Evening star. [volume] (Washington, D.C.) 1854-1972, 1907-06-10
DECISION IN CARDOzO CASE
COURT OF APPEALS DISMISSES
PLEA FOR INJUNCTION.
Review of the Case, But the Constitu
tional Question Not Passed
Upon.


| an opinion by Mr.. Justice McComas, dis
missed the appeal of Francis L. Cardozo.
the deposed supervising principal of the
thirteenth division of the public schools,
who sought by injunction to prevent the
board of education from placing him on
trial to answer certain charges and Speci-
ffcations brought against him. Cardozo
based his right to equity intervention on
the plea. among others, that the board of
education was not legally constituted be-
cause the act vesting the appointive power
in the Supreme Court judges Of the Dis
trict of Columbia was unconstitutional in
that 1t attempted to vest administrative
functions in officers purely judicial
Justice Gould, who heard the petition IN
the District Supreme Court, declined to
issue the injunction prayed for. The ap-
pellate court in dismissing the appeal de
clares the present board of education to
be at least the de facto' board, and that
the appellant recognized its authority by
taking the oath of office under it and re-
ceiving his salary by its order.
The board has also been recognized, de-
clares Justice McComas. by the departments
of the government and the appropriations
of Congress have been paid out under its
authority.
The trial by the board the dismissal of
Cardozo and the refusal of the Equity
Court to enjoin the trial have made, the
opinion states, the case moot one, such
as renders unnecessary the decision by the
court of the constitutional question urged.
Interesting Question.
After reviewing at length the record In
the case, Justice McComas says: The IN
teresting constitutional question, which was
presented with much force and ability by
appellants counsel, should not be consid-
cred by us on this appeal. 1t is conceded
by counsel that after the court below dis
missed the bill, the appellees proceeded with
the trial of the appellant on the charges
and specifications described adjudged him
guilty and removed him from his once as
supervising principal.
THE trial sought to be enjoined ended
March 8, 1907. and this appeal came to TINS
court ten days later. When an injunction
has been dissolved it cannot be reversed
except by a new exercise of judicial power,
and no appeal by dissatisfied parties can
of itself revive It, A fortiorari the mere
prosecution of an appeal, cannot operate
as an injunction where none has been
granted"
1t would be vain, declares the opinion, to
reverse the decree in this case because the
things sought to be prohibited have been
done and cannot be undone by any order
of this court There Is nothing left but a
moot case.
In support of this contention the court
quotes from the case of Cannon against
Georgetown College, where the scholastic
year had expired before the court of APP
peals was called on to decide whether the
college authorities should be required to
reinstate young Cannon as MEMBER OF
the freshman class.
At Least "De Facto" Board.
The decisive action which made this ap-
peal Of no effect, declares Justice Nc
Comas was taken by the board Of educa-
ton, which succeeded a prior board. and
under the act of June 20, 1905, the APP
pellees are at least the de facto' board OF
education. 1T is made up of members
who have discharged the duties of this Of
flee since July 3, 1906. when they were ap-
pointed by the justices Of the Supreme
Court of the District Its authority, 1t Is
| declared has been recognized by Cardozo
| in taking office under it and accepting his
| salary by its authorization. The depart
| ments of the government. states the opinion:
have recognized the board of education, and
| the appropriations of Congress have been
| paid out under its authority.
This board succeeded another, which did
not dispute the lawful succession, and 1t Is
| now the only board of education In exist
! ence in this District.
No good cause appears, states Justice
McComas, why, if the court could do SO, 1t
| should seek to review the proceedings of
| the board in behalf of the appellant. who
| has I'm several ways recognized the exist
| ence of this board of education
Justice Field Quoted.
In conclusion Justice McCormas quotes
| with approval. Justice Field who said:
Where an office exists under the law 1t
| matters not how the appointment of the in
| cumbent is made. SO far as the validity OF
| his acts are concerned; 1t is enough that he
| is clothed with the insignia of his office
and expresses it's powers and functions
The official acts Of such persons are rec
| ognized as valid on grounds of public poll
cy and for the protection of those having
official business to transact.
1t was such a board, it Is declared, that
] found Cardozo guilty and dismissed him.
| and before this appeal came to the appellate
| court the court below had dismissed the bill,
the object of which was to restrain the
board of education from proceeding with
| that trial and from deciding the case and
! dismissing CardoZo.
Accomplished facts. 1T Is stated, nave
| made this a moot question, and this appeal
| should be dismissed. and it is so ordered"