Evening star., 1926-04-27

Opinion of the Supreme Court of the
/ United States reversing a decicion of
! the District Court OF Appeals in the
| MaGruder-Drury case was put into
| the record during croSS-eXamination of
| Commissioner Fenning by Represent
ative Gilbert. Democrat, of kentucky.
before the Gibson subcommittee of the
F, House District committee in the eau
! Gus room OF the House Once Building
| last night in refutation of Mr.. Fen
| ning'S claim that he acted entirely
within the law in his dual capacity as
| guardian in lunacy cases and as So
! licitor of surety business.
When Mr.. Fenning cited the de-
cision of the Court of Appeals in the
| Magruder- Drury case in support OF
| his claim that his action was proper
| in accepting a commission of one
! fourth of the bonding fee in cases
| where he acted as guardian or com
mittee, Mr.. Gilbert countered by read
| ing the opinion in which the Supreme
| Court of the United States reversed
! that decision.
Davis Cites Same Case.
Earlier in the day Herbert l.. Davis.
auditor of the Supreme Court OF the
District. as witness before the House
veterans committee, said that II MI
| Fenning received a. commission from
| the bonding company for which he IS
| solicitor and then obtained a com
mission from The wards estate for
performing this bonding duty, which
WAS included with other services, II
was, in his opinion, "a violation OF
the law Mr. Davis voluntarily cited
the same decision of the United States
Supreme Court. in which, he said, the
court was "unalterably opposed TO
double commissions" He made it
plain that the bonding arrangement
came under the category of double
commissions
Mr.. Davis said that until recently
he. as auditor for the court, passing
upon Mr.. Jennings accounts, and in
two-thirds OF the cases fixing his COM
missions, never knew that Mr.. Fen
ming was receiving another commits
sion from the surety companies.
Portions Of the decision cited by Mr..
Gilbert and Mr. Davis and read into
the record by the former are as fol-
lows:
1T is a we'll settled rule that
trustee can make no profit out OF
his trust. The rule in such cases
springs from his duty to protect the
interests OF the estate and not to
permit his personal interest to i'll any
way conflict with his duty in that
respect The intention is TO provide
against any possible selfish interest
exercising an influence which can IN.
terfere with the faithful discharge OF
the duty which is owing in a fiduciary
capacity.
Law Prohibits Dual Role.
at therefore prohibits party from
purchasing on his own account that
which his duty or trust requires hlm
to sell on account of another. Ana
from purchasing on account OF an
other that which he sells on his own
account In effect, he is not allowed
to unite the two opposite characters
Of buyer and seller because his in
terests when he is a seller or buyer
on his own account are directly con
fiicting with those of the person on
whose account he buys.
"It makes no difference that the
estate was not a loser in the tranSac-
ton. or that tn" commission was no
more than the services We're reasona-
bly, worth. 1t is the relation OF the
trustee to the estate Which prevents
his dealing III such way as 10 make
a personal profit for himself"
Mr.. Davis also had replied TO ques-
tions by Representative Milligan,
Democrat. of Missouri. as to whether
Mr.. t'enning, as an officer in the Army
during the World War, had violated
the law in performing his duties as
guardian. He said that he believed
there were precedentS to show that an
Army officer is a Federal officer, and,
therefore, any private activities were
in violation Of the statute.
Annual Return Shown.
Mr.. Gilbert conducted the principal
part of the cross examination of Mr..
Fenning last night, after which Mr..
Gibson developed for the record ad-
missions by Mr.. Fenning that he re-
ceived between $4,000 and $4,000 in
come from guardianshipS and that in
other cases in which the courts had
appointed other guardians Mr.. Fen
ming received large attorneys fees,
and that invariably Mr.. Jennings
commission was 10 per cent or higher.
Mr. Gilbert. after having Mr.. Fen
ming testify that as District Commits
sioner he is a member of the Board of
Public Safety, the Board of Public
Works and of the Public Utilities Com
mission in Il city of approximately
half a million people; that he has en-
gagged in real estate transactions, deals
in real estate securities, handles his
private estate of approximately $780,
000 is regularly employed attorney for
three concerns, has some private law
practice, and is conscientious guar
dian for more than 100 mentally in
competent persons, questioned him
how he found sufficient time for prop
erly perform either his public duties
or his trust to these wards.
Both Mr.. Gilbert and Mr.. BlantOn
endeavored to obtain from Commits
sioner Fenning a statement as to
whether he had told President Cool
idge about the large volume of his pri-
yate business before assuming the
public duties, or whether he had "de-
ccived'' tho President. Mr.. Fcnning
replied that he did not believe he
ought to be asked about any CONVERSE
ton he had with the President and re
speCtfully declined to answer. In this
he was sustained by Chairman Gibson,
who ruled that he need not answer, as
the subcommittee was not trying
whether tho President had made
wise appointment.
Quizzcd OH Taxi Question.
Mr.. Gilbert pressed Mr.. Fenning
closely regarding exclusive rights
given to taXicab companies at the
driveway entrance of the Union Sta
ton and about hotels. He empha-
sized that if Mr.. Fenning was not SO
busy in caring for more than 100
guardianships he would have time to
definitely inform himself regarding,
these conditions and find a solution
in the public interest. Mr.. Fenning'S s
reply was that at Union Station the
taXicabS occupy private property
over which the District Commission
ers have no control, and that inn
keepers, being obliged under the law
to furnish conveyance for their
guests, have from time immemorial
been allowed extraordinary rights in
the streets adjacent to such hotels.
Mr.. Gilbert also questioned Mr..
F'enning persistently as to whether
,,a MIGHT not if diyeSted of his pri-