The Washington herald., 1915-01-05
newman LOSES;
Held "USURPER"
Appeals Court, Says He Has
No Right to Com
missionership.
WILL TAKE CASE HIGHER
United States Supreme Court to Be
Next Step-Justiee Shepard
Dissents.

Sustaining the action OF the District
Supreme Court. the Court of Appeals
yesterday handed down a decision hold
of the Board of Commissioners, is not
entitled to hold that office or exercise
the functions of the position.
Justice Van Orsdel rendered the de-
cision. and it was concurred in by JUS
tice Robb. Chief Justice Shepard dis
sented. No dissenting opinion has yet
been filed. but may be shortly. as the
Chief Justice also dissented from the
views of his associates on the law ques-
tions decided last April, and filed a
separate opinion then.
The decision of the Court of Appeals
affirms the action of the District Su-
preme Court last July. following
trial OF Mr.. Newman's case by a jury.
The jury ruled that Mr.. Newman was
'usurper" of office.
Attorneys Ralston and Richardson.
and George w. Holt for Mr.. Newman
will seek review of the case before
the United States Supreme Court.
Newman Won First Brush.
William ]. Frizzell. a citizen tax
Newman in September. 1913. The first
skirmish was won by Mr.. Newman i'm
the lower court on the question of the
right of a taxpayer to inaugurate the
proceeding. Justice Anderson denying
that right. On appeal, the Appellate
Court reversed the lower court and
sustained the right of the taxpayer.
The case then went to trial by jury
and Mr.. Newman was held to be ineli-
gible to hold ofice in that he had not
been an actual resident of the District
for three years previous to his appoint
ment as Commissioner.
Justice Van OTsdel in his opinion
strongly definds the prescribed qualifi-
cation of three years actual residence
for nominee TO the office of Commits
sioner. Commenting on the question.
he said.
Residence Clause Necessary.
Every reason exists for this restric-
tive statute As to most officers of the
District there is no such limitation
placed upon the appointing power. they
may be selected from the country at
large: but the Commissioners are the
chief executive and administrative Off
GERS Of the District. and they alse leg
islte for the District in those matters
specially delegated by Congress. 1t was
therefore important to provide some
Limitation upon the appointing power
which would insure the selection of men
for this position who had resided in the
District long enough to become ac-
uuainted with its needs and affairs.
ITO what does the contention Of re-
spondent CNewman) logically lead? If
actual residence means mere domicile or
legal residence established by sixteen
months habitation in Washington, con-
tinued thereafter for a lapse of sixteen
or twenty months by the mere intention
of the party to return, the same mental
concept might hold domicile or legal
residence for three, ten or thirty years,
for time in retaining domicile, SO long
as the intention to return exists, is not
material.
This would defeat the evident intent
of Congress. 1t would foist upon the peo-
pie of the District person totally unac-
quainted with its affairs If the will of
Congress is to be thus ignored, better
appoint a person coming under the sec
ond Limitation of the statute who had
actually resided here for three, ten or
thirty years. but who had claimed resi-
dence elsewhere. In the latter violation.
the public good, at least, would be better
Commissioner Newman, when seen at
the District Building and told of the de-
cision against him, refused to comment
on the case except to say that an appeal
will be taken to the United States Su-
preme Court.