The Washington bee., 1907-06-15

dav. in an opinion by Mr. justice NC
Comas dismissed the appeal OF Francs
I. Cardoza, the deposed supervising prln-
cipal of the thirteenth division OF the
Dnblic schools, who sought bv injunction
to preyent the Board OF Education from
nlacinp him on trial to answer certain
charges and specifications brought
against him. Cardozo based his right
10 equity Intervention on the plea, among
others that the Board of Education was
not legally constituted because the act
vestjnp the appointive power in the "Su-
nreme Court Judges OF the District OF
Columbia" was unconstitutional IN that
If attempted to vest administrative tlnc-
tions in officers purely Judicial.
Justice Gould, who heard the petition
in the District Supreme Court, declined
TO issue the injunction prayed for Ihe
appellate court in dismisslng the appeal
declares the present Board OF Education
70 he at least the de facto" board, and
that the appellant recognized It's author
jtv bv taking the oath OF office under II
and receiving his salary by It's order.
The board has also been recognized
declares Justice McComas, by the de-
partments OF the government and the ap-
DroDriations OF Congress have been PAID
ont 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 queS-
ton urged.
Interesting Question.
After reviewing at length the record
in the case, Justice McComas says; " Ihe
interesting constitutional question, which
was presented with much force and abll-
iy by appellants counsel, should not
be considered by US on this appeal II
Is conceded by counsel that after the
court below dismissed the bill, the ap-
pellees proceeded with the trial OF the
aDnellant on the charges and speclhca-
tions described, adjudged hlm guilty,an
removed him from his office as super
vising principal
The trial sought to be enJolned end
ed March Q, 1907, and this appeal came
to this 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 dlssat-
is6ed 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 III this case be-
cause the things sought to be prohibited
have been done and cannot be undone
by any order OF this court. There IS
nothing leir but moot case.
In support OF this contention the court
quotes fro mthe case OF Cannon against
Georgetown College, where the scholaS-
tic wear mad expired before the Court
Of Appeals was called on to decide
whether the college authorities should
be required to reinState young Cannon
as a member Of the freshman class.
At Least de FactO' Board.
The decisive action which made this
appeal OF no affect, declares Justice Nc
Comas. was taken by the Board OF I'd
ucationh which suuceded prior board,
and under the act Of June 20, 1900, the
appellees are at least the de tacto
Board OF Education. 1t IS made up OF
members who have discharged the du-
ties OF this office since July 3, 1900, when
they were appointed by the justices OF
the Supreme Court OF the District. Its
authority, 1t Is declared, has been rec
ognized by Cardozo IN taking office un-
der ii and accepting his salary by Its
authorization. The departments OF the
government, states the opinion, have
recognized the Board OF Education, ana
the appropriations OF Congress have been
paid out under its authority.
This board succeeded another, which
did not dispute the lawful succession,
and It IS now the only Board OF Edu-
cation in existence in this District
No good cause appears, states justice
McComas, why, il the court could do
so. it should seek 10 review the pro
ceedings Of the board in behalf OF the
appellant, who has in several ways rec
ognized the existence Of this Board OF
Education"
Justice Field Quoted.
In conclusion Justice McComas quotes
with approval Justice Field, who SAID.
Where an office exists under the law It
matters not how the appointment OF the
incumbent is made, SO lar as the validity
Of his acts are concerned; It IS enough
that he is clothed with the insignia OF