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Newman v. United States ex Rel. Frizzell, 238 U.S. 537 (1915)

Newman v. United States ex Rel. Frizzell

No. 813

Argued April 13, 1915

Decided June 21, 1915

238 U.S. 537


In quo warranto proceedings brought in the name of the United States on the relation of a citizen and taxpayer of the District of Columbia for the purpose of ousting from the office of Civil Commissioner of the District one appointed by the President and confirmed by the Senate on the ground that he was not, as required by the Act of June 11, 1878, c. 180, § 1, 20 Stat. 103, an actual resident of the District of Columbia for three years next preceding his appointment, held that:

In early days, usurpation of office was treated as a crime, and could be prosecuted only as such and by duly authorized prosecuting officer, and a private citizen could not prosecute such a proceeding.

Subsequently, after modification of the criminal features, the writ of quo warranto came to be used as a means of determining which of two claimants was entitled to an office.

Under the District Code of 1902, quo warranto is not limited to proceedings against municipal officers, but extends to all persons in the District exercising any office, civil or military; these provisions never having been judicially interpreted heretofore, this

Page 238 U. S. 538

case must be determined according to the special language of that Code in the light of general principles applicable to quo warranto.

Owing to the many reasons of public policy against permitting a public officer to be harassed with litigation over his right to hold office, Congress has not authorized, but has placed obstacles in the way of, a private citizen on his own motion to attack an incumbent's title to office.

Under the District of Columbia Code, a third person may not institute quo warranto proceedings without the consent of the law officers of the government and also of the Supreme Court of the District.

The District Code makes a distinction between a "third person" and an "interested person" in maintaining quo warranto proceedings.

While every citizen and every taxpayer is interested in the enforcement of law and in having only qualified officers execute the law, such general interest is not a private but a public interest, which is not sufficient to authorize the institution of quo warranto proceedings.

The mere fact that one is a citizen and taxpayer of the District of Columbia does not make him an interested party who may maintain quo warranto proceedings against the incumbent of an office on the consent of the court, although the law officers of the government refuse such consent.

An interested person within the meaning of the provisions of the District Code in regard to quo warranto proceedings is one who has an interest in the office itself peculiar to himself whether the office be elective or appointive.

Unless the right to maintain quo warranto proceedings under the District Code were limited to persons actually and personally interested, every officer attached to the government at Washington would be subject to attack by persons having no claim in the office or interest therein different from that of every other citizen and taxpayer of the United States.

As §§ 1538-1540, Code District of Columbia, apply to actions in quo warranto instituted by authorized parties against national officers of the United States, they are general laws of the United States, and not merely local laws of the District of Columbia, and the judgment of the Court of Appeals of the District construing those sections is reviewable by this Court under § 250, Judicial Code.

43 App.D.C. 53 reversed.

Page 238 U. S. 539

The President, on June 23, 1913, nominated Oliver P. Newman as Civil Commissioner of the District of Columbia. The nomination was referred to a standing committee of the Senate. Certain persons filed objections to the confirmation on the ground that "Newman had not been an actual resident of the District for three years immediately prior to his nomination," and therefore was not qualified to hold the office under the provision of the Act of 1878 [Footnote 1] (20 Stat. 103, § 1).

At the hearing before the committee, there was testimony that Newman, who was a newspaper correspondent, came to Washington in March, 1910, with the intention of becoming a resident of the District. He rented an apartment in which he resided until the opening of the Presidential Campaign, in the summer of 1912. He was then assigned to newspaper work which took him out of the city. He accepted the employment upon the understanding that it was a temporary arrangement and that he was to return to Washington as soon as the campaign was over. In the discharge of his duties as correspondent, he was absent in Chicago and other places until the inauguration. He then returned to Washington and was there living when, on June 23, 1913, he was appointed one of the Civil Commissioners of the District. The committee made a favorable report, and he was then confirmed by the Senate.

Thereafter, William J. Frizzell called the attention of the Attorney General and the district attorney to facts which, he insisted, "proved that Newman had not been an actual resident of the District for three years next preceding his nomination." On the basis of such facts,

Page 238 U. S. 540

he requested those officers to institute quo warranto proceedings for the purpose of ousting Newman from the office. Both officers declined the request, and thereupon Frizzell, alleging himself to be a citizen and a taxpayer of the District, applied to the Supreme Court of the District for permission to use the name of the government in quo warranto proceedings. The court granted the request, and thereupon this case of the "United States on the relation of William J. Frizzell v. Oliver P. Newman" was instituted.

The respondent demurred on many grounds, among others, that Frizzell was not an interested person, and that the court could not go behind the finding of the President and of the Senate that Newman was qualified. The demurrer was overruled and the case submitted to the jury to decide the question of fact as to Newman's residence. Testimony was taken explanatory of his absence from Washington on newspaper work. The court, among other things, charged the jury that there was a difference between "legal residence" and "actual residence." Under the charge, the jury found against Newman. The judgment ousting him from the office was affirmed by the Court of Appeals of the District, one judge dissenting.

The case is here on a writ of error which raises several important questions which, however, cannot be decided if, under the laws of the District of Columbia, Frizzell, as a private citizen, was not authorized to institute this proceeding to test the title to a public office to which he himself made no claim.

Page 238 U. S. 543

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