The Goodland republic. [volume] (Goodland, Kan.) 1891-1907, 1906-04-06
BURTOH'S CASE IS ARGUED
BAILIE WAGGENER RAISES A
CONSTITUTIONAL POINT.
Instances Mentioned Where the Au-
thOFity OF the Senate and the
Courts Might Conflict.

thOFity OF the Senate and the
Courts Might Conflict.
Washington, April s.-AssaiIing as
unconstitutional the statute under
which two United States senators have
Bailey P Waggener OF AuchiSOn made
a notable argument today before the
supreme court in the Burton case He
raised the contention that the act Of
1864, providing a penalty in the case
Of a member Of congress who Drac-
tees for compensation in a proceed
ing in which the United States is in
tereSted IS unconstitutional
Mr. Waggener injected an entirely
new issue in the prosecution Of the
Kansas senator The other attorneys
for Burton did not raise this cOnten-
ton and Mr.. Waggener brought il TO
the attention Of the court in a sep
arate brief fled last week. There have
been few prosecutions under the stat
ute referred 10 and it's constitutional
ity as never before been attacked.
When the appeal OF Burton was before
the supreme court last year its valid
ity was not even questioned.
The interest in Waggener's argu-
ment was indicated by the profound
attention with which he was follow
ed by the justices and the lawyers, as
well as BY the great thrOng Of spec
tatOrs- In the space reserved for
law gELS were several senator's VINO
were especially interested in his views
on the constitutional rights Of the
senate.
In opening his argument, he called
the courts attention 10 the fact that
the solicitor general, Afr. HOyt, in the
government brief had stated that if
the judgment OF the lower court in
which Burton was convicted was at
hrmed that decision in itself would
vacate his seat in the senate.
Illegal Delegation, He Says.
If that is the case" said Mr..
WaggeneTs then the power given the
senate by the contitution has been de
legated by IL TO an inferior judicial
tribunal which is TO exercise the sen
ate'S prerOgauveS. The constitution
creates the office Of senator and pre-
ScrbeS the qualifications and diSQuali-
hcatiOns Of those who may be elected
TO the senate Under our theory Of
government a senator is responsible
70 only two bodies the senate and
the state that sent him TO Washing
ton The constitution does not dele
gate to the courts the right to prose
cue a senator for Official miscOn-
duct The senate alone can do that
We are getting away from the land
marks OF the constitution. Our fore
fathers never intended that a senator
should be dragged from his seat in
the senate and tried before a jury of
twelve men, The act Of 1854 violates
at least a half dozen sections Of the
constitution
Mr.. Waggener insisted that act was
not the supreme law Of the land. If
the senate so decided il could nuIlify
the action Of the trial court and re
pudiate its judgment. Congress, he
declared, might pass an act making
it crime for the president during
his term Of office to try TO influence
legislation Such a law would not be
constitutional.
The Jury Question.
No more, he argued, was a law con-
sututional that permitted a jury of
twelve men to create a vacancy in
the senate He also cited a possible
case in which there might arise in
the senate question Of great public
Importance and the senate find itself
without a quorum to consider it.
Burton would be locked out. The
senate would issue q summons for
him to appear. Which would be the
supreme law, the act under which
he had been convicted, Ga the con-
stituuOnal authority under which the
senate had acted? He referred to the
provision under which a vacancy in
the senate is filled by the appointment
Of governor.
Suppose the governor assuming
that a conviction under the act OF
1854 vacated the office Of senator
should appoint some one to the sup
posed vacancy, and the senate refuS-
ing to accept the verdict Of the courts
on the ground that it alone had power
to judge the conduct OF its members,
declined to open its doors Mr.. Wag-
gener insisted that congress has moth
ing whatever to do With the official
conduct Of senator and that SEN
atOrs were absolutely immune from
prosecution in the courts for miscOn-
duct
Mr. Waggener was followed by As
sistant Attorney General RObb. In
opening his argument Mr.. RObb re-
ferred to the declaration Of Judge
Dillon that Burton was innocent
4 state with all the earnestnes Of
which I am capable said Mr.. RObb,
that I believe the judgment Of the
court below to be a righteous judg-
ment-"
Mr.. RObb's Contention.
He presented a history Of the
static under which Burton was in
dicted- He insisted that the prOvfs-
ions of that statue did not encroach
upon the rights Of the senate, nor up
on any Of its prerOgatives- Its object,
ne said, was to increase the efficien-
cy and integrity OF government Ofi-
Gals. 1t was assumed that a member
Of congress could not with justice
represent at the same time a client
and the United States government
The wisdom OF that enactment, he
declared, had never been questioned
Mr.. Robb had not completed his ar
gument when court adjourned.
The Burton case viii be before the ]
court three hours tomorrow. Mr..
RObb viii close his argument and viii
be followed BY Solicitor General Hoyt
for the government Then Fred ".
Lehman Of St Louis will close for
Burton All Of the justices were on
the bench today except Chief Justice
Fuller, who is i'll The attorneys for
both sides informed the court that
there was no objection to Justice
Fuller taking part in the deliberations
Of the court when the time comes for
IL 70 render its decision 1t was said
he chief Trr=ffaa rr7fcr1-E - -