tion and acquisition of new or addi- that state a line of railroad 30.3 miles in tional lines of railroad, and the exten- length. Approximately three fourths of sion and abandonment of old lines, and the traffic over the road is in interstate to invest the Interstate Commerce Com- and foreign commerce and the rest is in mission with important administrative intrastate commerce. The company powers in that connection. Like the act neither owns nor operates any other line. of which they are amendatory, these The road was constructed in 1902 to serve paragraphs are expressly restricted to extensive lumber industries, but in subcarriers engaged in transporting persons or property in interstate and foreign sequent years the adjacent timber was recommerce.2 moved and the mills dismantled. The company claims that since 1917 the road has been operated at a loss. Our present concern is with the provisions relating to the abandonment of existing lines. They declare that [214] "no carrier by railroad subject to this act shall abandon all or any portion of a line of railroad, or the operation thereof, unless and until there shall first have been obtained from the Commission a certificate that the present or future public convenience and necessity permit of such abandonment" (18); that when application for such a certificate is received the Commission shall cause notice thereof to be given to the governor of the state wherein the line lies, and published in newspapers of general circulation in each county along the line, and shall accord a hearing to the state and all parties in interest (¶ 19); that the Commission may grant or refuse the certificate, in whole or in part, and impose such terms and conditions as, in its judgment, the public convenience and necessity require; and that when the certificate is issued, and not before, the carrier may, "without securing approval other than such certificate," comply with the terms and conditions imposed, and proceed with the abandonment covered by the certificate (¶ 20). The Eastern Texas Railroad Company, a Texas corporation, owns and operates in operated, or all or any portion of a line of railroad, or the operation thereof, is proposed to be abandoned, with the right to be heard as hereinafter provided with respect to the hearing of complaints or the issuance of securities; and said notice shall also be published for three consecutive weeks in some newspaper of general circulation in each county in or through which said line of railroad is constructed or operated. "(20) The Commission shall have power to issue such certificate as prayed for, or to refuse to issue it, or to issue it for a portion or portions of a line of railroad, or extension thereof, described in the applieation, or for the partial exercise only of such right or privilege, and may attach to the issuance of the certificate such terms and conditions as in its judgment the publie convenience and necessity may require. From and after issuance of such certificate, and not before, the carrier by railroad may, without securing approval other than such certificate, comply with the terms and conditions contained in or attached to the is On June 3, 1920, the company filed with the Commission an application for a certificate authorizing it to abandon and cease operating its road, full notice of the application being regularly given. The state declined to appear before the Commission, but others, who were being served by the road, appeared and opposed the application. A full hearing was had, and, on December 2, 1920, the [215] Commission made and filed a report concluding as follows: "Upon consideration of the record we find that the present public convenience and necessity permit the abandonment of the applicant's line, and we further find that permission to abandon the line should be made subject to the right of interested persons in the community served to purchase the property at a figure not in excess of $50,000. A certificate and order to that effect will be issued." The certificate and order were issued, and the railroad company indicated its assent to the condition imposed, but, so far as appears, no one sought to purchase under the condition. While the application was pending before the Commission, and before the cersuance of such certificate and proceed with the construction, operation, or abandonment covered thereby. Any construction, operation, or abandonment contrary to the provisions of this paragraph or of paragraph (18) or (19) of this section may be enjoined by any court of competent juris diction at the suit of the United States, the Commission, any commission or regulating body of the state or states affected, or any party in interest; and any carrier which, or any director, officer, receiver, operating trustee, lessee, agent, or person, acting for or employed by such carrier, who knowingly authorizes, consents to, or permits any violation of the provisions of this paragraph or of paragraph (18) of this section, shall upon conviction thereof be punished by a fine of not more than $5,000 or by imprisonment for not more than three years, or both." 2 See amended paragraphs (1) and (2) of the Act to Regulate Commerce as set forth in § 400 of the Transportation Act of 1920. tificate was issued, the state brought a suit in one of its courts against the railroad company and some of its officers, to enjoin them from ceasing to operate the road in intrastate commerce. The bill was brought on the theory that, under the laws of the state, the company was obliged to continue the operation of the road in intrastate commerce; that the provisions of the Transportation Act were unconstitutional and void if and in so far as they authorized the abandonment of such a road as respects intrastate commerce, and that the company, in asking the Commission to sanction such an abandonment, was proceeding in disregard of its obligations to the state. At the instance of the defendants the suit was removed to the district court of the United States for the western district of Texas. During the pendency of the suit the Commission issued the certificate, and the defendants then sought the benefit of it by a supplemental answer. The court held that the certificate constituted a complete defense, and, without a hearing on other issues, dismissed the suit. The state appealed directly to this court. That appeal is No. 298. of this interstate and foreign business. The road lies entirely within a single If ¶¶ 18, 19, and 20 be construed as authorizing the Commission to deal with After the Commission granted the cer- the abandonment of such a road as to intificate, the state brought a suit in the trastate as well as interstate and foreign district court of the United States commerce, a serious question of their con[216] for the eastern district of Texas stitutional validity will be unavoidable. against the United States, the railroad If they be given a more restricted concompany, and others, to set aside and struction, their validity will be undoubtannul the Commission's order and cer- ed. Of such a situation this court has tificate on the grounds, first, that said: "Where a statute is susceptible of the provisions of the Transportation two constructions, by one of which grave Act, rightly interpreted, did not afford and doubtful constitutional questions any basis for granting a certificate arise and by the other of which such sanctioning the abandonment of the company's road as respects intrastate commerce, and, secondly, if those provisions purported to authorize such a certificate, they were, to that extent, in excess of the power of Congress, and an encroachment on the reserved powers of the state. The defendants moved to dismiss the bill as ill-founded in point of merits, and the court sustained the motions and entered a decree of dismissal. The state appealed directly to this court. That appeal is No. 563. Counsel attribute to these cases a breadth which they do not have; and for obvious reasons we shall deal with them as they are, not as they might be. Up to the time the Commission made the order granting the certificate, a part of the commerce passing over the road was interstate and foreign; that is, was bound to or from other states and foreign countries. It is not questioned that Congress could, nor that it did, authorize the Commission to sanction a discontinuance questions are avoided, our duty is to adopt Although found in the Transportation uing it against his successor, the suit abates upon his death or retirement from office. [For other cases, see Abatement and Revival, II. c; II. d, in Digest Sup. Ct. 1908.] Parties substitution public officer. successor of 2. The substitution of a successor for regulation of intrastate commerce, save, absence of statutory provision for continsuch as is involved in the rightful exertion of the power of Congress over interstate and foreign commerce. Minnesota Rate Case (Simpson v. Shepard) 230 [218] U. S. 352, 418, 57 L. ed. 1511, 1549, 48 L.R.A.(N.S.) 1151, 33 Sup. Ct. Rep. 729, Ann. Cas. 1916A, 18; Railroad Commission v. Chicago, B. & Q. R. Co. 257 U. S. 563, ante, 371, 42 Sup. Ct. Rep. 232. And had there been a purpose here to depart from the accustomed path, and to deal with intrastate commerce as such, independently of any effect on interstate and foreign commerce, it is but reasonable to believe that that purpose would have been very plainly declared. This was not done. These considerations persuade us that the paragraphs in question should be interpreted and read as not clothing the Commission with any authority over the discontinuance of the purely intrastate business of a road whose situation and ownership, as here, are such that inter-statutes for the substitution of successors 3. No authority exists under Federal state and foreign commerce will not be for state officers sued personally in the Fedburdened or affected by a continuance of eral courts. that business. Whether, apart from the Commission's certificate, the railroad company is entitled to abandon its intrastate business, is not before us, so we have no occasion for considering to what extent the decisions in Brooks-Scanlon Co. v. Railroad Commission, 251 U. S. 396, 64 L. ed. 323, P.U.R.1920C, 579, 40 Sup. Ct. Rep. 183, and Bullock v. Railroad Commission, 254 U. S. 513, 65 L. ed. 380, P.U.R.1921B, 507, 41 Sup. Ct. Rep. 193, may be applicable to this road. As the District Courts both accorded to the Commission's certificate a wider operation and effect than can be given to it consistently with the provisions of ¶¶ 18, 19, and 20, as we interpret them, the decrees must be reversed and the causes remanded for further proceedings in conformity to this opinion. suit against public officer death or retirement from office. 1. A suit to enjoin a public officer from enforcing a statute is personal, and, in the a public officer sued personally is not per- substitution Parties successor of [For other cases, see Parties, IV. in Digest 4. The rule requiring the abatement of personal suits against public officers upon their retirement from office, and forbidding the substitution of their successors, does not apply when they constitute a board having continuing existence, such as an Arizona county board of supervisors, which, under the local law, is vested with very wide and sists of three members, who exercise official varied powers acting as a board, and conduties only as members of the board, a quorum of two being permitted to act, either one or two members being elected every two years, and the retiring members holding until their successors are elected and qualify. [For other cases, suit see Abatement, II. d; Parties, IV. in Digest Sup. Ct. 1903.] Judgment effect of injunction to restrain illegal taxation. 5. The functions of a county board of supervisors under the Arizona laws, not only in respect of the levying of future, assessments, but in the matter of correction and collection of delinquent taxes, are such that an injunction restraining the board from future assessments on certain lands, or from taking any steps to collect the back taxes, would be substantially to secure the relief which the plaintiff seeks by a bill to enjoin future assessments of the lands, collection of the taxes already assessed, or suit to collect the taxes as delinquent or to sell the lands. [For other cases, see Judgment, III. a, 2; Injunction, II. b, in Digest Sup. Ct. 1908.] 1 Vernon S. Wright, present county treasurer, substituted as one of the parties appellees herein in place of Samuel F. Webb, January 24, 1922, on motion of Mr. Patrick H. Loughran in that behalf. Taxes lands. 7. A state may tax public land when the United States has, by final certificate, parted with the equitable title to a person subject to state taxation, and retains only the legal title by its delay in issuing the patent, but not until the equitable title passes can the state tax the entryman, except in the case of mining claims, and in cases in which express authority to tax is given by statute. [For other cases, see Taxes, I. c, 2, b, in Digest Sup. Ct. 1908.] Taxes lands. Federal property public purposes of state taxation, by the provi- [For other cases, see Taxes, I. c, 2, b, in lands. public 10. A homestead entryman on land within the Salt river reclamation project in Maricopa county, Arizona, did not, upon fulfilling all the requirements of the original Homestead Act of May 20, 1862, acquire an equitable title from the United States, 8. Lands in a reclamation project for taxable by the territory of Arizona and its which a patent has issued conveying a fee successor, the state, where a number of imin the lands, subject to a lien of the United portant steps remained to be taken by such States, superior to all others, for future in-entryman in perfecting his claim under the stalments of water rents, are subject to state Reclamation Act of June 17, 1902. Such intaxation. terest was not taxable until final certificate had issued. [For other cases, see Taxes, I. c, 2, b, in Digest Sup. Ct. 1908.] [For other cases, see Taxes, I. c, 2, b, in Digest Sup. Ct. 1908.] [No. 110.] 9. The interest which an entryman has in land in a reclamation project is not put Submitted January 24, 1922. Decided March in the same category as mining claims, for Note.-Abatement of suit or proceed-| ings against public officer by death or retirement from office. There is a sharp conflict of authority, especially in the state courts, as to whether a suit against a public officer abates on his death or retirement from office, although in many cases the conflict is, perhaps, more apparent than real. The actual conflict is as to the nature of the duty sought to be en 20, 1922. Theory that duty is individual—United States Supreme Court rule. The United States Supreme Court has consistently held that, in the absence of statute providing for a continuation against his successor, a suit against a Federal or a state officer abates upon his death or retirement from office, taking the view that such suit is against the officer as an individual. Secretary v. MeGarrahan (Cox v. United States) 9 Wall. 298, 19 L. ed. 579 (mandamus to Secretary of Interior); United States v. Boutwell, 17 Wall. 604, 21 L. ed. 721 (mandamus to Secretary of Treasury); forced. Some courts take the view that it is individual to the officer, and so a suit brought against him cannot be continued against his successor, at least, in United States ex rel. Warden v. Chandthe absence of a statute providing for a substitution of such successor as defend ler, 122 U. S. 643, 30 L. ed. 1244 (manant. Other courts take the view that the damus to Secretary of Navy); Warner duty pertains to the office, and so contin- Valley Stock Co. v. Smith, 165 U. S. 28, ues irrespective of the incumbent. 41 L. ed. 621, 17 Sup. Ct. Rep. 225 Cases that are governed by some par- (mandatory injunction against Seereticular statute are, of course, distin- tary of Interior); United States ex rel. guishable. Where the suit is against a Bernardin v. Butterworth, 169 U. S. 600, board or other body, the authorities are 42 L. ed. 873, 18 Sup. Ct. Rep. 441 practically unanimous, even in those (mandamus to Commissioner of Patjurisdictions that hold to the individual-ents); Chandler v. Dix, 194 U. S. 590, duty view, that the suit does not abate 48 L. ed. 1129, 24 Sup. Ct. Rep. 766 (bill on a change in personnel. to enjoin state auditor general); Rich APPEAL from the District Court of the United States for the District of Arizona to review a decree which dismissed the bill in a suit to enjoin the assessment and collection of taxes on land within a reclamation project. Reversed, with directions to enter a decree in conformity with the opinion. The facts are stated in the opinion. ardson v. McChesney, 218 U. S. 487, 54 L. ed. 1121, 31 Sup. Ct. Rep. 43 (mandamus to state secretary); Pullman Co. v. Croom, 231 U. S. 571, 58 L. ed. 375, 34 Sup. Ct. Rep. 118 (bill to enjoin state comptroller); Pullman Co. v. Knott, 243 U. S. 447, 61 L. ed. 841, 37 Sup. Ct. Rep. 428 (bill to enjoin state comptroller); Shaffer v. Howard, 249 U. S. 200, 63 L. ed. 559, 39 Sup. Ct. Rep. 255 (bill to enjoin state auditor); IRWIN v. WRIGHT. So, a writ directed to the Secretary of the Interior abated by his resignation because he no longer possessed the power to execute the demands of the writ, and his successor could not be adjudged in default, as the judgment was rendered against him without notice or opportunity to be heard. Secretary v. McGarrahan, supra. And a writ of mandamus directed to the Secretary of the Treasury was held, in United States v. Boutwell, 17 Wall. 604, 21 L. ed. 721, supra, to have abated by his retirement from office, so that his successor could not be brought in by way of amendment or substitution. The court said: "But no matter out of what facts or relations the duty has grown, what the law regards and what it seeks to enforce by a writ of mandamus is the personal obligation of the individual to whom it addresses the writ. If he be an officer and the duty be an official one, still the writ is aimed exclusively against him as a person, and he, only, can be punished for disobedience. The writ does not reach the office." So, too, a suit against the Secretary of the Interior and the Commissioner of the General Land Office, seeking a mandatory injunction, abates by the former's resignation of the office, and cannot be maintained against the latter. Warner Valley Stock Co. v. Smith, 165 U. S. 28, 41 L. ed. 621, 17 Sup. Ct. Rep. 225, supra. The court in the Butterworth Case, 169 U. S. 600, 42 L. ed. 873, 18 Sup. Ct. Rep. 441, supra, which held that a suit to compel the Commissioner of Patents to issue a patent abated by the death of the Commissioner, and could not be revived so as to bring in his suc Messrs. Patrick H. Loughran and Ernest W. Lewis submitted the cause for appellant. Messrs. M. J. Dougherty, G. A. Rodgers, and F. H. Swenson were on the brief: By the provisions of the 2d section of the Enabling Act, admitting Arizona into the Federal Union, article IX. of the state Constitution, and § 1, paracessor, although he gave his consent, said: "In view of the inconveniences, of which the present case is a striking instance, occasioned by this state of the law, it would seem desirable that Congress should provide for the difficulty by enacting that, in the case of suits against the heads of departments, abating by death or resignation, it should be lawful for the successor in office to be brought into the case by petition, or some other appropriate method." Accordingly, Congress, its attention being thus called to the matter, passed the Act of February 8, 1899 (30 Stat. at L. 822, chap. 121, Comp. Stat. § 1594, 8 Fed. Stat. Anno. 2d. ed. p. 953), to prevent the abatement of such actions as to Federal officers. This act provides that "no suit, action, or other proceeding lawfully commenced by or against the head of any department or bureau or other officer of the United States, in his official capacity, or in relation to the discharge of his official duties, shall abate by reason of his death, or the expiration of his term of office, or his retirement, or resignation, or removal from office, but, in such event, the court, on motion or supplemental petition filed, at any time within twelve months thereafter, showing a necessity for the survival thereof to obtain a settlement of the questions involved, may allow the same to be maintained by or against his successor in office, and the court may make such order as shall be equitable for the payment of costs." The successor in office of a judge of a territorial court may be substituted in place of his predecessor on appeal from a final judgment denying mandamus to compel the latter to take jurisdiction of an action attempted to be brought in his court, since the case may properly be considered one in which there is a necessity for such action in order to obtain a settlement of the question involved, within the meaning of the Act of 1899. Caledonian Coal Co. v. Baker, 196 U. S. 432, 49 L. ed. 540, 25 Sup. Ct. Rep. 375. But mandamus proceedings against the Secretary of the Treasury will abate when, that officer having resigned his |