Evening Star Newspaper, May 2, 1926, Page 4

VAN ORMAN WINS LITCHFIELD TROPHY Makes 570 Miles—Army Bal- loon S-23 Lands in North Carolina. By the Associated Press. LITTLE ROCK, Ark, May 1—All} contestants in the Litchfield trophy and national elimination balloon race have landed with Ward T. Van Orman, pilot of the Goodyear IV, the win- ner for the third time in succession. The last balloon to land was the United States Army balloon 8-23, brought to land at Mount Holly, N.C., a small town eight miles west of Charlotte. Lieut: William A. Gray, pilot of the United States Army bailoon $-20, to- night wired R. E. Steubaer, a friend here, from Hitchens, Ky., that he hit some trees in the eastern Kentucky mountains last night. Apparently Lieut. Gray had been unable to reac « telegraph wire, as his message wa tiled at 6:27 o'clock tonight. Lieut. Gray did not mention the dam- uze done to the balloon or whether Jiis aide, Lieut. Rowland Kieburtz, had been injured, but sald that he ruined his clothing and injured his back in Janding. Hitchens is in Carter County, Ky.. approximately 500 miles from Little Rock. Only three of the contestants cross- ed the Appalachian Mountain chain, although it probably will be neces- sary to await the formal announce- ment from Washington of examination of the instruments of the balloonists to determine which of three balloons win second and third places, and win places on the Gordon Bennett Cup team. The Akron N. A. A., piloted by John A. Boteler, which landed in the heart of the western Virginia moun- tains near the little mining town of Welch, apparently was second to Van Orman, a rough measurement of un- official maps showing that the Akron traveled approximately 570 miles. The United States Army balloon S-23. Scott Field, Ill, which landed at Mount Holly. apparently had ceeded the distance of his fellow Army balloonist, Lieut. Jz Powell of Phillips Fleld, Md., brought the S-21 to land at Hickory. N. C. by about seven miles. The S-23 oughly made 567 miles while the §-21 made miles. Th st to land, hovered over the historic battlefleld of the American Revolution most of today, before land- ing. She was reported by persons, who believed her to be the S-20, at 10 o'clock Eastern time at Shelby. At 11115 she passed over the famous Kings Mountain Battlefield, traveling to tha southeast. An hour later she was reported over Gastonia, in the same county, and only a few miles from Mount Holly, where she was brought down. FALL KILLS HORSE IN GOLD CUP RACE Billy Barton Captures $50,000 Warrenton Event—Gayeties Mark Week End. Special Dispatch to The Star. WARRENTON. Va., May 1.—Re. sults of the Gold Cup Steeplechase here today follow: First, Billy Barton, owned by How- ard Bruce; second, Dum Dum, owned by G. M. Bowen; third, Blue Springs, owned by C. E. Perkl Trode, owned by L. Dominick, was killed by a fall in which the rider escaped Injury. The horse’s neck was broken. The cup, offered by Warren- ton and other contributors is worth $50.000. The race made the week end one of society zayety, with many house par- ties, dinners, luncheons and dances. A dance was glven Friday evening in the Warrenton Library auditoriund under auspices of the Library Asso- clation. Mr. and Mrs. W. H. Pool zave a dance at their home this eve- ning. James K. Madux gave a large din- ner at Neptune Lodge last evening. Mr. and Mrs. Mitchell Harrison en. tertained a large house party. Mr. and Mrs. Victor Froment entertained at luncheon today. Mr. and Mrs. W. E. Matthews, Miss Ruth Matt: hews and many others were hosts. MEETING TO BE HELD BY MOVIE ENGINEERS Rapidly Growing Society Convenes THE SUNDAY STAR, WASHINGTON, D. C, FEE UPHELD BY JUSTICE M’COY ISON’S COURT POST AND FENNING (Continued from First Page.) be made to appear that any attack is being made on the courts.” In reply to questions from Repre- sentative Gilbert, Democrat, of Ken- tucky, Justice McCoy stated that he had appointed Justice Stafford's son guardian ad litem and that Justice Stafford had appointed his son to a similar position. Mr. Giibert asked to what extent this practice has ob- talned. Justice McCoy put into the record a statement that from Decem- ber, 1922, to date his son had been ap- pointed guardian ad litem 16 times and once as trustee with another at- torney, recelving an average of $20 in each case and the highest amount he received being $90.50 in the trustee case. Mr. Gilbert quoted section 67 of the code, which provides that no person shall be appointed to or employed in any office or dutv in any court who is related by affinity or consanguinity within the degree of first cousin to the judge of such court. Mr. Gilbert argued that if Justice McC hpoint- ed Justice Stafford’s son and Justice Stafford appointed Justice McCo: son it would in effect be the same as if each appointed own son. He sald “that would be as complete vio- lation of that section as If you ap- pointed your son guardian ad litem.” Justice McCoy answered, “I should have to study it with relation to what the dutles of guardian ad litem are.” He =ald he sincerely doubts whether he would be an officer of the court within the meaning of that section. Tlhls led to quite an involved discus- sion. Says Practice Is Affected. Justice McCoy stated, “I do not make appointments of my son or hear him in court.” He argued that if Mr. Gilbert's line of thought was correct, his son should not have been admitted to the bar because other judges had to admit him and swear him in and appoint him as an officer to practice. If, following out this same line of argument, his son should not be allowed to practice before any other judge for fear they would show partiality because he was his son, then he would have to leave the Dis- trict of Columbia to practice else- where because he has no other pro- fession. He said he could not see any difference between his son acting as administrator of an estate and practicing law. Mr. Gilbert argued: “When he is employed as attorney by me it is not because I have to employ him by order of the court, but in a con- tractural relation with a fee agreed upon. When he serves as guardian ad litem he is forced on that party by the court. The court fixes the compensation, which is not done in the general practice of law.” Denies Appointment. Justice McCoy stated: “I would not appoint my own son because it might appear as unethical.” Mr. Gilbert then asked: “If you don’t appoint your own son, fsn't it accomplishing the same thing when you appoint Justice Stafford’s son and he appoints your: Justice McCoy said: “Congress- man, I'm sorry if vou think\so.” And Mr. Gilbert answered, “I do think so.” Mr. Gilbert then read a section from the complaint of the Bar Association, which sald “A grave criticism, and one abundantly fortified in fact, is of the frequent appointment by members of the court to positions essential to the administration of the law and the business of the court, such as guard- tans ad litem and fiduclaries in pend- ing litigation of relatives or employes of judges of the court, and the com- mittee must think that the provision of section 67 of the Judicial Code that ‘No person shall be appointed to or employed in any office or duty in the court who is related by affinity or consanguinity within the degree of first cousin to the judge of such court’ has not always been in mind when such appointments have been under consideration.” Justice McCoy called attention to the fact that this complaint relates not solely to relatives, but to em- ployes who are not relatives, and he sald that the law does not cover other employes than relatives, and that, in his opinion, the complaining attorneys did not think that this section applied. Will Cnll on Signers. Mr. Glbson said that it is his Inten- tion as chairman of the subcommittee to ask those who signed this com- plaint to give their interpretation of it and the section of the code re- ferred to. Mr. Gibson assured Justice McCoy that he would be allowed abundant opportunity to examine the section and make any reply or suggestion he desires. Justice McCoy answered “You all are lawyers and I am not unwilling to admit that you are all better judges than I am in this matter. All I want you to believe is that I honestly exer- cised my judgment as I belleve an§ ~ Here Tomorrow to Discuss Important Questions. Questions of vital importance to the technical development of the motion picture industry will be discussed by ‘he Soclety of Motion Picture En- zineers at its tenth annual meeting, to open here tomorrow at the Lee House and continue through Thursday. Engineer Commissioner J. Franklin Bell will deliver an address of wel- come at the opening session tomor- row. Shortly after noon the dele- tes will be received by President Coolldge at the White House. The principal speaker at the Tues- day session will be Dr. George K. Bur- gess, director of the Bureau of Stand- ards, whose subject will be “The Na- 1ional Bureau of Standards and Its Passible Relations to the Motion Pic- ture Industry.”” After the business sesslon, arrangements have been made for a sightseeing tour of the Capital Tuesday afternoon. At the society’s banquet Wednes- day night, Henry D. Hubbard will be the guest of honor and principal speak- er. He will be introduced by C. Fran- cis Jenkins, founder of the society. song selections will be given by George P. Clark, followed by dance music. The banquet proceedings will e broadcast through station WCAP from 10 to 11 o’clock. Organized by Mr. Jenkins 10 years ago, with a membership of less than a dozen engineers, for the purpose of standardizing mechanisms and pro- cesses in the motion picture industry, the soclety has since developed into an international organization, with membership in all the principal coun- tries of the world. FEE Sigma Xi Meets Tomorrow. The District of Columbia Chapter, Soclety of the Sigma X1, will meet tomorrow night at 8 o'clock in the I:ast Bullding of the Bureau of Stand- ard: ATl members of Sigma Xi, whether or not affiliated with the local chap- ter, have been invited. Fans Popular in London. LONDON, May 1 (#).—Fans are be- coming popular again. Queen Mary has had her monogram, surmounted by a crown, set in small pearls on the handle of a black-spangled fan for use this season. Many of the fashionable shops are already showing fans with hearts and other gems in harmong with the color of the fans. l‘ other judge of the court did in ap- pointing my son as secretary. If you think this practice is dangerous or corrupt I would suggest that you cdn- sult with lawyers and others famillar with the court practice here to advise as_to practice and procedure.” Mr. Blanton made the point that the law in question was passed By Congress. “It is for us to decide what Congress intended, not for any judge to decide,” he said. “If we think that law of Congress {s ignored, it is for us to decide.” Justice McCoy agreed thoroughly, but sald his suggestion was that if Congress declded to make a change in the law, it should get enlighten- ment and advice from those who are tlnmmar with the local court condi- tlons. Quizzed On Fenning. Mr. Gilbert questioned Justice Mc- Coy regarding his friendship with Mr. Fenning, that he had sworn him in as District Commissioner, and that they spent the Summer together in Maine. He sald that Justice McCoy had brought down severe criticism upon himself in the ship building case in which $1,400,000 in assets was lying in the bank, and in which he appoint- ed Mr. Fenning receiver when coun- sel was opposed. He asked “What Jjudical reason as a fair judge did you have for appointing Mr. Fenning in this very lucrative case?” Justice McCoy made a statement in which he explained that he had tied the liquid assets up in banks where they could not be withdrawn except by signatures of both parties to the litigation, and that the only duty be- fore the trustee was to make a few collections. Mr. Gilbert brought out that the firm of Douglas, Obear & Douglas represented the plaintiffs, and Daniel W. O'Donoghue represented some of the defendants. Neither of these at- torneys had asked for Mr. Fenning's appointment, and he said “they had to settle the case to prevent you from appointing your friend Fenning to this very lucrative position.” Defends Appointment. Justice McCoy stated that he had appointed Mr. Fenning in this case because there were debts to be col- lected and he appointed him under a $10,000 bond adequate to protect every body because he believed him honest and able to carry out the trust. %When Mr. Blanton emphasized the objection made by Daniel W. O’'Donoghue as attorney for a ma. Jority in one side of the case, bitterly brotesting against Mr. Fenning as not qualified for this work or know- ing anything about the questions in- volved, Justice McCoy replied: “What 1 had before me was the appointment of someone to collect claims which did not and would not exceed $10,000.” He called attention to the fact that the decree in this case carried out what he had said. Answering questions, Justice McCoy feelingly replied, “I could have taken that $1,400,000 out of the banks and turned it over to my friend DMr. Fenning if I had wanted to prostitute. my office. As far as I am concerned, I acted honestly and uprightly and not one attorney connected with the case or any one who knows the facts can say that I did not.” Justice McCoy apologized for hav- ing become excited and said he was “sorry.” Integrity Not Attacked. “I am here, and if there is anything I know that you want to know I will tell you,” he assured the committee. Asked by Mr. Gilbert “Why did you appoint Fenning?"' he answered, “‘Be- cause under my oath I believed he was_ trustworth; Mr. Gilbert wanted to know if, in view of the fact that there was oppo- sition by one side, it would not have been more equitable to have appointed some one_as receiver on whom attor- neys in the case were agreed. Justice McCoy said, acted in my judicial capacity. If a word had been asked about Mr. Fenning’s integrity I would have stopped it."” Mr. Gilbert then read into the rec- ord an extract from the court papers quoting the very vigorous oppousition by Mr. O’'Donoghue as an attorney in the case against Mr. Fenning's ap- pointment. Mr. Blanton told Justice McCoy, “You don’t realize the number of com- plaints against the court that are coming to us from lawyers of the highest standing.” Has Nothing to Conceal. Justice McCoy sald, “You are here to find the facts. I want to help you. There is nothing I want to conceal. I have nothing to conceal. Tam here under great stress. Do not assume if I get nervous and excited that I am antagonistic to the committee. It is my disposition. I am here in a sense under charges, conscious that I have done no wrong.” Mr. Gilbert then said, “Don’t you think it would have been better to have called in Mr. O'Donoghue in view of his vigorous opposition to the ap. pointment of Mr. Fenning?” Justice McCoy said, “I did what I did because as far as I could see all he had to do was to collect on some small suite and I thought Mr. Fenning responsible. If I had said, ‘No, I'll not appoint him,” any one would have been at liberty to say that I was yellow.” Mr. Gilbert then pointed out that in the English impeachment case one of the most insistent complaints was that Judge English lacked judicial temperament and appointed his friend Thomas to many receiverships. “As impeachment against Mr. Fenning is pending I want to see if there is any analogy in this case,” said Mr. Gil- bert. Representative Houston said, “Jus- tice McCoy had a perfect right to ap- point any one he wanted to." Mr. Gilbert answered: “He may have had a legal right, but T am ques- tioning whether it was proper prac- tice in view of the protest of the at- torney for one side of the litigation.” Specific Cases Cited. Mr. Blanton tried to show Justice McCoy ““what is in the minds of the committee” by citing that charges against Mr. Fenning had been made in the District court for years, and he cited certain specific cases. Justice McCoy sald he never heard of any suits against Mr. Fenning, comment- ing, “I knew nothing about anything of the kind.” Mr. Gilbert again called attention to the report of the Bar Assoclation agalnst the judges and court practice and said that “in order to get the best results in the administration of jus- tice the bench and har should co-oper- ate. If the bench is tyrannical and in- dicates a lack of confldence in the bar, as is charged in this report, it is not for the best administration of justice and not conducive to cordiality.’ Then he asked: “Lack of cordiality and confidence does exist, doesn’t it?" Justice McCoy made the statement, “That communication was addressed to the judges of the court. Befare that report was made to the Bar As. sociation no_suggestion was made to the court. We felt about that report that we were being tried and con- victed without a hearing. There wwere things we could have explained.” Discusses One Charge. He then discussed one charge in this report, which read as follows: “The frequent changes in the rules of practice made by the court without suggestion from or consultation with the bar are felt by not a few of its members to involve a spirit of regu- lation and to imply a judgment of the personnel of the bar not conducive to the making or maintenance of the cordiality or professional brotherhood between bench and bar which has al- ways been one of the most cherished traditions of the profession. That at- torneys as well as judges are officers of the court and ministers of the Justice which it is the function of courts to administer is a commonplace which ought never to have another character, and any attitude of either bench or bar out of harmony with this conception cannot fail to put a distance between the two sets of the ministers of justice and impair its hxarmonloul and effective administra- tion.” . Justice McCoy said that he believed the reference to “frequent changes in the rules” referred to rule 62 in re- gard to the appointment of guardians ad litem. He read this rule, as fol- lows: “No person shall be appointed guardian ad litem either on the appli- cation of the infant or otherwise if he have any interest adverse to that of the infant or be connected in business with the attorney or counsel of an ad- verse party. No person shall be ap- pointed guardian ad litem who is nom- inated by the adverse party. Selection Is Limited. “Except for special cause shown, no person other than a member of the bar of this court or the general guardlan of an infant shall be ap- pointed guardian ad litem. The court, however, may request information in ald of the selection and appointment of such guardian.” At this point the hearing recessed for a brief luncheon period, and when the hearing was resumed, Justice McCoy put in a statement explaining the re- vision of section 67 of the Code, which Mr. Gilbert had quoted during the morning session with reference to ap- pointment to court positions of rela- tives of the judge. Mr. Gilbert answered that as one of the sections which he had quoted is not now in the code, that he sup- poses it has been repealed, but that in his opinion one is just as prohibi- tive as the other. Mr. Gilbert questioned Justice Mc- Coy regarding the procedure in set- tling accounts of filduciaries. It was explained that they are presented to the clerk and then to the auditor. Justice McCoy explained that there are two kinds of accounts. One re- quires all flduciaries to report assets in April. This goes to the auditor. It is not a complete account and need not cover any disbursements. It is called for to see if the bond is suffi- cient to cover all assets. The fiduclary is required to report when the assets are in excess of the bond, and he is then required to increase the bond. The other kind of account requires a full statement of the estate’ by the fiduclary, and that may or may not go_to the auditor. Mr. Gilbert asked if before the account is filled the judge has any knowledge of the character of serv- ice rerffiered by the fiduciary. Judge McCoy sald “Yes, if he files a state- ment.” Mr. Gilbert told Justice McCoy that he noticed from the court records in the case of Roley Lee “that you di- rected the auditor to pay a commis- slon of 10 per cent, amounting to $213.04, to the guardian.” This led to a lengthy discussion, Mr. Gilbert arguing that by inserting the words “amounting to $213.04" Justice Mc- Coy had, in fact, audited the account. He sald: “That shows a lack of wis- dom in that proceeding. That is bad practice, isn't it?” Justice McCoy an- swered, “I think not,” and in explana- tion read a statement of his views in the Washington Law Reporter on an- other case in regard to this practice. He sald that “otherwise the court wld be delegating to the auditor a Tt of his judicial duties.” He argued that it 18 “the essence of Jjudicial procedure that there shall be a record on which the court acts” and that frequently the auditor does not make such a record. He told the sub- committee, “For myself I have set the practice that I would not approve an auditor's report allowing compensa- tion to any one unless it was accom- panied by a stenographic report.” He sald that in this case he allowed 10 per cent to Mr. Fenning as commit- tee, but disallowed any compensation he claimed as attorney. Refuses To Criticize. Mr. Blanton then emphasized the fact that Justice McCoy lays down the law and policy not to allow the committee or guardian a fee as com- mittee and others as attorney, yet, he sald, that “in innumerable cases” Mr. Fenning got commissions both as comrmittee and as attorney—— “Then he has deceived you?” ques- tloned Mr. Blanton. Justice McCoy answered, ‘Please do not ask me to criticize Mr. Fen- ning. T don’t want to be yellow. Iie is in trouble. I don't want to hide behind him.” Justice McCoy then quoted for the record certain documents which showed that the auditor had dispensed with formal hearings while he him-. self does not approve these accounts unless there is a record of the formal hearing. Mr. Gilbert then questioned who was committee or guardian in these cases cited for the record by Justice McCoy and he replied “not Col. Fen- ning.” Mr. Gilbert questioned Jus- tice McCoy regarding the practice he had instituted of acting on ac- counts and ordering commissions before the auditor had reported. “If you figure such commissions out beforehand vou practically do away with the need for an auditor,” he sald. Justice McCoy answered that “the fee is no part of the audit.” Questioned further regarding evi- dence before the committee from court_records that he had allowed Mr. Fenning to charge both attor- ney's fees and commissfons as guar- dian, Justice McCoy replied. “That is something the court would not permit.” Knew Papers’ Contents. Asked further whether or not he knew this was in papers which he had signed, he answered, “It is not my custom to sign orders without my knowing what is in them.” Still fur- ther pressed by Mr. Gilbert that there are “innumerable cases in which Mr. Fenning was allowed beth attorney's fees and guardian commissions,” Mr. Gllbert argued, “Then you didn't see the order and didn't know what was in it7* g Mr. Gilbert next asked if he knew that Mr. Fenning, as agent for a bonding company, received one-fourth of the commission charged up against his ward's estate. Justice McCoy an- swered, “On my judicial oath I would not allow any guardian to profit by the estate of his ward.” Mr. Gilbert then insisted that “Mr. Fenning testi- | fled tkat in 90 per cent of the cases he was allowed the bonding fee. If you had known that you would not have allowed it." “I want to say to you, Mr. Gilbert, T stand by my official conduct,” an- swered Justice McCoy. “Mr. Fenning is under charges. If I satd I would not allow such commission, in addl- tion to criticism of my official duties I would also be lfable to the charge of being yellow. I act on the sanc- tity of my judicial oath.” Silence Draws Protest. Mr. Gilbert repeated the question, “Did you know that in 90 per cent of these cases when Mr. Fenning was allowed commission as guardian that he also received 25 per cent of the bond fee?”” When Justice McCoy did not give a direct answer Mr. Gilbert protested to the chairman that the witness refused to answer. “If you let the auditor make the investigation he might have found out that Mr. Fenning got the bonding commission and reported to you and then you would not have allowed it,” sald Mr. Gilbert. “In ordering in ad- vance that Fenning be allowed 10 per cent, you precluded lhli ltu:l’l‘cl‘ ducting the bonding commission. delustlcg McCoy protested that he did not preclude the auditor’s examina- tion, but that it was the duty of the auditor to inquire into what was in- cluded in Mr. Fenningls accounts. Mr. Gilbert reiterated that Mr. Fenning had testified he got one- fourth of the bonding fee. A lengthy wrangle followed, with Mr. Gilbert and Mr. Blanton trying to force an admission from Justice McCoy and Justice McCoy declining to admit what would be interpreted as an admission that Mr. Fenning had deceived him as to what the account contained and that he had signed 1t without ascertaining that the bonding fee was included. P Finally Mr. Blanton said: i Isn’t this what was done? Didn't Mr. Fenning prepare this ordet with the amount of commission figured out for ou to sign?”’ 7 Juslices McCoy answered, “Quite ely—1 imagine so.” : “k'l'hyen Mr.alg}&nton continued, “You looked it over sndnn’ignmi it—that's ur practice, isn't it?"” yo.!uu{’lca McCoy answered it is the practice with other attorneys. Demands He Bee Records. When Mr. Gilbert claimed that the records show that Justice McCoy had allowed attorney’s fees in addition to commissions as _guardian to Mr. Fenning, Justice McCoy declined to take his word that this was a fact and demanded that the records be roduced. 2 Mr. Blanton led Justice McCoy into a discussion that he had allowed, ac- cording to officlal records, Mr. Fen- ning to collect in excess of 10 per cent commission. _ Justice McCoy stated that these additional umounts were in lleu of fees as attorney. He gave as his opinion that they were not allowed both attorney fees and committee fees, but in allowing com- mittee fees, if it was shown that he had also acted as ittorney, the addi- tional service might be taken into con- sideration in fixing the committee fee. “If that is what you mean, then 1 suppose I did allow attorney fees,” said Justice MeCoy. He said that in following this practice he was follow- ing a court in Tennessee. Mr. Gilbert insisted “Mr. Fenning got both guardian and attorney fees.” It was shown that in some cases he received from 10 per cent to as high at 94 per cent. “lIf the 10 ver cent statute does not apply, why was his fee fixed at that amount in so many cases?” Mr, Gilbert asked. Justice McCoy quoted a decision of the Su. preme Court in the case of Barney vs. Sander et al, and he also uuoted for the record the decision in the Ma- gruder vs. Drury case, the same case as cited previously on the point that the trustee or guardiun is not allowed to accept any share of the surety fee. On this latter contention the Su- preme Court reversed the -action of the Court of Appeals, but Justice Mc- Coy claimed that the Supreme Court sustained the action of the lower court on the points on which he sub- mitted it for the record. This was allowing 10 per cent on the income and § per cent on the principal. Feo Varied With Amount.’ Mr. Gilbert insisted, “Didn’t you allow Fenning 10 per cent on both in- come and principal?”” He also asked, “Did you ever knowingly allow Fen- ning more than 10 per cent?” Justice McCoy explained that the larger per- centages were allowed where small amounts were involved. Mr. Gilbert then questioned Justice McCoy, referring to a case in which Attorney Danfel W. O'Donoghue had objected regarding the appointment of Edward Stafford as guardian ad litem, and Justice McCoy said he thought he had appointed him. Mr. Gilbert also questioned the witness regarding pro- ceedings in the case of Helen Morris, where the property was taken away from her while she was in Cincinnati on a visit. She had $15,000 in bank and owned real estate in the Dis- trict, Mr. Gilbert stated. ‘When she came back the funds had been seized and without notice a re- ceiver had been appointed for the property, he stated, calling it “‘an out- rageous proceeding,” and asked Justice McCoy, “Do you take a plaintiff’s statement of facts as facts without any investigation and then proceed?” Mr. Gilbert then questioned Justice McCoy regarding a case discussed by Representative Newton at the morning hearing, in which an attorney friend of Mr. Newton was facing contempt proceedings in the District Supreme Court for having sought to inter- vene in a pending case to which he felt his client should have been a party. Asks Hoehling Be Heard. Justice McCoy answered that “Jus- tice Hoehling s here ready and eager to testify. There are other facts be- yond what the committee has been told, but I prefer to have them related by some one who knows, rather than 0111 hearsay, testimony such as I would glve.” Mr. Gilbert wanted to be informed whether it {s the practice here to allow property to be taken away with- out a hearing or notice to the defend- ant. Justice McCoy explained that in many cases it is very necessary that a temporary receiver be ap- pointed promptly on notice and he cited a case in which several carloads of cabbages might be on a rallroad sjding and a receiver would have to be appointed to dispose of them before they would rot and be a total loss. Mr. Gilbert asked whether a bond would be required, a receiver's bond, before he took over the property. “Don’t you have a bond to cover damages under a receivership if the rflelvershl?l should not have been granted?” he asked. Justice McCoy answered that the say there must be “an undertak- which is the legal phraseology this jurisdiction tantamount to bond. Mr. Gilbert insisted that there need be no particular haste in the case of a lunatic, commenting that “it isn’t cabbages that are at stake.” Says Loss Might Follow. Justice McCoy argued that “prop. erty might disappea When Mr. Gilbert was asking Jus- tice McCoy regarding a sworn state- ment which he held in his hand Justice McCoy asked for the name of the attorney making the sworn state- ment, and was told it was Attorney Crandal H. Mackey, testifying under oath before the same Gibson subcom- mittee. With some asperity Justice McCoy stated, “What I am asked to do is to state whether what an at- torney testified is the practice of the court when I don't know whether he told the truth about the record in the case.” Here Mr. Houston protested against “retrying cases here that have been settled in court.” He declared that “We are not here to convict Justice McCoy To this Mr. Gilbert sharply an- swered, “I am here to get the facts and I propose to get what facts I can from Justice McCoy.” Chairman Gibson then supported Mr. Houston, saying: *“We are not here to convict or try Justice McCoy. We are here to get the facts that may aid in legislation to correct improper con- ditions that may be found to exist.” Witness’ Answer Is “No.” Mr. Gilbert then said: “Mr. Hous- ton hasn't any conception of what I am after and I doubt if the chairman is clear on it. I don't care about the facts in the Morris case. I am inter- ested in learning if such a condition exists that allows such things to be done. I want to find out if, when a person goes away on a visit, some one comes along who doesn’t like the ab- sentee or wants to get hold of the property, can come in and claim the absentee is a lunatic and get the estate turned over to a trustee.” Justice Me- Coy answered “No,” that this could not be done. Mr. Gilbert then questioned, “Does the practice in this jurisdiction allow any person to be declared a lunatic whether he is away on a visit or with- out notice hearing?” He wanted to know if “any person can be put in St. Elizabeth’s without an order from the court?” Justice McCoy corrected him by saying that “the court does not issue orders sending them to St. Eliza- bet! He said that action in the case under discussion probably was “to preserve the state of assets.” Mr. Gilbert said that the condition was testified to by a reliable lawyer at the hearing before this subcommittee under oath. Justice McCoy answered: “I don't know anything about facts any attorney stated here, and I don't assume they are true.” Mr. Gilbert declared emphatically, “Either these conditions do exist or Attorney Mackey is a perjurer.” Then after a moment's thought he added, “If he came before this committee and made such a statement under oath, this is onother mater that we might look into.” Denies Will Permission. Mr. Gilbert then asked Justice Mc- Coy: “Did you ever issue an order allowing an insane man in the asylum to make a will?" Justice McCoy an- swered that he had no recollection of such an order. He was asked, “Is it a practice here?” and he replie, “I do not know about it.” Mr. Houston asked if it is not pos- sible for a supposed insane person to make a will uring lucid moments. Mr. Gilbert said that this contention by Mr. Houston is ‘“absolutely cor- rect, but,” he continued, “why should a judge issue an order permitting a lunatic, or a person in sound mind, for that matter, to make a will? Turning to Justice McCoy, he said: “In all fairness, it was not you who signed that order.” He questioned whether this was the practice before the District courts. Justice McCoy answered, “I never heard of such a proceeding until I read about it in the papers.”” He explained that in the feeble-minded persons law it is pro- vided that such a person, with per- mission of the court, may make a contract. Mr. Blanton explained that the com- mittee has before it a case in which Mr. Fenning as guardian got an order from the court signed by Justice Hitz directing that the lunatic may be allowed to make a wiil under certain conditions. Blanton Praises McCoy. Mr. Blanton then inscrted a state- ment saying that he wants Chief ‘Justice McCoy to know that any questioning that may be e re- garding any of his actions is based on the belief that someone has taken advantage of him. Hy stated that he MAY 2, 192 has absolute confldence in Jus!ice' McCoy's integrity. Justice McCoy was then asked re- garding the habeas corpus 'fincpe! and he said that he came from a Jjurisdiction where it was considered a right and of highest prerogative. Mr. Gilbert made a statement for the record correcting a misapprehen- sion that had arisen from a chance remark made by him. He said he agrees that the habeas corpus right exists everywhere and that he had spoken ironically the other night when he said it was recognized elsewhere but didn’t seem to operate in the Dis- trict of Columbia. Justice McCoy was asked if he knew that when Mr, Fen- ning or Dr. White objected to a re- lease the person {s not released, and he went into a lengthy discussion of the case of Miss Cornella Corbett, who testified 20 years ago before a con- gressional Investigation and an affl- davit from whom Mr. Blanton had printed in the Congressional Record as part of his charges in the present investigation. Thinks Woman Mistaken. Justice McCoy said, when ques- tioned in regard to this, “I don’t want to question the word of any one. I believe she is mistaken in saying that any court denied her a right to be heard.” Mr. Blanton then told Justice Mc- Coy that the Gibson subcommittee in executive session is thinking of recom. mending some matters to Congress for legislation and asked Justice Mc- Coy's advice on remedial measures. The justice sald he would rather talk with the committee in executive ses- elon and that any of the justices would be glad to help. Mr. Gibson said that suggestions have been made that the fee of guard- fan be limited to G per cent, where now there is a maximum of 10 per cent. He said it is also suggested that the same law as to maximum fees should apply to committees with fur- ther proviso that when the non com. pos mentis has no known relative re- siding in the District there should be appointed a guardian ad litem, which |* now is not required. He sald that a bill has been intro- duced providing for appointment of a public administrator for others than veterans, ft being taken for granted that the veterans' committee will report out legislation taking care of the situation as it affects veterans. Mr. Gibson said that it is further proposed that there shall be a separate Probate Court estab- lished to have speclal jurisdiction over the estates of the deceased, guardians, committees, etc. Justice McCoy promised that the Supreme Court justices would confer with the committee privately. Mr. Blanton next drew attention to fees in excess of 10 per cent which bhad been allowed to Mr. Fenning. He argued that the smaller the estate of the poor lunatic the more it should be protected. Justice McCoy pointed out that in probate matters it works just the other way. Denmark Trip Recalled. Mr. Blanton called attention that in the case of the poor boy whose parents live in Denmark Mr. Fenning had received $1,677 and made a trip to Europe with his wife—here he was Interrupted by Mr. Gibson, who reminded him that Mr. Fenning's wife made the trip at her own ex- pense. Mr. Blanton said he would show the committee that he could go to Europe with his wife and take two others with him, leaving one of them over there, and still have a pretty good time on $1,577. Justice McCoy then told the sub- committee “'I_shall have to stand for that trip to Denmark. I signed the order. It is rather unusual. Mr. Fenning came to me. I asked if it had ever been done. He said Justice Barnard had allowed such a proceed- ing. I thought it proper to be done.” Mr. Blanton said “If vou had called for his final accounting I would have approved of your granting that order, but when you let him go over there and get rid of that boy and come back here and continue to draw $200 a year as guardian it goes against my con- sclence.” Justice McCoy replied, T hope I have as tender a conscience. I hope I do no wrong to any mother, especially when her son is a lunatic.” He was then questioned regarding subornation and went on to explain that if an attorney misleads the court and has a lunatic put into St. Eliza- beth's Hospital under false claims he belleves it would come under this heading. He said he referred to the Philip Berg case, which is the one in which the order was giveen to allow the lunatic to make a will and that in this will the mother was left out and an attack was made upon her in the petition for the will presented by Mr. Fenning. This petition contained an attack upon the mother's integrity and character. Quizzed on “Monopoly.” Mr. Blanton next questioned Justice McCoy why the Washington Law Re- porter is allowed “‘a monopoly.” He pointed out that Commisioner Fen- ning is a director of that corporation and asked the object .of the court in granting a_monopoly. Justice McCoy explained that it IS not because Mr. Fenning is a stockholder or director. He said that this matter had been threshed out and that it was simply a question of having one place throughout the year where any per- son could go and get officlal informa- tion on court decisions. Mr. Blanton agreed that he thought that a very good reason, but wanted to know “Why pick Fenning's paper?” Justice McCoy =aid he didn't know that Mr. Fenning was interested in it and that he himself did not pick the Law Re- porter, as it was started many years before he came to the Distric Mr. Blanton asked about an as- sistant clerk at the District Court named Gawler. Fred O'Connell, a deputy clerk, introduced by Justice McCoy, said that there was such a clerk who camé up from the Police Court several months ago. Mr. Blanton wanted to know what relative this clerk is of the undertaker named Gawler, but neither Justice McCoy nor Deputy Clerk O’Connell was able to inform him. Asked Regarding Practice. Mr. Houston asked Justice McCoy regarding the account filed by Mr. Fenning in the case of Roley Lee. He sald that apparently it was a printed form with Mr. Fenning's name printed. Justice McCoy said that the court had printed forms, but he could not identify that particular one. Mr. Houston asked if it is customary for the committee and trustee to include in their accounts a prayer for allow- ance of fee as Mr. Fenning did for that $213.04 in the Roley Lee case. He also questioned whether it is the custom of the court to make out the order immediately and Justice McCoy sald that it is. “Does your order include allow- ance of fee?" Mr. Houston asked. “Mine does,” Justice McCoy said. It was again emphasized that the auditor is required to examine the account gnd see if it is correct. Mr. Houston asked, “In whom by statute is the power vested to fix fees?” Justice McCoy answered, “In the court.” Justice McCoy was asked by Mr. Gilbert to produce, if possible, docu- mentary evidence of procedure of the court in fixing the fees and amounts in orders to the auditor in any other case than those of Frederick A. Fenning. 1 Mr. Blanton said, “Frederick A. Fenning presumed on the great friendship you have shown. You signed the order prepared by him without careful scrutiny. Do you know each time you sign an order for Frederick A. Fenning directing the auditor to pay him a percentage and the amount figured out what it represents?” Justice McCoy replied, “I have.” Mr. Blanton asked Justice McCoy if_he knew that the records in the office of the lunacy clerk show that between December 1 and March 31, four months, in behalf of the District Corporation Counsel Stephens caused to be filed in the Supreme Court 150 cases in lunacy. The justice said that he was surprised if the number is 80 small. Mr. Blanton then asked “Did you know that there are 2,200 persons in St. Elizabeth’'s who have never been committed?” Justice McCoy sald he knew that there are a great many, but not how many. Justice McCoy was very positive in his statements that he is not in favor of allowing departments such as the State, War, Public Health, through ths Treasury, or the superintendent of the Soldiers’ Home to order men into | St. Elizabeth’'s. Mr. Blanton said, “This has been going on for years and We want you to help us stop it.” Justice McCoy asked the committee to let him make a statement, and he stood up to make it. He spoke as fol- lows: “There has been criticism of Col. Fenning and these cases of lunacy proceedings with respect to solders, and I have by implication been brought into it. It has been said here that I sign what Col. Fenning puts under my nose. These soldiers are of unsound mind. The thought has gone out through the papers and my name has gone out. Denies Indifference. Judge McCoy said, thank God, that my judicia! Integrity is not in aquestion. Now we have got into an- other fleld. What I say is not to arouse sympathy from you or sym- pathy from anyone. The idea has got abroad that I am indifferent to sol- diers. If my integrity as a judge is questioned, don’t have any sympathy at all for me, but dig out the facts. “In March 1917, seeing what was caming before the declaration of war, my eldest son entered the National Guard. After the declaration of war my second son promptly went into a training camp. My third son was a_cripple or he would have gone. My oldest daughter went into the land Army and went on my son's farm in North Carolina and worked. “I hate to say it, but when I could get away from my work in the court I did clerical work on the Liberty Loan. I was glad to do it, it was all 1 could do, and to speak during the drives. “My second son never came back. When the training camp came to be broken up the commanding officer put up a notice asking who would volun- teer to go over at once instead of | waiting. My son's name was at the head of the list and he never came back. Wife With Red Cross. “My wife worked in the Red Cross. The war is over. Have the people forgotten what the soldiers did? Is there the same enthusiasm for the sol- dier as there was when we were afraid that they mightn’'t fight. This may be indelfcate, but it is due to my own family. I have had soldler after sol- dier come to me to get jobs. I have gone to the Veterans ' Bureau in be- half of many. My oldest son was for a time in the Veterans' Bureau. Since he got out of the Veterans' Bu- reau he has followed case after case for these service men. I personally have gone to Mount Alto with my wife when my health permitted. to go into the recreatfon hall and sit and talk with these boys and play cards and pool with them. “What has my wife done? There is an association known as the Amer fcan Woman's Legion. One unit of this is named after mv son, George Baldwin McCoy. My wife and other women have been doing work that is known to the American Legion, to the Disabled Veterans. to the Veterans «f Foreign Wars and at St. Elizabeth's Hospital. My wif2 has done so much for the soldiers that for three months she has been confined to her room, broken down by nervous ]rostration due to this work. Calls Proceeding Unjust. “Now I, by inference, with all that background and all that has taken place, and now with my wife broken down, T am suspected of having—for what—stabbed a soldier in the back— stabbed my wife in the back--perhaps undone all tkat she has done. I say before God, it's an injustice.” Mr. Blanton arose in his place and said, “You have my deepest sympathy in your loss, in what you have given to your country. It is in the name of your own son that we are doing what we are doing. We are after some one else, not you—some one who h heen robbing shell-shocked soldiers. We wouldn’t be true to your son if we allowed his comrades to be robbed.” Mr. Gibson stated, “As far as I know, no member of the committee has any question regarding your judicial _integrity.” Justice McCoy answered, “I know no member of this committee will do me an injustice. All I ask is the facts.” Mr. Gibson said, “In working out remedial legislation we hope all you judges will give us your help.” Mr. Gilbert said: “The press has stated and witnesses have testified, whether true or untrue, that which in my opinion is not complimentary to the court and conditions here.” It wa arranged that the chalrman should notify the other judges, one at a time, as they are needed as witnesses, so as not to interfere with the procedure of the court. Justice Hoehling stated that this week will start on the fourth week of the Wan case. 0'Donoghue Is Called. Daniel W. O'Donoghue was called as a witness. Mr. Gilbert asked him re- garding George C. Gertman. He re- plied that he is secretary of the Bar Association of the District and for- merly was chalrman of a committee of the Bar Assoctation, appointed in January, 1923, to examine conditions and criticisms of members of the bar regarding court practice and the lack of co-operation between bench and bar. He identified a copy of the report made by that committee of 10 of the most prominent members of the bar, including, besides himself, James B. meeting in March, 1923, it was proved with only one or two dissent. ing votes. He was questioned In detail regard ing the serfous criticlsm and lack o co-operation and harmony, and the careful study of records that wi made before the report was written Says Condiffons are Better. Mr. O'Donoghue testified that since that report conditions complained of have fmproved. He said that it would be impossible for him to state whether these conditions do exist now, because he has not made the study now as was done at that time. Mr. Gilbert questioned him whether at the meeting of that committee in- drafting that reporc a list was sub mitted of fees allowed to guardians ad Ilitem who were sons of judges. He thought that such a statement might have been prepared, but he }ml;n'l it now and doesn’t know where t is. Replying to a question by Mr. Gil bert, he said that a list was prepared of sons of judges, secretaries or former secretaries who had been given appointments and that the record had been searched in preparing this list. Mr. O'Donoghue then discussed in detail with the committee the case in which Justice McCoy had appointed Mr. Fenning as trustee over his (Mr. O'Donoghue’s) vigorous protest. In reply to questions he said that he did not know who suggested Mr. Fenning for appointment as receiver and did not know of any reason except the friendship between Justice McCoy and Mr. Fenning. Mr. O'Donoghue was asked regard- ing any remark made by Justice Mc- Coy on the day the decree was signe settling the case and preventing Fenning from serving as receiver. He sald that Justice McCoy made the remark: “It's too bad Fenning isn't getting something out of this.”” He said he didn't know whether the jus tice was joking. Mr. Gilbert insisted. “Whether the justice was playful or not, he did say it, didn't he In reply to further questioning, Mr O'Donoghue said, “I won't attempt say what was in Judge McC mind."” _In reply to a number of other ques tions, Mr. O’'Donoghue answered that he would like to be excused and would rather not pass judgment on the a tion of the court in any case in which he was not interested. Suggests Conferences. Asked by Mr. Gilbert for sugges tions for improvements in the prac tice of law before the courts within the scope of the resolution, M O'Donoghue said he thought this could be adjusted in conferences be tween the bench and b Questioned regarding _proposed remedial legislation, Mr. O'Donoghu 1id he was opposed to setting up new distinct probate co but argued for more judges for the existing courts, saying that there would he more uniform rule and de- cision and better justice if the courts are not multiplied. e said that the judges are underpaid and over- worked and was promised that pend- ing legislation would correct this condition In reply to questions Mr. O'Don- oghue also said that he does not ap prove of the proposal for a public administrator. his view being that relatives ought to be the ones ap- pointed. 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