Evening star., 1937-10-12

the . u p t III #$$:S#$$3;
Court has just nj. ,.I,,.
expressed against
the petition of Albert Levitt on the
ground that he was not a sufficiently
interested" party.
Denial of the Levitt petition was
fully expected on all sides and while
the issue may be raised again in other
ways by counsel before the court, there
Is no certain way except by quo war
ranto" proceedings to insure a review
of the whole matter by the Supreme
Court itself.
The reason for such statement is
that the Supreme Court already has
accepted the "quo warranto" method
Of procedure when an issue was raised
as to the right of George Otis Smith
to serve as member of the Federal
Power Commission in 1881. In that
case. the Senate had confirmed Mr..
Smith just before the Christmas holi-
days and during that period the press
was filled with charges about Mr.
Smiths views on the power question,
which caused number of members of
the Senate to wish to reconsider their
confirmation. A technical excuse was
used as means of trying to get Mr..
Smith removed from office. 1t was
contended that the Senate had not
finished the confirmation process
when it adjourned.
Procedure Set Precedent.
The Supreme Court held that the
confirmation had been fully completed
and refused to dislcdge Mr.. Smith.
but what is important as precedent
Is the procedure by which the case
went up before the Supreme Court
from the lower courts, even where no
Constitutional issue was involved.
The statute requires that quo war
ranto' proceedings must be with the
consent of the Attorney General, but
the Department of Justice was in the
same position then of defending the
appontee of Republican President
as it would be today if confronted by
a request that it consent to ''quo war;
ranto' proceedings with reference to
an appointment made by Democratic
President. The Department of Justice
consented, out of difference to a reso-
luton passed by a majority of the
Senate. and because the department
cid not share the Senate's view, it
was insisted by the Attorney General
that the Senate provide its own coun-
sel. AS a matter of fact the Attor-
ney General actually appeared in the
proceedings as against the Senate's
point of view.
Here Is a statement made at the
time to the court by Attorney General
William D. Mitchell:
This proceeding could only be
maintained in the name of the United
States with the consent and on the
relation of an official of the Depart
ment of Justice. AS the officials of the
Department of Justice were already
committed by an opinion of the At
torney General to conclusion adverse
to the position taken by the Senate.
consent to the institution of this pro-
ceedng was given on condition that
the Senate would employ its, own
counsel. This explains why officials
OF the department appear as amici
curiae."
Appeared for Smith.
The phrase "amici curiae" is legal
Characterization of party given
leave by the court to intervene in a
proceeding as so-called friends of
the court" and it means that the
Department of Justices lawyers, So
licitor General Thomas Thacher and
Erwin N. Griswold, appeared in the
case on the side of the appointee.
George Otis Smith.
When the lower court refused to
dislodge Mr.. Smith the case was
promptly carried to the Supreme Court
OF the United States, where Justice
Brandeis delivered the unanimous
opinion of the court, saying in part:
This petition, in the name of the
United States, for a writ of quo war
ranto was filed in the Supreme Court
OF the District of Columbia, on relation
OF the district attorney, in Difference
to the desire of the United States
Senate to have presented for judicial
decision the question of whether
George Otis Smith holds lawfully the
office of member and chairman of the
Federal Power Commission. The case
was heard upon the petition and
ahswer. On December %, 1881, the
trial court entered Judgment denying
the petition. An appeal was promptly
taken to the Court of Appeals of the
District. That court certified a
question pursuant to section 239 of
the Judicial Code. This court granted
joint motions of the parties to bring
up the entire record and to advance
the cause"
The foregoing is the exact outline
Of the proper procedure to follow in
the event that the Senate desires to
question Mr.. Blacks right to hold his
present position.
May Now Want Test Case.
So, far as the Senate is concerned,
any member who voted to reject the
nomination Of Mr.. Black may consist
entity introduce the resolution for