Evening Star Newspaper, June 14, 1926, Page 4

FENNING’S EXONERATION ASKED ON MERITS AS from Third Page.) was fully exonerated in the Distriet, Supreme Court's opinion lust week “We venture the counsel, “that no me committee. who heard all atantfal part. of the testimony. and no member who heard the testimony of Mr. Fenning as a wiiness before this committee, entertains the slightest idea that he has ever been guilty of | embezzlement or of any other crimi- | nal offense.” es Discussed. the case Several Cn The brief next discusses of an officer of the United prosecuting a cinim against the Gov ernment, as the charges of violation' of this statute apply to Mr g. | The Flaherty, Norris, Allen ningham cases are disc “Bafore briefly discussing the ques. tion here, savs the brief, it is well to observe that there exists no facts upon which to base the charge of the violation by Mr 109, U. 8. °C. ¢, even If a Commis- sloner of the District of Columbia is A person embraced within the prohi- bitions of that section. The case in which It is alleged that Mr. Fenning, after he became a Commissioner of the District of Columbia, so acted as to violate section 109, 1. 8. €. (. (sec tlon 5498, R. S. U. 8., are those of Flaherty (see charge No. 21); Norris (see charge No. 22); Allen (see charge | No. 23); Cunningham (see charge No. | 24), and Coffey (not made the sub Ject of any charge, but evidence re- lating to_which was introduc ing the hearings). The undisputed evidence relating to these cases not only failed to suppert the charge of the prosecution of any claims against the United States, but dis-| proved that charge to a demonstra. | tion. “In_Flaherty's case the evidence showed that this man's sister em- | glom Mr. Fenning and that upon | er petition he was duly a rointed committee for Flaherty by | the Supreme Court of the Dis trict of Columbla after the Iat. | ter had been duly adjudged to be | 2 lunatic and incompetent to take | care of his property. Flaherty is a retired officer of the United States Navy and entltled to retired pay in & sum provided by law for men of his rank. After duly qualifying as committee for Flaherty, in June 1925, | Mr. Fenning transmitted to the Navy | Department certified copy of appoint. | ment and requested that the pay to | Flaherty be paid to Mr. Fenning, as committes, as the same fell due. Any argument that this constitutes acting ‘as an agent or attorney for prose- cuting any claim against the United States’ i3 on its face so absurd as to | be conclusively refuted by a mers statement of the case. Record of Norris Case. “The case of Norris is this: Norris had been a leutenant in the Arm during the World War. According to | the undisputed testimony and, indeed, the officlal record in the case (see testimony of Maj. Davis Arnold as a witness before this committee), Norris' application for benefits under the Vet- eran’s Compensation act, @s amended, | was made to the United States Vet erans’ Bureau in 1924 and was allowed | May 5, 1925. If therefora an applica- | tion for benefits under this act may be | considered as a claim against the | United States this one had been made | and allowed before Mr. Fenning had any connection whatever with any of Norris matters. Maj. Arnold, chief| guardian officer of the Veterans' | Bureau, called to the witness stand before this committee by the pro- ponent of the charges, testified that it was at his instance and under directions which he gave that Norris filed and recelved compensation under the Veterans' Bureau. “When this claim was allowed in May, 1925, Mr. Fenning was mot a Commissioner of the District. More. over, we repeat, altogether aside from this important fact, is the equally im. | portant fact that he had nothing what ever to do with the presentation or prosecution of the claim, if, we re iterate, a veteran's application for | benefits under the United States Vet | erans’ Bureau is ‘a claim.’ After| benefits had been awarded Norris wpon his own application, he was | committed to St. Elizabeth’s Hospital. He became mentally incompetent to | receive and handle his compensation, | and in September, 1925, Mrs. Norris, the wife of this incompetent man, re- | Mr. Fenning as attorney to| take the necessary steps to have her appointed commitiee of her husband's property. In lunacy proceedings duly instituted in the Supreme Court of the District of Columbia Norris was adjudicated to be a person of unsound | mind, and his wife was appointed committee. Mr. Fenning transmitted | for his client to the Veterans' Bureau | evidence of her appointment as com- | mittee of her lunatic husband, to | the end that checks for the husband’s | compensation, already, as we hav 4 I seen, allowed by the Veterans’ Bu-| reau, might thereafter be pald to the | guardian and not to the insane ward. For this he received no compensation. | At no time did he appear or take pert in the prosecution of any claim befors the bure: Indeed, we reit- erate. there was no claim pendin; nothing to be prosecuted. All | was necessar ed dur- | D | upon to support the charge that Mr. | Criminal Code by acting as agent or | or & person holding any office or place | mo z -stt;ps boy odor: WELL AS ON LAW all that was done, was to transmit to the Veterans' Bureau cvidence of the appointment and qual- | ification of Mrs. Norris as committee of her lunatic husband, in order that Veterans' Buveau thereafte equired to du pay the committee t which had already been awarded the veteran. Here aguin a mere statement of the fuets ix all that Is necessary. Allen Case Reviewed. Allen's e Lieut. Frank T Leen committed as a ps Elizabeth’s llospttal by the Secretary of the “ln Allen had tient to St authority of States| Navy before Mr. Fenning even knew ihe fact that Mr. of his existence. A brother of Allen retained Mr. Fenning to the end that | necessary steps might be taken to| trace and preserve the property of the incompetent. Upon petition of | Allen’s father, and with the consent | 5f all of Allen's brothers and sisters, | Mr. Fenning was duly appointed com-{ mittee of Allen's estate, after the lat Fenning of section 'er had been duly adjudicated to be a | conclusions. .lonly as a preliminary to a treatment | As in the case of Flaher he transmitted to the Navy Depart | ment, from which department Allen | was entitled to the retired pay of his ank, evidence of his appointment as committee, with request that there after checks for pay due Allen should be made payable to the order of Fen ning as committee of Allen. Finding in the course of his administration of his ward’s affairs that mistake was being pald the retired pay of a grade | lower than that of leutenant, he, in| aclty as committee, called that the attention of the Navy and correction was made. Once again it is manifest that there was no acting as agent or attorney for the prosecu tion of any claims against the Gov ernment. “In Cunningham’s case, Cunning- ham, a retired warrant officer of the Navy, had been committed to St. Elizabeth’s 1Hospital for treatment His sister, Miss Betty Cunningham, a | resident of Kentucky, retained Mr. Fenning to represent her in the ap- propriate judictal proceedings to the end that she might be appointed com- mittee of her brother's estate. Cun- ningham was adjudicated of unsound mind, his sister was appointed com- mittee, and Miss Cunningham, by au- thority of the court, paid to Mr. Fenning and his _associate, Paul Rogers, a fee of $150 for services as attorneys in the court proceedings. We have now stated the entire con- nection of Mr. Fenning with the Cun ningham case. He did not even trans- | mit_the evidence of his client's ap- pointment as committee of the insane naval officer to the Navy Department. Miss Cunningham herself attended to all matters which required her atten- tlon as committee after appointment. llere again comment is certainly un- necessary. “The uncontradicted evidence shows that Mr. Fenning since becoming Commissioner has never presented to any department in his capacity as committes, attorney or otherwise any matter except such as appears in writing, as shown by the cases last above referred to. Sees Position Sustained. “This review of the cases relied lunatic Fenning since becoming a Commlis- sioner of the District of Columbla has violated section 109 of the Federal attorney in the prosecution of claims against the United States is. we con- fidently submit, sufficient to dlspose of the question without regard to the unescapable conclusion that a Com- missioner of the District of Columbia is not an officer of the United States, of profit or trust under any executive department or under either House of Congress of the United States, and as such prohibited from prosecuting claims.” The brief calls attention to the testi- f Maj. Arnold of the Veterans' WE DYE WEARING APPAREL BLACK FOR MOURNING In 24 Hours The Camu::k Dry’SIeaning Co. | \7 Our Success Is li Due to Our [ ' Dependability Our experience [l as careful morticians | i has taught us the value and necessity of constant attention, in to attain the and livery in connection. Call— James T. Ryan Mortician 317 Pe. Ave. S.E. 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It next discusses the question of whether District Commissioners come within the meaning of the statue pro hiblting an agent or officer of a poration, etc., to hold employment as an officer of the United States and muke contracts with the corporation “It I8 asserted.” the brief reminds the committee, “that the making by the municipal corporation, the District of Columbia, of contracts with a mer- cantile corporation, Rudolph, West & Co., In which Mr. Cuno H. Rudoiph a Commissioner of thhe District of Columbia, is a stockholder, and with which he has no other connection, con stitutes on Mr. Rudolph’s part a vio- lation of section 41 of the Federal Criminal Code, and that. furthermore, Fenning, in his ca- pacity as a Comn is no evidence on the question) have signed such a contract necessarily makes Mr. Fenning ‘particeps erimi- nis' with Mr. Rudolph in that viola- tion. Neither the facts nor the law even remotely sustain the charge in the judgment of any with the ability to read and draw sane We refer of the point of law. v of Rudolph Given. 4 Prior fo 1910 Cuno H. Ru- dolph was an officer of and stockhold er in the mercantile corporation Ru- dolph. West & Co. In that vear he was appointed a Commissioner of the District of Columbia by President William H. Taft He resizned from all being made and that Allen was | official connection with the corpora- |of Columbla except in open competl- | tion named and has never since had such connection. He continued to own tock in the corapany. He never nego. tiated any contract with Rudolph West & Co. for the District of Colum. bia and has or agent of the District for the trans. »n of any business with any such corporation. Indeed. the evidence shows that Mr. Rudolph has scrupu lously refrained from so doing. The corporation. In open competition with others in the same line of business, has from time to time received, as the lowest bidder, contracts for sup- plying articles in which it deals to the District of Columbla Mr. Rudolph has taken no part in any such trans- action, not even signing as a member of the board in such contracts. With these facts in mind, even if Mr. Ru- dolph were an officer of the United Stat it is only necessary to read section 41 of the Federal Criminal Code once to show its nonapplica- bilit e need not here repeat the con- clusively established point that a Commissioner of the District of Co. lumbta is not ‘an officer or agent of the United States.’ but merely an of- | ficer of the municipal corporation created by Congress and known as the District of Columbia. “Coupled with the contention that there has been a violation of section 41 of the Federal Criminal Code is a reference to section 32 of the Revised Statutes relating to the District of | Columbia, which reads: “*All contracts made by the Com. missioners in which any member of the board shall be personally interes ed shall be void, and no payment shall be made thereon by the strict or any officer thereof.’ Firm's Dealings Defended. “Of course, it will be, immediate obvious to any lawyer that this last | | quoted section is not a criminal stat. | ute and it is therefore difficult to fol low the claim now made in a brief presented to this committee that Com missioner Fenning Is necessarily par-| ticeps criminis with Commissioner | Rudolph in the violation of this sec- | tion. This section (Sec. 32, R.S.D.C) was originally part of the act of Feb. ! ruary 21, 1871, 16 Stat. L. 427. which provided a government for the Dis loner, may (there | one endowed | to the facts | never acted as an officer | trict of Columbia consisting of a gov- ernor and legisiative assembly. It was repeated in the act of June 11, 1878, 20 Stat. L. 102-103, which w have referred to as the organic act of the present form of government for this District. The section obviously is a limitation upon the making of con- tracts and the penalty provided in it is an avoldance of the contract #nd o prohibition of payment uhder Ce e “While the question Is not one with | which this committee need be burden- {ed. it Is clear, we think, that a con- | tract made with a corporation can- | not be held to be one in which a mere { stockholder in that corporation is ‘per- | sonally interested.’ and a reference to section 32, R. S. D. .. will show that /it relates to ng other sort of contracts. This section. was origl | nally enacted 65 years ago at a time | when the conduct of commercial af. | fairs was not largely In the hands of | corporations, but was carried on by individuals or firms. To hold that it has application to a mere stockholder | in any one of the numerous corpora- | { tions now in existence and which deal | | with the District of Columbla would | | be to give to the law a meaning | which it was never intended to have. irness to a business concern of un. | questioned standing amd reputation | | permits, it indeed it does not require, the comment that there has been no | attempt to charge or show that the District of Columbla has ever been | taken advantage of In any way or | | subjected to any loss by reason of | | its dealings with Rudolph, West & Co. Indeed, the undisputed evidence is | that that corporation has never r ceived any contract from the Distriet tion with others engaged in similar lines of business and that in every case such contracts were awarded by |a board or committee directly charged with the performance of that duty.” Actions Before Taking Office. | Taking up the subject of whether |or not an officer of the United States | can be removed from office for actions | previous to his {pduction into office, the brief does not'admit that Mr. Fen | ning fs such an officer, but assumed, for consideration of the legal aspect only, that he is. Counsel call atten | tion that no previous cases have been before the Congress to provide an adequate precent, except that of Judge Archbald. The brief then | quotes from statements by Represen- tative Michener of Michigang during |the debate on the resolution” for the impeachment of Judge English. This cifically found that he (Archbald) was not gullty for the sole reason that that act was committed while hey was a district judge, and that they had no jurisdiction.” The brief then discusses the ques. tion of whether there is any power which the House can exercise in con- nection with this case should the facts warrant their exercise and assuming that Cominissioner Fenning is not subject to impeachment. In this con- nection, the brief recites the history of Representative Blanton's charges against Commissioner Fenning, draw- ing the conclusion that they origi- nated when the Commissioner failed to meet his demands in the Sergt. Lee case. It then concludes that the scope of the legislative and executive func- tions Is clearly defined in thes Con- stitution and the privileges of the legislative branch have already been exceeded In this case. The brief then concludes with sum- marization of the charges and their refutation, part of which follow: Charges Are Grouped. “The 34 charges presented to the House and the mass of evidence adduced at the hearings conducted v this committee may be generally but correctly grouped under three heads: Acts of Mr. Fenning as (1) a public officlal, (2) a lawyer, (3) a fiduciary. “(1) As an officer: Not an iota of evidence of any official misconduct has been produced. Indeed, those acts -of Mr. Fenning as a Commis. sioner of the District of Columbia which have been assailed the evidence | shows to have been taken in a com mendable effort 10 serve the publi fearlessly, honestly and efficient Every ailed official act, it has now been shown, was the unanimous act of the three Commissioners of the District, and none is characterized by the slightest wrongdolng. “(2) As a lawyer: At the end of a quarter of a century Mr. Fenning has had his professional career sub- Jected to searching scrutiny, with the result that not one judge and not one brother lawver has been found to come forward with any word of criticism of his professional conduct. “(3) As a fiduclary: We unhesitat- ingly assert that no more remarkably excellent record could possibly be shown on behalf of any fiducia in. dividual or corporate, than that which again after searching inquiry, has been presented to this commitiee. It is evident that no case in which this man has served has not been raked fore and aft in the vain hope of uncov- ering a basis for complaint. With the quotation follows: “The Senate e | single exception of what Mr. Justice For 25 Years We Have Specialised in Stylish Footwear for Stout Women On Warm Days When Stout Feet Hurt—Come to Hirsh’s for Comfortable and Stylish Arch-Support Shoes for Stout Women A Perfect-fitting Strapless Shpper. combination last. 1n Bl id " paten SF . Mt $8.85 LISH STO The largest variety, including novel- ties. Sizes 213 to I widths to FEFE. HIRSH’S SHOE STORES 1026-1028 Jth St. N.W. Combination last—in pat ent. black kid, = In White Kid and Satin, $8.85 models _for _stout on in WHITE,_KID and red leathers. $7.85 Walking Oxfords and Wide-Ankle High Shoes for Stout Women , Gabardines—Flannels—Tropicals THE ROYALTY O SUMMER SUITS $:2:F27ifl) The Saks Summer Suit is an art apart. With the weightless coolness which is indispensable at this season, it blends that su- perb style distinction which is indispensable at any season. Amp'~ evidence of which is to be found in our present show- ing—newly created and newly received —of Summer, 1926, Gabardine, Flannel and Tropical Worsted Suits, Patterns and fashions which rival those of costliest woolen clothing—with the coolness of an evening breeze across the Potomac! And! Mohair Suits of exceptional cereeeieaas £15.85-820 Palm Beach Suits in new est patterns, special at..$ White Flannel Trousers, of Baks standard.$8.50, 310, $15 Blue Sport Coats, smart with light trousers...$16.50 Siddons says ‘at most' represents ‘a mistake of judgment of misconception of duty as regards his right to com- missions on the amount of his bond premium, nothing that even justifies legitimate criticism has been discov- ered. Has Handled Millions. “When it is considered that as a flduciary this man has handled mil- lions of dollars; that the uncontra- dicted testimony shows that there has not been one cent of loss or deprecia- tion in principal or in interest; that with extraordinary promptness the funds of his wards have been carefully and safely invested, always under the direction of and with the approval of the court; and that his accounts have been regularly rendered, care- fully audited, and in every one of his hundreds of cases made the subject of court approval, it will be conceded that it is no extravagance to say that it would be hard to find an equal of this uniformly excellent re ord. And when these facts are con- sidered, the comparatively trivial amount involved in the bond premium commission question, and which, as we have shown, will be credited with all possible speed, becomes insignifi- cant. Indeed, as the record shows, in individual cases the amount anually involved In the much discussed com- mission on bond premiums has often been as low as $1.25 and seldom, if ever, as high as §10. For instance, in the test case of Adler, the amount involved in the last vear ithe high- est of any year In this case) was $9. “We venture to say that the law- yers constituting this committee never had brought to their attention in an capacity a record of a life work so completely documented and so fraught steadfast integrity with evidence of meticulous care and | “Agajnst the unfounded. assertion that Mr. Fenning's accounts as com- mittes (guardian) have not been au- dited, ‘we . present the indisputable court records showing that every one has been regularly audited, found cor- rect and approved. Against the wan- tonly cruel suggestion, made without any basis of fact or the slightest justi fication, that it is not known whether the assets of Mr. Fenning's wards are intact, stands the evidence of the audi- tor of the Supreme Court of the Dis- | trict of Columbia, the witness Herbert | L. Davis, called to testify before this | committee by Mr. Blanton, that he 1 himself, or his duly assigned repre- sentative, has regularly, and in per son, checked every security constitut- | ing the assets of the numerous cases in which Mr. Fenning has served as | fiduciary. Against this palpable un- truth, there stand the court records in | every one of the Fenning s (many | of those records, as typical illustra-| tions, being in the record of these hearings), showing the regular verifi- cation of all the assets and the cer- tification of that verification to the court by {ts auditor. Amount Fenning Received. “It 1s hardly necessary to dignify with more than passing mention the reiterated half truth that Mr. Fenning has in many instances received mor of the estate of his wards than have the wards themselves. As this com- | mittee now knows, except in seven | cases where the court aliowed such nominal compensation as $5 or $§ for all the work done by the guar: for | an entire yvear, in no case Fenning received more than a maxi mum of 10 per cent of that which hi ward received. It is not possible for the most expert juggl facts to make 10 per cent of a total sum exceed 90 per cent that sum. | of XTI E PRI E SRR TE T ESLE TR TSRS RIETEIETE TR TR TR 23S FRX IR IR ER R R R X IR IR IR X X X EX EX R X R R EX R X E X EXEXEXEX MANHATTAN SHIRTS—HANAN SHOES FEX ST AEERARARARSE fiiifiiiiiiiiiiiiiii:g}%i2:’12;’22&‘; MANHATTAN SHIRTS—HANAN 484 Can’t Crease Fine Summer Suit Fabrics by Sociely Brand And that ‘means the finest you can buy. These 4 and 4's will just about outlast any fabric; besides that, they are porous, cool, with enough body to tailor magnificently. In seasonable shades. 65 Others, $40 to $5 —DOBBS HATS Where the condition of the not require or justify an of his funds' they were, as they should have been, invested end con- served frm;“hln future use,.or irf the avent of s continued dl o for his tamily. Inmany mwng'mm record. shows, during the incom. petency” of the ward hfs dependent relatives have been, by court order. (Continued on Page ¢ INCAND DANCEINTHE COUNTRY, (hateou, eFaradis On the Washington-Baltimore Boulevard ot Ammendale, M4 Surprise '\'ilgh:n Every Thursday 2lus Exceptional Entertainment Every Night Walter Kolk Producing Fun lu c Finest Music and Cuisine ¥, ] Berwyn 169 for Reservations Meyer Davis- Chateay f X TTXTXIIIII I N RN RN LA AT T LN LN L % K W hn;' s EREXREXEA T Emw FAXLEATLE PEEXXTEEETRNRXET%