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
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,
Page 238 U. S. 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 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, c. 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.
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 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
Page 238 U. S. 545
of the court, certain restrictions were imposed and one
enlargement of the right was made. These provisions [
Footnote 2] 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
Page 238 U. S. 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 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
Page 238 U. S. 547
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 law, in the
administration of law, and in having only qualified officers
execute the law. But that general interest is not a private, but a
public, interest. Being such, it is to be represented by the
Attorney General or the District Attorney, who are expected by
themselves or those they authorize to institute
quo
warranto proceedings against usurpers in the same way that
they are expected to institute proceedings against any other
violator of the law.
Page 238 U. S. 548
That general public interest is not sufficient to authorize a
private citizen to institute such proceedings, for, if it was, then
every citizen and every taxpayer would have the same interest and
the same right to institute such proceedings, and a public officer
might, from the beginning to the end of his term, be harassed with
proceedings to try his title.
6. As pointed out in the carefully prepared opinion of the
majority of the Court of Appeals of the District, there is much
conflict as to the meaning of the phrase "interested person" in
this class of cases. At first reading, the conflict seems
irreconcilable. But, upon examination, it will appear that the
difference is often due to a difference in the public policy and
statutes of the respective states. In some, the writ issues only at
the request of the government's law officers; in others, at the
instance of a person claiming the office; in others, at the request
of a person claiming the office or interested therein; in others,
at the instance of a person interested; in others, at the request
of any person who can secure the consent of the court, and in five
or six others, the legislature has thrown open the door and
permitted
any person who desires to do so to use the writ.
This is true of the acts underlying some of the decisions relied on
by the relator, Frizzell.
For example, the English cases are based on the statute of 9th
Anne, c. 20, which, in terms, related to suits against those "who
unlawfully exercise an office within cities, towns and boroughs."
It expressly authorized the courts to permit informations in the
nature of
quo warranto "at the relation of
any person
. . . desiring to sue or prosecute the same." Some of the
other decisions cited are from states where the statute provides
that the proceedings might be instituted at the relation of "any
person desiring to present the same;" "upon the complaint of any
private party;" "upon the relation of any person desiring to sue or
prosecute the same." But there
Page 238 U. S. 549
are so many and such weighty reasons against permitting private
persons to raise questions as to the incumbent's title to a public
office that, even in those states which permit "
any
person" to institute
quo warranto, the courts have
always required the relator to show that he was a citizen and
taxpayer.
The act of Congress of force in the District, instead of being
limited to municipal officers, applies to any office,
"
civil or
military," and differs from those in
any of these states. It specially differs from those which treat
the writ as being available to
any person. The Code
provides that a "third person" -- the equivalent of "any person" --
may institute the proceedings only after he had secured the consent
of the law officers and the court. It makes a distinction between a
"third person" and an "interested person," and provides that, if
the Attorney General refuses to give his consent to the latter,
such "interested person" may secure the right to use the name of
the government by satisfying the Supreme Court of the District that
his reasons for applying therefore are sufficient in law.
Frizzell applied to the Attorney General for permission to
institute the proceedings. Failing to secure that consent, he then
applied to the Supreme Court, claiming that the fact that he was a
citizen and a taxpayer made him an "interested person," entitled to
the use of the writ. But such a construction would practically
nullify the requirement to obtain the consent of the Attorney
General and the District Attorney. For, if being a citizen and a
taxpayer was sufficient to warrant the court in giving the consent,
it was useless to require an application to be first made to the
Attorney General, because practically every litigant would have the
qualification of citizenship, and many would have that of being a
property owner.
7. Considering the ancient policy of the law and the
restrictions imposed by the language of the Code, it is evident
that, in passing this statute, Congress used the
Page 238 U. S. 550
words "third person" in the sense of "any person," and the
phrase "person interested" in the sense in which it so often occurs
in the law, prohibiting a judge from presiding in a case in which
he is interested; preventing a juror from sitting in a case in
which he is interested, and permitting interested persons to
institute
quo warranto proceedings. In the illustrations
suggested, the interest which a judge had as a member of the public
would not disqualify him from sitting in a case of great public
importance and in which the community at large was concerned. The
interest which disqualifies a juror from serving, as well as the
interest which would authorize this plaintiff to sue, must be some
personal and direct interest in the subject of the litigation. The
same definition has often been given in
quo warranto
cases. The interest which will justify such a proceeding by a
private individual must be more than that of another taxpayer. It
must be "an interest in the office itself, and must be peculiar to
the applicant."
Demarest v. Wickham, 63 N.Y. 320;
Commonwealth ex Rel. McLaughlin v. Cluley, 56 Pa.St. 270;
State v. Taylor, 208 Mo. 442;
Robinson v. Jones,
14 Fla. 256;
In re Stein, 13 Neb. 529;
State ex Rel.
Depue v. Matthews, 44 W.Va. 372, 384;
Com. ex Rel.
Butterfield v. McCarter, 98 Pa.St. 607;
State v.
Boal, 46 Mo. 528;
Brown v. Alderman, 82 Vt. 529;
Mills v. State, 2 Wash. 572;
Antrim v. Reardon,
161 Ind. 250;
Harrison v. Greaves, 58 Miss. 455;
Andrews v. State, 69 Miss. 740(3), 746;
Tontray v.
Budge, 14 Idaho, 639;
Hudson v. Conklin, 77 Kan. 764;
Vrooman v. Michie, 69 Mich. 47;
Dakota v.
Hauxhurst, 3 Dak. 205.
The language of the Code, supported by the history and policy of
the law, sustains the proposition that one who has no interest
except that which is common to every other member of the public is
not entitled to use the name of the government in
quo
warranto proceedings.
Page 238 U. S. 551
For if the allegations in such a suit by a private citizen set
out any cause of action at all, it shows on its face that it was a
cause of action belonging to the whole body of the public, and
which therefore should be prosecuted by the public
representative.
The rule is the same regardless whether the office is elective
or appointive. For in neither case is there any intent to permit
the public office to be the subject matter of private litigation at
the instance of one who has no interest therein which differs from
that of every other member of the public. The claim that this
construction makes the statute nugatory cannot be sustained, for
the statute, as already pointed out, gives a person who has been
unlawfully ousted before his term expired a right, on proof of
interest, to the issuance of the writ, and there might be cases
under the civil service law in which the relator would have an
interest and therefore a right to be heard.
8. The conclusion that the relator must have a personal interest
in the office before he can sue in the name of the United States is
strengthened by the fact that the courts of the District not only
have jurisdiction to issued
quo warranto against officers
of the District, but against all those, attached to the seat of
government, who held a statutory office. For, if a private citizen
and taxpayer could institute
quo warranto proceedings to
test the title to the office of Civil Commissioner of the District,
he could, under the same claim of right, institute like proceedings
against any of those statutory officers of the United States who,
in the District, exercise many important functions which affect
persons and things throughout the entire country.
The President has the power of removal, and there have been few,
if any, cases brought to test the title of federal offices. But
such cases might arise as to statutory officers attached to the
seat of government, and if
Page 238 U. S. 552
they did, the Supreme Court of the District could exercise
quo warranto jurisdiction, as it now does in cases of
mandamus and injunction against appointed federal officers who
perform duties in Washington. This appears from comparing the
provisions of Rev.Stat. §§ 1795 and 1796 with § 1538(1) of the
District Code. The Revised Statutes declare that the District of
Columbia shall be the seat of government, and "all offices attached
to the seat of government
shall be exercised in the District of
Columbia." The Code (§ 1538(1)) provides that the supreme
court shall have jurisdiction to grant
quo warranto
"against a person who unlawfully holds or
exercises within the
District a . . . public office, civil or military." It was
probably because of this fact that national officers might be
involved that the Attorney General of the United States was given
power to institute such proceedings, instead of leaving that power
to the District Attorney alone, as would probably have been the
case if only District officers were referred to in the Code.
Manifestly, Congress did not intend that all these officers
attached to the executive branch of the government at Washington
should be subject to attacks by persons who had no claim on the
office, no right in the office, and no interest which was different
from that of every other citizen and taxpayer of the United
States.
9. This fact also shows that §§ 1538-1540 of the District Code,
in proper cases, instituted by proper officers or persons, may be
enforceable against national officers of the United States. The
sections are therefore to be treated as general laws of the United
States, not as mere local laws of the District. Being a law of
general operation, it can be reviewed on writ of error from this
Court.
American Co. v. Commissioners of the District,
224 U. S. 491;
McGowan v. Parish, 228 U. S.
317.
It follows that the motion to dismiss is denied; the
Page 238 U. S. 553
application for a writ of certiorari is refused, the judgment is
reversed, and the case remanded with instructions to dismiss the
quo warranto proceedings.
Reversed.
MR. JUSTICE McKENNA and MR. JUSTICE PITNEY dissent.
MR. JUSTICE VAN DEVANTER dissents upon the ground that, the
sections of the District Code being local laws, the case cannot be
reviewed here on writ of error.
[
Footnote 1]
"The two persons appointed from civil life shall, at the time of
their appointment, be citizens of the United States, and shall have
been actual residents of the District of Columbia for three years
next before their appointment, and have, during that period,
claimed residence nowhere else. . . ."
[
Footnote 2]
"SEC. 1538. Against whom issued. -- A
quo warranto may
be issued from the Supreme Court of the District in the name of the
United States --"
"First. Against a person who usurps, intrudes into, or
unlawfully holds or exercises within the District a franchise or
public office, civil or military, or an office in any domestic
corporation."
"Second. Against any one or more persons who act as a
corporation within the District without being duly authorized, or
exercise within the District any corporate rights, privileges, or
franchises not granted them by the laws in force in said
District."
"And said proceedings shall be deemed a civil action."
"SEC. 1539.
Who may institute. -- The Attorney General
or the District Attorney may institute such proceeding on his own
motion, or on the relation of a third person. But such writ shall
not be issued on the relation of a third person except by leave of
the court, to be applied for by the relator, by a petition duly
verified, setting forth the grounds of the application, or until
the relator shall file a bond with sufficient surety, to be
approved by the clerk of the court, in such penalty as the court
may prescribe, conditioned for the payment by him of all costs
incurred in the prosecution of the writ in case the same shall not
be recovered from and paid by the defendant."
"SEC. 1540.
If Attorney General and district attorney
refuse. -- If the Attorney General and District Attorney shall
refuse to institute such proceeding on the request of a person
interested, such person may apply to the court by verified petition
for leave to have said writ issued, and if in the opinion of the
court the reasons set forth in said petition are sufficient in law,
the said writ shall be allowed to be issued by any attorney, in the
name of the United States, on the relation of said interested
person, on his compliance with the condition prescribed in the last
section as to security for costs."
"SEC. 1541.
Relator claiming office. -- When such
proceeding is against a person for usurping an office on the
relation of a person claiming the same office, the relator shall
set forth in his petition the facts upon which he claims to be
entitled to the office."
