Evening star. [volume] (Washington, D.C.) 1854-1972, 1914-12-08
COURT |NQU|S|TNE
|NNEWMAN APPEAL
Justices PROFOUND Questions to
Commissioners Attorney
During Arguments.
PRESIDENT MISTAKEN,
is BIRNEY'S CONTENTION
Ralston Holds Trial Judge Erred in
Not Instructing Jury Value Of
Presidents Investigation.

Arguments were heard today by the
District Court of Appeals on the appli-
i cation of Oliver =. Newman, president
/ of the board of District Commissioners.
for a reversal of the custer judgment
rendered against him last July. The
decision of the appellate court is ex-
pected early in January.
Attorney Jackson II. Ralston pre-
sented the claims of the Commissioner
| that the verdict of jury of twelve
citizens, that Mr.. Newman had not
been an actual resident of the District
of Columbia for three years before his
appointment. should be vacated. He
! urged that the trial judge erred in not
| instructing the jury concerning the
action of President Wilson, who con-
sidered the question of eligibility and
the action of the Senate, which also
inquired into the matter of residence.
Mr.. Ralston contended that the trial
Judge should have advised the jury OF
the effect to be given the action of the
President and Senate, which raised, he
claimed, a conclusive presumption that
| the executive and legislative branches
OF the government had properly per-
formed their duty.
Attorney Arthur A. Birney and for
mer United States Senator Bailey, rep
resenting W. J. Frizzell, the taxpayer
who is testing the eligibility of Mr.
Newman. urged on the court that the
judgment of custer should not be dis
turbed. They pointed out that the law
in the case had been properly defined
in the previous opinion Of the Court
OF Appeals. and that the question OF
Newman had been properly submitted
to a jury.
Justices Question Ralston.
The number and character Of the ques-
tions propounded by the justices to At
torney Ralston indicated that there is
little probability that the Appellate Court
viii reverse its previous finding on the
law points involved in the Newman case.
How they will decide as to the proper
conduct OF the jury trial was not in
timated
Justice Van Orsdel interrupted Attor-
ney Ralston when the latter was claim
ing that the jury should have been ad-
vised of the action of the President and
Senate and the presumption attaching to
their action. The justice inquired how
came material. He suggested that the
question In the case is whether a mis-
take had been made in the appointment
OF Mr. Newman and whether he is right
rully III, IN the the ONCE and that it was i'm
Are you not in the position" Queried
Justice Van Orsdel, where in a crimi-
nal case you sought to introduce tes-
timony which had been given before
the grand jury or before a coroner's
inquest?"
When Attorney Birney was discuss
ing the question of practice as to
whether Mr.. Newman or Mr.. FrizZell
the taxpayer. should have assumed the
burden of proving his case, Justice
Robb interrupted.
MIR. Newman had not raised any
question:" asked Justice Robb, "of his
right to the office. had he?"
Newman's Testimony.
Mr.. Birney pointed out that on the
question of residence he had been con-
tent to accept the testimony of Mr..
Newman. Out of his own mouth the
lawyer showed the Commissioner had
convicted himself. He declared the
jury had found that when Mr.. New
man had formed a household in Chi
cago he abandoned whatever intention
he might have entertained to return to
Washington. The lawyer indicated to
the court that Mr.. Newman had not
left even a piece of furniture in Wash
ington to show any intention to return
Senator Bailey admitted that the ap-
pointment of Mr.. Newman by President
Wilson had raised a presumption in his
favor. but not a conclusive one. The
senator inquired il an appointment by
the executive raised a greater presump-
tion than did an election by the. people.
The latter are always subject to chal-
lenge, he pointed out.
Mr.. Bailey urged that the ''vaunted''
intention of Mr.. Newman to return was
entirely immaterial. He declared to the
court that the statute required actual
| residnce, which 'is governed and de-
pends upon the act, not the intention.
Intention of Congress.
Senator Bailey took up the provisions
of the organic act of 1878 and declared
the intention of Congress was clearly
expressed that only bona fide residents
of the District should hold the office
! of civil Commissioner. The Congress
intended to exclude from these offices
what are known as "lame ducks" said
the senator. Just before the law was
passed, he stated, two former members
of Congress were holding high posi-
tions in the District government and
Congress had determined to prevent a
recurrence of that condition.
Mr.. Ralston. 1t was largely composed
of answers to questions prOpounded te
him by the bench.
l. H~nlo~