Evening star. [volume] (Washington, D.C.) 1854-1972, 1907-11-25
BOARD IS To REMAIN
District Supreme Court Acts in
School Matter.
DECISION REACHED TODAY
Holds That Judges Have Not the
Power to Create Vacancies.
CHANCELLOR DESIRES DELAY
Says He "Has Friends in Congress. ,
Middle May Be Investigated
by Legislators.

The board of education will re-
main as at present constituted.
The justices of the District Su.
Epreme Court this afternoon de-
clined to take cognizanoe of the
Chancellor petition for the re-
moval of the board or of two of its
members, DR.. Evermann and R.
R. Homer. Justice Wright dis
scented from the view taken by his
colleague.
Chief Justice Clabaugh for the majority
announced that they were Of opinion that
the act Of Congress empowering the Sc
lection of members of the board Of edu-
cation did not bestow upon them the au-
thority to create vacancies in the board
during the terms for which the members
had been chosen.
At the conclusion Of a conference Of the
justices, lasting nearly an hour, the chief
justice this afternoon called Greed NJ.
Fulton, of counsel for DR.. Chancellor, and
the representatives Of the press to his
private office in the city hall, and ad-
vised them Of the action.
He also dictated to his stenographer
letter to the firm Of Leckie, Fulton
& Cox. which reads.
In response to your petition embody-
ing charges against the board of edu-
cation, filed late Friday evening, beg
to report the following action Of the
judges on said petition:
"A majority Of the judges are of the
ny,ini hot 10
proved June 20, 1905, authorizing them
to appoint board of education. the men,
bers holding for terms fixed by the
statute, and to fill vacancies in such
board caused by death. resignation or
otherwise, does not authorize them to
create vacancies by removing members
Of said board during their respective
terms of Office, wherefore they decline to
take cognizance Of said petition"
Justice Wright Dissents.
Justice Wright. in dissenting from the
action of his associates, said:
1.-The very fact that the statute nowhere
expressly authorizes the removal of men,
bers from the school board when a cause
demanding removal exists is the reason
why the power of removal remains in
herent in the authority which appointed:
for the idea that members of such a
board should flaunt unfitness, incompe-
tency, fraud or dishonesty In the face of
the public, and safely defy interference
from anywhere. is reasonless and in
tolerab,e. l doubt not that the judges
possess the power of removal, at least
for cause.
The so-called charges purport to be d.
rected against the body of the board of
education as such, as well as against
two individual members Everulann and
Horner. The board of education, as
body distinct from the individuals who
happen to be members Of it, is an inte-
grail of the political entity of the District
OF Columbia, a branch Of its local gov
eminent, creatable only by legislation,
and as such removable only by legisla-
ton. SO far as it is undertaken before
cur justices to direct charges against the
board of education as board, the at
tempt is at least idle.
Exercise Administrative Power.
'In so far as the charges against the
individual members, EHermann and Hor-
ner, are concerned, 1 have this to say
Neither in the appointment nor in the
removal of members of the board of edu-
cation do our justices exercise a judicial
from which it follows that no legal right
to prefer charges resides in any citizen,
nor Is there anywhere the legal right
to require charges to be heard;
the question whether charges shall be en-
tertained by US Is purely a moral one, and
in dealing with 1t, and in determining
whether the administrative power of re-
moval ought to be at all stirred into &C.
tivity. the judges cannot and ought not
lay any pretense to that blindness which
in judicial proceedings recognizes moth
ing save that which Is brought forward
according to the rules which carry judi
cial proceedings along, in dealing with the
question here we ought to pay heed to a
condition Of things which is patent to all;
situation in which subordinate directs
an effort Of impeachment against authority
which created him on the eve Of a trial
by that authority, Of the very question of
his own removal; that although many of
the matters charged are shown upon their
faces to have been known to him at least
months ago. they seemed to possess no
such inherent gravity as was worthy to
bring them forward on their own merit.
but have sucked up infection only since
charges have pended against the mover
himself; several of them involve the ele
ment of distinct personality.
From these considerations It seems to
me that the morale of the situation, and
Of local public affairs require that these
charges should be instantly declined, ex-
cept where they definitely point out a dis
tinct menace to the welfare of the public
service. In view of these reasons I am of
opinion that the charges against the
board are such, that against Horner, and
Nos. 2. 5, Z and against Everman,
should be put away without further TODD.
Nelcher Specincat1On nor against Ever.
man Is sufficiently definite to enable him
or us to know what specific matter
he is expected to bring evidence upon
in order to defend himself. or to be
convicted If he is guilty, and therefore
neither amounts to a charge upon
which an incumbent can be deprived of
office, and they ought to follow the
Others
Specification No should be con-
sidered to the extent of determining
whether the fact of the existence Of
the Indiana School Book Company was
material to the exercise Of any official
power or function by any member of
the board: and If 1t was. Evermann
ought to be required to answer it,
Comment by Attorneys.
Attorneys Leckie. Fulton & Cox. coun-
sci for DR.. Chancellor. commenting on the
action Of the court, said: THE decision OF
the majority Of the justices oply serves
to set out in clearer light ttan ever the
anomalous situation that confronts tine
superintendent os schools and the oaople
of the District of Columbia.
Under the Interpretation of the law by
a majority of the court, 1t would seem
that no matter how unfit or incompetent
any of its members be or become, there
can be no release from the situation until
the expiration of their terms of office. We
do not believe Congress ever intended to
create sue a situation, and will file pc
tition asking for a hearing upon the
proposition that the power to appoint the
members of the board of education neces-
sarily carries with II the power to remove
any of them when it is made clear to the
Al.H