Evening star. [volume] (Washington, D.C.) 1854-1972, 1913-12-02
ARGUES newman
CONTEST IN BRIEF
FrizzeIl Insists on Right to
Question Eligibility of
Commissioner.
FACT OF APPOINTMENT
NO PROOF, HE CONTENDS
Insists Courts Refusal to Review
Would Be to Confirm Arbi-
trary Power.

Declaring that Justice Anderson in sus-
tanning the motion to quash the writ OF
quo warranto issued against Oliver l..
Newman to show BY what warrant Of law
he held the office of District Commis-
sioner and attempted to exercise its func-
tions. ignored the opinion Of his associate,
Justice Wright counsel for William j.
F'rizzell taxpayer who questioned the
eligibility of Mr.. Newman. today filed
in the District Court Of Appeals a printed
brief of thirteen pages.
While it is conceded that Justice
Anderson had the power TO adjudge that
the court was without jurisdiction IN the
cause. counsel for the petitioner deny his
power TO reverse the decision of the court
upon any questions which could arise
upon motion to auash. As to these
questions. il is contended, the order of
Justice Wright that the writ should is
sue was final and conclusive
Insists on Right to Sue.
The other general objections made to
the decision of Justice Anderson that Mr.
Newman is eligible TO hold office and
that the court would not review an ex-
ercse of executive discretion are three
fold. 1t is claimed that the right to sue
out writ of quo waranto for usurpatiofi
of public office is not confined to the
law officers of the government: that Mr..
| FriZZell. being a citizen and taxpayer. Is a
| person interested" in the Office of Com
missioner within the meaning of the code.
/! and that the action of the President ana
| the Senate on the nomination of Mr.. New
man is not conclusive us to his qualiiica-
1 tions, and constitutes no bar to a judicial
! examinat ton Of such qualifications.
Attorneys William j. Neale. Arthur A.
/ Birney and Joseph w. Bailey in their
| brief on appeal urge that lin the case at
! bar Congress did not submit to the Pres
ident the decision of any question OF fact
but laid down peremptory rule of quail
/ fication. within which any appointee must
| come Had the statute required that nont
| but women should be qualifleds Tor the
| office would Ii be held that IL the Presi-
| dent appointed a man such appointment
| would conclusively determine him TO be q
woman?
! I'VE respectfully submit that to deny
| 70 the courts the right to inquire If ar
annointmant to public municipal office j.
in violation of law is to declare the ex
| istence of that arbitrary power In th'
| executive for which the opinion declares
there is no room in our theory OF govern
ment."
Not Directed Against President.
The point is also maze that the writ II
President Wilson, but seeks to GUST Mr.
Newman as lone disqualified by law t.
receive the executive appointment
Dwelling on this viewpoint the brie
i reads:
..rhe mower to appoint to office is no
inherently an executive function and pc
longs to the President only when con
ferred by law. 1t may be exercised d
well by either OF the other department.
ct. TO
..The Office i'm question was created ps
the act of 1878 and the executive power
to appoint Commissioners came only Iroll
that statute. Discretion in seiectioh Wa va
I given the President subject 10 Two nm
itations which required: That the ap-
| nointees must be citizens OF the United
states: that they must have been actua
| residents Of the District OF Coiunpia toi
three years next before their appohit
inent.
.The right of choice was thus confined
In a class, and persons not within thar
class were and are disqualified from seek
ing or discharSiny the functions OF cpii
/ commissioner. The nonresident is As
much DISQUALIFIED as the alien: no more
The writ here is not directed against
/ the executive. hut seeks to GUST tue re-
| spondent as one disqualified by law 10
| receive the executive appointment Con-
| rress has declared that the alien or the
non.resident may not exercise the func-
! ticus of that particular once
Cited as a Parallel.
! ..po the appointment and confirmation
| establish, atialitcatio which did not cN-
| let and render him capable TO receive ap-
nointment whom the statute disqualities
| from receiving it
| ..ro affirm this is to declare that the
| DISQUALIFIED alien candidate for elective
office may point to his majority at the
| polls as a conclusive answer to quo
| warranto on the ground that the voters
| have by their ballots determined that he
IL qualified We submit that there Is no
warrant for the position assumed.
! Counsel for Mr.. Frizzell deny that
| there is involved any question Of
! judicial invasion of executive discretion
| in a review of the courts of the eligl-
! hiljty of Mr.. Newman. The statute did
not impose 1t is claimed. on the Presi-
/ dent duty to determine facts from
| evidence 1t prohibited an unduailf
/ man from taking office. it is asserted.
/ On the question of interest which
| would entitle Mr.. Frizzell to sue out
/ the write the brief urges that nowhere
| in the three sections of the code pro
| yiding for quo Warranto proceedings
/ Is there "A word or phrase to distinguish
| between usurpers of public and of pri-
| vate Offices
Decisions Bearing on Case.
] The right of the persistent relator, II
| is urged to have the writ depends only
| on the opinion of the court that the rea-