Omaha daily bee., 1906-11-13
BIG FIGHT On FINE POINT
Richards and somstooRI Counsel Attack
legality Of Dr. 1ildsh'S lnoumbSHoy
sAYHE IS NOT LEGAL JURY CoIalssloNtF
Large Array of Lawyers Lines Jp to
Make Battle Royal ~ Defend
Ing Land and Cattle.
Kings.

n
MAR and legal incumbent Of that ONCE, and |
that therefore all the acts OF the grand |
jury drawn by him and which indicted (
Bartlett Richards and w. G. Comstock, so 7
called cattle kings Of Nebraska, are invall- |
dated is the technical point on which the
I attorneys for these indicted cattle and
/ land men proposed yesterday TO make their
/ first attack on the charges preferred against
their clients.
/ If Judge Munger sustains their conten- !
/ ton. not only will the indictments against
/ Richards and Comstock fall 70 the ground,
/ they contend. but likewise will every indict-
ment for years back brought by jury
! drawn under the official direction OF DR..
Tildeu, The point is unique, never having
been presented in the court here. Judge
Munger heard argument for and against
| It and will announce his decision at $3.50 this
morning
The Richards -Comstock case came up inn
medately upon the opening Of the Novem
Der term Of United States circuit and dis
trict court by Judge Munger, yesterday
morning That these men are determined TO
make desperate fight OF their case, 50
long pending. is evident from the array OF
legal defenders they have engaged. Their
counsel consists of Stout & Ball Bronze &
Burnett. Gurley & woodrough Of Omaha
and Judge Critics OF Chadron.
Case an Important One,
The case Is one of unusual interest. owing
largely to the fact that it was the original
case Of Richards and Comstock over
which United States Marshal Mathews and
United States District Attorney Baxter
were dismissed by the president.
Mondays session of court was devoted
largely to the hearing Of motions and de-
| Dnttr nd he al f9f ri
cases The trial docket will not come from
the hands Of the printer until about Novem-
Der % About sixty cases will be on the cir
cult court docket and over, forty on the
district court docket
The petit jury will not be empaneled
until November 10. The first case set for
trial in the district court will be that OF
the United States against Richards Com
stock and others. under the Indictment re-
turned at the last term Of the federal
courts charging them with conspiracy to
defraud the government out of large areas
of public lands in Cherry and Sheridan
counties.
Novel PIeH of Defense.
As u preliminary proceeding 20 the Rich
ards and Comstock cases. their attorneys
Monday afternoon entered plea in abate-
ment Of the indictment on the ground that
Dr.. 1'lden, as jury commissioner who as
sisted In the selection OF the federal grand
l5vry that indicted Richards, COnstocie and
the other defendants In the case, was not
qualified to act as jury commissioner from
the fact that he was noe appointed Ia that
once by Judge Munger, but had merely
been appointed as special commissioner
TO assist the United States district clerk
az special session OF the federal courts
in 1879 to draw the jury panels; that he
was holding over as an appointee OF Judge
Dundy since that time and that his APP
pointmeut as jury commissioner expired
with that special term Of court in 1879
United states District Attorney Goss and
Special District Attorney s. r. Rush filed
a bill Of exceptions 20 the plea In abate-
ment, on the ground of insufficient cause
Argument of the Point.
l. The arguments were participated In by
J Harry Bronze and r. S. Hail attorneys
for Richards & Comstock, and s. r. Rush
as attorney for the government Bronze
aud Hail held that under the statute the
t jury commissioner must be Of the oppo-
= site political faith of the clerk Of the
? United States district court and from the
= fact that when he was appointed In 1879
5 he was a democrat. while the then clerk
OF the district court, Elmer Frank, was a
republican. However. in the lapse Of thirty
years the present district clerk r. c.
! Hoyt,is a democrat hence as Dr. TIlden
was appointed as a democrat, the drawing
f of the federal iuTies is now wholly within
e the hands of two men OF the same poiti-
cal faith and has been for the last seven
years since Mr. Hoyt has been district
= clerk, and for this reason their acts are
, held to be invalid.
Mr.. Rush contended that DIR. Tilden had
since changed his political faith and was
iTanWr -
Jury commission consist OF two men of
! opposite political faith This proposition
the court refused to consider and It was
barred from the pleading in the bill of
exceptions. After further discussion the
court decided to overrule the exceptions
a nled by the government attorneys TO the
?. plea in abatement, but permitted MI Rush
d to filo a general demurrer to the plea
0 No Law 10 warrant IL.
= Mr.. Bronze stu insted that the appoiut-
ment of DR.. Tilden was illegal, or in fact
$ that he had not been appointed at ALL
There was no existing law" he said.
where a man could be appointed to an
once OF this kind for life, nor could he
;. continue to hold over in his appointment
u and change his politics to conform with
4. the appointing power"
Judge Munger said "The question be-
fore US Is, should the court appoint the
. jury commissioner at each term of court
! or shall the appointment continue from
7 the original appointment" He held thai
+ II the original appointment OF DIT. Tiiden
made 60 continue indefinitely the
actions Of the commissioner could not be
: questioned. but il the appointment was
: made but for a specific occasion then there
a was a subject for careful consideration
!, The question now arises. said Judge
Munger, "as to whether il is necessary
to appoint a Jury commissioner for each
> special drawing"
Mr.. Rush contended that the commits
sioner was appointed by the court to con-
tinue during the pleasure Of the court and
that there was no limitation as TO the term
Of the appointment. The Jury commits.
sioner was an ofhcer OF the United States
D. ana his ONCE could only terminate By res.
: igEation or by removal by the appoinune
I. power. Il was not alleged IN the plea for
abatement that Or. Tilden had ever re-
. signed OF been Suspended.
d Question fs New one.
n The question is an entirely new and move
% one and has never before been raised On
this court, though several cases were cited