Evening star. [volume] (Washington, D.C.) 1854-1972, 1913-12-23

coordinate Judge has no power TO re-
| verse or modify. The rule does not ex.
tend further than this In rne Rrss nn,
lie 70 reverse In an upper court tne ~
| ton OF Justice Wright In other Wofos
his action was not final.
| The brief Of Mr.. Newman's lawyers
| appears to put the greatest stress on tne
question OF interest" Counsel seem 70
| think the decision OF Justice ANDERSON
will be sustained or reversed on ln4'
phase OF the controversy. The rlgnt .. 2
mere taxpayer to question the eigipinly
OF an incumbent in the Office OF Dlstric'
| Commissioner ia dwelt on at greater
length in the BRIEF and with more par
| ticularity than II was pressed during tne
argument before Justice Anderson.
Argument Against Interest
After pointing put that United States
| Attorney Wilson had never acted on
| the application of Mr.. Frizzell and thai
| Assistant United States Attorney Proc
tor was not empowered to fulfill the
| discretionary duties of the district at
torney. the brief devotes nearly twenty
! pages to the discussion of interest
Counsel maintain that the code gives
| no right to private person under any
circumstances to use the name of the
United States In quo warranto against
a public official. The applicant, they
assert. must be an interested person
and under no circumstances has a tax
payer, merely as such, an interest, to
! render him a proper person to bring
the proceedings. Quo warranto against
public officer. they claim. must be
instituted either by the Attorney Gen.
and no other person may do so unless
he has a peculiar interest in the office
by removal therefrom or by right OF
succession in the event the incumbent
is found ineligible.
In support Of the contention that the
code provisions never meant that a pri-
vate person should have the right to sue
out quo warranto against public Of
fetal he brief points out that section
1a41 requires relator to set up his title
to the Office.
Judgment in Quo Warranro.
'if We turn to the following sections, >
reads The brief, I'VE find in number 154o
that the general judgment to be rem
dered in quo warranto. If against the de-
PENDANT. is that he be ousted and ex-
ciuded from the Office. If this language
referred to a public office and the re-
lator bringing suit with regard thereto
were required. as he Is by the section
ABOVE recited. to set up his own title. the
Judgment should follow the petition and
the ONCE be awarded to the petitioner,
ouS III SoSH judgment Is permitted.
When we turn. however, to section
io4i we md that where the proceeding is
against director or trustee of a cor
poration and illegal votes were received
or legal votes rejected, or both, sufficient
70 change the result. judgment may be
rendered that the defendant be ousted
and the relator, If entitled to be declared
elected, may be admitted to the office and
mandamus issued to carry this order
into effect.
las appears from the above. if pri-
Vate relator We're permitted to proceed
with reference to a public office he could
not be placed in that office, even if a
judgment were given In his favor, such
restoration to office only applying to the
private relator entitled thereto who sues
for the possession of an Office in pri-
Vate corporation, having, as the text in
dlcates, directors and trustees. The argu-
ment is, therefore. that inasmuch as a
private relatOr cannot, under the statute,
even though entitled to the office. be re-
stored to a public office. but can only be
restored to private office. section 1541,
which requires the relator to set forth
the facts upon which his title to an Office
rests, can only apply to a private office.
1T is not for a moment to be supposed
that if e private individual cannot be
restored through quo warranto to a pub
lie Office of which he has been deprived
such private individual setting up his
o1aim to the Office could nevertheless have
the possession thereof"
Damages for the Relator.
Counsel claim to find strength and sup
port to their contention in section 1913
of the code. This section provides that
at any time within a year after judg-
ment such as is contemplated evidently in
section 1917 the relator may bring an
NJ
cover the damager sustained by him by
reason Of such usurpation of the Office to
which he was entitled. The Judgment in
1oi7 referred to was one which would di-
rect the defendant to be ousted and the
relator IL so entitled, be admitted to the
Office, that mandamus proceed and that
the defendant deliver to the relator all
books. etc, pertaining to the office.
1T would be absurd for the statute
to be SO construed" they assert. las to
require a private relator to set up his
title In bringing suit attacking the
title of another to an office the relator
claims and not to give him the office
itself, while giving the Office to a private
relator making similar claims upon an
Office in a private corporation. To avoid
this absurd result we are bound to con-
clude that the purpose of the statute was
as indicated: that Is to say, to permit the
Attorney General and the district attor-
ney only to bring the suits as to public
Offices and a private relator only to pro-
ceed as to matters In which he was in
terested after refusal to proceed on the
part of the prosecuting authorities.
THE view which We are above urging
and which seems to us absolutely I'M
answerable, is entirely consonant with
the general attitude and Interpretation by
courts Of quo warranto statutes not so
clearly differentiating between public and
private offices as does the law in force
in this District and it is instructive at
this point to review some of the decisions
indicating that the only power of con-
with the legal representatives of the
cisions having, of course, an additional
application when We discuss the mean
ing of the words interested person."
Decisions by Supreme Court.
Mr.. Newman's attorneys content them
selves with reciting various decisions of
the Supreme Court of the United States
and other tribunals on the question of
the extent Of the power Of the courts
to review the action of executive off,
GERS. They reassert their contention made
in the lower court and sustained by JUS
tice Anderson that the President and
Senate having acted on the appoint
ment Of Mr.. Newman the court is pre-
cluded from reviewing the matter.
No attention appears to have been
paid to the case suggested by counsel for
the petitioner in his brief on appeal.
There II was asked IL the statute had
required the appointment of woman
only to the position and the President