Evening star., 1915-01-04
JUSTICE VAN 0RSDEL
SPEAKS FOR THE COURT
Justice Robb Concurs, But Chief
Justice Shepard Dissents-Views
Not Yet Filed.
TO APPEAL TO SUPREME COURT
Mr.. Newman Makes No Comment
When Apprised of Verdict, Other
Than to Say the Case Will Be
Taken Higher Up.


Taken Higher Up.
Oliver ?. Newman, president
of the board of District Commits
sioners, is not entitled to hold the
Office and exercise the functions
OF civil Commissioner of the
District OF Columbia, according
to all opinion of the Court of Ap-
peals of the District of Columbia
rendered today by Justice Van
Orsdel. Justice Robb ooncurred
in the opinion, but Chief Justice
Shepard dissented.
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 questions decided last
April and filed a separate opinion
then.
Custer Judgment Affirmed.
firms the custer Judgment rendered
last July by the District Supreme
Court, following trial of Mr.. Newman
before a jury of twelve citizens The
finding of the Jury was that Mr.. New
man is an "usurper' of the office.
Attorneys Ralston & Richardson and
george W. Holt, counsel for Commits
sioTier Newman, will seek review by
the United States Supreme Court of
the decision rendered today. Some
doubt is expressed of the right of Mr..
Newman to have an appeal or writ Of
error, but the United States Supreme
Court may review the case on an ap-
plication .or certioran.
The proceedings to test the eligibility
of Mr.. Newman were begun by W. J..
Frizzell, a taxpayer, in September, 1913.
Mr.. Newman won the first skirmish in
the lower court on the question of the
right Of taxpayer TO maintain the
proceeding, Justice Anderson denying
that right. On appeal, the appellate
court reversed the lower tribunal and
sustained the right of the taxpayer.
A trial was then held and Mr.. New
man was convicted of being ineligible.
in that he had not been an actual resi-
dent of the District of Columbia for
appointment From the judgment of
the lower court on this verdict Mr..
Newman appealed and lost.
Counsel for MIR. F'rizzell are former
Senator Bailey and Attorneys a. A. Bir-
ley. Neaie q England.
Strong for Actual Residence.
Justice Van OrsdeI in his opinion
strongly upholds the prescribed quail
fication of three years actual residence
for nominee to the Office of Commits
sioner. Every reason exists for this
restrictive statute he says. "As 70
most officers of the District there is no
such limitation placed upon the ap-
pointing power. they may DC selected
from the country at large; but the
CommIss ioncrs are the chief executive
and administrative officers of the Dis
lrict, and they also IeGislate for the
irstrict in those matters specially del
"S:.ts'i bS Congress 1t WAS, therefore,
important to provide some limitation
upon the appointing power which
would insure the selection OF men for
tins position who had resided i'll the
District long etiou:sl, to become ic-
Guafnted with its needs aud affairs
10 what does the contention OF re-
spondeHt tNewmanl logically lead: If
actual residence means mere donlicile
or legal residence established by six
teen months habitation in Washington
continued thereafter for :: lapse of six
teen -or twenty months by the mere in
tEntfon of the party to return, the
same mental concept might hold domi
l;ile OF legal residence for three, ten or
thirty years. for time in retaining DOM
icjle, so long the intention TO return
exists, is not material
This would defeat the evident inten,
of Congress. 1t would foist upon the
people cf the District d person totally
unacauainted with its affairs. If the
will of Congress is to he thus ignored
better appoint person coming under
the second limitation of the statute
who had actually resided here fol
three, ten or thirty years, but who hat
claimed residence elsewhere. In tn.
latter violation, the public good. a
least. would be better subserved"
The court concludes that even after
giving Mr.. Newman the most favorable
aspect to be taken of the law the is
sues OF fact were submitted to the jury
by ample Instructions, and il was left
to that body TO decide whether Mr.
Newman when he left Washington tc
! go to Chicago had 4 definite intention
10 return and whether in his absence
! Sbe maintained such actual residence i,
Washington as the law required The
Jury heard the evidence from the lin,
Of the Commissioner, it is pointed out
snd decided against him. This deci
elon. the court says. must DC affirmed
With costs against Mr.. Newman.
Case to Go Higher Up.
Commissioner Newman on being ap
used Of the opinion of the Distrfc
Qolrt Of Appeals. in which the cour
Affirmed the finding of the District Sin
preue Court, holding him ineligible 7,
| serve as Commissioner Of the Distric
Of Columbia. said that the case will Ia,
taken to the Supreme Court of the Unite,
states for determination. Commission
Newman declined to discuss the 1indin:
| OF the Court OF Appeals, merely aski,.
| whether or not there had been :, dis
sent!ng opinion He appeared to be re
Jieyed on learning that Chief Justic
Shepard had dissented from the ma
jority opinion. The Commissioner DR..
pared brief statement i'll which Ia
bays; $780, .
"I am just as positive as ever Il
.uy belief that / do IN fact meet tn,
4 statutory requirements for Commits
sioner and that the determination .
that fact ts exclusively. the functior