Evening star., 1914-07-07
CUSTER JUDGMENT
AGAINST NEWMAN
Justice Gould Overrules All
Three Motions by CON-
missioner.
$500 SUPERSEDEAS BOND
GIVEN PENDING AN APPEAL
Official May Not Be Disturbed in Ex-
ercise of Duties Until Higher
Court Passes on Case.

A judgment of custer was rendered
today by Justice Ashley NJ. Gould Of the
District Supreme Court against Oliver
p. Newman. president of the board OF
District Commissioners, following the
overruling by the court Of Mr.. New
mans three motions by which he
sought to prevent a Judgment of M
eligibility. >Mr. Newman noted an ap
peal from the judgment and gave a
supersedeas bond of 5000.
Declaring that his duty ended with the
fixing of the penalty of a supersedeas
bono and that he was not now called on
to declare its efficiency and effect, Justice
Gould told counsel for W. ]. F'rizzell. who
brought the suit that they might take
such steps as they saw fit to test the
question of the effect of the bond.
Whether the bond stays the operation of
the Judgment and allows Mr.. Newman to
continue in Office whether 1t merely
prevents Mr.. Frizzell from collecting his
costs and does not empower the Com
missioner to exercise the functions of
office. is a question to be construed later
by the court in some other proceeding.
Attorneys Joseph W. Bailey, Arthur 4.
Birney and Neale & England. represent
ing the taxpayer, who is testing the eltgi-
bility of Mr. Newman. announced to the
court that their view of the law is that all
attempted acts by Mr.. Newman as Dis
trict Commissioner after the entry of the
Judgment Of custer are null and void
They claim the judgment is self-execut-
ing. and as it requires no writ to make
1t effective it may not be superseded.
The object of a supersedeas bond. the
lawyers contend. is to stay execution,
and where no execution is required there
can be no staying of the judgment.
Question Not Passed Upon.
Justice Gould did not pass upon the
question today. as 1t was not before him
for determination. He intimated strongly
his view, however. that Mr.. Newman
should not be disturbed in the exercise of
his official duties until the judgment of
custer had been sustained by higher
tribunal
1t would seem to be a very serious
thing not to supersede," said Justice
Gould, "a judgment of this court in a
case of this character. The right of the
court to review the action of the Presi-
dent and the Senate in the appointment
Of an executive officer has only been
sustained by a divided court on appeal.
Mr.. Newman Is exercising important
functions and grave and serious condi-
tions might arise II the court should re-
fuse to allow a supersedeas.'
While counsel for Mr.. Frizze1l were
reticent today as to their next move
against Mr.. Newman hint was drop
low shortly. It was suggested that an
injunction may be asked to prevent
Mr.. Newman from continuing in office
or steps be taken to enjoin the disbursing
salary. BY either of these means. it
Is pointed out. the efficacy of the su-
persedeas bond might be determined.
Argues Against Confirmation.
Attorney Jackson H Ralston, of
Ralston & Siddons.- argued against the
confirmation by the court of the jury's
verdict that Mr.. Newman broke his ac-
tual residence here when he went to
Chicago in 1911. He rested his argu-
ment on the motion for judgment in
favor of Mr.. Newman for a stay of
judgment after the overruling of a
motion for new trial on the question of
the right of review by the court of the
action of the President and Senate.
The other points were reviewed merely
for the sake Of the record In the event a
review might be secured from the United
States Supreme Court after an af1rmance
by the Court Of Appeals of the custer
judgment
On the question Of a new trial. Mr.
Ralston urged that the jury had disre-
garded the evidence tending to show that
Mr. Newmans absence from Washington
for fifteen months was easonable.
He declared that the Commissioner had
remained away only long enough to COM
plete the Wor., undertaken by him. The
lawyer also claimed that Justice Gould
committed error when he allowed the
relator 10 assume the burden of proof
that Mr.. Newman was ineii gible. He con-
tended that Mr.. Newman's offer to as
sumo the burden should have been ac-
cepted by the court.
When 7 required them" said Justice
Gould. ito prove ineligibihty. I thought
gave Newman distinct advantage.
Had they failed to submit evidence of
this. ! should have dismissed the petit
tion If I erred in my charge also.
erred In favor of Mr. Newman, when
] told the jury that actual residence
DID not require man to be Imprisoned
here for three years. but allowed GER
tain flexibiiity of movement
Left Question to Jurors.
Il left It to them as men of affairs to
decide the question OF whether or not
Mr.. Newman's absences and the char
actsr of his activities while absent COM
I ported with his expressed intention to re-
turn
The court complmented Mr. Newman
| on his testimony. saying: NO one oues.
toned the accuracy and honesty of Mr.
| Newmans statements. His story on the
| witness stand was "A clear and clean ex-
position of his life
The court also declared the case wa.
properly presentab'e TO jury for de-
termination. and that he had tried his
best to present 1t fairly. and had no in
| cllnatlon 10 disturb the finding of the
jury. He accordingly overruled all the
motions of counsel for Mr.. Newman and
allowed an appeal to the Court of Ap-
peals
Former Senator Bailey for the taxpayer
answered Mr. Ralstons argument on tn.
question of the burden of proof declaring
the courts action to be correct in requir
ing Mr.. Frizzeli to prove the ineligibility
Il take il your honor does not want te
hear from us on the other question sait
the lawyer as he took his seat
The Custer Judgment.
The judgment of custer was as follows
Upon consideration of the motions TO
Judgment non obstante veredicto. for :
new trial and in arrest of. Judgment
filed herein on behalf of defendant b,