The Washington times., 1913-12-23
BRIEF FILED TO
SHOW NEWMAN'S
RIGHT TO SERVE
Counsel for Commissioner Com
bat Every Contention Made
by William ]. FrizzeII.

A voluminous brief, setting forth
I'm detail the right of Oliver p. New
man to hold the Office of District
Commissioner and citing numerous
legal authorities to sustain the con-
tentions of his counsel, was filed in
the Court of Appeals today by At
torneys Ralston & Richardson, rep
sesenting Mr.. Newman.
The brief of William j. Frizzell, in
behalf of the so-called home rule
committee" supporting his appeal
from the decision of Justice Ander-
son, who held that Mr.. Newman was
legally entitled to his Office and that
the action of the President and the
Senate in nominating and confirm
ing him could not be reviewed by the
courts, was filed about three weeks
ago.
Will Go To High Court.
1t is expected the case will be argued
next month, and that a decision will be
forthcoming the first Monday in Feb
ruary. In any event, II is believed, the
case will be carried to the United States
Supreme Court.
Arguments submitted in the brief filed
today support the decision of Justice
Anderson in quashing the writ of quo
warranto and dismissing the petition of
Mr. Frizzell on the demurrer urged by
Attorneys Ralston & Richardson. Every
contention of the ''home rule committee
Is squarely met in the brief.
With respect to the argument that the
President and the Senate having acted
upon the question Of the qualification of
the appotntee to the office of Commits
sioner. no power of review of their con-
clusions is vested in the courts. the
brief says:
In the preliminary objections and in
the motion to quash and the demurrer.
it was maintained by the respondent
below that having been appointed by
the President of the United States and
confirmed by the Senate. their judgment
upon the question of fact relative to
ais qualifications were conclusive. that
10 power of review Of the Presidential
selection resided in any court, and that
20 exercise Ii would be to infringe upon
the powers of co-ordained branch of
,n substance sustained at length by JUS
tice Anderson in his opinion, and it is
our desire now only briefly to discuss
some of the cases bearing upon the
in character"
An opinion by Chief Justice Mar
shall. quoted in the brief. says in part:
IF some acts tof heads of executive
Serartments) be examinable. and others
net. there must be some rule OF law to
guide the court In the exercise of its
Jurisdiction.
"Ry the Constitution of the United
STATES. the President is invested with
certain important political powers, in
the exercise of which he is to use his
own discretion, and is accountable only
TO his country in his political charac-
ter ana TO his own conscience. To aid
aim In the performance of these duties
he Is authorized to appoint certain Of
ficers who act by his authority and in
conformity with bis orders.
In such cases. their acts are his acts,
md whatever opinion may be enter
fafned Of the manner in which execu-
I'VE discretion E1ay be used, still there
exists. and can exist no mower to con-
troll that discretion. The subjects are
J oliticaL They respect the nation, not
tnd.N icusl rights. and being intrusted
TO the Executive. the decision of the
executive is conclusive.
Powers of Government.
Still another opinion adds:
1t has been settled from the adop-
uon of the Constitution Of the United
States, dividing the powers of govern
ment, into three departments, that the
judiciary cannot properly interfere with
executive action when the executive
officer is authorized TO exercise his
Judgment or discretion. This
sented and considered by the court
and the rule first adopted never de-
psrted fruin."
Numerous other equally pointed decis-
ions are set forth by attorneys Rails
ton and Richardson to prove the argu-
ment that the action OF the President
and the Senate in appointing Mr.. New
man was final.
Much stress is laid on the contention
that Mr.. Frizzell did not have the prop
er foundation for his application for the
writ of quo warranto, as the United
States Attorney had not refused to pro-
coed. 1t is maintained that a private
citizen may not institute the proceed
ings until both the Attorney General
and the District Attorney have refused
10 act The claim Is made that Clarence
X. Wilson, United States Attorney, was
in Europe at the time, and that James
N. Proctor. his assistant, did not have
any authority or power either TO- refuse
OF agree to act.
Further Argument Advanced.
The further argument is advanced
that the code gives no right to a private
person under any circumstances to use
the name OF the United States in quo
warrsnto against a public officer, and
both propositions are literally supported
by legal authorities which are cited.
Another contention urged by Attor-
neyE Ralston and Richardson is that
Mr. Frizzell must be an interested per-
son." and under no circumstances has a
taxpayer merely such an interest as to
render him proper person to bring quo
warranto. The brief says on this point,
and follows the statement with cita-
lions:
The chapter relating to quo warran-
TO in the District code contemplates in
such cases as a private person may
bring the action that he shall be an
Interested person While the Attorney
General or the District Attorney may
uinstitute such proceeding on their own
Emotion a third person must be inter
Tested. Assuming, therefore, merely for
THE purpose of considering this, point
THAT third person, after refusal by
THE officials named, can himself use