The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1904-01-09
Judge Vandevanter Says Congress
men-Elect Are Not Congress
men in Fact Until Sworn In.
ALL CASES ARE NOLLIED
And the Senator and Postmaster
Fisher Promptly Discharged
by the Court.
ATTITUDE OF SUMMERS
District Attorneys Statement
GOWNS Reasons for Entering
Demurrer to Indictments.

DClllull lCl 10 lllul(llllNlllo.
OMAHA. Neb. Jan. s.-The trial OF Sen
ator Charles II. Dietrich for alleged bribery.
In connection with the appointment OF
mostmaster at Hastings. Neb.. came TO an
abrupt end to-day when the United States
Circuit Court Judge Vandevanter presid-
ing. decided that Dietrich was not a SEN
ator at the time the alleged acts occurred
The opinion was a lengthy one and is said
20 be precedent. Upon this decision
District Attorney Summers entered a nolle
in other cases against the senator. with the
statement that the construction placed on the
law by the court precluded further pro-
ceedings against either Senator Dietrich or
Postmaster Fisher both of whom were dis
charged.
In delivering the opinion of the court.
Judge Vandevanter said:
This defendant is charged with receiv-
ms and agreeing 70 receive. while a member
OF the United States Senate. a part of
the United States Congress. valuable
sideration from one Fisher for procuring
or aiding to procure for him the appoint
ment Of postmaster at Hastings. Neb.
Section l71S OF the Revised Statutes. under
which this action is brought, contains two
distinct and separate prohibitions. The
first paragraph. under which this Indictment
Is brought. provides that every member OF
Congress. officer or agent OF the govern
ment, who commits certain acts. shall be
guilty Of a misdemeanor and provides for
certain punishment. The other paragraph
provides that every member Of Congress,
ofncer or agent Of the government, after
his election shall be liable 10 the penalty
provided for the commission Of such acts"
NOT SENATOR TILL QUALIFIED.
The opinion then defines the difference
of meaning between the two paragraphs and
is 10 the effect that a 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
10 which he has been elected. Judge Van
deventer says the court was unable TO find
d single instance. nor had counsel cited any
instance where member of Congress- after
his election and prior to his qualifica tion
before administering Of the oath by that
body had enjoyed greater privileges than
any other person. by means of their cleo
tion. although they often enjoyed much
. greater influence The last paragraph, said
the court refers to acts which may be
committed by members c. Congress after
their qualification for acceptance of the
duties OF their Offices
Continuing. the Judge said: Under the
law. therefore, there is no crime, except
where Congress has so declared. The court
does not make the law say what ii should
like TO have It be. Congress makes the
law and the courts construe it. Here Con-
gress has said that members of that body
who take bribes shall be punished. 1t
might. perhaps. be competent for Congress
20 enact a law which would make IL penal
offense for any person to attempt to Sc
cure for another office under the United
States government. But such a suggestion
Is not included in this statute. Instead Of
saying every person. IL is confined TO MEM
bers OF Congress. officers and agents of the
United States The two houses of Con-
gress. under the Constitution. are the only
judges OF whom shall sit members Of
their respective bodies
The district attorney has admitted that
there was no session of Congress from
March q. the date of the election by the
Legislature of Senator Dietrich. and Dec 2.
the date Of the cOnvening of Congress-
Until the latter date there could be no ques-
tiOn raised as 10 his actual membership in
the Senate. nor could he qualify before that
body until that time. Until then IL was not
known whether he would be permitted TO
enter upon his duties as United States SEN
atOr and as the representative of the peO-
pie OF Nebraska before that body
The opinion then defines the meaning of
members-elect. eX-members and members
of Congress. and closes: ''Our OpiniOn
therefore, is that this defendant was not a
United States senator at the time of the
acts charged in this Indictment, within the
inhibition of this statute. The jury is in
structed to ind verdict of not guilty.
SIAIEMENI b1 SUMMERS.
District Attorney Summers stated te the
court that the government had not within
his knowledge. ever placed a man on trial
what might be termed technical viola
tion OF the law. He said that under the con-
struction placed upon Section 1881 Dietrich
had enjoyed the lease but short time after
he had become a United States senator.
that is after taking the oath. He said that,
although he had received rentals from
struction OF the section, there had been no
violation Of the law The property was
decided 10 Senator Dfetrich's daughter short
ly after Dec. ?. 1901 Il would not" said the
district attorney. ask a jury 10 return a
verdict OF guilty against a man under any
circumstances. unless / believed such YER
DICT 70 be i'm the interest of Justice
The court therefore. on motion OF the
district attorney. entered nOlle to the in
dictment, which cleared the docket of cases
against Dietrich and Fisher
On account of a statement made TO the
press some time ago on behalf OF Senator
Dietrich TO the effect that he did not wish
10 take advantage OF any technicality and
that he might be fully indicated Genera
Gown to-day gave out a statement Of his
reasons FOR Gemurring indictments
IN effect II Is that owing 10 the fact Jhat
the court Itself would insist on an adiudi.
cation OF the question whether or not Diet.
T4ch was "A United States senator during the
period or time covered By the alleged un.
laWI4i acts ne decided that the demurrer
should be interposed before the taking oi
testimony should begin. General Gown eN.
plained that otherwise the court at tn,
close or the case for the prosecution. woult
nav Ialsed the point IN question. which
would have precuded the defense present
Ing any evidence I'm refutation.