Evening star., 1915-01-11
Commissioner Newman Ap-
plies for Writ of Error in
Custer Proceedings.
AUTHORITY OF PRESIDENT
QUESTIONED, HE ASSERTS
Enumeration of Errors Which, It Is
Alleged, Were Committed by
Courts of District.

Oliver P Newman, president of the
board Of District Commissioners, today
applied to the Court of Appeals of the
District of Columbia for a writ of error
to the Supreme Court of the United
States, and will seek a reversal by the
highest tribunal in the land Of the
action of the District Appellate Court
which. by majority opinion. sustained
the custer judgment rendered against
the Commissioner last July.
Mr.. Newman claims to be entitled as
of right to direct appeal by writ of
error, and that he should not be re-
quired to seek review of his case by
the United States Supreme Court
through a petition for certiorari. The
latter writ is generally looked on as
a concession by the court or an act of
grace.
The quo warranto proceedings. he
claims, call in question the authority
of President Wilson to determine the
qualifications Of a man whom he ap-
pointed to office and whom the Senate
confirmed. This brings his case. 1t Is
claimed within the purview Of the fifth
paragraph Of section $50 of the judi
cial code, which provides the right OF
appeal or writ of error in cases in
which the validity of any authority ex-
ercised under the United States or the
existence or scope of any power or duty
of an officer of the United States Is
drawn in question"
Should the writ Of error be granted, Mr..
Newman asks the appellate court to nix
a supersedeas bond to stay any possible
attempt to enforce the judgment of custer
Petition Presented by Counsel.
Attorney Jackson H. Ralston today pre-
scented the petition of Mr.. Newman to
the full bench Of the Court Of Appeals
and filed with it short brief in favor
Of his contention. Chief Justice Shepard
directed that the papers be filed and an
nounced that the court would take the
matter under advisement
Accompanied by Solicitor General
Davis. Attorney Ralston offered Saturday
to present the petition of Mr.. Newman to
Chief Justice Shepard at the latter's home.
The presiding Justice directed that the
application be presented in open court.
Mr. Ralston explained today that the So
Heitor general was unable to come to
court with him.
Eleven errors Of various kinds are al.
legged by Mr.. Newman In his petition for
writ Of error. He declares that Justices
rendered and
concurred in tho majority opinion Of the
court. made these numerous mistakes and
asks that their findings be reversed by
the United States Supreme Court Five
Of the errors are jurisdictional and six re-
late to the evidence.
List Of Alleged Errors.
The alleged errors assigned by counsel
for Mr.. Newman are:
They failed to limit the right to
bring quo warranto proceedings
against public officer to the Attorney
General an dthe United States attor-
ney for the District of Columbia.
They recognized the right of an as
sistant United tSates district attorney,
IN the absence of the United States dis
tEict attorney and without instruc-
tions from him, to grant or refuse per-
mission to bring quo warranto pro-
ceedings. such right and power being
given by no statute
They recognized a nero citizen and
taxpayer in the District of Columbia
as an Interested person within the
meaning of the statute governing quo
proceedings, the Attorney General and
an assistant district attorney having
refused to bring them
rhey recognized the right of a judge
findings of the President and Senate
upon question of fact governing
qualihcations Of an office, determine
tlon OF which was primarily submitted
TO the PRESIDENT and Senate.
They sustained the submission NJ
the issues in this case to a jury when
u appeared from the petition itself
tnat the advice and consent of the Sem
ent as civil Commissioner was onIv
given after a thorough examination
into his qualifications and a determine
tfon that he was qualified under the
Jaw.
Not Submitted to Jury.
They sustained the trial judge in re-
Susing to submit to the jury the fact
that the respondent had laid before the
President statement in substance of
the facts as he had narrated to the
5ury.
They sustained the trial judge in not
allowing the respondent to state to the
Jury the eact that he had appeared be-
fore the Senate committee on the Dis
trict OF Columbia and made a state
ment relative to his legal qualifications
for the office in controversy
They sustained the trial Judge in not
anstructing the jury in effect that they
were required to presume that the Off
cial acts Of the President and of the
6cHdtC III ana confirming
respondent to the office of Commits
siorer were regular and proper and all
necessary requirements of law in rela-
tion thereto had been fulfilled.
II hey sustained the trial Judge in not
1nstructinT the jury in effect that the
President and Senate having found the
necessary residence, such finding could
only be overcome by convincing proof.
They sustained the trial judge in not
instructinS the jury that their verdict
should be for the respondent.
I'm not reversing the action of the
trial court in overruling the mo,,ons
for Judgment non obstante yeredicto
ard in arrest Of Judgment"
Court Decisions Cited.
In his brief supporting the contention
of the right of the Commissioner to a
direct appeal. Attorney Ralston cites
the case of Clayton agt. the People, 1872
u. S.. 632, involving an appointment
made by one governor of the territory
of Utah to the office of auditor of pub
lie accounts, An appeal was allowed
in this case and the United States Su-
preme Court said:
I'VE are, therefore, very clear that az
the supreme court of the territory of
Utah based it's decision upon the
power conferred upon the governor by
2he seventh section of the organic act
Of Utah to make appointments to Of
ace. this power was drawn in question
and gives the defendant. Clayton. the