shall
have taken the oath at the bar Of the
house To which he IL elected. and that
ho In not amonablc to the law. as a
member Of congress aud officer Of tho
United States.
In delivering tho opinion of the
court. Judge VanDcyantcr said: "rhc
court has given m careful and exhaust
cd attention to tho demurrer rs time
would permit. and We have arrived at
n conclusion In which We are both
quito agreed.
This defendant is charged with re-
cclylng and agreeing to receive, while
n member Of the United States senate.
or n part Of the United States congress.
valuable consideration from one Fish
or. for procuring or aiding TO procure
for him tho appointment Of postmaster
ut Hastings. Ncb. Section 1881 of the
revised statutes. under which this nc
tlon IL brought. contains Two distinct
md separate prohibitions. The first
paragraph. under which Indictment Is
brought. provides that every member
OF congress. officer or ngent 81 The gov
eminent who commits certain acts.
shall bc guilty Of n mlsdcmcanor and
provides for certain punishment. The
other paragraph provides hat every
member Of congress. officer or agent
Of the government. after his election
etc. shall be liable to the penalty pro-
vidcd for the commission Of such acts"
The opinion then dcnnoa the dlnor.
once Of meaning between tho two
paragraphs. and II To the effect that
u man elected 10 ngrc docs not
nctually became "a member Of that
body until after he has qualified and
taken the oath Mt the bar of the house
10 which he has been elected. Judge
'Nhif'NhlA'l bhlN ANhA lNf 'hNli WIS
unable TO find n single instance. nor
had counsel cited any instance whore
n member Of congress. after his clcc.
tlon and prior to his qualification he.
fore and the administering of tho oath
by that body, had enjoyed greater
privileges than any other person. by
means NJ their election, although they
otter enjoyed greater influence.
The last paragraph. aaid the court,
refers Ia acts which may bc commit
ted by members Of congress. aftor
their qualification for acceptance OF
the duties OF their Office.
Continuing. he said: Under the law,
therefore. there Ia No crime, except
whore congress- has 81 declared. The
court docs not make the law, or say
what " should like 10 have II he. Con.
grcsB makes tho law. and tho courts
conStruo II. Here congress has said
that members OF that body who take
bribcs shall bc punished. II might,
perhaps, be competent for congress to
enact n law which would makcita penal
ofcnsc for any person to attempt To
secure for another an Office under tho
United States government. But such
n suggestion Is not included In this
statute. Instead OF saying every per.
son, It IL confined to members of con.
gross. officials and agents of the Unit.
ed States. Tho two houses OF con.
gross, undor the constitution, are the
only judges Of whom shall sit as Nom.
beers of their respective bodies. Tho
] nluIriaf ntIArnnN hau alnalttnI shnN
there was no session of congress from
March rs, the date Of the election by
the legislature OF Senator Dietrich,
and December .. tho date of the con.
vcning Of congress. Until the latter
date thore could be no question raised
a. TO his actual membership in the
senate, nor could he qualify before
that body until that timc. Then II was
not known whether he would be per.
mittod to enter upon his duties as a
United States senator, and representa-.
tive OF the people OF Nebraska before
that body"
The opinion then defines the moan.
Ing Of members-elect. ex.mcmbers, and
members of congress, and closes: our
opinion, therefore, Is that this de.
PENDANT was not a United States sen
ator at the time of the acts charged
In this indictment within tho inhibi-
tion OF this statute, The jury Is in
structed to find u verdict OF not gut.
ty,"
Immediately AFTER the verdict was
ordered for defendant, District At
torney Summers announced that he
wished to enter q nolle In the case oil