The evening times. [volume] (Washington, D.C.) 1895-1902, 1901-04-13
RULED AGAINST EVANS.
Justice Cole Issues q Mnndamus At
fectInE the Pension Commissioner

Justice Cole issues q hnhCAhhuS IL
fectins- the Pension Commissioner
In the case of Henry D Phillips vs.
II. Clay Evans. in mis- official capacity as
ommisSioner of Pensions. asking Tor a
writ OF madamus to compel him to re-
scind an order disbarring Phillips from
practice before that bureau. and. also to
compel the payment Of fees in connection
with certain pension claims, Justice Cole
today ordered the writ to issue
The circumstances which led to the fl
ing Of the petition for mand2mus by Phil
Inns are substantially as follows;
on January q last two petitions for
7-rits of rnanda.nus against Commissioner
Evenas were filed in the District Supreme
Court bv Phillips Or February 5 1879.
the Commissioner Of Pensions obtained
an order from the Secretary OF the Int
rior dfsbarriag Phillips from further pr2c-
tice- The reason assigned for such order
WAS il is stated. th~t Phillips had allow
ed a notary public who was connected
with his business to charge fee Of 81
cents for taking an affidavit in the state
of New. Jersey. while Evans insisted that
the law Of that State prohibited the pay
rnent Of a greater fee for sch services
than = cents This contention of Evans
was attacked. and the question raised
was promptly referred TO the Assistant
Attorney General for an opinion, who. on
April Is. 1900 sustained Phillips conten-
ton. and stated that in the State Of New
Jersey there IS no law governing the
charges for notarial services, but that by
long custom the usual an, regular fee
had come to be % cents in ordinary cases
Thereupon the Secretary Of the Interior.
April &C. 1906 issued an order canoeing
and reroking and holding for naught the
EFsr.-a
Notwithstanding this, it is said. Evans.
between February 5 and April %, refused
10 recognize Phillips as an attorney, and
in his cases solicited the appointment Of
other attorneys The petition for writ Of
Tnandanus recites that in the case OF Sa-
rah A DocIerty, a widow, fled by Phil
lips. the Commissioner Of Pensions had
denied him a fee because another attorney
had been substituted in his place during
the period OF disbarment. Phillips con
tended that he had never been Gisbarred
and that any acts done by Il. Clay Evans
could not invade nor destroy his rights
under the law
The other case before the courts was
that Of Louisa Aab, for accrued pension
due her deceased husband. George Aab-
Phillips had received fee Of 50 direct
from the applicant Evans held that this
payment was contrary TO law and de
mGnded that Phillips surrender that
amount Phillips commended that an &C
crued pension case was not a claim for
pension within the meaning 0f the stat
ute. and that the matter was one Of con-
tract between the attoTrey and the ap-
Dlicant-
Both Of these cases were brought as
test cases. The questions involved were
argued by counsel before Judge Cole on
March = and this morning the judge an
nounced his decision In both cases he
decides in favor OF Phillips.
In the DOckerty case. Ehe court held
that Pfi'JiDs was never disbarred: that
he had no. lost his standing nor any Of
lis rights. no other attorney was sUbsti-
stuffed in his stead; that the United States
cannot through the Illegal acts Of one Of
its officers take advantage Of it's own
wrong. and that therefore Phillips is en-
titled TO be recognized and paid the fee
usual in such cases. He ordered that a
perenptoTy writ Of nandamus should
issue against Evans. Pension Commission
er- to this effect In the Aab case Jus
tice Cole held that an accrued pension
did not constitute "A claim for pension.
and that coEnpensa ton Tor services there
ia should be paid direct by the applicant
Justice Cole held that the court had ju-
risdici ion Of the case and could compel
the Commissioner to withhold from Mrs
Aab's current pension the fee taken from
MI Phillips.