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169 U. S. 466 [42: 819]. The decree in States, forasmuch as by the provisions of each case was affirmed. The cases are now said act the said defendant railroad combefore us upon an application by the appel. panies may not exact for the transportation lants—the attorney general of Nebraska and of freight from one point to another within his colleagues constituting the State Board this state, charges which yield to the said of Transportation and its secretaries—for a companies, or either of them, reasonable commodification of the decree of the circuit court pensation for such services. It is further or. in the respective cases.

dered, adjudged, and decreed, that the deThe decree in Smyth et al. v. Ames et al., fendants, members of the board of transporNo. 49, which this court affirmed, was as fol. tation of said state, may hereafter, when the lows:

circumstances have changed so that the rates “That the said railroad companies and fixed in the said act shall yield to the said each and every of them, and said receivers, companies reasonable compensation for the be perpetually enjoined and restrained from services aforesaid, apply to this court by supmaking or publishing a schedule of rates to plemental bill or otherwise, as they may be be charged by them or any or either of them advised, for a further order in that behalf. It for the transportation of freight on and over *is further ordered, adjudged and decreed that 364) their respective roads in this state from one the plaintiffs recover of the said defendants point to another therein, whereby such rates their costs to be taxed by the clerk.”. shall be reduced to those prescribed by the The appellants nou ask that the decree of act of the legislature of this state, called in the circuit court in that case be modified by the bill filed therein, 'House Roll 33,' and en-striking therefrom the words, "and below titled 'An Act to Regulate Railroads, to those now charged by said companies or Classify Freights, to Fix Reasonable Max. either of them or their receivers," and the imum Rates to be Charged for the Transpor. words “and particularly from reducing its tation of Freight upon each of the Railroads present rates of charges for transportation of in the State of Nebraska, and to Provide freight to those prescuibed in said act.” Penalties for the Violation of this Act,' ap- The decree of the circuit coirt in Smyth proved April 12, 1893, and below those now et al. v. Smyth et al., No. 50, and the decree charged by said companies or either of them in Smyth et al. v. Higginson et al., No. 51, are or their receivers, or in anywise obeying, ob- substantially the same as the decree in the serving or conforming to the provisions, com- case of Smyih et al. v. Ames et al. The apmands, injunctions and prohibitions of said pellants in Smyth et al. v. Smith et al. now

alleged act; and tha: the board of transpor- ask that the words in the decree "and below (363]tation of said state *and the members and sec- those now charged by said companies or

retaries of said board be in like manner per- either of them," and the words “and particu. petually enjoined and restrained from enter- larly from reducing its present rates of taining, hearing or determining any com charges for transportation of freight to those plaint to it against said railway companies prescribed in said act.” be stricken out; and or any or either of them or their receivers, the appellants in Smyth et al. v. Higginson for or on account of any act or thing by et al. ask that the words “and below those either of said companies or their receivers, now charged by said company," and the their officers, agents, servants, or employees words “and particularly from reducing its done, suffered, or omitted, which may be for- present rates of charges for transportation of bidden or commanded by said alleged act, freight to those prescribed by said act,” be and from instituting or prosecuting or caus- stricken from the decree in that case. ing to be instituted or prosecuted any action The court is of opinion that the presor proceeding, civil or criminal, against either ent application by the appellants in each of of said companies or their receivers for any the above cases should be granted. The gen. act or thing done, suffered, or omitted, eral question argued before us on the original which may be forbidden or commanded by hearing was, whether the rates established said act, and particularly from reducing its by the Nebraska statute, looking at them as present rates of charges for transportation of an entirety, were so unreasonably low as to freight to those prescribed in said act, and prevent the railroad companies from earning that the attorney general of this state be in such compensation as would be just, having like manner enjoined from bringing, aiding due regard to the rights both of the public in bringing, or causing to be brought, any and of the companies. In our examination proceeding by way of injunction, mandamus, of that question it was appropriate and nec. civil action, or indictment against said com essary to inquire as to the earnings of the repanies or either of them or their receivers for spective companies under the rates which or on account of any action or omission on they had established-looking at those rates, their part commanded or forbidden by the alsó, as an entirety. In this way we ascer. said act. And that a writ of injunction in tained the probable effect of the statute in sue out of this court and under the seal question. We did not intend, by an affirmthereof, directed to the said defendants, com- ance of the several decrees, to adjudge that manding, enjoining, and restraining them as the railroad companies should not, at any hereinbefore set forth which injunction shall time in the future, if they saw proper, rebe perpetual save as is hereinafter provided. duce the rates, or any of them, under which And it is further declared, adjudged, an de. they were conducting *business the time[365) creed that the act alove entitled is repug. the final decrees were rendered, nor that nant to the Constitution of the United the state board of transportation should not

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reduce rates on specific or particular articles the appointment and removal of public of below the rates which the companies were

To sustain a suit in equity to restralo charging on such articles when the decrees

or relieve against proceedings for the removal were entered. It may well be that on some par

of a public officer would invade the domain of ticular article the railroad companies may

the courts of common law, or of the executive

and administrative departments of the gov. deem it wise to make a reduction of the rate, and it may be that the public interests will 3. A court of cquity ought not to assume to justify the state board of transportation in control the discretion which under existing ordering such reduction. We have not laid statutes the executive department has to asdown any cast-iron rule covering each and sign some one to duty as gauger at a distil. every separate rate. We only adjudged that lery in the place of the plaintiff, although the enforcement of the schedules of rates es.

that does not work the removal of the latter

from office. tablished by the state statute, looking at

4. Proceedings for the removal from office of a such rates as a whole, would deprive the rail.

United States gauger, although in violation road companies of the compensation they of law, cannot be restrained by a court of the were legally entitled to receive. We did not United States, sitting in equity. pass judgment upon the reasonableness unreasonableness of the rates

[No. 539.) on any particular article prescribed by the statute or by the railroad companies. Argued March 21, 22, 1898. Decided May If the state should by statute, or through its

31, 1898. board of transportation, prescribe a schedule of rates, covering substantially all Court of the United States for the District of

APPEAL from a decree of the Circuit
articles, and which would materially reduce West Virginia restraining the defendants, A
those charged by the companies respectively,
or should by a reduction of rates on a lim? B. White, collector, etc., et al., from inter.
ited number of articles make its schedule of fering with the plaintiff, H. C. Berry, in his
rates as a whole, produce the same result, office and in the discharge of his duties as
the question will arise whether such gauger at the Hannis distillery at Martins-
rates, taking into consideration the rights of burg, West Virginia, and to permit him to
the public as well as the rights of carriers, discharge the duties of his office, etc. Re-
are consistent with the principles announced versed, and cause remanded with direction to

dismiss the suit.
by this court in the opinion heretofore de-
livered. Of course, the reasonableness of a

Statement by Mr. Justice Harlan:
schedule of rates must be determined by the
facts as they exist when it is sought to put Berry in the circuit court of the United States

This suit in equity was brought by H. C. such rates into operation. The decrees in the several cases are hereby B. White, United States collector of internal

for the district of West Virginia against A. modified by striking therefrom the words referred to in the application of the appellants. revenue for that district, A. L. Hoult, John The decree in each case beiny thus mod-D. Sutton, Anthony Staubley, and Franklin

T. Thayer. ified is affirmed.

The bill alleged that in 1893 the plaintiff,

Berry, was duly appointed by the Secretary [366]A. B. WHITE, Collector of Internal Revenue of the Treasury to the position of United for the District of West Virginia, et al., mencement of this suit he had acted in that

States gauger, and from that time to the comAppts.,

capacity at the Hannis distillery at Martins

burg, West Virginia; H. C. BERRY.

That he was appointed through the recom.

mendation of E. M. Gilkeson, late collector (Sce S. C. Reporter's ed. 366-378.)

of internal revenue for the above-named dis

trict; Distinction between common law and equity

That he was paid at the rate of $100 per -equity jurisdiction over removal of pub; month directly from the Treasury Departlic officers-distillery

gauger-removal

ment, and was an officer of the United States from office.

government, having taken the required oath

of office and executed bond as required by 1. Under the Constitution and laws of the law; United States the distinction between com.

* That his oath of office and bond continued[367] mon law and equity, as existing in England at the time of the separation of the two coun good and in force regardless of the personnel tries, is maintained, although both jurisdic of the collector of internal revenue, and he did tions are vested in the same courts.

not hold his position at the discretion of that 2. A court of equity has no jurisdiction over

officer; NOTE.-A8 to equity jurisdiction after trial A8 to right to remove officers summarily; at law, see note to Smith v. M'Iver, 6:152. particular officers, particular provisions; im

As to what remedy at law will prevent rem- plications; where term of office is fixed; remov. edy in equity, see note to Tyler v. Savage, als for cause; nature of proceeding,- see noto 86 : 83.

to Trainor v. Wayne County Auditors (Mich.) As to when injunction to restrain acts of pub. | 15 L. R. A. 95. Uc officers will be granted, see note to Mississippi v. Johnson, 18:437.

That he had honestly, faithfully, and im- of the United States who should wilfully partially discharged his duties, being espe- violate any provision of the Civil Service act cially well equipped and qualified to dis- or of the rules established by the Civil Service charge all the duties appertaining to his of Commission should be dismissed from office; fice;

That under the law the plaintiff had a That the defendant White, collector of invested interest in his office, and if White ternal revenue, had declared his intention to should remove him therefrom or assist in so appoint a gauger and three storekeepers to fill doing it would be in violation not only of the the place of the plaintiff and others employed Civil Service rules but of the plaintiff's vested at the distillery at an early date;

interest in his office, for which he would not That the defendants Hoult, Sutton, Staub- have an adequate remedy at law; ley, and Thayer had been reinstated, or would That he is able, competent, and willing to be appointed and commissioned, and one of discharge the duties of his office, and is unthem would be assigned to duty in place of willing to be summarily dismissed therefrom the plaintiff at the Hannis distillery through for no other reason than that he is of opposite White, who had openly declared his intention politics to those of the defendant White, col. to reinstate the defendants in place of the lector of internal revenue; plaintiff and others;

That the said collector has no power, right, That the plaintiff is a Democrat in politics, or authority to remove the plaintiff from his was assigned to said office as a Democrat, and office, or to appoint any other to take his had voted the ticket of that political party, place and thereby effect his removal; that the while the defendant White was a Republi- defendants Hoult, Sutton, Staubley, and can;

Thayes have no right or authority to take That White had declared his intention to the oath of office and otherwise qualify and place one of the other four defendants in appear to take the position, and thereby asplaintiff's position because of the latter's po- sist in the removal of the plaintiff, and as[369) litical affiliation, and for no other reason, and there were no vacancies created either by reto appoint and recommend Republicans to fill movals or resignations, and there being 15 such places for no other reason than that they per cent now commissioned more than suffiwere of that political faith;

cient to perform the duties of storekeepers That the plaintiff's office is in the classified and gaugers in that district, if they were per. service, and belongs to what is known as the mitted so to do it would be in violation of Civil Service, and as such he could not be re- law as well as of the rights and vested intermoved, except for cause shown and proved; ests of the plaintiff; and,

That by a circular issued by the Secretary That unless White be enjoined from so doof the Treasury it was provided that no re- ing he will remove the plaintiff, and unless movals should be made from any position his codefendants are enjoined from qualifying subject to competitive examination except as officers of the United States to take the upon just cause and upon written charges place of the plaintiff at the distillery they filed with the head of the department or the would in that manner effect the removal of appointing officer, of which the accused the plaintiff from his office, they having ex. should have full notice and opportunity to pressed their intention to accept such apmake defense;

pointment and assignments. That in department circular No. 119, which The relief asked was an injunction restrainwas an executive order, the same provisions ing and prohibiting the defendant White, col. were made, together with others, and were lector, and all others by and through him,

signed by the Acting Commissioner of Inter-"from removing him from the position of (268 mal *Revenue and approved by the Secretary gauger until a vacancy is created according of the Treasury;

to law, as an officer of the United States That the plaintiff was one of the employees aforesaid, and also from recommending, asof the Treasury Department, was included in signing, and appointing any person to the the classified service, and was protected from same position, and from proceeding in the atremoval for political or religious reasons un- tempt to make such removal, and in any der the Civil Service laws and rules of the other manner interfering with your complainUnited States, as fully appears from a com- ant;” and also, that Hoult, Sutton, Staubley, munication received frɔm the acting presi- and Thayer and all other persons be enjoined, dent of the Civil Service Commission of date restrained, and prohibited “from qualifying September 10, 1897;

as gauger to take the place of your complain. That if the defendant White be permitted ant at said distillery, or ir any other way aid to remove the plaintiff from his office and po- or assist in the removal of your said orator, or sition or supplant him by others, the same performing or discharging any of the duties would be illegal and in violation of law; of said office," and for such other and general

That rule 2 of § 3 of the Civil Service rules relief as to equity might seem just and right. provides that “no person in the executive In conformity with the motion by the Civil Service shall dismiss or cause to be dis- plaintiff for a temporary restraining order, missed or make any attempt to procure the it was adjudged, ordered, and decreed "that dismissal of or in any manner change the of- A. B. White, United States collector of inficial rank or position of any other person ternal revenue for the district of West Virtherein because of his political or religious ginia, be and is hereby restrained, enjoined, affiliations;" while $ 1 of those rules provides and inhibited from recommending, appointthat any person in the executive Civil Serviceling, or aiding in the appointment of A. Lo

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Hoult, John D. Sutton, Anthony Stroubley, the plaintiff be relieved from duty as gaug. or any other person, to said position, and from er at that distillery; that the defendant removing the said complainant Berry afore White as collector had never declared his in. said, until a vacancy therein is created by tention to appoint any one of the other de.

law, and from assigning and appointing any fendants or anyone else a storekeeper or (370)* person to the same position, and from pro- gauger, knowing full well and recognizing

ceeding in the attempt to make such removal the fact that storekeepers and gaugers are and in any other manner interfere with the and can be appointed by the Secretary of the said complainant Berry in the said office, as Treasury only; that the Secretary of the aforesaid.” It was further adjudged, ordered, Treasury reinstated Hoult as gauger, Stauband decreed "that A. L. Hoult, John D. Sut- ley as storekeeper, and Thayer as gauger in ton, Anthony Stroubley, and all other per- 1897, in accordance with the laws of the Unitsons be, and they are hereby, enjoined and ed States and in accordance with the civil prohibited from acting as gauger in the service law, each having first been certified place and stead of the said complainant Ber- as eligible to such reinstatement by the Civil ry, as aforesaid, or in discharging any of the Service Commission; and that Hoult, Sutton, duties of the said office, until the further Staubley, and Thayer had all been duly comorder of this court.”

missioned and executed bonds and qualified The answer of the defendants states that prior to the institution of this suit; and that on the 30th day of September, 1897, the Com- defendant White never declared his inten. missioner of Internal Revenue made an ortion to reinstate any of said officers or assiga der relieving plaintiff from assignment to them to duty in the place of the plaintiff, duty as gauger at thc Hannis distillery, and recognizing fully that he had no such auon the same day telegraphed the plaintiff to thority, and that neither Hoult nor Staubley that effect; that on the same day the com. had been assigned to duty since their rein. missioner telegraphed defendant Thayer, as statement. signing him to duty as gauger at that distil. The defendant White admitted that he was lery, and on the 1st day of October, 1897, he a Republican in politics, and the defendants took charge as such gauger, and was in admitted that the plaintiff was a Democrat charge when defendant White, collector, vis- in politics. White denied that he ever sig. ited the distillery on that day; that Thayer nified or declared his intention to remove the took charge before 8 o'clock in the morning plaintiff from office or put the defendants or of October 1, and before the granting of the anyone else in his place, for the reason that injunction, and before any service upon or the plaintiff was a Democrat in politics, and other notice of any kind of the granting of for no other reason to appoint or recommend or application for the injunction to Thayer, in his stead a Republican; that in fact and White, or any of the defendants; that the in law he could have nothing to do with the recommendation of defendant White to the removal or appointment of a storekeeper or commissioner, that the plaintiff be relieved a gauger unless it be to recommend the same: from duty as aforesaid, was made prior to the that in short the appointments of *storekeer (372) institution of this suit; that it has been the ers and gaugers and their removals could be general policy of the Internal Revenue Bu made only by the Secretary of the Treasury. reau to rotate the assignments of storekeepers The defendants alleged that the revocation and gaugers for the purpose of securing to of assignment complained of by the plaintiff such storekeepers and gaugers a fair propor- ade by the Commissioner, hom the tion of employment and for the purpose of defendants understood was a Democrat. preventing collusion between distillery offi. The defendants admitted that the office of cials, and otherwise protecting the interests gauger held by the plaintiff was in the classiof the government; that plaintiff having been lied service, and belonged to what was known on duty for a long time prior to the 30th as the Civil Service; but alleged that so far day of September, 1897, as gauger, it was as they knew the plaintiff had not been redeemed by the Commissioner fair and right moved, but on the contrary still held the poamong the several gaugers, and for the best sition of United States gauger; that the fact interests of the public service, to relieve that he had been relieved from assignment to plaintiff from assignment to duty at the Han. duty at the Hannis distillery did not remove nis distillery.

him from office; that he might be assigned Admitting in their answer that the plain to duty or transferred or nonassigned at any (371]tiff was an officer *of the United States, duly time by the Commissioner of Internal Reve

appointed and commissioned, and that he did nue; that the plaintiff could not in this man. not hold his position at the discretion of the ner question the righi of the commissioner to collector of internal revenue, the defendant assign a United States gauger at a distillery White denied that the plaintiff was well or relieve one who has already been assigned; equipped and qualified to discharge all the that the Commissioner had the right to asduties of gauger, but that from the records sign to duty a United States gauger, and to of his office and of the department for the determine how long he shall remain on duty previous three months, during which he has under such assignment; and that no law, exbeen collector, the plaintiff was not a first- ecutive order, or rule or regulation of the class gauger, and was culpably careless in Civil Service Commission was violated by the his work, and that it was largely because of commissioner doing as he had done in this information he had received that refendant case in exercising the authority conferred upWhite recommended to the commissioner ihat lon him by the acts of Congress by assigning

was

• gauger to duty at the said distillery and misconduct *of his; that during the late war[374) relieving from duty the plaintiff, who had of the Rebellion he served in the military been theretofore assigned to duty at the same service of the United States, and was honordistillery by the commissioner and by the ably discharged therefrom; that availing him. same act of Congress.

self of rule 9 of the Civil Service regulations, The defendants admitted that the plain- he made application to the Secretary of the tiff was willing to continue in office, Treasury to be reinstated to the position from but the defendant White charged that which he had been removed; that defendants he was a careless officer, and that if any at are informed that said petition, together with tempt was or should be made to remove or the requisition of the proper officer of the dismiss him from the service, it would not be Treasury Department, were referred to the for the reason that he was of opposite poli- Civil Service Commission, and his eligibility tics to those of the collector.

having been properly certified by said comThe answer concludes:

mission, he was reinstated and reappointed by “Replying to allegation No. 13 in plaintiff's the Secretary of the Treasury. Said petition bill, the defendants again say that the de- was originally filed with E. M. Gilkeson, late fendant White claims no right or authority collector of internal revenue, and, together to remove the said plaintiff from office or to with the recommendation of said collector,

appoint anyone in his place, and that he forwarded to the Commissioner of Internal [373]ever las claimed any such *authority. The Revenue. The defendants insist that in mak

defendants say that the defendants Hoult, ing said appointment or reinstatement the Sutton, Staubley, and Thayer, having been Secretary of the Treasury acted in striot conduly appointed to the positions respeotively formity with the acts of Congress and the held by each of them by the Secretary of the rules and regulations of the Civil Service Treasury, that the right to hold said posi- Commission. The defendants Sutton, Staubtions cannot be questioned in this or any ley, and Thayer were similarly reinstated other collateral proceeding; that the question and reappointed as storekeepers and gauger. of whether there were or were not vacancies The defendant A. B. White says that the at the time these appointments were made recommendation made by him to the Comcannot be determined in this suit. Neither missioner of Internal Revenue relative to the of said defendants Hoult, Sutton, Staubley, or plaintiff was made prior to or on the 29th Thayer was appointed in place of the plain- day of September, 1897, and the said recomtiff. The appointment of neither could affect mendation was made in part because the said the plaintiff, and whether the Secretary of the plaintiff had been on duty for some time, and

Treasury has more of these officers in com- in part for the reasons hereinbefore stated. mission than he is entitled to have under the Said defendants further say that they believe law is not a question which can be raised by and charge that the reinstatement and apthe plaintiff in this suit. It cannot be ascer- pointment of said defendants Hoult, Sutton, tained in this proceeding whether or not 15 Staubley, and Thayer were not made by the per cent or any other number of officers are Secretary of the Treasury for political reanow in commission more than are sufficient sons, nor was the plaintiff' relieved from duty to perform the duties of storekeepers or gaug: as aforesaid at the Hannis distillery by the ors in this collection district. This court, it is Commissioner of Internal Revenue for politirespectfully suggested, will not undertake to cal reasons, nor the said Thayer assigned to ascertain the number of distilleries in opera- duty at the said distillery for political reation and to be placed in operation in said col- sons.” lection district and the number of storekeep- The cause having been heard upon the bill, ers and gaugers to be placed on duty at such the demurrer to the bill, the answer and a distilleries. It is submitted that these are general replication thereto, the aflidavits filed questions to be determined by the Treasury by the parties, and upon the plaintiff's motion Department, and must be supposed to have to perpetuate the injunction theretofore been determined before such appointments granted, a final order was made "restraining were made, and the appointments made in and inhibiting the defendant White, *the col.[375] conformity to the interests and requirements lector of the district, the appointing power, of the public service. Defendants therefore the defendant Thayer, and all others, from in deny that by the appointment of the defend- anywise interfering with the plaintiff H. C. ants Hoult, Sutton, Staubley, and Thayer Berry in the possession of his oflice and in the more storekeepers and gaugers were placed in discharge of his duty as gauger at the lIannis commission than were suflicient to perform distillery, located in the town of Martinsthe duties of such officers in said district. burg, West Virginia, until he shall be re

“The defendants deny that the appoint-moved therefrom by proper proceedings had ment and qualification of said Hoult, Sutton, under the civil service act and the rules and Staubley, and Thayer will make necessary regulations made thereunder or by judicial the removal of the plaintiff. The defendants, proceedings at law; and the said collector havfurther answering, say that the defendanting applied heretofore to the court for leave Hoult was on the day of

, 1889, ap. to the commissioner to appoint temporarily a pointed a United States gauger; that on the gauger pending this litigation, he, the said day of

—, 1893, after having served collector, is required and directed to recomabout four years, and there having been a mend and the Commissioner of Internal Rev. change of administration, he was removed enue to transfer the temporary gauger herefrom said position through no delinquency orl tofore assigned, and to permit the said gauger

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