Evening star. [volume] (Washington, D.C.) 1854-1972, 1913-12-12
kALBFUS' CUSTER
UPHELD BY COURT
Justice Barnard Says Com
missi0ners Acted With
in Rights.
ASSESSMENTS MADE
BY OFFICIAL TO STAND
Jurist Ignores Question of Oliver P.
Newman's Eligibility as
City Head.

| Tie removal from office of Samuel T.
kalbfus. former member of the board
| or assistant assessors, by the Distric
commissioners was upheld today by the
Supreme Court of the District of Column
bia- In an opinion by Justice Barnard
the court denied the al plication of Mr..
haibfus for a writ of mandamus to COM
pei his restoration to office.
Through Attorney Frank j. Hogan the
former assistant assessor noted an ap-
peal to the District Court of Appeals
The Commissioners We're represented b,
Corporation Counsel Syme and his as
sistant. Roger j. Whiteford; bond on ap
peal was fixed at Sloo
Decisions Are Supreme.
Justice Barnard holds that the Commits
sioners acted within their discretion, and
| that when SO acting tt cir decisions, right
or wrong. cannot be changed by the court
OF reviewed by proceedings in mandamus
He declared the order OF removal is not
void because it is made by a tribunal
vested with both jurisdiction and discre-
ton.
1t may be that the action of the Com
mlssloners was error" says the justice,
formation SO derived; it may be tnat they
Shoulo nave given the reiator notice of a
further hearing to inquire into the same
state OF facts tnat hao been inqui. ed into
Dy their predecessors and by the commit
tee In Congress, and at which the aomis-
slons OF the reiatOr had been made, but
IL SUCH action was error, it was GER
tainly not jurisdictional
The hearing in Jnis case in open court
shows that the Commissioners reached
the conclusion that the relatof was in
emcient in office, from testimony taken
by their predecessors. on what is sup
posed to be regular hearing, at which
the re-ator was present IN person, and by
counsel, and in which he gave his testi-
mony; and also from an Investigate Iion
carried on by committee in Congress,
wherein the relator was present and gave
his testimony.
Given Thirty Days Notice.
From the admissions and statements
OF the relator himself, the Commission
ers say they reached the conclusion tha,
he was inefficient. neglectful of duty and
guilty of malfeasance in Office, and that
they In good faith exercised their power
Of removal. first giving the relator an
opportunity to restEns with thirty days
lator declined to accept
Continuing. the opinion points out:
The Commissioners constituted the tri-
bunal charged with the duty and power
OF appointment and removal. and to their
Judgment the law intrusted such power,
which must necessarily involve discre-
ton on their part. to determine the quail
incations of the officer ana the manner
in which he performed the duties of the
office.
No Limitation on Term.
The relator occupied an office without
limitation as to his term. the four-year
term having been abolished, and he there
fore continued in office when the respond
ents were appointed. Ii they were to be
held responsible for his acts as assessors,
could they not avail themselves of all
the facts ascertained by their predeces-
sors, throwing light on his character and
official acts?
Having the power. and having exer-
cised 1t, on what they contend were JUS
tifiable grounds, the court cannot correct
such action. even If erroneous, by a pro-
ceeding for mandamus, because the writ
cannot be made to operate as an appeal,
and because the court is without author
tty TO review & decision which the res
pondents may make in a matter in which
they have Jurisdiction and discretion
Ignores Newman Issue.
The opinion of Justice Barnard ignores
the question of the eligibility OF Oliver P.
Newman to serve as member of the
board OF Commissioners, as, he suggests,
1t Is not subject OF inquiry in this case
He declares in considering the case he
has assumed that all the respondents are
duly appointed and qualified as Commits
sioners and that the action of Capt Mark
Brooke in joining in the order of disrnis-
sal in the absence of Col. Harding, the
engineer Commissioner, was proper.
!. The court also declines to give weight to
the contention of the Commissioners that
Mr. kalbfuS was 4 de factO" assessor
only because his oath of Office was ad-
ministered by the then assessor, who, it
was claimed. lacked authority to admin
lister such oaths. In considering this
case" says Justice Barnard, Il shall as
sumo that the relator was not only an
assistant assessor de facto, but de jure
as we'll. He was recognized as such by
the District authorities during the course
Of several years, and l shall not under
take to decide that they were not fully
justified in such recognition but shall as
sumo that his acts. as such officer, were
those of an officer duly appointed and
duly qualified"
This action by the court is regarded
as settling any controversy which
might have arisen as TO the official
acts of Mr.. Kalbfus. The assessments
made by him are therefore not to be
tnValldated, IL Is suggested
Two Important Questions.
But two important questions arise
in the case, Justice Barnard declares.
They are:
Did the Commissioners have power
and jurisdiction, under the facts shown,
to remove the relator from his said
office?
III they had jurisdiction in the prem
lses. and have exercised their power.
lrightfully or erroneously, can the court
compel them to set aside their action
and to restore the relator to his said
officer
The organic act of 1878. the court points
nut. gave the Commissioners plenary
power to remove any officer whom they
had the right to appoint. The act Great
ing the permanent board of assistant as
SCISSORS, the court finds. expressly con-
tinues the power in the Commissioners to
remove the members of the board for
cause satisfactory to them.
THE fact that the word permanent
appears in the statute" says Justice Bar
nard, cannot give persons appointed to
this board the right of continuous occu-
pancy. because the act limits their terms
to four years, unless sooner removed and
therefore no vested right to the office can
be claimed by virtue OF the word per
manent.
when this last act was amended by
the act of July 1, 1902. it was provided
that the assessor of the District of CO.