Evening star., 1914-04-06
NEWMAN'S RIGHT
TO HOLD OFFICE
MUST Be SHOWN

MUSl Bt ShUWN
Continued from First Page
Appellate court and should they be
denied application for certiorari will
probably be made to the highest court
in the land.
Former Senator Bailey of Texas, At
torneys \ y. Birney and " J. Nealc
representing J. W. Frizzell. the tax
payer, who questioned the eligibility OF
Mr.. Newman, will oppose the granting
Of a eview by the appellate court.
Public vitality Interested.
After setting out reasons why a tax
payer is interested. the court points
out that "the personnel of the Com
missioners is a matter of the greatest
concern to every citizen and taxpayer
of the District of Columbia. We con-
ccivc il. therefore. 10 he the duty of
the courts if possible. to construe the
statute as to make it effective TO af-
ford the protection manifestly intended
by Congress in its enactment.
Review by the courts is not precluded
by the action of the President and Sen
ate, the appellate court holds, The
writ does not seek to review the action
Of the President, it is pointed out, nor
to control his discretion.
The purpose of the writ is not to COM
pei the President states the court, Ito
appoint certain citizen, nor to define
class of citizens from which a selection
shall he made 1t is to inquire into an
alleged mistaken conception of the law
by which IL is claimed that a disqualified
person has been installed into a public
office. Ii may be that trial upon the
merits will disclose that no mistake was
made; but that is a question of fact prop
er for judicial inquiry. Such judicial in
qI;rv is always permissible. regardless
of the source from which the officer de-
Fives his commission.
Not Against President.
This action is not directed against the
President lie is not party to it. as
would be essential were it sought to con-
troll his action. The case has passed be-
yond the point where it concerns either
the President or the Senate The manner
of respondents induction into the Office of
civil Commissioner is only incident in
this suit. The real question here is
whether he is lawfully entitled TO hold
the office. irrespective of the care exer-
csed by the President and Senate in Sc
lecting him.
The President is bound to act strictly
in accordance with statutory provision.
the court suggests. Justice Van Orsdel
says. THE statute does not impose upon
termining, from evidence taken, the quail
fications OF persons to hold the office of
Commissioner. They may do so or not,
thcy choose. But it does emphatically
prohibit nonresident from holding the
Office. The question presented is neither
political nor executive, II is legal and ju-
6icial. Hence there is no judicial inya-
sion of executive discretion.
1T will hardly be contended that it fol-
lows by anaiogy that because the Presi-
dent has the power to remove AN officer
the grant of that authority carries with it
by tmpncation the power to appoint to an
office a person disqualified by law from
holding it. The absurd conclusion suf-
hcientIy answers the proposition.
Question of Residence.
August - last Mr.. Frizzell filed petit
tin III quo warranto in which he claimed
that Mr.. Newman was disqualified to
hold the Office of civil Commiss .oner be-
cause he had not resided in Washington
during the three years Immediately pre-
ceding his appointment. Justice Wright,
to whom the petition was presented. gave
Commissioner Newman an opportunity
to be heard before issu ng the writ.
Counsel for Mr. Newman raised the ques
ton Of law that Mr.. trizzeii d mere
taxpayer had no peculiar interest in the
office and was not entitled to institute
Attorney General and district attor-
ney had declined to take such action.
Justice Wright held the taxpayer sut-
ficiently interested under the code and
ordered Mr.. Newman to show by what
warrant of law he holds the position and
exercises its functions.
Instead of tling an answer to the writ,
counsel for Mr.. Newman filed a demurrer
TO the W. it and a motion to quash. They
claimed the writ should be dismissed be-
cause the petition on which it was based
was bad in substance in that Mr.. Frizzell
was not Interested in the office and
that the court was without authority to
review the action of the President and
Senate, both having considered and passed
on the question of eligibility. Justice An
derson took this view of the law and
sustained the demurrer and dismissed the
petition. From this action Mr.. F'riZzell
appealed. and the appellate court today
reversed that finding by the lower court.
Given Broad Interpretation.
Applying the sound rule of statutory
control of judicial decision says Justice
Van Orsdel I'VE must hold that person
Interested is broad enough to admit of
any citizen and taxpayer of the District
of Columbia, by leave of court exhibiting
any information in quo warranto to test
the right of an officer to hold a public
office Indeed, to hold otherwise would
require US judicially to read into the stat
ute something not reasonably deducib
from the language employed by Congress
in Its enactment
1t is proper to inquire into the pur-
pose of Congress in the enactment of
this statute. Unquestionably it was to
provide for judicial determination of
the right of a person to hold an Of
fee in the District of Columbia. Con-
gresS was fully cogniZant that the
courts generally have held the words
81 person interested or interested per
SON, used in similar statutes to en-
brace citizen and taxpayer. Congress.
il must be assumed, realized that, un-
less words should be interpreted.
the statute would be meaningless, for
since all officers are appointed in this
District. no one. other than citizen
or taxpayer, could be person inter
ested' within the contemplation of the
statute"
Justice Van Orsde! also points out that
the Commissioners are the chief ad-
ministrative officers of the District. Con
gress in its WISDOM says Justice Van
Orsdel, saw fit for the better govern
ment OF the District to place this liIni-
tation 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 in
difference a provision of law which so
vitality concerns the rights of every citi-
zen
The Decision in Full.
The decision OF the court is as follows:
Relator. William J. Frizzel. by leave
of court, filed a petition praying for a