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NEWMAN v. UNITED STATES EX REL. FRIZZELL

decided: June 21, 1915.

NEWMAN
v.
UNITED STATES EX REL. FRIZZELL



ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA

White, McKenna, Holmes, Day, Hughes, Van Devanter, Lamar, Pitney, McReynolds

Author: Lamar

[ 238 U.S. Page 543]

 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

[ 238 U.S. Page 544]

     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 warrantor 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, ch. 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 warrantor 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. 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. Law Rep. 156.

In 1902 Congress adopted a District Code, containing a Chapter on quo warrantor 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

[ 238 U.S. Page 545]

     of the court, certain restrictions were imposed and one enlargement of the right was made. These provisions*fn1 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 warrantor -- the prerogative writ by which

[ 238 U.S. Page 546]

     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 ...


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