The Washington herald., 1914-04-07
NEWMAN MUST
Fight FOR JOB
Court Of Appeals Disagrees
with District Tribunal on
Commissionership.
WILL ASK REVIEW SOON
Lawyers to Prepare to Take Suit
Started by W. J. FrizzeIl to
U. S. Supreme Court.

The Court Of Appeals. In an opinion
handed down yesterday. reversed the de-
cision OF Justice Anderson. OF the District
Supreme Court. who sustained the de-
murrer TO the writ Of quo warranto is
sued by Justice Wright, and dismissed
the petition for its issuance filed by Will
lam J. Frizzeil, a taxpayer. who chal-
lenged the right of Oliver p. Newman
TO hold the ONCE Of a District Commits
sioner. on the ground that he was not a
resident Of the District within the mean
ing Of the District code.
The cause is remanded to the lower
courts for further proceedings not incon-
sistent with the opinion of the Court of
Appeals. Counsel for Mr.. Newman will
prepare to have the action Of the Court
Of Appeals reviewed by the United states
Supreme Court.
The questions considered at length by
the appellate court were. first. whether
hr. FrizztN was a person interested"
within the meaning of section I54o Of the
District code. under which the quo war
ranto proceedings were Instituted. and.
second. whether the action of the Presi-
dent IN nominating Mr.. Newman and
the Senate In confirming the nomination
was nnal. or whether the court could in
quire into his eligibility
Soue - Sonstrued.
Referring to the question whether Mr..
Frtzzell Is person Interested" Justice
van Orsdel. who wrote the opinion. to
which Justice Robb assented and Chief
Justice Shepard dissented. said:
Tn each instance. where Il has been
held that relator must be a citizen
personally interested in the ONCE. the
decision was prompted by the express
terms OF the statute
Applying the same sound rule of
statutory control OF judicial decision. we
must hold that person interested is
broad enough to admit of apy
citizen and taxpayer of the District OF
Columbia, by leave Of court, exhibiting
an information in quo warranto to test
the right Of an officer TO hold a public
ofice.'
As TO whether the right to institute
the quo warranto proceedings is vested
solely in the Attorney General and the
District Attorney. the oponion says:
The statute is general. In that il no.
where distinguishes between the usurp-
ers OF public and private Offices The
right OF the relator TO have the writ
issued depends wholly upon the discre-
ton Of the court. In determining whether
or not the reasons set forth in the petit
ton are sufficient in law the court un-
oouoteoly may inquire into interest and
motives of the party seeking the writ
as well as the sufficiency of the evidence
offered. II II had been intended to limit
the right to the Attorney General or the
District Attorney, the statute would have
said 80 in terms
Interprets Presfdeat's Power. q
With respect to the contention OF coun-
sci for Mr.. Newman that the action Of
the President Of the United States and
the Senate In the nomination and con-
nrmation. respectively. OF Mr.. Newman.
was nnal and could not be reviewed by
the court, the opinion says:
BY the long line Of decisions cited by
the learned Justice below it is settled
law that where an executive officer of
the government Is vested with discretion
ary power in the execution OF a law. the
exercise of that discretion cannot be
controlled by judicial process. 1t is only