Mrs. Grundy. (Tracy City, Tenn.) 1903-1930, 1904-01-14
WHICH DECISION
IS CORRECT ONE 2
Senator Dietrich Acquitted and
briggs Convicted.
SAME POINT IN BOTH CASES
IL an Elected Senator or Representa-
tive an officer De Jure Be-
fore Taking the Official
Oath or Not.

Judge VanDevanter handed down de-
cision sustaining the demurrer inter-
posed by counsel for United States
Senator Dietrich. The demurrer was
made to the introduction of evidence,
on the ground that Dietrich was not
actually member of the senate when
the alleged bride took place. The eff
feet 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 officer of the
United States.
In delivering the opinion Of the
court, Judge VanDevanter said: "The
court has given as careful and exhaust
ed attention to the demurrer as time
would permit, and we have arrived at
a conclusion in which we are both
quite agreed.
lllo utlSIuduL Vial sou WIN ~
ceiving and agreeing to receive, while
a member of the United States senate,
or part of the United States congress,
valuable consideration from one Fish
err, for procuring or aiding to procure
for him the appointment Of postmaster
at Hastings, Neb. Section 1871 of the
revised statutes, under which this &C
ton Is brought, contains two distinct
and separate prohibitions. The first
paragraph, under which indictment is
brought, provides that every member
of congress, officer or agent of the gov
eminent who commits certain acts,
shall be guilty Of misdemeanor and
provides for certain punishment The
other paragraph provides that every
member of congress, officer or agent
of the government, after his election,
ETC., shall be liable to the penalty pro-
vided for the commission of such acts"
The opinion then defines the differ
ence of meaning between the two
paragraphs, and is to the effect that
man elected to congress does not
actually became 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
VanDevanter said that the court was
unable to find single instance, nor
had counsel cited any instance where
a member of congress, after his cleo
ton and prior to his qualification be-
fore and the administering of the oath
by that body, had enjoyed greater
privileges than any other person, by
means of their election, although they
otter enjoyed greater 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 duties of their office.
Continuing he said: Under the law,
therefore, there is no crime except
where congress has so declared The
court does not make the law, or say
what is should like to have it be. Con-
gress makes the law, and the courts
construe it. Here congress has said
that members of that body who take
brides shall be punished. 1t might
perhaps, be competent for congress to
enact a law which would make it penal
offense for any person to attempt to
secure for another an Office under the
United States government. But such
suggestion Is not included in this
statute. Instead of saying every per-
son, it is confined to members of con-
gress, officials and agents of the Unit
ed States The two houses of con-
gress, under the constitution, are the
only judges of whom shall sit as men,
bers of their 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 December 2, the date of the con-
vening of congress. Until the latter
date there could be no question raised
as to his actual membership in the
senate, nor could he qualify before
that body until that time. Then it was
not known whether he would be per-
mitted 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 mean
ing of members-elect, ex-members, 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 the inhibi-
ton Of this statute. The jury is in
structed to find verdict of not gull
ty"
Immediately after the verdict was
ordered for defendant District At
torney Summers announced that he
wished to enter a nolle in the case of
Jacob Fisher, postmaster at Hastings,
explaining his motion by saying:
In the case of United States against
Cnas. H. Dietrich, is became the duty
of counsel for the defendant to turn
from the jury to the court, from the
facts to the law. 1t is consolation to
know that Section 1881 of the Revised
Statutes has been construed at time
when it seemed necessary and by a
court that enjoys the full measure Of
confidence of both lawyers and lay
men.
Charles Fl. Dietrich was not a
member of congress until after De-
cember 2, 1901, and the court has held
that he was not, then Jacob Fisher can
not be put upon trial for or on account
of agreeing to pay or paying certain
sums of money to him or performing
contracts for him during the months
from July to October, 1901. under a
contract made with him as MEM
Der of congress, whereby Jacob Fisher
was to be appointed postmaster"
The court made the order, and then