in the same, to be conducted by his son, and it was agreed between Senator Dietrich and Mr. Fisher that he (Fisher should take the room and pay rent for it, commencing August 1, 1901, at the rate of $200 per annum. This arrangement was made some time in November, 1901. Senator Dietrich soon after came to Washington and did not return to Hastings until the latter part of March, 1902, when he found that the restaurant had not been started and that the room was vacant. He was told by Mr. Fisher that as the Burlington depot had not been completed as soon as he supposed it would be he had given up the idea of establishing a restaurant in the room; "that he had negotiated with the Western Union Telegraph Co. to put an office therein. but that that plan had not materialized. Thereupon Senator Dietrich told Mr. Fisher that he was willing to take the room off his hands and repay the rent which Fisher had paid for same from August 1, which he did, and soon thereafter Senator Dietrich leased the room for $300 per year to another party, which lease still continues. The money paid by Mr. Fisher for the rent of the room was paid to Mr. Slaker and deposited to the credit of Gertrude Dietrich, and the subsequent rents have been so collected and deposited. The entire amount paid by Mr. Fisher for the room was $83.30.

Soon after making the arrangenent to lease the same, it was agreed between Mr. Fisher and his deputy postmaster, Edwin A. Francis, that they should be jointly interested in the lease of the room, each paying one-half, and sharing equally in any rents that might be derived therefrom. Francis paid to Fisher one-half of the rent while the arrangement lasted, which was repaid by Fisher when Senator Dietrich took the room off his hands.

APPOINTMENT OF JACOB FISHER AS POSTMASTER.

Fisher was a director in the bank of which Senator Dietrich was president, and his friends had made application to Senator Dietrich while he was governor to appoint Fisher to the office of oil inspector of the State. Mr. Fisher, in company with Mr. John D. Mines, visited the city of Lincoln, where the legislature was in session, in February, 1901, and Mr. Mines asked Mr. Dietrich to appoint Mr. Fisher to such position, but the governor informed Mr. Mines, in the presence of Mr. Fisher, that he did not see his way clear to make such appointment; that if he should appoint him Fisher would have to live at the capital, and that the expense of doing so would be so great that he would not receive much benefit from the office, but that he would use his influence to have Fisher appointed postmaster at Hastings.

After the election of Mr. Dietrich as Senator Messrs. Fisher and Mines again visited him, and Senator Dietrich assured them that he would recommend Fisher as postmaster. Soon after his election as Senator, Mr. Dietrich took a trip to the Big Horn Mountains, and when he returned therefrom to Hastings he sent for Mr. Fisher, who went to see him, and was told by Senator Dietrich that he would soon recommend him for postmaster. A conversation thereupon took place with regard to the fixtures in the old post office, which Senator Dietrich had, as before stated, agreed to pay for when he should take possession of the same, or when the post office should be removed to the Dietrich Building. Senator Dietrich asked Fisher if he did not think that he could raise among the people who were interested in property in that section of the city the $500 necessary to purchase the fixtures. Fisher replied that he did not think he could, as the property owners there had recently contributed the sum of $3,000 to secure the location of the Burlington depot in that vicinity, and that he would rather buy the fixtures himself than go around with a subscription list to raise the money necessary; that other postmasters, when appointed, had purchased fixtures, and that he was willing to do the same. Soon after this Mr. Fisher was recommended by Senator Dietrich, and on June 8, 1901, received notice that his appointment as postmaster had been made.

Senator Dietrich and Mr. Fisher both testify positively and unequivocally that the purchase of the fixtures was in no way made a condition of the appointment of Fisher as postmaster, and that the transaction was only such as had been customary upon the appointment of former postmasters, and the committee is satisfied from the evidence that such is the fact.

When the post office was about to be removed into the Dietrich Building, Mr. Fisher paid to the agent of the Grand Army post the sum of $500 for the fixtures, and they were removed and installed in the new building.

THE PROSECUTION OF SENATOR DIETRICH.

Senator Dietrich was indicted in the district court of Nebraska in five different cases, afterwards remitted to the circuit court, the record in two of which is printed with the testimony taken by the committee in this case, which record, as the com

mittee thinks, fairly presents all the charges against him, so that the printing of the record in the other three cases is unnecessary.

In the first of the cases, the record of which is printed, Senator Dietrich is charged in effect that while a Senator in Congress from the State of Nebraska he took, received, and agreed to receive a bribe from Jacob Fisher for procuring and aiding to procure for said Fisher the office of postmaster at Hastings, Nebr. To this indictment Mr. Dietrich pleaded not guilty, and a jury was impaneled to try the case. After the opening statement of the United States district attorney, in which he admitted that the date of the offenses charged was prior to the taking of the oath of office of Senator by Mr. Dietrich, a verdict of acquittal was directed by Circuit Judge Van Devanter, who held that the statute in question did not apply to a Senator-elect, and a verdict of acquittal was accordingly rendered.

In the second case, the record of which is printed, it is charged that Mr. Dietrich, while a Senator in Congress from the State of Nebraska, did hold and enjoy a contract theretofore entered into between himself and the United States for the use and occupation, for the purposes of a United States post office at Hastings, Nebr., of a lot and building owned by the defendant. In this case a demurrer was entered, argued, and overruled, but subsequently, on the motion of the district attorney, a nolle prosequi was entered, and Senator Dietrich was discharged.

One of the other cases against Senator Dietrich differs from the first, the record of which is printed, only in the manner of charging the same offenses alleged in the first case, and in this case a nolle prosequi was also entered, upon the motion of the district attorney, and Senator Dietrich was discharged.

In the other two cases Senator Dietrich and Mr. Fisher were indicted jointly for a conspiracy to violate section 1781 of the Revised Statutes, the ground of such conspiracy being the alleged agreement between Messrs. Dietrich and Fisher, which was set up as a separate offense in the first case referred to. In these two cases demurrers were entered and sustained, upon the ground that the indictment did not charge a conspiracy, but only separate offenses against Dietrich and Fisher.

So that, eliminating technicalities, the offenses charged against Senator Dietrich

were:

"First. That as Senator he received from Fisher either the sum of $1,300 or $500, or the equivalent of the same in property, for procuring for said Fisher the office of postmaster at Hastings; and

"Second. That as Senator he held and enjoyed a contract with the Government." The statute which Senator Dietrich was alleged to have violated in the first case referred to is section 1781 of the Revised Statutes, as follows:

* *

"Every Member of Congress, or any officer or agent of the Government who, directly or indirectly, takes, receives, or agrees to receive from any person for procuring, or aiding to procure, any contract, office, or place from the Government or any department thereof, or from any officer of the United States, for any person whatever, or for giving any such contract, office, or place to any person whomsoever, shall be deemed guilty of a misdemeanor, and shall be imprisoned not more than two years and fined not more than ten thousand dollars. * * And any Member of Congress or officer convicted of a violation of this section shall, moreover, be disqualified from holding any office of honor, profit, or trust under the Government of the United States."

*

The statute which he was alleged to have violated in the second case is section 3739 of the Revised Statutes, which is here quoted, together with the pertinent sections, 3740 and 3741.

"SEC. 3739. No Member of or Delegate to Congress shall directly or indirectly, himself, or by any other person in trust for him, or for his use of benefit, or on his account, undertake, execute, hold, or enjoy, in whole or in part, any contract or agreement made or entered into in behalf of the United States by any officer or person authorized to make contracts on behalf of the United States. Every person who violates this section shall be deemed guilty of a misdemeanor, and shall be fined three thousand dollars. All contracts or agreements made in violation of this section shall be void; and whenever any sum of money is advanced on the part of the United States in consideration of any such contract or agreement it shall be forthwith repaid; and in case of refusal or delay to repay the same, when demanded by the proper officer of the department under whose authority such contract or agreement shall have been made or entered into, every person so refusing or delaying, together with his surety or sureties, shall be forthwith prosecuted at law for the recovery of any such sum of money so advanced.

"SEC. 3740. Nothing contained in the preceding section shall extend, or be construed to extend, to any contract or agreement made or entered into or accepted by any incorporated company where such contract or agreement is made for the general benefit of such incorporation or company, nor to the purchase or sale of bills of exchange

or other property by any Member of (or Delegate to Congress where the same are ready for delivery and payment thereof is made at the time of making or entering into the contract or agreement.

"SEC. 3741. In every such contract or agreement to be made or entered into or accepted by or on behalf of the United States there shall be inserted an express condition that no Member of (or Delegate to) Congress shall be admitted to any share or part of such contract or agreement or to any benefit to arise thereupon."

The committee, desiring to make the fullest possible investigation of all the matters embraced in the resolution, through the Attorney General of the United States called upon the district attorney of Nebraska for the complete court record in all of the cases against Senator Dietrich and Mr. Fisher, and also a list of all witnesses by whom the district attorney expected to prove the allegations in the several indictments, together with a summary of what he expected to prove by each witness. Receiving such list and summary, all of the witnesses whose names were furnished by the district attorney, and other witnesses whose names were brought by the district attorney to the attention of the committee pending the investigation, were summoned, and all-appeared before the committee except two, one of whom is dead and the other of whom was so ill as to be unable to appear. Affidavits of each of these witnesses, both separate and joint, had been secured and are printed in the testimony.

In all of the indictments the prosecution relied upon the same facts to prove the offenses charged.

The committee, with the consent of Senator Dietrich, in order that no possible fact bearing upon the matter might be overlooked, received the statements of all of the witnesses in full, not regarding strictly the rules of eivdence in that respect.

It will appear that the committee, with such consent of Senator Dietrich, admitted not only such evidence against him as would have been competent in a court of justice, but also a good deal of hearsay testimony-being all that was brought to their attention as a possible clue to further information. The committee did not determine how far this proceeding would have been justified for any reason without such consent, even if they had carefully refrained from attaching any weight to it in their final decision. But it, in fact, did not in the least tend to shake or affect the conviction they

have reached.

The committee submits herewith the testimony taken, but deems it unnecessary to set forth in full a summary of the same. Many of the witnesses examined, by whom the district attorney apparently expected to prove the charges against Senator Dietrich testified only to matters which, in the opinion of the committee, could not have been accepted in court as legal evidence, relating principally to statements alleged to have been made by Fisher and others, in the absence of Senator Dietrich, to the effect that Fisher had been required to pay a sum of money in order to secure the appointment of postmaster at Hastings.

The statements of the witnesses thus testifying are positively and unequivocally denied by the parties with whom it is alleged such conversations were had, and an examination of the testimony will, the committee thinks, lead to the conclusion that such alleged conversations are improbable, and never took place.

Upon full consideration of all of the evidence, the committee is of opinion that Senator Dietrich has not been guilty of any violation of the statutes of the United States or of any corrupt or unworthy conduct relating either to the appointment of Jacob Fisher as postmaster at Hastings, Nebr., or the leasing of the building in question to the United States for the purposes of a post office.

GEO. F. HOAR.

O. H. PLATT.
JOHN C. SPOONER.
F. M. COCKRELL.
E. W. PETTUS.

(Cong. Rec., vol. 38, pp. 4800–4801.)

[Fifty-eighth Congress, third session.]

JAMES A. HEMENWAY,

of Indiana.

In February, 1905, the credentials of James A. Hemenway were presented in the Senate, certifying to his election by the Legislature of Indiana in the month of January, 1905, as a Senator of the United States from that State to fill the vacancy occasioned by the resignation of Hon. Charles W. Fairbanks, the latter having been elected Vice President of the United States for the term commencing March 4, 1905. The question as to the right of a legislature to fill a vacancy upon a resignation to take effect at a future date was disr ssed in the Senate, following which the credentia's were placed on file. Subsequently at the organization of the next Congress, Mr. Hemenway was sworn and took his seat. The history of the case here presented consists of a statement of the proceedings in the Senate, as published in the Congressional Record, and extracts from the remarks of several Senators.

[Fifty-eighth Congress, third session.

TUESDAY, FEBRUARY 21, 1905.

Mr. Beveridge presented the credentials of James A. Hemenway, chosen by the Legislature of Indiana a Senator from that State for the unexpired term of six years from the 4th day of March, 1903.

The credentials were read, as follows:

In the name and by the authority of the State of Indiana. Executive department.

To all who shall see these presents, greeting:

This is to certify that on the 17th day of January, 1905, James A. Hemenway was duly chosen by the Legislature of the State of Indiana a Senator to represent said State in the Senate of the United States for the unexpired portion of the term of six years from the 4th day of March, 1903, and to fill the vacancy occasioned therein by the resignation of the Hon. Charles W. Fairbanks.

Witness his excellency our governor, J. Frank Hanly, and our seal hereto affixed at the city of Indianapolis, Ind., this 18th day of February, A. D. 1905. By the governor:

[SEAL.]

J. FRANK HANLY,
Governor.
DANIEL E. STORMS,
Secretary of State.

[Extract from the remarks of Mr. Bailey.]

Mr. PRESIDENT: Before the credentials are placed on file, I want to call the attention of the Senate to what I think is a fatal objection to this certificate of election and to the election itself.

The certificate shows that that election occurred in the Legislature of Indiana during the month of January and that Mr. Hemenway was chosen to fill a vacancy occasioned by the resignation of Senator Fairbanks, to take effect on the 4th of March. Thus the Legislature of Indiana has asserted its right to fill a vacancy not only when no vacancy exists, but when it was possible under the law that no vacancy ever would exist. The courts have more than once held-and no court has held it more distinctly than the Supreme Court of Indiana-that a resignation to take effect at a future day is not a resignation at all, but simply a notice of an intention to resign, such resignation becoming effective if it remains with the officer authorized to receive it up to the time it was to take effect. But all the courts that have discussed the matter-possibly that is too broad-I will say a large majority of the courts that have discussed the matter hold that until the date indicated in the resignation the officer may withdraw it, and may thus prevent a vacancy.

Of course, nobody believes that the distinguished Senator from Indiana [Mr. Fairbanks] will withdraw his resignation in order to remain amongst us instead of accepting

the call to preside over us, but the probability or the improbability of the withdrawal of a resignation does not affect the law of the case.

I do not, however, intend to insist upon any reference of this particular credential, because the Senate seems to have considered and decided the very question in the Chilton case. There a Senator from my own State was appointed in April to fill a vacancy which, by the terms of the resignation, was to occur in June. His credentials were referred to the Committee on Privileges and Elections and that committee reported unanimously that he was entitled to his seat. But the remarkable thing is that, although that report was prepared and presented by so great and so accurate a lawyer as the late Senator from Massachusetts, Mr. Hoar, it does not appear to have taken into consideration at all the very vital question in the case. The report devotes itself almost entirely to a line of reasoning upon the right of executives and legislatures to fill a vacancy which is certain to occur, in advance of its occurrence. But the report in no part of it as I now recall-it has been some time since I examined it; I did examine it closely at the time, and I remember distinctly to have believed, although I had no interest in it, that the Senate was wrong—the report, so far as I can now recall, does not consider the question as to whether a resignation may be withdrawn or not, and yet the courts have held over and over again that it may be.

I venture to say that the records of Congress will verify my statement that Senators have telegraphed their resignations to the governors of their States and afterwards withdrawn them. But recognizing that although it did not seem to consider the vital point in the case-the report and the action of the Senate in the Chilton case are on all fours with the present case, I am not going to ask that the credentials be referred to the Committee on Privileges and Elections, but content myself with simply saying that if it were a question that might effect the political complexion of the Senate, Ï should not want it to be understood as concluded by the action of the Senate here.

[Extract from remarks of Mr. Burrows.]

Mr. PRESIDENT: As the Senator from Texas [Mr. Bailey] has well said, this very question raised by the Senator has been repeatedly presented to the Senate and repeatedly decided, notably in the case of Henry Clay, of Kentucky, who resigned his seat in the Senate to take effect at a future date. The legislature, in anticipation of such vacancy, and before the vacancy actually occurred, proceeded to elect a Senator to fill the prospective vacancy. Archibald Dixon was chosen by the legislature to fill such vacancy, and his right to take his seat under and by virtue of such election having been questioned upon the ground that the legislature could not fill a prospective vacancy, the Senate, after full debate, decided that the action of the legislature was regular, and that Dixon was duly elected and was entitled to the seat.

I know of no case in the history of the Senate that will bear out the contention of the Senator from Texas. But be that as it may, the question before the Senate now is simply upon receiving and placing on file the credentials of the Senator-elect from Indiana. If, at the opening of the next session, objection is made to the holder of the certificate taking the oath of office under it, then it would be the appropriate time to consider such objection.

[Extract from remarks of Mr. Teller.]

Mr. PRESIDENT: I was chairman of the committee when the report (the Chilton case) was made. This matter was referred more particularly to Senator Hoar, who made the report. I was somewhat embarrassed at the time by the question from the fact that in 1882 I had resigned my seat in the Senate to take another place, and I had resigned to take effect when my successor should be elected or appointed. I had remained in the Senate until the governor of the State had appointed and sent here my successor to be sworn in, and then I took the other place.

When the question came before the Committee on Privileges and Elections it was a new question to me, although I knew that some Senators had raised the question, but not until after I had gone out of the Senate, and I did not take any part in that discussion or in the report except pro forma.

The credentials were placed on file.

(Cong. Rec., vol. 39, pp. 2971-2972.)

Fifty-ninth Congress, special session.]

SATURDAY, March 4, 1905.

Mr. Hemenway having been sworn, took his seat. (Cong. Rec., vol. 40, p. 2.)