The Washington herald., 1907-02-06
CAUDOZO LOSES CASE
Justice Gould Refuses to Sign
Restraining Order.
BOARD OF EDUCATION UPHELD
Referee Decides COnstitutiOnality Of
Manner of Appointing school Com
mISSiOncrs Definitely Settled AZ
fiTmativeIy by Decision of United
States Supreme Court.

Members Of the board of education are
much pleased with ethe action taken by
Justice Gould, in Equity Court yesterday,
in dismissing the rule to show cause, and
refusing to sign a temporary restraining
order, as prayed for by Francis l.. Car
d6zo, against the board. Justice Gould
Furthermore sustained the constitutionali-
ty OF the board Of education as il exists
at the present time, This was also pleas
ing to the members, who are relieved at
being able to again proceed with their ad-
minisuation
Admiral Baird, president of the board
is endeavOring to get in communication
with Mrs. Terrell who is out of the city.
50 that date for the continuance OF the
trial of Cardozo before the board may
be set as soon as possible. DR.. Atwood
has been i'll. but is out again. and the
board members, without exception, are
anxious TO proceed and bring the matter
to a close Although nothing definite has
been decided, it is possible that a meeting
may be called for the latter part of the
week
Justice GOuId'S Decision.
In dismissing the matter from his juris-
dictiOn Justice Gould said.
II think this case should be disposed
of at once because of its importance and
the questions involved. Being one of the
parties originally responsible for the pres
ent boards appointment, ! approach The
/ case with reluctance and some modesty.
If / had not believed the selection of
the board of education in the manner pre-
scribed by the act Of Congress was con
stitutional. / would not have participated
in its selection. 1 have listened 10 the
arguments here in the attitude of one
who would require the citing of some
authorities TO change my opinion. How
ever. / have given due weight to the
argument advanced
Question of COnstitutiOnaIity.
Il regard the question of the constitu-
tiouality OF the act Of Congress prescrib-
ing the manner in which the board Of edu-
cation shall be appointed as definitely
settled affirmatvely by the decision Of
the United States Supreme Court which
held that the Federal Circuit Courts could
/ legally, when clothed with authority so 10
/ do. appoint supervisors Of elections. The
Circuit Courts did exercise this power
and were sustained. II occurs 10 me
that there is nothing judicial in the APP
/ pointment of election supervisors
/ Il hold that it IS not homogeneous TO
I vest in Judges appointed for life and sub
/ ject TO no Interior influence the power
to appoint members of unpaid boards OF
/ officers whose only desire is the public
veal as is the case with this board of
education Too often the work Of such
| boards are subjected TO unfair criticism
and their efforts are misunderstood and
unappreciated
Line of DemarkatIOn.
Il am in accord with the idea that there
should be an absolute line Of demarkation
/ between the three coordinate branches
/ of government-judicial legislative. and
executive. We have had almost all con-
J ceivable forms of governments i'm this
District and 1 take it that this is an addl-
u0naI reason for sustaining the consutu-
T tionality of the act of Congress.
The second question is one also. that
gives me little difficulty. I have not read
closely all the charges of the specidca-
tons, but 1 cannot doubt that among
them is one that if proven viii warrant
/ the removal OF the accused from office II
/ Is not required of a board that In franz
/ ing its charges it shall be SO careful or
/ specific as is an Indictment prepared by
luries- All that is necessary is such fair
ness and defniteness as win enable the
/ accused TO prepare his defense. / think
/ this has been done
Lack of Jurisdiction.
There is another question involved
I here-the lack Of jurisdiction of this
court in this matter, and have refrained
from refusing this application on the
ground of lack of Jurisdiction only be-
cause the other questions came first as
Of more general Importance. / have not
found a single authority that would just
ify this court in assuming jurisdiction.
II cannot see where this man would be
irreparably injured in a legal way by his
/ trial before the board Of education or his
dismissal If ne is removed without Just
( cause, he can sue in a civil action and
get relief Also, if he is illegally tried
! and dismissed, then the remedy is b.r
/ mandamus TO compel mis- reinstatement in
his position. That would be adequate
remedy in law.
Il therefore dismiss the rule as against
the board of education and refuse to issue
a temporary restraining order"