The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1904-01-08
No Attempt Made to Establish
His Innocence.
HE WAS NOTA SENATOR
At the Time the Alleged Illegal
Act Took Place
Although Hs Had Been Elected
to That Position.

Senator Charles H. Dietrich and Jacob
Fisher, postmaster at Hastings, Neb.,
were released from custody today, Judge
Vandeventer in the circuit court in
structing the jury to bring in a verdict
Of not guilty Of the charges of bribery,
ETC., and the district attorney entered a
noile in the indictments recently re-
turned against them.
Immediately after convening court
this forenoon Judge Vandeventer hand
ed down a decision sustaining the de-
rnurrer interposed by counsel fol-. Sen
ator Dietrich, which had been made on
the ground that Dietrich was not act
uaIly member of the senate when the
alleged bribery took place. The effect
Of the decision is that a man is not an
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 is elected and that he is
not amenable to the law as member of
congress and an officer of the United
States government. Judge Vandeventer
after delivering his opinion instructed
the Jury to bring in a verdict of not
guilty and the district attorney imme-
diately entered a nolle in the other cases
entered in each of the indictments
against Postmaster Fisher and both
were given their liberty.
In delivering the opinion of the court
Judge VandeVenter said:
The court has given as careful ana
exhausted attention to the demurrer as
time would permit, and we have ar
rived at a conclusion in which we are
both quite agreed
This defendant is charged with re-
ceiving and agreeing to receive While
p member of the United States senate
or a part OF the United States congress,
Valua BILE consideration from one Fish
er for procuring or aiding to procure
for him the appointment of postmaster
at Hastings, Neb Section 1871 of the
revised statutes, under which this ac-
ton is brought, contains two distinct
and separate prohibitions. The first
paragraph, under which this indict-
ment is brought, provides that every
member of congress, officer or agent OF
the government who commits certain
acts shall be guilty Of misdemeanoT
and provides for certain punishment.
The other paragraph provides that
every member of congress, officer or
agent of the government, after his cleo
ton. etc. shall be liable to the penalty
provided for the commission of such
acts
The opinion then defines the differ
ence of meaning between the two par
agraphs and is to the effect that man
elected to congress does not actually
become member of that body until
after he has qualified and taken the
oath at the bar of the house to which
he has been elected. Judge Vandevent-
er said that the court was unable to
find a single instance nor had counsel
cited any instance where a member of
congress after his election and prior 20
his qualification before and the admin
isterlng of the oath by that body. had
found greater privileges than any 9TH
er person by means Of their election.
although they often enioyed much
grester influence
The last paragraph, said the court,
refers to acts which may be commit
ted by members Of congress, after their
qualification for acceptance of the du-
ties of their office Continuing he said
Under the law therefore, there is no
crime except where congress has so de-
clared. The court does not make the
law or say what il would like to have
It be. Congress makes the law and the
courts construe it. Here congress has
said that members of that body who
take brtbes shall be punished. 1t might
perhaps, be competent for congress to
enact a law which would make it a
penal NffenSe for any person to attempt
TO secure for another an office under
the United States government but the
suggestion IS not included in this stat
ute. Instead of saving every person it
is confined to members of congress. of
hcers and agents of the United States. u
instead of saying every person, it is
connneo TO members of congress. Off
GERS and agents of the United States
The two houses of congress, under the
constitution are the only judges of
whom shall sit as members of their re-
6pectiVe bodies. The district attorney
has admitted that there was no session
of congress from March 2S, the date of
= the election by the legislature of Sena-
Eor Dietrich, and December ? the date
fof Ene conVening of congress Until the
latter GATE there could be no question
raised as TO his actual membership in
the senate nor could he qualify before
that body until that time Until then
It was not known whether he would be
pernllted 10 enter upon his duties as A
United states senator and as a renre-
sentative of the people of Nebraska. he
fore that body"
The opinion then defines the meaning
OF ~ L~heIhpers-eiect, eX-members and
members OF congress and closes.
our opinion, therefore. is that +his
de1enuant was not a United States sen
ator at the time of the acts charged in
TINS lnu1ctment. within the inhibition Of
TINS statute. The jury is instructed 10
find verdict of not guilty.
Immediately after the verdict was or
dered for defendant, District Attorna,,
Summers announced that he vvisbe5 -
enter nolle in the case of Jacob EisfS
er, postmaster at Hastings. explaining
ms moelon by saying: In the case of
the United States against Charles II II
Dietrich. it became the duty Of the
counsel for the defendant to turn from,
the jury to the court. from the facts to
the law, II IS a consolation to know
thar secuon lfsl of the revised statutes
has been construed at a time when II
seemed necessary and by a court that
enjoys the full measure of confidence nj
both lawyers and laynen. u
II Charles H. Dietrich was not q
meinOer OF congress until after De