Evening star., 1914-04-06

gress to enact a statute out of the ordi-
nary and specially adapted to meet To-
cal conditions. All officers in the District
of Columbia are appointed; none are
elected, as in the states. AS was so clear
ly pointed out by the Minnesota court in
the case of state VS.. Dahl, supra, we have
here the anomaly that there cannot be
found a person qualified to assert such an
interest in any Office as would authorize
him to become relator for the enforcement
of his private right thereto. The Com
missioners are the chief administrative Of
ficers of the District; and Congress. in its
wisdom saw fit. for the better govern
rnent of the District. to place this limita-
ton as to residence in the statute. 1t
| therefore becomes important that persons
appointed to this Office shall meet fully
the prescribed qualifications. Nor is it
proper for the courts to treat with indif-
ference a provision of law which SO vi
tally concerns the rights of every citizen.
1nasmuch as no one could show such
an interest in an appointive office as
would permit him to bring the action
to enforce a private right. the conten-
ton of respondent would not only rem
der section 1540 of the code a nullfty.
when applied to public offices. but would
repose in the executive officers OF the
government the power to set at naught
the Will of Congress and appoint to
and retain in Office person disquali-
fed by law. Such power, as was so
clearly pointed out by the Michigan
court in Lamoreaux agt. Attorney Cen
eral, supra, should never except In the
case of an express constitutional com
mand. be upheld by the courts. We
think it was to meet the possible
exigency of the exercise of mistaken
authority that Congress placed it with
in the power Of a citizen and taxpayer
of this District to challenge the right
of an officer to hold unlawful an office
l1 nf 10 nr1oiS c
sioners is a matter of the greatest
concern to every citizen and taxpayer
of the District of Columbia. We con-
ceive it, therefore, to be the duty of
the statute as to make it effective to
afford the protection manifestly intend
ed by Congress in its enactment.
Question of Court Review.
This brings US to the second and less
difficult question involved in this ap-
peal. Is this action directed to the con-
troll of the discretion of the President of
the United States? BY the long line of
decisions cited by the learned justice be-
low it is settled law that where an
executive officer of the government is
vested with discretionary power in the
execution of a law the eXercce of that
discretion cannot be controlled by
judicial process. 1t is only where such
an officer is charged by law with the
performance of mere ministerial act,
devoid of discretion. that the courts will
intervene to command its performance
or restrain its violation
But relator is not seeking either to
review the action of the President in
making this appointment or to control
his discretion. The purpose of the writ
is not to compel the President to appoint
a certain citizen or to define a class of
citizens from which selection shall be
mistaken conception of the law by
which it is claimed that a disqualified
person has been installed into a public
office.
1t may be that a trial upon the merits
will disclose that no mistake was made.
but that is question of fact proper for
judicial inquiry. Such a judicial inquiry
is always permissible. regardless of the
source from which the officer derives his
commission I'VE have no officers in this
government, from the President down to
the most subordinate agent. who does not
hold office under the law. with prescribed
duties and limited authority. And while
some of these, as the President, the legis-
lature and the judiciary. exercise powers
in some sense left to the more general
definitions necessarily incident to funda-
mental law found in the Constitution, the
larger portion of them are the creation
Of statutory law, with duties and powers
prescribed and limited by that law
Floyd Acceptances, Wall, 666. 676.
This action is not directed against the
President. He is not party to 1t, as
would be essential were it sought to con-
troll his action. Neither is it an action to
review the inquiry made by the President