Evening star. [volume] (Washington, D.C.) 1854-1972, 1904-01-08
DIETRICH lcQU|TTE
In the Hastings Post Office
Case.
DEMURRER SUSTAINED
WAS NOT q. S. SENATOR AT THE
TIME.
He Will, However, BE Tried for Hold
ing Lease With Government
Afterward.

OMAHA, Neb., January 8.-United State!
Senator Dietrich has been released from
custody. Judge Van Deventer, after de
livering his opinion, instructed the jury tt
bring in a verdict of not guilty, and the dis
trict attorney entered a nolle pros in thu
other cases against Dietrich. Jacob Fisher
postmaster at Hastings, Neb, was alst
given his liberty, nolle pros. having beer
entered in each of the indictments agains
him.
In delivering the opinion of the cour
Judge Van Deventer said:
''The court has given as careful and ex-
haustive attention to the demurrer as time
would permit, and we have arrived at q
conclusion in which we are both quite
agreed.
This defendant is charged with receiv-
ing and agreeing to receive, while a mem
ber of the United States Senate, or a part
of the United States Congress, valuable
consideration from one Fisher for procur-
ing or aiding to procure for him the ap-
pOintment of postmaster at Hastings Neb
Section 1881 of the Revised Statutes, un-
der which this action IS brought, contains
two distinct and separate prohibitions. The
first paragraph, under which this indict-
ment is brought, provides that every mem
ernment, who commits certain acts shall
be guilty of a misdemeanor and provides
for certain punishment The other para
graph provides that every member of Con-
after his election, etc.; shall be liable to
the penalty provided for the commission Of
such acts .
Difference Of Meaning Defined.
The opinion then defines the difference OF
h1,frx Il
is to the effect that man elected to Con-
gress does not actually become a member
of that body until he has qualified and
taken the oath at the bar Of the house to
which he has been elected. Judge Vande-
venter said. that the court was unable to
find single instance. nor had counsel cited
any instance, where a membersof ConGre SIS,
after his election and priag to his qualif-
cation before and the admthtsGering of the
oath by that body. had En5Ayeu greater
privileges than other perseas, by means NJ
their their election, though the eeA enjoyed
The last paragraph, said the court. re-
fers to acts which may be committed by
members of Congress after their qualitica-
ton for acceptance of duties OF their Of
fees. Ag5
Continuing, he said: tetTnder the. law,
therefore, there is no crime. except where
Congress has so declared. The court does
not make law or say what 1t should like to
have it be. Congree makes the law and
the court construes it. Here Congress has
said that members of that body who take
bribes shall be punished
1T might, perhaps be competent for Con-
gress to enact law which would make 1t
a penal offense for any person to attempt
to secure for another an Office under the
United States government. But such sug-
gestion is not included in this statute. In
stead of saying every person, it is confined
To- ,I,orS iparS nd q
of the United States.
Not a Senator at the Time.
"The two Houses of Congress under the
Constitution are the only judges of who
shall sit as members Of thei respective
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 Senator Dietrich, and Decem-
ber 2, the date of the convening of Con-
gress. Until the latter date there could be
no question raised as to his actual member
ship in the Senate. nor could he qualify be-
fore that body until that time. Until then
* was not known whether he would be per-
mitted to enter upon his duties as United
States senator and as the representative of
the people of Nebraska before that body.
The opinion then defines the meaning of
nembers-elect, ex-members and members of
Congress and closes:
Our opinion, therefore. is that this de-
fendant was not a United States senator at
the time of the acts charged in this indict-
ment within the inhibition of this statute.
The jury is instructed to find verdict of
not guilty.
Immediately the verdict was ordered for
defendant District Attorney Summer an
nounced that he wished to enter nolle in
the case of Jacob Fisher, postmaster at
Hastings. lS
The court made the order and then called
up the case against Senator Dietrich in
which he is charged with holding and en-
joying lease with the government while
he was United States senator.