The Washington herald., 1913-10-11
NEWMANS right
TO retain SEAT
Appointment Of the President
Cannot Be Reviewed, Says
Attorney Ralston.
CASE UNDER ADJUSTMENT
Frizzell Declared to Be Not Sufficiently
Interested to Question
Qualifications.

An appointment made by the President
OF the United States and confirmed by
the Senate Is not subject to review by
the courts, according to Attorney Jack
son II. Ralston. who appeared yesterday
before Justice Anderson and argued on
the demurrer and motion TO quash in the
quo warranto proceedings to test the
eligibility of Oliver P. Newman to hold
the ONCE of District Commissioner.
Justice Anderson. at the conclusion Of
Mr.. Ralston's argument. said he wished
to be absolutely clear in the matter. and
asked Mr.. Ralston's opinion in a case
where President Grant had appointed a
man to Office who. it afterward developed.
was disqualified TO hold the Office.
His nomination had not yet reached the
Senate, but the court wanted to know
whether in Mr.. Ralston's opinion this ap-
pointment of Gen. Grant would not have
been subject to review by the courts. Mr..
Ralston said it was not, but qualified his
statement by adding that circumstances
surrounding the case might have been
different from the case before the court
Application Declared Fatal.
Great importance was attached by
Mr.. Ralston to the point that United
States Attorney Wilson never had act
ed on the application OF Mr.. FrizZell, as
required by the code, before the writ
was issued.
The refusal of Mr.. Wilson's assistant.
Mr.. Proctor, could not be taken to be
the act OF Mr.. Wilson, as he claimed
the law does not clothe his assistants
with his discretion in his absence. This
oversight is fatal to the application of
the writ. and the writ ought to be
quashed, Mr.. Ralston claimed. Mr.. Raj
ston urged that the court lacks jur-
isdiction to review the action OF the
President in appointing a District
Commissioner. II it undertakes to re-
view such action by quo warrauto, II
places with jury OF this District pow
er TO pass on the question OF whether
the President. and. in this case, the
Senate of the United States, have prop
erly performed the duty imposed on
them by the law. The code provides
that any question OF fact arising in
proceedings to oust an Official may be
referred 10 a jury on the request of
either side.
II was urged by Mr.. Ralston that both
the President and the Senate were alive
TO their duty when they selected and
confirmed Mr.. Newman. Mr.. Ralston
urged that the judiciary may not step
beyond the radius OF its jurisdiction and
ordinate branches OF the government in
which the law has reposed exclusive
jurisdiction OF making and confirming
appointments TO public office.
Former Senator Bailey and Attorney
Arthur a. Birney suggested that the
points most strenuously relied on by Mr..
Ralston are not to be considered by The
court bcause they attack the action Of
Justice Wright in the discretion imposed
on him by the law. Justice Wright, hsv-
ing exercised his discretion and ordered
the writ to Issue. 1t was claimed, judge
of similar jurisdiction is without power
to go back Of that action and inquire
into the reasons moving the discretion
exercised.
RnIstOu Reviews Case.
In reviewing the Newman case Mr..
Ralston urged that President Wilson knew
Of the qualifications required for the ap-
pointment and il must be inferred that
the President passed on the question before
making the appointment Lack OF inter-
est in the office was then pointed out and
Mr.. Ralston argued that Mr.. FrizZell, the
petitioner, had not shown such interest
as the law requires to enable him to
question the eligibility of Mr.. Newman.
A mere taxpayer. it was claimed, has
no such legal interest in the Office. Mr..
Ralston differed with Justice Wright
that a taxpayer Is sufficiently Interested
to question the qualification of the in !
of an office of municipal cor
poration. It was also explained by Mr.. |
Ralston that there is to he no rublic |
interest served by the prosecution OF the |
effort to oust Mr.. Newman.
Justice Anderson took the case under |
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