Evening star. [volume] (Washington, D.C.) 1854-1972, 1913-09-24

the motion to quash the writ Mr.. New
man claims that the writ was improvi-
IDENTIFY issued and that the court should
never have called on him to prove his
eligibility TO hold the office of District
Commissioner
Petition Declared Faulty.
BY the demurrer he claims that even
10 the writ were properly issued it should
now be dismissed. because the petition
on which IL was based is bad in SUBJ
stance Six points of law are raised to
sustain the claim of counsel for Mr..
Newman that his demurrer should pre-
vail.
I The appearance of Solicitor General
Davis as OF counsel for Mr. Newman was
entered today in the lower court for the
first time. Mr.. Davis did not appear
ance OF the writ. but when futile at
tempt to have the District Court of APP
peais allow special appeal from the
ruling of Justice Wright directing the
writ TO issue was made the solicitor gen.
eral. by direct order of President Wilson,
Joined with Attorneys Ralston & Rich
ardson and G. w. Holt as attorney for
Mr.. Newman.
10 auash the writ were served today
on Joseph w. Bailey. former senator
from Texas: Arthur A. Birney former
United States attorney for the District
Neale and j. III. England, who are rep
resenting William j. Frizzell who
brought the suit as a taxpayer. Notice
was also served on counsel for the petit
tioner that the two motions will be set
down for hearing on the motion cal
endsr for Friday. October 10. the first
motion day of the October term. The
case will be heard by either Justice
| par pd JrIaf firo VIZ n "
preside In the law courts. according to
the number which the case bears on the
motion day.
To Exhaust Law Points.
~ the action taken today by his
counsel Mr.. Newman appears to desire
TO exhaust all the law points involved
in the question of the right Of a tax
payer 10 test his eligibility to hold
ONCE and to postpone a hearing on the
\ question of fact whether or not he
has been a resident OF the District for
a term of three years Immediately pre-
eeding his appointment to office.
The right to appoint Commissioners of
the District of Columbia and to deter
mine their qualifications. Mr.. Newmans
counsel will contend, rests exclusively
In the President and Senate Of the
United States without any power Of ju-
dscial review. and any attempt at such
review by the court would be an in
fringement upon the powers of q CO.
ordinate branch of the government. But
Z such power of judicial review does
exist II is then claimed by the demurrer
that William ]. Frizzell. who instituted
the proceedings against Mr. Newman. has
no Interest in the office and is not an
Interested person within the meaning
Of the statute. The Attorney General or
the district attorney alone. IL any one
Is entitled. II is suggested. to bring the
action questioning the eligibility Of Mr..
Newman.
The demurrer also makes a point on
the absence of United States Attorney
Wilson. when the petition was referred
TO the Office of the district attorney aft
er Attorney General McReynolds had de-
elined to comply with a request to start
the litigation Assistant United States
Attorney Proctor acted on the matter as
Wilson and declined to take legal action
Resources Not Exhausted.
1T does not appear" reads the de-
murrer. that the United States district
attorney for the District of Columbia
has refused to institute this proceeding
on the request of the relator and said
relator has. therefore. no right to insti-
tute the said proceeding on his own be-
half The code in providing for quo
warranto proceedings allows a person
quest has been denied by the Attorney
General OF the United States and the
Unite1 states attorney for the District
J OF Columbia
Another point raised by the demurrer
Is that Mr.. Frizzell is not shown to have
such interest as a taxpayer as will
5ustify AN interference 18th the ORDERLY
operations of government. Also that it
does not appear from the petition thar
any public interest whatsoever will he
suoserved by Its prosecution and the
writ cannot be used for private pur-
poses.
Finally. II is claimed that Mr. New.
man. being appointed for thee wears
and "during such period subject to re-
moval by the President at any time.
ranto proceeding.
Eight reasons why the writ of quo
warranto was improvidently issued are
set forth in the motion of Mr. Newman
TO quash the writ. He says.
Failure to Show Interest.
II. The relator does not show ,ba,
he has such an interest in the issuance
Of the writ that he is entitled to invoke
the discretion of the court in obtain
ing the same. the Attorney General or
United States attorney for the Distric,
of Columbia alone. il any one being
entitled TO bring the action.
y. That this respondent having beer
appointed. shown by the petition nv
the President of the United States a nS
confirmed by the Senate. their con.
illusions are final and no power of re.
view of his qualifications resides IN
any court. and the exercise of such
power would be an infringement upoI
the powers OF a coordinate branch OF
the government
..3 That the appointment of this re.
eponden is for the term OF three years
Abut that during such period OF three
years he is subject to removal by the
President at any time. and that a Wrt