Oliver Newman v. United States of America Ex Rel William Frizzell

• Decision Date: 21 June 1915
• Docket Number: No. 813,813
• Citation: 35 S.Ct. 881,238 U.S. 537,59 L.Ed. 1446
• Parties: OLIVER P. NEWMAN, Plff. in Err., v. UNITED STATES OF AMERICA EX REL. WILLIAM J. FRIZZELL
• Court: U.S. Supreme Court

238 U.S. 537

35 S.Ct. 881

59 L.Ed. 1446

OLIVER P. NEWMAN, Plff. in Err.,

v UNITED STATES OF AMERICA EX REL. WILLIAM J. FRIZZELL.

No. 813.

Argued April 13, 1815.

Decided June 21, 1915.

[Syllabus from pages 537-539 intentionally omitted] 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 1878¹ (20 Stat. at L. 103, § 2, chap. 180).

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 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.

Messrs. Jackson H. Ralston, John W. Davis, William E. Richardson, George W. Hott, and Conrad H. Syme for plaintiff in error and petitioner.

Messrs. Joseph W. Bailey, Arthur A. Birney, and William J. Neale for defendant in error and respondent.

[Argument of Counsel from pages 541-542 intentionally omitted] Mr. Justice Lamar, after making the foregoing statement, delivered the opinion of the court:

1. Usurpation of a public office from an early day was treated as a crime, and, like all other crimes, could be prosecuted only in the name of the King by his duly authorized law officers. When a judgment was obtained against the intruder he was not only ousted from his office but fined for his criminal usurpation. A private citizen could no more prosecute such a proceeding in his own name than he could in his own name prosecute for the crime of murder, even though the victim was his near kinsman.

2. But in time the criminal features were modified and it was recognized that there might be many cases which, though justifying quo warranto proceedings, were not of such general importance as to require the Attorney General to take charge of the litigation. This was especially true in reference to the usurpation of certain municipal offices named in 9th Anne, chap. 20. By that act, passed in 1710, it was therefore provided that it should be lawful 'for the proper officer, by leave of the court, to exhibit an information in the nature of a quo warranto at the relation of any person desiring to prosecute the same' against the designated municipal officers. The writ thus came to be used as a means of determining which of two claimants was entitled to an office, but continued to be so far treated as a criminal proceeding as to warrant not only a judgment of ouster, but a fine against the respondent, if he was found to have been guilty of usurpation. Standard Oil Co. v. Missouri, 224 U. S. 282, 56 L. ed. 768, 32 Sup. Ct. Rep. 406, Ann. Cas. 1913D, 936. This quasi criminal act was adopted in some of the American states and formed the basis of statutes in others. It does not seem ever to have been of force in any form in the District of Columbia. Torbert v. Bennett, 24 Wash. L. Rep. 156.

In 1902 Congress adopted a District Code, containing a chapter on quo warranto which though modeled after the English statute, differed therefrom in several material particulars. The writ was treated as a civil remedy; it was not limited to proceedings against municipal officers, but to all persons who in the District exercised any office, civil or military. It was made available to test the right to exercise a public franchise, or to hold an office in a private corporation. Instead of providing that 'any person desiring to prosecute' might do so with the consent of the court, certain restrictions were imposed and one enlargement of the right was made. These provisions² have never received judicial interpretation. This case must, therefore, be determined according to the special language of that Code, in the light of general principles applicable to quo warranto,—the prerogative writ by which the government can call upon any person to show by what warrant he holds a public office or exercises a public franchise.

3. The District Code still treats usurpation of office as a public wrong which can be corrected only by proceeding in the name of the government itself. It permits those proceedings to be instituted by the Attorney General of the United States and by the attorney for the District of Columbia. By virtue of their position, they, at their discretion, and acting under the sense of official responsibility, can institute such proceedings in any case they deem proper. But there are so many reasons of public policy against permitting a public officer to be harassed with litigation over his right to hold office, that the Code not only does not authorize a private citizen, on his own motion, to attack the incumbent's title, but it throws obstacles in the way of all such private attacks. It recognizes, however, that there might be instances in which it would be proper to allow such proceedings to be instituted by a third person, but it provides that such 'third person' must not only secure the consent of the law officers of the government, but the consent of the supreme court of the District of Columbia, before he can use the name of the government in quo warranto proceedings.

4. The Code—making a distinction between a 'third person' and an 'interested person'—recognizes also that there might be instances in which a person might have such an interest in the matter as to entitle him to a hearing, even where he had failed to secure the consent of the Attorney General or district attorney to use the name of the United States. Section 1540 deals with that case and provides that where these law officers have refused the request of a 'person interested,' he may apply to the court by a verified petition for leave to have said writ issue.' If, in the opinion of the court, his reasons are sufficient in law, the said writ shall be allowed to be issued in the name of the United States on the relation of said interested person on his giving security for costs.

If the question of Frizzell's 'interest' here had depended upon a matter about which the evidence was in conflict, the finding of the supreme court might not be subject to review. But if the established facts show that, as a matter of law, he was not an 'interested person,' the court had no authority to grant him permission to use the name of the government, and the case must be dismissed. So that the fundamental question is whether the law of force in the District permitted him, as a private citizen, without the consent of the law officers, to test Newman's title to the public office of civil commissioner.

Frizzell does not allege that he had been an incumbent of that office and had been unlawfully ousted before his term expired. He does not set up any claim to the office. And, of course, if he, as a citizen and a taxpayer, has the right to institute these proceedings, any other citizen and taxpayer has a similar right to institute proceedings against Newman and all others who 'exercise within the District . . . a public office, civil or military.' District Code, §1538 (1). Such result would defeat the whole policy of the law which still regards usurpation as a public wrong to be dealt with primarily by the public prosecutors.

5. In a sense—in a very important sense—every citizen and every taxpayer is interested in the enforcement of...