Evening star. [volume] (Washington, D.C.) 1854-1972, 1913-10-11
Cites Novel Doctrine.

said Mr. Bailey that the President
shall tell the courts of this country that
he is above the law, that he has a
discretion. which, though the law has
abridged it and removed it. still cannot
be called in question in any court or
the land
The appointment of a Chinaman
who could not read even his own Ian
guage to be a circuit judge of the
United States could not be prevented
because the Congress has not seen fit
to prescribe any qualifications for that
office
I'm this case Congress did not leave
it to the discretion of the President, but
says he must appoint only man. an
actual resident for three years, who shall
not have claimed residence elsewhere in
that time. President Wilson could APP
point Chinaman. an Indian. an African,
| red man, brown man, black man or
white man-but no matter what the color
or race he could only appoint one who
had been resident in this District for
three years, and an actual resident at
THAT"
The speaker went on to explain that
the courts every day override the action
of the President and both branches of
Congress when they declare unconstitu-
tiOnal law passed by Congress and ap-
proved by the President. If a law can
| appointment and confirmation may be
held null and void when 1t contravenes
the statutes of the country.
would Be. Above Law"
ITO invoke a rule like the defendant
proposes continued the speaker. would
be to set the President above the law.
The writer's of the Constitution gave him
power enough when they authorized him
to appoint the officers of the United
States. They gave the Senate concur
vpf1o fI,av-
allowed 1t to confirm or reject his APP
pointments- But the President nor the
Senate-the President and the Senate
are not above the law of the land, which
distinctly says that no man Is eligible
to one of these civil commiss!onerships
unless he possesses the qualification of
residence.
The appointment of a man who was
not an actual resident is a nullity and
of no more effect. though the President
did it with approval of the Senate, than
would be law which is contrary to the
provisions of the Constitution.
The question is resolved to whether
Congress had the power to fix qualifi-
cation for civil Commissioner, and if 1t
did. which / think my friends on the
other side will not dispute. then 1t fol-
lows that the President must obey it,
question One of Law.
Senator Bailey urged that the cues
| ton before the court was one Of law and
not of review of a discretionary act
of the executive. He claimed the demur-
rer and notion to quash should both be
dismissed.
Mr.. Barley declared an infrin cement of
the organic act in this regard had not
been made up to this time. He said:
This is the first time an ineligible has
been appointed to the Office of civil
Commissioner of the District of Columbia
since the passage of the organic act in
1878, and / sincerely trust that the neces-
sity for the appointment of an ineligi-
bic will never again arise" announced
Senator Bailey;
1T pains me to see the Attorney Gen
eral appearing in this case, to which the
| United States is a party. but l would be
| less panied If he were here assisting in
the expeditions settlement of this ques-
ton rather than delaying the determine
ton of the question by interposing tech
meal defenses."
Attorney Arthur A. Birney made the
concluding argument on behalf of the Pc
titoner Mr.. Ralston concluded for Mr.
Newman.
Justice Anderson took the case under
advisement and will later announce his
decision.