This duty was imposed on the officer by 3 Mill's Ann. St. Sec. 1364, and the court holds that the defendant cannot question in this prosecution the constitutionality of that statute. It was the duty of the officer to re gard the statute as valid and in attempting to perform his duty under it he should be protected. An officer armed with a warrant valid on its face, has authority to arrest, and a person resisting arrest does so at his peril. So also, the court thinks that a statute which clothes an officer with authority to act can not be attacked by a defendant on a trial for assaulting the officer while acting under it. Xo authorities are cited. CONTRACTS. (UNITED STATES — MKMHER OF CONGRESS — EFFECT OF ELECTION.) UNITED STATES CIRCUIT COURT FOR THE DISTRICT OF NEBRASKA.
In 126 Federal Reporter 671, another in dictment against United States Senator Dietrich came up for consideration, the charge being violation of Rev. St. Sec. 3739, providing that no member or delegate to Congress shall undertake, execute, hold or enjoy any contract made or entered into in behalf of the United States, and that all contracts made in violation of the section shall be void. The contract in the case at bar involved a lease by the defendant of a bui'.ding to the United States, for use as a postoffice, and for the purpose of the demur rer on which the hearing was had it is as sumed that the contract was entered into prior to the defendant's becoming a Senator. Then in answer to the contention that, be ing valid in its inception, the defendant's subsequent election would not affect its validity and binding force, the court holds that the statute terminates the contract so far as it remains executory, the statutory provisions being read into the contract itself. Where performance of a con tract legal in its inception, becomes unlaw ful by reason of any subsequent event, the contract is thereby dissolved or terminated so far as it remains executory and both parties are excused from its further perform ance. Melville f. De Wolf, 4 El. & Bl. 844,
850; Reid v. Hoskins, Id. 979, 984; Xewby v. Sharpe, 8th Ch. Div. 39: Anglesea v. Rugeley, 6 Q. B. 107, 114; Bailey v. De Crespigny, Law Rep. 4 Q. B. 180; Brick Presbyterian Church v. New York, 5 Cow. 538; Mississippi, etc. Co. v. Green, 9 Heisk. 588, 592; Knoxville v. Bird, 12 Lea 121, 49 Am. Rep. 326; Cordes г. Miller, 39 Mich. 581, 33 Am. Rep. 430; Brown v. Dillahunty, 4 Smedes & M. 713, 723, 43 Am. Dec. 499; Bradford r. Jenkins, 41 Miss. 328, 335; Irion v. Hume, 50 Miss. 419, 427; Maçon, etc. Co. v .Gibson, 85 Ga. i, 17, n Southeastern 442, 2i Am. St. Rep. 135; Odlin v. Ins. Co. 18 Federal Cases, p. 583 (Xo. 10,433); Tait v. Ins. Co., 23 Federal Cases 620 (Xo. 13,726); Hangner v. Abbott, 6 Wall. 532, 535, 18 L. Ed. 939; New York Life Ins. Co., v. Statham, 93 U. S. 24, 23 L. Ed. 789; Ins. Co. v. Davis, 95 U. S. 425, 24 L. Ed. 453; Jones v. Judd, 4 N. Y. 411; Heine r. Meyer, 61 N. Y. 171, 176; Bennett v. Woolfolk, 15 Ga. 213The demurrer was overruled. CRIMINAL CONVICTION. (Влк то ACTIONS FOR PENALTY.) NEW YORK SUPREME COURT.
In People v. Snvcler, 86 New York Sup plement 415. an acquittal in a criminal prosecution is held not to bar an action by the people for the penalty prescribed for the same offense. The statute violated was Law 1900, p. 66, c. 20, Sec. 229, which prohib'ts the burning of fallows during certain periods of the year, and prescribes that any person violating the section "is guilty of a misde meanor and in addition thereto is liable for a penalty." The court says that the contention that conviction is a bar is founded largely on the fact that two remedies are prosecuted in the name of the people and that the suit for pen alty is quasi criminal in character. They are, however, entirely independent, and one is a criminal and the other a civil action. The rule governing the trials of the two cases are dissimilar. In the criminal action the evidence must satisfy the jury of the de fendant's guilt beyond a reasonable doubt.
