The Washington times., 1913-12-02
BRIEF FILED BY
"HOME RULERS"
VoIumnous Document Offered to Support Appeal From Ruling
{: of Justice Anders on, of the District
Supreme Court

A voluminous brief in support of the
appeal of the home rule committee
from the ruling of Justice Anderson,
of the District Supreme Court, in quash-
ing the writ of quo warrantO and sus-
tanning the demurrer to the petition in
the proceedings to test the eligibility OF
Oliver P. Newman to hold the office of
District Commissioner, wassffled in the
Court of Appeals today.
These points are argued by appellants
counsel, comprising former Senator Jo-
seph w. Bailey, A. A. Birney, ana
William ]. Neale:
/. "All of the objections raised by the
notion to quash and the demurrer hav-
ing been heard and overruled upon the
applica ton for the writ the motion and
the demurrer should have been stricken
from the files, for it is general rule
that a Judge has no power to reverse or
modify the decision OF another Oh CO.
ordinate jurisdiction.
III. .The right to sue out the writ OF
quo warranto for usurpation of a pubic
office is not confined to the law OIL
GERS of the Government ~
III. The relator CWilliam J. trizzeil,
being a citizen and a taxpayer. Is a
person interested in this municipal Of
flee, within the meaning of the code.
Nv. Was the action of the Senate in
confirming the nomination OF lhe re
spoudent, after investigation, con-
elusive as to his qualifications and
bar to a judicial examination tnereot;
In support of the first contention, the
brief says and adds citations:
Judge Wright's opinion. mace sdter
a caring, was simply ignored by coun-
sci for respondent and by his associate.
although no new fact nao peeh put
into the record. While We may concene
that Judge Anderson haa tne poMe1 tth,,t ~
adjudge that the court was without
jurisdiction in the cause, We oeny ms
power to reverse the decision OF the
court upon aAy questions Whlch eouid
arise upon a molten TO quash; As ~
these questions the judgment that the
writ should issue was final ana con-
elusive
Right To Sue.
Resarding the right of a citizen TO
sue out the writ of quo warranto' the
brief continues:
Section 1889 deals exclusively with the
mowers of the Attorney General and the
district attorney. Either of them may
institute such proceeding on his own
motion or on relation of third person.
but ir. the latter case only with leave
of the court and the giving Of security
for costs by the relator
Section l540 provides that upon re-
fusal by both the Attorney General and
district attorney to file the petition the
disappointed applicant to them may ap-
ply to the court by Veri1ed peutlon lot
leave to have said writ issued; and, II
in the opinion of the court the reasons
set forth in said petition are sufficient
N law the said writ shall be allowed
10 be issued by any attorney in the
name of the United States on the reia-
ton of such interested person on Ills
giving security for costs.
Nowhere in these sections is there a
word or phrase to distinguish between
usurpers of public and of private Of
fees The right of the persistent relator
to have the writ depends only on the
opinion of the court that the reasons
set forth in the petition ARE sufficient
in law Had it been intended to limit
the right of the persistent relator TO
inquire into the holding of office in
private corporations, and deny all right
of inquiry into alleged usurpations Of
public offices except to the Attorney
General and district attorney, it would
have been easy TO say so. The absence
Of such words of distinction is an argu-
ment against a purpose 10 distinguish.
Under no rule of statutory conStruc
uon had-the court the right to read
into the statute his view that there
should be no inquiry into the holding
. of public office except by the public
prosecutors
Interested Person"
With reference to the question ot
whether a citizen and a taxpayer is "an
interested person in the municipal Of
fee within the meaning of the law, the
brief sets forth that there are two
lines of decisions upon the subject-the
one affirming, the other denying the
proposition. 1t is stated that Justice
Anderson adopted the latter and de-
clared against the right of the indi-
Eidual citizen TO sue for the perform
ance of a public duty, or for the viola
lion OF public right.
Discussion whether the nomination Of
Mr.. Newman by the President and the
Confirmatio are susceptible to judicial
inquiry, the brief says:
The power to appoint to office is not
Inherently an executive function and
belongs to the President only when con-
terred by law. II may be exercised as
well by either of the other departments
OF Government IL statute SO provides
The office in question was created
by the act of 1878, and the executive
power to appoint commissioners came
only from that statute. Discretion in
selection was given the President sub
ject to two limitations. which required: ::
'a) that the appointees must be citi-
=ens of the United States; (bl that they
must have been actual residents of the
District of Columbia for three years
next before their appointment.
THE right of choice was thus confined
10 d class. and persons not within that
class were and are disqualified from
seeking or discharSing the functions
OF Civil Commissioner. The nonresi-
dent is as much disqualified as the
alien: no more. The writ here is not
directed against the executive, but
seeks 10 Gust the respondent as one
disqualified by law to receive the exeCu-
tive appointment Congress has de-