Evening star., 1915-06-21


be proper to allow such proceedings t,
be instituted by a third person, but
provides that such third person mus
not only secure the consent of the iaN
officers of the government, but the con
sent of the Supreme Court Of the DIS
trict of Columbia before he can use TN
name of the government in quo war
ranto proceedings.
The code. making distinction be,
tween a third person and an INTERESTED
person. recognizes also tnat tnere ,is,, inish,
be instances in which a person might
have such an interest in the matter as
to entitIe him to hearing-even where
he had failed to secure the consent OF tne
Attorney General or District attorney u
use the name Of the United States Sec
ton 1540 deals with that case. and pro-
yides that where these law officers nave
refused the request of a person interested
he may apply to the court by feriileo
petition for leave TO have sald VIII rs
sued IT, in the opinion OF the court, ms
reasons are sufficient at law, the saio
writ shall be allowed to be issued III the
name of the United States on the reta-
tions Of said interested person upon MS
giving security for costs.
"If the question OF frizzei inter
ests' here had depended upon a mattei
about which the evidence was IN con
fiiet the finding of the supreme eou!
might not be subject to review nu' n
the established facts show tnat, as
esled' person. the court had no authot :
ity to grant him permission to use the
name of the government and the ease
must he dismissed. SO that the iuioa
mental question is whether the Id" u.
force in the District permitted hiili' az
a private citizen. without the cohsen
of the law officers. to test Newman
title to the public office of civil com
missioner. -,
"Frizzell does not alIese that he mad
been an incumbent Of that once anu
h., been unIawfuIly ousted before MS
term expired. He does not set up any
claim to the office And. OF course. II
he, as Al citizen and taxpayer. ma ;
the right to institute these proceeu
tngs any other citizen and taxpayer
has similar night to lnsI.I,e psU
ceedings agains Newman and all others
who exercise within the Dlstrlct
public office, civil or military sucn
result would defeat the whole poi1cH Oh
the law which still regards usurpatioi'
as a public wrong, to be dealt with pri-
marily by the public prosecutors.
Not a Private Interest.
"Tn a sense-in a very important
sense-every citizen and taxpayer Is
interested in the enforcement of the
law, in the administration of law and
in having only qualified officers exc
cute the law But that general inter-
est is not a private, but public in
terest. Being such. it is to be rep
resented by the Attorney General OF
the District attorney. who are ex-
pected by themselves or those theS
authorize, to institute quo warranto
proceedings against usurpers III the
same way that they are expected to
institute proceedings against any other
vioIator of the law. That general
public interest is not sufficient to au
thorize private citizen to institute such
proceedings, for if it was. then every
citizen and every taxpayer would have
the same interest and the same right
to institute such proceedings and a
public officer might, from the begin
ming to the end of his term, be harassed
LAS pointed out in the carefully
prepared opinion of the majority OF
the Court of Appeals of the District
there is much conflict as to the mean
ing of the phrase interested person II
this class of cases. At first reading, the
conflict seems irreconcilable. But upor
examination it will appear that the diff
ference is often due to difference IT
the public policy and statutes of the
respective states. In some the writ is
sues only at the request of the govern
ment's law Offices; in others at the in
stance of a person claiming the office
in others at the request OF person
claiming the office or interested there
in; in others at the instance of per-
son interested: in others, at the request
of a person who can secure the consent
Of the court, and In five or six others
the legislature has thrown open the
door and admitted any person who de-
sires to do SO to use the writ. This Is
true of the acts underlying some of the
decisions relied upon by the relator
Frizzell.
Discussion Of English Cases.
For example. the English cases are
based on the statutes OF the 9Th Anne
chapter 20, which. in terms. related to
suits against those who wrongfally ex-
ercise an office within cities, towns
and burroughs It expressly authorized
the courts to permit information in the
nature of quo warranto at the relation
Of any person - desiring to sue or
prosecute the same Some of the other
decisions cited are from states where
the statute provides that the proceed
ing might be instituted at the relation
Of any person desiring to present the
same
Upon the complaint OF any private
party; upon the relation OF any per-
son desiring to sue or prosecute the
same But there are so many and
such weighty reasons against permit
ting private persons to raise questions
as to the incumbent's title to public
office that. even in those states which
permit any person to institute quo
warranto. the courts have always re-
Quired the relator to show that he was
a citizen and taxpayer.
Provisions Of the Code.
The act of Congress of force in the
District differs from that in any of
these states. 1t specially differs from
those which treats the writ as being
available to any person The code pro-
vides that a third person'-the equiva-
lent of any person'-may institute the
proceedings only after he has secured
the consent of the law officers and the
court
'Tt makes distinction between a
Vhird person and an Interested person
and provides that If the Attorney Cen
eral refuses to give his consent to the
latter such interested person may Sc
cure the right to use the name of the
government by saiisfying the Supreme
Court Of the District that his reason
for applying therefor is sufficient in
law.
"Frizzell applied to the Attorne.
General for permission to institute the
proceedings. Failing to secure tina,
consent, he then applied to the Supreme
was a citizen and taxpayer made him
an interested person entitled to the
use OF the writ. But such construc-
ton would practically nullify the re-
d1ireinents TO obtain the consent of the
attorney Genera! and the district at
torney
For n being citizen and a taxpay yer
was sI"!cicnt 10 warrant the court in
giving the consent. " was useless TO
require ar application to be first made
20 rhe Attorney General. because practi-
CT eNerT l'igant would have the
II.,l fCsttlou OF citizenship and any