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fertilizer, a given number being ordered for each purchaser, and the same was shipped in separate parcels, addressed to different purchasers separately, and separate bills sent to each purchaser, there being no intent to evade the statute, the transaction did not come within the inhibition of § 2190, and the goods were not liable to seizure at the instance of the department of agriculture. [360] *Similar laws of other states, regulating the ale of fertilizers, have been sustained on the same ground.

and payment of its cost bring the act into collision with the commercial power vested in Congress? Clearly this cannot be so as to foreign commerce, for clause two of § 10 of article 1 expressly recognizes the validity of state inspection laws, and allows the collection of the amounts necessary for their execution; and we think the same principle must apply to interstate commerce. In any view, the effect on that commerce is indirect and incidental, and "the Constitution of the United States does not secure to any one the privilege of defrauding the public." Decree affirmed.

Mr. Justice Harlan and Mr. Justice

In Steiner v. Ray, 84 Ala. 93, it was held that a statute regulating the sale of commercial fertilizers, when its controlling purpose was to guard the agricultural public against spurious and worthless compounds sometimes White dissented. sold as fertilizers, and to furnish to buyers cheap and reliable means of proving the deception and fraud, should such be attempted, was strictly within the pale of police regulation and was constitutional. And this case was cited with approval in Kirby v. Huntsville Fertilizer & M. Co. 105 Ala. 529, where it was ruled that the sale of coinmercial ferti lizers was void unless each sack, parcel, or package was tagged as required by statute at the time the right of property passed from the vendor to the vendee.

CONSTANTINE J. SMYTH, Attorney General, et al., Constituting the Board of Transportation of Nebraska, Appts.,

v.

OLIVER AMES et al.

SAME
V.

GEORGE SMITH et al.

SAME
v.

HENRY L. HIGGINSON et al.

In Vanmeter v. Spurrier, 94 Ky. 22, an act of Kentucky, "to regulate the sale of fertilizers in this commonwealth, and to protect agriculturists in the purchase and use of the same," was sustained; and it was held that the statute could not be fairly construed to authorize the levy of an impost on interstate commerce beyond what was necessary to in- Decrees modified-reasonableness of ratesspection. The court said: "The statute, as its title indicates, was enacted for protection

2.

(See S. C Reporter's ed. 361-365.)

when to be determined.

these cases, by striking out certain restraining words.

This court did not in its prevous decree pass judgment upon the reasonableness of the rates on any particular article.

of farmers of this commonwealth against 1. The decrees of this court are modified, In fraud and imposition of those having for sale commercial fertilizers. To accomplish that object, each one selling, or offering for sale, any fertilizer is required to submit a sample for analysis and test of its quality at the experimental station. For that purpose only can the fees collected by the director be used, and in that way and to that extent only can farmers of the commonwealth be benefited by the statute. In our opinion the law is valid in every respect."

3.

The reasonableness of a schedule of rates must be determined by the facts as they exist when it is sought to put such rates into opera tion.

[Nos. 49-51.]

Submitted May 9, 1898. Decided May 31, 1898.

In Faircloth v. De Leon, 81 Ga. 158; Goulding Fertilizer Company v. Driver [99 Ga. 623],25 S. E. 922, and other cases, the supreme APPEALS from decrees of the Circuit court of Georgia has held that the seller of Court of the United States for the District of commercial fertilizers, which had not been Nebraska. On application for rehearing and inspected as the law required, could not main-modification of decrees. Decrees in the sextain against the buyer an action for the price; eral cases modified and as modified, affirmed. but in Martin v. Upshur Guano Company, 77 The facts are stated in the opinion. [361]Ga. 257, *that the statute was not applicable See same case, 169 U. S. 466 [42: 819]. where sale and delivery were without the Mr. C. J. Smyth, Attorney General of state. Nebraska, for appellants.

Mr. J. M. Woolworth for appellees.

Mr. Justice Harlan delivered the opinion of the court:

The act of January 21, 1891, must be regarded, then, as an act providing for the inspection of fertilizers and fertilizing materials in order to prevent the practice of imposition on the people of the state, and the charge of These cases were determined in this court 25 cents per ton as intended merely to defray during the present term and are reported in the cost of such inspection. It being compe- NOTE. As to rates, regulation of, by statute, tent for the state to pass laws of this see note to Winchester & L. Turnp. Road Co. v. character. does the requirement of inspection Croxton (Ky.) 33 L. R. A. 177.

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 com-
before us upon an application by the appel-panies may not exact for the transportation
lants the attorney general of Nebraska and
his colleagues constituting the State Board
of Transportation and its secretaries-for a
modification of the decree of the circuit court
in the respective cases.

The decree in Smyth et al. v. Ames et al., No. 49, which this court affirmed, was as follows:

of freight from one point to another within
this state, charges which yield to the said
companies, or either of them, reasonable com-
pensation for such services. It is further or-
dered, adjudged, and decreed, that the de-
fendants, members of the board of transpor-
tation of said state, may hereafter, when the
circumstances have changed so that the rates
fixed in the said act shall yield to the said
companies reasonable compensation for the
services aforesaid, apply to this court by sup-
plemental bill or otherwise, as they may be
advised, for a further order in that behalf. It
is further ordered, adjudged and decreed that[364]
the plaintiffs recover of the said defendants
their costs to be taxed by the clerk."

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The appellants now ask that the decree of the circuit court in that case be modified by striking therefrom the words, "and below those now charged by said companies or either of them or their receivers," and the words "and particularly from reducing its present rates of charges for transportation of freight to those prescribed in said act."

The decree of the circuit court in Smyth et al. v. Smyth et al., No. 50, and the decrce in Smyth et al. v. Higginson et al., No. 51, are substantially the same as the decree in the case of Smyth et al. v. Ames et al. The appellants in Smyth et al. v. Smith et al. now ask that the words in the decree "and below those now charged by said companies or either of them," and the words "and particularly from reducing its present rates of charges for transportation of freight to those prescribed in said act." be stricken out; and the appellants in Smyth et al. v. Higginson et al. ask that the words "and below those now charged by said company," and the words "and particularly from reducing its present rates of charges for transportation of freight to those prescribed by said act," be stricken from the decree in that case.

"That the said railroad companies and each and every of them, and said receivers, be perpetually enjoined and restrained from making or publishing a schedule of rates to be charged by them or any or either of them for the transportation of freight on and over their respective roads in this state from one point to another therein, whereby such rates shall be reduced to those prescribed by the act of the legislature of this state, called in the bill filed therein, 'House Roll 33,' and entitled 'An Act to Regulate Railroads, to Classify Freights, to Fix Reasonable Maximum Rates to be Charged for the Transportation of Freight upon each of the Railroads in the State of Nebraska, and to Provide Penalties for the Violation of this Act,' approved April 12, 1893, and below those now charged by said companies or either of them or their receivers, or in anywise obeying, observing or conforming to the provisions, commands, injunctions and prohibitions of said alleged act; and tha: the board of transpor[363]tation of said state *and the members and secretaries of said board be in like manner perpetually enjoined and restrained from entertaining, hearing or determining any complaint to it against said railway companies or any or either of them or their receivers, for or on account of any act or thing by either of said companies or their receivers, their officers, agents, servants, or employees done, suffered, or omitted, which may be forhidden or commanded by said alleged act, and from instituting or prosecuting or causing 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 genact 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 neccivil 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 also, as an entirety. In this way we ascersaid act. And that a writ of injunction is-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, and de- they were conducting business at the time[365] creed that the act above entitled is repug- the final decrees were rendered, nor that nant to the Constitution of the United the state board of transportation should not

rates

3.

the appointment and removal of public off.
cers. To sustain a suit in equity to restrain
or relieve against proceedings for the removal
of a public officer would invade the domain of
the courts of common law, or of the executive
and administrative departments of the gov

ernment.

A court of equity ought not to assume to
control the discretion which under existing
statutes the executive department has to as
sign some one to duty as gauger at a distil-
lery in the place of the plaintiff, although
that does not work the removal of the latter
from office.

4. Proceedings for the removal from office of a
United States gauger, although in violation
of law, cannot be restrained by a court of the
United States, sitting in equity.

[No. 539.]

reduce rates on specific or particular articles
below the rates which the companies were
charging on such articles when the decrees
were entered. It may well be that on some par-
ticular article the railroad companies may
deem it wise to make a reduction of the rate,
and it may be that the public interests will
justify the state board of transportation in
ordering such reduction. We have not laid
down any cast-iron rule covering each and
every separate rate. We only adjudged that
the enforcement of the schedules of rates es-
tablished by the state statute, looking at
such rates as a whole, would deprive the rail-
road companies of the compensation they
were legally entitled to receive. We did not
pass judgment upon the reasonable-
ness or unreasonableness of the
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
board of transportation, prescribe a new
schedule of rates, covering substantially all
articles, and which would materially reduce
those charged by the companies respectively,
or should by a reduction of rates on a lim-
ited number of articles make its schedule of
rates as a whole, produce the same result,
the question will arise whether such
rates, taking into consideration the rights of
the public as well as the rights of carriers,
are consistent with the principles announced
by this court in the opinion heretofore de-
livered. Of course, the reasonableness of a
schedule of rates must be determined by the
facts as they exist when it is sought to put
such rates into operation.

The decrees in the several cases are hereby modified by striking therefrom the words re

ferred to in the application of the appellants. The decree in each case being thus modified is affirmed.

31, 1898.

APPEAL from a decree of the Circuit

Court of the United States for the District of
West Virginia restraining the defendants, A.
B. White, collector, etc., et al., from inter-
fering with the plaintiff, H. C. Berry, in his
office and in the discharge of his duties as
gauger at the Hannis distillery at Martins-
burg, West Virginia, and to permit him to
discharge the duties of his office, etc. Re-
versed, and cause remanded with direction to

dismiss the suit.

Statement by Mr. Justice Harlan:

Berry in the circuit court of the United States
This suit in equity was brought by H. C.
B. White, United States collector of internal
for the district of West Virginia against A.

revenue for that district, A. L. Hoult, John

D. Sutton, Anthony Staubley, and Franklin

T. Thayer.

The bill alleged that in 1893 the plaintiff, Berry, was duly appointed by the Secretary of the Treasury to the position of United States gauger, and from that time to the com

[366]A. B. WHITE, Collector of Internal Revenue for the District of West Virginia, et al.,mencement of this suit he had acted in that Appts.,

0.

H. C. BERRY.

(See S. C. Reporter's ed. 366-378.)

Distinction between common law and equity -equity jurisdiction over removal of pub lic officers-distillery gauger-removal from office.

1. Under the Constitution and laws of the United States the distinction between com

mon law and equity, as existing in England

at the time of the separation of the two coun tries, is maintained, although both jurisdic

tions are vested in the same courts. 2. A court of equity has no jurisdiction over

NOTE. As to equity jurisdiction after trial at law, see note to Smith v. M'Iver, 6: 152.

As to chat remedy at law will prevent remedy in equity, see note to Tyler v. Savage, 86: 83.

capacity at the Hannis distillery at Martins-
burg. West Virginia;

That he was appointed through the recom
mendation of E. M. Gilkeson, late collector
of internal revenue for the above-named dis-
trict;

That he was paid at the rate of $100 per month directly from the Treasury Depart ment, and was an officer of the United States government, having taken the required oath of office and executed bond as required by law;

*That his oath of office and bond continued[367] good and in force regardless of the personnel of the collector of internal revenue, and he did not hold his position at the discretion of that officer;

As to right to remove officers summarily; particular oficers; particular provisions; implications; where term of office is fixed; remov als for cause; nature of proceeding, see note to Trainor v. Wayne County Auditors (Mich.)

As to when injunction to restrain acts of pub-15 L. R. A. 95. lic officers will be granted, see note to Missis

sippi v. Johnson, 18: 437.

199

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 office;

That the defendant White, collector of internal revenue, had declared his intention to appoint a gauger and three storekeepers to fill the place of the plaintiff and others employed at the distillery at an early date;

That the defendants Hoult, Sutton, Staubley, and Thayer had been reinstated, or would be appointed and commissioned, and one of them would be assigned to duty in place of the plaintiff at the Hannis distillery through White, who had openly declared his intention to reinstate the defendants in place of the plaintiff and others;

That the plaintiff is a Democrat in politics, was assigned to said office as a Democrat, and had voted the ticket of that political party, while the defendant White was a Republi

can;

That White had declared his intention to place one of the other four defendants in plaintiff's position because of the latter's political affiliation, and for no other reason, and to appoint and recommend Republicans to fill such places for no other reason than that they were of that political faith;

That the plaintiff's office is in the classified service, and belongs to what is known as the Civil Service, and as such he could not be removed, except for cause shown and proved; That by a circular issued by the Secretary of the Treasury it was provided that no removals should be made from any position subject to competitive examination except upon just cause and upon written charges filed with the head of the department or the appointing officer, of which the accused should have full notice and opportunity to make defense;

That in department circular No. 119, which was an executive order, the same provisions were made, together with others, and were signed by the Acting Commissioner of Inter[368]nal Revenue and approved by the Secretary of the Treasury;

That the plaintiff was one of the employees of the Treasury Department, was included in the classified service, and was protected from removal for political or religious reasons under the Civil Service laws and rules of the United States, as fully appears from a communication received from the acting president of the Civil Service Commission of date September 10, 1897;

That if the defendant White be permitted to remove the plaintiff from his office and position or supplant him by others, the same would be illegal and in violation of law;

Commission should be dismissed from office; That under the law the plaintiff had a vested interest in his office, and if White should remove him therefrom or assist in so doing it would be in violation not only of the Civil Service rules but of the plaintiff's vested interest in his office, for which he would not have an adequate remedy at law;

That he is able, competent, and willing to discharge the duties of his office, and is unwilling to be summarily dismissed therefrom for no other reason than that he is of opposite politics to those of the defendant White, collector of internal revenue;

That the said collector has no power, right, or authority to remove the plaintiff from his office, or to appoint any other to take his place and thereby effect his removal; that the defendants Hoult, Sutton, Staubley, and Thayer have no right or authority to take the oath of office and otherwise qualify and appear to take the position, and thereby assist in the removal of the plaintiff, and as[369) there were no vacancies created either by removals or resignations, and there being 15 per cent now commissioned more than suffi cient to perform the duties of storekeepers and gaugers in that district, if they were permitted so to do it would be in violation of law as well as of the rights and vested interests of the plaintiff; and,

That unless White be enjoined from so doing he will remove the plaintiff, and unless his codefendants are enjoined from qualifying as officers of the United States to take the place of the plaintiff at the distillery they would in that manner effect the removal of the plaintiff from his office, they having expressed their intention to accept such appointment and assignments.

The relief asked was an injunction restraining and prohibiting the defendant White, collector, and all others by and through him, "from removing him from the position of gauger until a vacancy is created according to law, as an officer of the United States aforesaid, and also from recommending, assigning, and appointing any person to the same position, and from proceeding in the attempt to make such removal, and in any other manner interfering with your complainant;" and also, that Hoult, Sutton, Staubley, and Thayer and all other persons be enjoined, restrained, and prohibited "from qualifying as gauger to take the place of your complainant at said distillery, or in any other way aid or assist in the removal of your said orator, or performing or discharging any of the duties of said office," and for such other and general relief as to equity might seem just and right.

That rule 2 of § 3 of the Civil Service rules 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 Vir therein 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. L.

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 insaid, until a vacancy therein is created by tention to appoint any one of the other delaw, 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 duties of the said office, until the further order of this court."

Service Commission; and that Hoult, Sutton, Staubley, and Thayer had all been duly commissioned and executed bonds and qualified prior to the institution of this suit; and that

tion to reinstate any of said officers or assign them to duty in the place or the plaintiff, recognizing fully that he had no such authority, and that neither Hoult nor Staubley had been assigned to duty since their reinstatement.

The defendants alleged that the revocation of assignment complained of by the plaintiff was made by the Commissioner, whom the defendants understood was a Democrat.

The answer of the defendants states that on the 30th day of September, 1897, the Com-defendant White never declared his intenmissioner of Internal Revenue made an order relieving plaintiff from assignment to duty as gauger at the Hannis distillery, and on the same day telegraphed the plaintiff to that effect; that on the same day the commissioner telegraphed defendant Thayer, assigning 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 sigited 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 *storekee] [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 and gaugers for the purpose of securing to such storekeepers and gaugers a fair proportion of employment and for the purpose of 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 fied 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 appointed and commissioned, and that he did not hold his position at the discretion of the collector of internal revenue, the defendant White denied that the plaintiff was well equipped and qualified to discharge all the duties of gauger, but that from the records of his office and of the department for the previous three months, during which he has been collector, the plaintiff was not a firstclass gauger, and was culpably careless in his work, and that it was largely because of information he had received that defendant White recommended to the commissioner that

time by the Commissioner of Internal Revenue; that the plaintiff could not in this manner question the right of the commissioner to assign a United States gauger at a distillery or relieve one who has already been assigned; that the Commissioner had the right to assign to duty a United States gauger, and to determine how long he shall remain on duty under such assignment; and that no law, executive order, or rule or regulation of the Civil Service Commission was violated by the commissioner doing as he had done in this case in exercising the authority conferred upon him by the acts of Congress by assigning

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