Evening star. [volume] (Washington, D.C.) 1854-1972, 1913-10-21
APPEAL TO BE TAKEN
TO A HIGHER TRIBUNAL
Frizzel Held to Have No Legal
Right to Question Validity
of Appointment.
TOO LATE TO REVIEW ACT
Estopped by Showing in Evidence
That President Investigated
Eligibility Before Making
Nomination to Office.

Oliver P. Newman is entitled
to hold the Office of civil Com
missioner OF the District of Co.
lumbia and to exercise its func-
tions, according to the decision
OF Justice Anderson of the Dis
trict Supreme Court rendered to-
day.
The court sustained the motion
OF Mr.. Newman to quash the writ
OF mandamus issued against the
Commissioner and sustained the
demurrer that the petition was
bad in substance. The court dis
missed the petition.
Frizzell Takes an Appeal.
Counsel for William ]. FrizzeIl. the tax
payer who brought the proceedings to
test the eligibility of Mr.. Newman. noted
an appeal from the action of the court
The matter will go to the Court of APP
peais, it is expected Bond was fixed at
500.
Justice Anderson. in dismissng the writ
issued against Mr.. Newman declared
that Mr. Frizzell had shown in his petit
ZION no peculiar interest which entitled
him to make application for the wri;
vhen the institution of legal proceeding
had been refused by the Attorney Gen
era and the United States attorney. Even
" MT. Fr1xxeH had been entitled in law
IN AJAX for the writ bo al
the petition must be dismissed, becauss
II makes no showing that the deterlnina-
ton by the President and the Senate as
to the qualifications OF Mr. Newman was
reached otherwise than In the exercise o.
q reasonable discretion In the absence
OF such showing, II was decided. the de-
termination by the executive and Senate
is final.
Justice Anderson reached the conclusion
that the court could act In review of the
action of President Wilson and the Sem
ate only upon "a showing OF arbitrary
action In respect TO the qualifications of
Mr.. Newman, The law presumes. the
court ho.ds. that the qualifications of Mr.
Newman were passed. upon properly, and
Mr.. Frlz2ell, in his petition. instead of
showing such was not the case. annexed
20 1t an excerpt from proceedings before
The Senate showing that the question of
Qualification was investigated.
None Above the Law.
Neither President Wilson nor any other
oflicia! under our form of government
Justice Anderson stated, is above the
.aw. When the action of any official is
-a,ieG Ia question. and it is shown that
acton was ARBITRARY or IN abuse of pow
uts -UrSerred by the law the court will
SIT ia review. the Justice sad He cited
JNo 1st isions of the Supreme Cours OF
NJ uited States sustaining this propo-
sition
According To the opinion of Justice An.
derson two questions arose on the record:
FIRST Is the relator an interested
person within the meaning of the code
and therefore entitled to maintain It's
proceeding?
Second Has the court the power 20
review the action of the President OF the
United States and of tho Senate in ao-
pointing and confirming the respondent
20 the office of Commissioner OF the Dis
trict of Columbia. and is their action bind
ING upon the court?
'"fhe answer to the first question" says
the court, must be found in the reason
and purpose for which the statute was
passed, as indicated by the various pro-
visions contained in IL.
Usurpation of Office.
The first section 15ss) provides for
the issuance of the writ against two
classes of persons:
!. Those who usurp public Offices
% Usurpers of private offices. to-
Wit. In any domestic corporation
The second section Q539) provides
that the proceedings may be instituted
by tie Attorney General or the district
attorney:
Il. On his own motion; or, 2, 'on the
relation of third person
The third section (I54O) urovjdes
that the proceedings may, in the event
OF refusal by the Attorney General ani
the district attorney. be instituted on
the relation OF an interested person
ne reiator does not, of course come
Within the provisions of section 1889 of
the code. which deals only with proceed
ings instituted by the Attorney General or
the district attorney. Had either of those
oincials seen proper TO do so they could
oouotiess tunder section 1539 have in
sututed this proceeding or authorized |.
TO be instituted. on the relat on OF the
reIator as third person within the
meaning or section 1919. which section
is substantially identical with section tsI7
OF the code of North Carolina. which
was construed in Foard agt. Hall, III
". c., 369, $40. TO entl;le a voter or ,ax-
payer TO bring the action by leave Of
the attorney general
In Court Without Leave.
The relator in this case. however. is
here without the leave of the Attorney
General or district attorney, and there
fore whatever rights ne may have mus,
be found in section 1870 of the code
which expressly limits the right there
under TO an interested person. instead
of using the term "a til rd person. which
was employed I'm drafting the preced .ng
section. Congress must have INTENDED
the term interested person to be given
a mo limited meaning than the general
term, "a third person., which IL made use
Of in the preceding section In dealing
with proceedings instituted by public aii-
thority. and the reason for limiting and
restricting the character of persons who
may. without the leave OF the public
CONTINUED on Fifth Page.)