Evening star. [volume] (Washington, D.C.) 1854-1972, 1907-02-04
ANSWER TO THE RULE
Board of Education Replies in
Cardozo Case.
AS TO RESTRAINING ORDEE
Denies That Appointment Of Board
/. Was Unconstitutional.
HEARING BEFORE JUDGE GOULD
Right Of the Respondents to Try the
OBSERVATION-DISCLOSURES
Made by Counsel.
AS TO RESTRAINING ORDER
HEARING BEFORE JUDGE GOULD

- O~~-~'
The room Of Equity Court No. was well
began to hear arguments of counsel on
the application of Francis L. Cardozo, su-
pervising principal Of the thirteenth divf-
sion of the public schools. for an Injunction
to prevent the board of education from
proceeding to try him on charges of al
legged INSTRUMENTATION.
Cardozo was present with his counsel,
Attorneys Henry E. Davis and James A.
Cobb. The entire board of education. with
the exception of Mrs. Mary Church Ter
rell who is away from the city, were in
court and listened attentively to the argu-
ments Of counsel. Several Of the deposed
teachers Of the public schools were also
DR.. Chancellor entered the court room
about 2:3O o'clock pm. while Attorney
Davis was addressing the court.
Mr.. Davis urged on the court the lack
of power in the judges of the District eu-
preme Court to name officials whose duties
are not judicial.
He cited number of authorities. JUS
tice Gould. from the import Of the ques-
lions propounded to Mr.. Davis, intimated
that he is satisfied that Congress had the
right to designate the justices as the nom-
mating power.
The court said that the decisions cited by
Mr.. Davis were from states which have
written constitution, which the District
of Columbia has not. and there Is nothing
in the District laws which separates Its
government into the three coordinate
branches of executive, legislative and ju-
dicial.
Mr.. Davis was still presenting his side OF
the controversy when this report closed.
Attorney Stuart Mcnamara will answer
Mr. Davis He stated that he expects TO
conclude his argument today.
The case was for II o'clock this morning,
but owing to other engagements OF Justice
Gould the matter went over until after the
noon recess.
Substance Of the Answer.
The answer of the members of the board
of education as read to the court today
sets forth that the respondents collectively
are and do constitute the board Of educa-
ton of the District OF Columbia. both de
lure and de facto, and as such are vested
with the control of the public schools OF
the District under and by virtue OF the act
of the Congress known as pubic act NO.
254, approved June 20. 1908"
AS to the allegations of the fifth para
graph Of the bill of complaint the respond.
ents say that mot as pleaded In the said
fifth paragraph. the same In SO FAR as II
is pleaded in that manner being untrue.
but as a matter of fact and of authorize
ton in law, they did legally appoint as and
for the superintendent of all the public
schools IN the DlStflCt w SiAoAA-
cellor. who accepted the appointment, as
sumed the office and who continuously has
been and now Is the superintendent pro-
vided for by the act. both de 1ure and &c
facto: and that further the defendants ap-
pointed Winfield Scott Montgomery as col
ofed assistant superintendent for the coll
ored schools of the District. and Montgom-
cry has accepted the appointment and as
sumed the office and continuously mas peen
and now is the colored assistant superin-
tendent. both de jure and de facto as pro-
vided for by the act"
Appointment Alleged.
The truth and the fact is. according to
the answer. that under any by virtue Of
the authority reposed in the defendants by
the act Of Congress approved June 90 1906.
they did. September 4. 1906. upon the writ
ten recommendation of the superintendent.
appoint and continue Cardozo as superv:s-
ing principal at the salary provided for In
said act. and not at the salary the COM
plainant had previously received. and that
the complainant duly recognizes the de-
PENDANTS as the board Of education. duly
accepted the appointment, duly took his
| oath Of Office under the appointment. en-
tered upon his duties. and from that time
continuously has been and now is an en-
| playe of the board: since that time has been
and now Is receiving his salary authorized
to be paid to the complainant by the ap-
pointment Of the defendants as the board.
Admit 'AvermentS OF Fact.
The defendants admit the averments of
fact in that CardOzo was notified in due
form that he would be tried pursuant to
section 10 Of the act Of Congress, approved
June 20, 1906. and the allegation touching
the action Of the complainant in the prem
ises thereafter.
the motions the board called upon the COM
, plainant to plead to the charges and specf-
ficatfons. and that the complainant did
plead not guilty as to each and all thereof,
and that the defendants, as the board Of
education. did undertake and proceed to
try the complainant under the charges and
specifications The defendants say they are
advised that the control Of the public
schools Of the District of Columbia Is
vested in them as the board of education
and that they are authorized to determine
| the policy of the schools and also author
lied to place on trial or under investiga-
schools. and as a result of trial or investi-
CATION. to Judge the guilt or innocence of
any such person so tried.
Constitutionality Maintained.
The defendants state they are advised
that the act approved June 20. 1905. is not
| unconstitutional and void In that it creates
| the board of education Of the District Of
Columbia and authorizes the appointment
of the members of the said board by the
Supreme Court judges Of the District of
| Columbia for that they submit that the
! Supreme Court judges Of the District of
Columbia are known and ascertainable in
dividuals Of q definite number provided for
/ by law and in legal and actual existence:
| that the Supreme Court judges of the Dis
! trict OF Columbia so as aforesaid known,
| contemplated and recognized by law, con-
stitute the Supreme Court of the District of
| Columbia; that the Supreme Court Is q
I, court of law of the United States; that un-
| der and by virtue of article 2. OF section 2.
| Of the Constitution Of the United States
Congress Is authorised to vest the appoint
ment Of such inferior officers as 1t may
deem fit in the courts Of law, and accord
ingly Is authorized to provide for the APP
pointment Of these respondents as In the
| act of June 20. 1885,
Power Of Congress.
The defendants further say that under
and by virtue Of article /. section 8, Of
| the Constitution Of the United States the
| Congress Of the United States 'is author