Evening star., 1914-11-17
William J. FrizzeII Files Brief
in Proceedings Against
Commissioner Newman.
SAYS THE POINTS IN LAW
ARE ALREADY DECIDED
Appellate Court to Hear Arguments
December Z on Question of Dis
trict officials Eligibility.

! William ]. Frizzell, the taxpayer who
is testing the eligibility of Oliver P.
| Newman to hold the office of District
Commissioner, filed today in the Dis
| trict Court of Appeals brief in op-
position to the appeal taken by Mr..
! Newman from the judgment of custer
rendered against the Commissioner by
the District Supreme Court.
The appellate court has set the case
for hearing December Z. A decision
is expected by the end of the year or
early in January.
Attorneys Joseph w. Bailey, Arthur
A. Birney and William J. Neale, who
sign the brief as counsel for the tax
payer. contend that there is nothing
for the appellate court to do but to
affirm the custer judgment. They
urge that the law points have beeh
already determined against MI. New
man in the former opinion OF the ap-
pellate tribunal. and that the question
of fact as to his residence was prop
erly submitted to jury, and being
decided by the jurors is not reVleWaple
by the appellate court.
Discussion of Alleged Error.
Commenting on the objection of Mr..
Newman that the trial court erred in
placing the burden of proof on the re-
lator, the brief filed today points out
that the burden was placed properly
and in accordance with one of the
prayers for instruction to the jury sub
mitted by counsel for the Commits
sioner.
The brief also calls attention to the
fact that Mr.. Newmans lawyers took
no exception to the charge of Justice
tCSo trio 10
in the lower court. The instructions of
the court, it is asserted, embodied all
the principles contended for by ap-
pellant in his prayers and were more
favorable than he was entitled to have
them"
apparently recognizing" continues
the brief, that this charge to the jury
gave in substance what they had asked,
appellants counsel took no exception
thereto. If it did not omit or declare
contrary to some matter of substance
found in the specific prayers counsel
may not complain of the rejection of
those prayers. Their brief does not
point out or suggest such omission or
inconsistency"
Question of Residence.
The court is advised that Mr.. Newman
was in Washington only five times dur
ing a period of twenty months. which
period is sought to be counted in the
three years of actual residence re-
quired by the statute for eligibility to
hold the Office of Commissioner.
On this point the brief states:
During this period of twenty months
Me Newman was in Washington about
five times all told; twice in the fall
! of 1911 and winter of 1911-12. just
a day or two each time, staying with
friends, and at least three times in
the winter of 1928, remaining just
over Sunday. or day.
LAS against these physical facts was
only respondents declaration of inten-
tion and purpose to consider himself
resident of Washington. Surely the
question whether that intention in fact
existed and continued during the pro-
! longed physical absence of the re-
spondent was for the jury and could
not rightfully have been taken from
them by the judge as asked by the
appellants thirteenth prayer"
Asserts Negative Decision.
The verdict of the jury negatives the
claim of Mr.. Newman that he intended
to return to this city, the brief of the
relator asserts Mr.. Frizzell claims that
| the verdict established either one of
| two things, that when Mr.. Newman left
Washington he did not have the pur-
pose to return as to home, that
this purpose was abandoned and a
domicile established elsewhere.
Counsel for Mr.. Frizzell suggested to
| the court that the case is reduced to
one proposition. This proposition is
thus stated by them: rs one to be
deemed an actual resident during a
| period of three years who for twenty
months of that time was in fact alb
| sent from the locality without inten-
| tion to return and with no apparent tie
Of family or property to induce a re-
| turn"
| Counsel declare there can be but one
answer to the inquiry.