Evening star. [volume] (Washington, D.C.) 1854-1972, 1914-05-22
KA[BFUS CUSTER
IS HELD ILLEGAL
District Court of Appeals Rules
Against Action of Com
missioners.
OFFICE NEVER VACANT,
JUSTICE ROBB HOLDS
Attempted Appointment of Successor
to Assistant Assessor Held to Be
Mere Nullity.

The removal of Samuel T. Kalbfus as
an assistant assessor of the District of
Columbia was illegal and void and the
attempted appointment Of his successor
mere nullity, according to the decision
of the District Court of Appeals rendered
today. Justice Robb. speaking for the
court, declared the Office had never been
vacant and in contemplation of law the
relator has never been out Of his Office.
but. in fact, he has been. and now is.
being illegally excluded from it,
Declaring mandamus to be the most
adequate remedy to restore Mr.. Kalbfus
to his rights, the court directs that the
Judgment of Justice Barnard of the Dis
trict Supreme Court be reversed and the
cause remanded for further proceedings.
Justice Barnard's Ruling.
Justice Barnard held that the Commits
sioners had discretion as to the removal
of member of the board, and having
acted within that discretion. the court
would not review the action
Justice Robb sustains the contention of
Attorney Frank ]. Hogan for the as
sistant assessor that the oath Of Office
taken before the assessor by one of his
assistants is valid. Even If invalid. the
court suggests the Commissioners having
allowed Mr.. Kalbfus to serve under it
for many years may not be heard to at
tack it.
The right of the Commissioners to re-
move a member of the board Of assist
ant assessors was curtailed, the court
finds. by the act Of 1902, prohibiting re-
moval except for causes mentioned. BY
this act notice and hearing before the
tribunal charged with the duty Of ac-
cording it and Of determining the issues
became requisite, the court holds, to the
exercise of Jurisdiction.
THE fact that the conduct of an official
may have been the subject of inquiry.
says Justice Robb, before another tri-
bunal does not relieve Of it's duty the
tribunal charged by law with according
hearing before removing him..
Commissioners Claim.
The Commissioners claimed it was un-
necessary to try Kalbfus. since a COM
mittee of Congress had found that he had
engaged in real estate speculation while
a member Of the board Of assessors.
Without passing on the right of the
present board Of Commissioners to re-
view the finding of their predecessors.
the court declares it Is certain they had
no power to review that finding without
notice to Mr.. Kalbfus. This could no
moro be done, the court suggests, than
could the former board. after two years
had elapsed, have reopened the case and
reversed their finding without notice 10
him.
"When the defendants passed their or
der of removal, continues Justice Robb:
1.-The relator was in the actual and legal
possession of his office. Congress having
explicitly withdrawn from the Commis-
sioners the power of removal except Tor
specified causes. notice and hearing were
essential requisites to remove at all
Since their order Of removal was passed
without notice and hearing, it necessarily
follows that their action constituted an
arbitrary exercise of power and was
void.
Refused to Resign.
August 1s last Mr.. Kalbfus received
letter from the Commissioners oner1ng
him an opportunity to resign from the
service of the District. He declined and
on the next day the Commissioners
passed an order removing him and nam
ing Edward W. Oyster as his successor
Mr.. Kalbfus acknowledged the receipt of
the dismissal order, but notified the au-
thorities that he claimed the office and
stood ready to perform the functions Of
the office if not prevented. The proffer
to return to work was ignored and Mr.
Kalbfus had recourse to the courts.
1t is considered probable in view of
today's decision that Mr.. Kalbfus will
be entitled to pay for the time he has
been excluded from the office. The court
holds the office has never been vacant
and that Mr.. kalbTus has been both IN
law and fact a member Of the board of
assistant assessors.
Newman Declines to Comment.
Commissioner Newman was informed of
the Kalbfus decision by a reporter of
The Star. He declined to comment on 1t
until ne has seen copy Of Justice Robb's
ruling. The Commissioner said that he
would probably call meeting of the full
board of District heads late this after
noon or early tomorrow for the purpose
of considering what action will be taken
in the matter. The office Of the assessor
Newman's personal supervision.