Evening star., 1926-05-23
DECISION DELAYED
ON FENN|NC PLEA
FOR GUARDIAN FEE
Judge Hears Arguments of
Counsel on Report of
Court Auditor.
HOGAN SCORES STAND
OF DAVIS IN ADJ ER CASE
Declares Law Overlooked, But
Due Note Taken of Hysteria."
Defends Commissioner.

Arguments on the exceptions filed
by Commissioner Frederick A. Fen
ming to the report Of Herbert l..
Davis, auditor of the District Supreme
Court. in which Mr.. Fenning is not
allowed a commission of 10 per cent
for serving as committee for Adolph
Adler, a mentally incompetent war
veteran, and also is required TO pay
the bond premiums himself, were
made before Justice Frederick l.. Sid
dons yesterday, after which the court
took the report under advisement.
Representing the Veterans Bureau
and the ward, Maj. Davis G.. Arnold
national guardianship officer of the
bureau. filed an answer to the excep-
tions, while W. w. MILAN opened and
Frank J. Hogan, chief counsel for
Mr.. Fenning before the House jul
dietary committee investigation, closed
the argument in support of the ex-
ceptions.
Maj. Arnold put the burden of his
argument on the first of the two ex-
ceptionS filed-that which referred TO
the requirement of the auditor that
Mr.. Fenning must pay the bond
premiums himself, instead of charg-
ing them to the wards estate. His
principal point was that Mr.. Fenning
was not an "agent" of the United
States Mortgage & Fidelity Co., but a
soliciting attorney" In this cate
CORY, Maj. Arnold contended that If
Mr.. Fenning allowed the wards estate
the rs per cent commissions he re-
ceived from the bonding company on
premiums paid, 1t would not be in
violation of section 654 of the code.
which prohibits rebates to persons
not licensed. "If the ward is not en-
titled to the benefits Of the commits
sions," declared the major. then
Fenning is not entitled to them, AZ
he stood in the same position of his
ward.
Uph0ids Auditors Report.
Il submit" he continued. that sec
tion 654 does not apply, for the fact
that Fenning was not an agent but
one Of the company's solicitors. His
ward was not doing business and
could not have had a license. Sec
tion 654 applies to those doing bust
ness. and could not apply to Fenning.
I'm closing, / want to state there
Is no question in my mind but that
the fact that he was receiving these
commissions and should have dis
closed it when he filed his accounts.
] feel that the auditors report should
be accepted by this court"
MIR. MILAN told the court he was
glad to be present before that
tribunal. where we will be measured
by no other tape than law and evi-
! dence, where we will shut out the
| roar of congressional committees,
where we will shut out the rattle of
newspaper comment, the snarl of
scandal and the whine of character
assassins. I am glad to be in a court
where the character of q man, built
on 40 years Of service. shall not light
ly be blown away"
Denies Amy Secrecy.
Mr.. Hogan's argument took point
ed thrusts at Auditor Davis report.
ment that overlooked the law but
took due note of the hysteria pro
duced by recent events" Mr.. Hogan
also declared that Mr.. Davis, in citing
legal precedents to bear out his con
tentions in the bond premium and
commission angles OF the report has
shown the want Of power to apply
the elementary rules of court" The
report. Mr.. Hogan. added. also Shows
an appreciation of the time to cringe
and to fall in line with the trumpets
of the time"
The attorney opened his argument
with an attack on Maj. Arnold's ref
erence that Mr.. Jennings practice of
receiving 25 per cent commissions
from the bonding company had been
Ill
duced the record book Of the clerk of
the court and read from page 40:
February 8, 1920. power Of attorney
to Frederick A. Fenning and Helen
A. LOsano to execute bonds" MIR.
Hogan explained that Miss Losano is
Mr.. Jennings secretary. He further
declared that the Office Of the register
of wills bears documentary evidence
as far back as 1918 that Mr.. Fennine
represented bonding companies.
Defends Fenning Fees.
Maj. Arnold's argument about the
difference between the words agent"
and soliciting attorney" was char.
acterized By Mr.. Hogan as "con.
fusion" which is cleared away by law.
Both words mean the same, but the
two are employed to denote the scope
of such work. he explained. An agent
Is a man holding a license in more
than one company and a solicitor op-
crates solely tor one concern, he said.
The man who represents a number
of companies is forced to pay a larger
fee.
Mr.. Hogan argued that II Mr.. Fen
ming went to another bonding COM
pany to take out a surety bond he
would b. forced to pay the same rates
as provided by law and the estate
would not have benefited or suffered
by such action. He maintained that
Mai. Arnold was wrong" In stating
that the estate could receive the COM
mission Mr.. Fenning obtained. adding
''if he is in the District Of Columbia,
takes O. commission and has no license
the code is violated"
1t was no duty of Mr.. Fenning to
go to another bonding company when
the estate would not be benefited by
it, Mr.. Hogan declared.
The keystone" of the whole case
at bar, Mr.. Hogan continued. was
the Magruder VS.. Drury decision of
the United States Supreme Court.
which, if correctly read" upheld his
client.
Justice Siddons interrupted and
asked: "Unless it was the duty of the
trustee to account for the 25 per cent
there is nothing left
"Absolutely. there is nothing left of
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