New-York tribune., 1921-05-03
=. s. Supreme
Court n rees
NewIDerry

tCoNttHued tYem Fhge oHs
to be Unconstitutional. the court re-
verses and iinnlly dispcscs Of this casc.
although nm unable to concur IN
tho conclusion rs to the want Of power
of Congress and in tho Judgment OF
reversal as rendered, / nm nevertheless
of the opinion that there should be u
Judgment of reversal without prejudice
to new trial because of the grave mis-
apprehension and grievous misapplica-
tion of the statute upon which the con-
viction and sentence below was based
at is said that as the power which
is challenged here is the right OF a
state to provide for and regulate pri-
mary for nominating United States
Senators free from the control Of Con-
gress and not the election Of such
Senators, therefore, as the nominating
primary is one thing and the election
another and different thing, the power OF
the state as To the primary Is not gov
erned by the right of Congress- to regu-
late the times and manner of electing
Senators. But the proposition is sui
cidal one, since 1t retains in the state
the only power it could possibly have
as delegated by the (constitutional)
clause in question and refuses to give
effect to tine regulating control which
the clause confers on Congress- as to
that very power.
Finds Argument Inconsistent
"In the last analysis the contention
there is such absolute want of relation
between the power Of government to
regulate the right Of tho citizen TO seek
nomination for public office and its
authority to- regulate the election after
nomination, that a paramount govern
ment authority having the right to
regulate the latter is without any power
as to the former
Referring to the fight in Congress
for the statute which later became the
Seventeenth Amendment, the chief JUS
viously enacted legislation SO that
the amendment might be applied to
state Senatorial elections" there would
seem to be can end to all doubt as to
the power Of Congress-"
Associate Justice Pitney, who sub
mitted the opinion indorsed by JUS
tices Brandeis and Clark, fatty dis
sented from the majority as to the
constitutional infrmity" Of the statute.
Fears Shearing of Power
"lf the power to regulate primary
elections could be deemed TO have been
reserved to the states, the resplt would
be to leave the general government
destitute of the means to insure it's
own preservation without governmental
aid from the states, which they might
either grant or withhold, according to
their WILL" he added. "This would
render the government of the United
States less than supreme in the ex-
ercise of its appropriate powers"
The contention that Congress could
not have been given power over pri-
maries since they were unknown when
the Constitution was adopted was dis
missed by Mr.. Pitney as untenable.
The same might have been said OF
steam railways and the electric tcle-
graph.
II am unable to see," MIR. pitney
declared, chow in right reason it can
be held that one Of the houses Of Con
gress, in the just exercise of it's power
may exclude an elected member for
securing by bribery his nomination in
the primary, if the regulation by law
~ his conduct at the primary IS be-
yond the constitutional power of Con-
gress itself
TO safeguard the final elections.
while leaving the proceedings for pro-
posing candidates unreguIated, is TO
postpone regulation until it is COM
paratively futile"
The Newbarry case involving the
Senator and sixteen Of his political as.
soclates reached the Supreme Court
from the Federal District Court at
Grand Rapids, Mich, where the appel
iants ia were found guilty March 90,
IS2o' or criminal conspiracy to violate
tne Fe1eral corrupt practices act,
district judge, Clarence w. Sessions.
to two years imprisonment at Fort H,
Leavenworth and fined $4,000. This.
the extreme penalty of the law. was
also placed against two others, the re-
mainlng sentences running down to q
fine Of 81 900.
Based on 135 Indictments
The case started with 1876 indictm cnts
20, 1918. 1t was called for trial Ian
uary ~, 1920, and lasted eight weeks.
eighty-fve Of the original list Of de-.
PENDANTS being still before the bar
When the jury retired.
The sentences of those found guilty
with Senator Newberry follow:
frederick Cody, OF New York. former
principal of Detroit schools, two years
IN Leavenworth and $4,000 fine.
Paul n. King, Of Detroit, manager Of
the Newberry campaign two years in
Leayenworth and $4,000 fine.
Charles A. Floyd, of Detroit, assistant
manager Of the Newberry campaign.
two years in Leavenworth and $1,000
fine. ~o'ooo
William j. Nickel, Of Oshkosh. Wis.
former deputy state food and drug in,
spector in Michigan, two years in
Leavenworth.
Allan A. Templeton. ex-presiden+ of
the Detroit Board Of Commerce md
general chairman of the Newberrv
committee, one year and six months in
Leavenworth.
Editor Among Accused
!, Noger M. Andrews, editor of The
and six months in Leavenworth.