a gauger to duty at the said distillery and relieving from duty the plaintiff, who had been theretofore assigned to duty at the same distillery by the commissioner and by the same act of Congress. The defendants admitted that the plaintiff was willing to continue in office, but the defendant White charged that he was a careless officer, and that if any attempt was or should be made to remove or dismiss him from the service, it would not be for the reason that he was of opposite politics to those of the collector. The answer concludes: misconduct of his; that during the late war[374] of the Rebellion he served in the military service of the United States, and was honorably discharged therefrom; that availing himself of rule 9 of the Civil Service regulations, he made application to the Secretary of the Treasury to be reinstated to the position from which he had been removed; that defendants are informed that said petition, together with the requisition of the proper officer of the Treasury Department, were referred to the | Civil Service Commission, and his eligibility having been properly certified by said commission, 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]never has claimed any such authority. The Revenue. The defendants insist that in makdefendants say that the defendants Hoult, ing said appointment or reinstatement the Sutton, Staubley, and Thayer, having been Secretary of the Treasury acted in strict conduly appointed to the positions respectively 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 herein before 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 per cent or any other number of officers are now in commission more than are sufficient to perform the duties of storekeepers or gaugers in this collection district. This court, it is respectfully suggested, will not undertake to ascertain the number of distilleries in operation and to be placed in operation in said collection 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 affidavits 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 office and in the more storekeepers and gaugers were placed in discharge of his duty as gauger at the Hannis commission than were sufficient 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 defendant ing applied heretofore to the court for leave 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 unend and the Commissioner of Internal Revchange of administration, he was removed enue to transfer the temporary gauger herefrom said position through no delinquency or tofore assigned, and to permit the said gauger Hoult was on the Staubley, and Thayer were not made by the Secretary of the Treasury for political reasons, nor was the plaintiff relieved from duty as aforesaid at the Hannis distillery by the Commissioner of Internal Revenue for political reasons, nor the said Thayer assigned to duty at the said distillery for political reasons." Berry undisturbed to discharge the duties of his office as gauger, unless hereafter removed as hereinbefore provided." Messrs. James E. Boyd, Assistant Attorney General, and Joseph H. Gaines for appellants. Mr. Charles J. Faulkner for appellee. Mr. Justice Harlan delivered the opinion of the court: would invade the domain of the courts of com- After referring to numerous authorities, American and English, in support of the general proposition that a court of chancery had no power to restrain criminal proceedings, unless they had been instituted by a party to a suit already pending *before it, and to try the[377] same right that was in issue there, the court proceeded: "It is equally well settled that a In the opinion delivered by the learned dis- court of equity has no jurisdiction over the trict judge, who heard this and other cases appointment and removal of public officers, involving the same questions as those now whether the power of removal is vested, as presented, it was held: 1. That the act known well as that of appointment, in executive or as the "Civil Service act" was constitutional. administrative boards or officers, or is in2. That Congress has not delegated to the trusted to a judicial tribunal. The jurisdic President and the commission legislative pow-tion to determine the title to a public office ers. 3. That by rule 3, § 1, the internal rev-belongs exclusively to the courts of law, and enue service has been placed under the Civil is exercised either by certiorari, error or apService act and rules made in pursuance of peal, or by mandamus, prohibition, quo warit. 4. That the plaintiffs in these actions are ranto, or information in the nature of a writ officers of the government in the internal of quo warranto, according to the circumrevenue service. 5. That they cannot be re- stances of the case, and the mode of procedmoved from their positions except for causes ure established by common law or by statute. other than political, in which event their re- No English case has been found of a bill for moval must be made under the terms and an injunction to restrain the appointment or provisions of the Civil Service act and the removal of a municipal officer. But an an[376 rules promulgated under it, *which, under the formation in the court of chancery for the act of Congress, became a part of the law. regulation of Harrow School within its un6. That the attempt to change the position doubted jurisdiction over public charities was and rank of the officers in these cases was in dismissed so far as it sought a removal of gov violation of law. 7. That a court of equity ernors unlawfully elected, Sir William Grant has jurisdiction to restrain the appointing saying: This court, I apprehend, has no jupower from removing the officers from their risdiction with regard either to the election or positions if such removals are in violation of amotion of corporators of any description.' the Civil Service act. 83 Fed. Rep. 578. Attorney General. Earl Clarendon, 17 On behalf of the government it is insisted Ves. Jr. 491. In the courts of the several that the circuit court of the United States, states the power of a court of equity to resitting in equity, was without jurisdiction strain by injunction the removal of a munito entertain this suit and to grant the relief cipal officer has been denied in many wellasked in the bill. If this position be well considered cases,"-citing Tappan v. Gray, 3 taken, it will be unnecessary to consider the Edw. Ch. 450, reversed by Chancellor Walother questions discussed in the able and elaborate opinion of the district judge. In Sawyer's Case, 124 U. S. 200, 223 [31: 402, 410], Chief Justice Waite in a dissenting opinion said that he was not prepared to hold that an oflicer of a municipal government could not, under any circumstances, apply to a court of chancery to restrain the municipal authorities from proceeding to remove him from his office without authority of law; that there might be cases when the tardy remedies of quo warranto, certiorari, and other like writs would be entirely inadequate. In that view of the jurisdiction of equity the writer of this opinion concurred at the time the court disposed of that case But the court in its opinion in that case observed that under the Constitution and laws of the United States the distinction between common law and equity, as existing in England at the time of the separation of the two countries, had been maintained, although both jurisdictions were vested in the same courts, and held that a court of equity had no jurisdiction over the appointment and re moval of public officers, and that to sustain a bill in equity to restrain or relieve against proceedings for the removal of public officers worth on appeal, 9 Paige, 507, 509, 512, whose The rule established in Sawyer's Case was If the assignment of some one to duty as gauger at the Hannis distillery, in the place of the plaintiff, did not work his removal from office, a court of equity ought not to assume to control the discretion which under existing statutes the executive department has in all such matters. Interference by the judicial department in such cases would lead to the utmost confusion in the management of executive affairs. But the plaintiff contends that the assignment of some one to duty in his place at the Hannis distillery is, in effect, a removal of him from his office in violation of law, and that the object of the proceedings against him was to bring about that result. But, under the authorities cited, such proceedings cannot be restrained by a court of the United States, sitting in equity, and therefore the court below erred in passing the final decree which has been brought here for review. Without expressing any opinion upon other questions so fully discussed by counsel, we hold that the circuit court, sitting in equity, was without jurisdiction to grant the relief asked. The decree below is reversed and the cause remanded with direction to dismiss the bill. Reversed. Mr. Justice Harlan delivered the opinion of the court: Butler, the appellee in the first of the above cases, was a storekeeper of the United States at the Hannis distillery at Martinsburg, West Virginia. Ruckman, the appellee in the second case, For the reasons stated in the opinion just GEORGE THOMPSON, Piff. in Err., v. STATE OF MISSOURI. (See S. C. Reporter's ed. 380–388.) 1. The Missouri statute of 1895 allowing a com 2. Such statute is one merely regulating pro- [No. 623.] 2. White v. Berry, 171 U. S. 366 [ante, 199], Submitted April 21, 1898. [Nos. 540, 541.] followed. Argued March 21, 22, 1898. Decided May 31, 1898. APPEALS from decrees of the Circuit Court of the United States for the District of West Virginia restraining A. B. White, collector, etc., et al., from interfering with the several plaintiffs, William Butler and J. C. Ruckman, in the possession of their offices and in the discharge of their duties at the Hannisville distillery, etc. The decree in each case reversed, and the causes remanded with directions to dismiss the bills. The facts are stated in the opinion. Messrs. James E. Boyd, Assistant Attorney General, and Joseph H. Gaines for appellants. 1898. Decided May 31, IN ERROR to the Supreme Court of the The facts are stated in the opinion. It was error to admit in evidence for the NOTE. As to proof of handwriting or signa- Mr. Charles J. Faulkner for appellees. v. Crowninshield, 4:529. [380] the said act was passed after the arrest, in- | charged, he prosecuted an appeal to the sudictment, aud first trial of defendant and is preme court of Missouri, and by that court in violation of art. 1, § 10, Constitution the judgment was reversed and a new trial United States. Calder v. Bull, 3 Dall. 386 (1: 648); Kring v. Missouri, 107 U. S. 221 (27: 506); State v. Bond, 49 N. C. (4 Jones L.) 9; State v. Johnson, 12 Minn. 486, 92 Am. Dec. 241; Story, Const. § 1345; Cooley, Const. Lim. pp. 319, 325; 1 Bl. Com. 88 45. 46; Kent, Com. p. 458; Miller, Const. p. 587; Hare, Am. Const. L. p. 565; Black, Constitutional Prohibitions, §§ 234 et seq. It was error to admit in evidence for the purpose of comparison certain extraneous handwritings, under § 8944a, Sessions Laws of Missouri 1895, because in violation of art. 2, § 15, Constitution of Missouri, and in violation of §§ 6594, 6597, 6598, Revised Statutes of Missouri 1889. State v. Thompson, 141 Mo. 408; Pacific R. Co. v. Cass County, 53 Mo. 17; St. Louis v. Life Asso. of America, 53 Mo. 466; State v. Grant, 79 Mo. 113, 49 Am. Rep. 218. Mr. Edward C. Crow, Attorney General | of Missouri, for defendant in error: The law of 1895 (see Acts of Mo. 1895, p. 284), making the notes written by defendant while in jail and proved to be genuine and competent for the purpose of comparison with the disputed writing, to wit: the forged order to the druggist for strychnine, is not an ex post facto law in its relation to this case. State v.Thompson, 141 Mo. 408; Hopt v. Utah, 110 U. S. 574 (28:262) ; O'Bryar v. Allen, 108 Mo. 227; State v. Jackson, 80 Mo. 175, 50 Am. Rep. 499; Cooley, Const. Lim. 3d ed. 367; Hope Mut. Ins. Co. v. Flynn, 38 Mo. 483, 90 Am. Dec. 438; State v. Thompson, 132 Mo. 301. This law of 1895 relates solely to the procedure, and the rule is that remedies and procedure must always be under the control of the legislature. was ordered. State v. Thompson, Appellant, The evidence against the accused was entirely circumstantial in its nature. One of the issues of fact was as to the authorship of a certain prescription for strychnine, and of a certain letter addressed to the organist of the church containing threatening language about the sexton. The theory of the prosecution was that the accused had obtained the strychnine specified in the prescription and put it into food that he delivered or caused to be delivered to the deceased, with intent to destroy his life. The accused denied that he wrote either the prescription or the letter to the organist or that he had any connection with either of those writings. At the first trial certain letters written by him to his wife were admitted in evidence for the purpose of comparing them with the writing in the prescription and with the letter to the organist. The supreme court of the state, upon the first appeal, held that it was error to admit in evidence for purposes of comparison the letters written by Thompson to his wife, and for that error the first judgment was reversed and a new trial ordered. 132 Mo. 301, 324. Subsequently, the general assembly of Missouri passed an act which became operative in July, 1895, providing that "comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses, and such writings and the evidence of witnesses respecting the same may Laws which change the rules of evidence be submitted to the court and jury as evirelate to the remedy only, and may be ap-dence of the genuineness or otherwise of the plied to existing causes of action without infringing the constitutional guarantees against "ex post facto" legislation. Cooley, Const. Lim. 5th ed. p. 329. O'Bryan v. Allen, 108 Mo. 227; Laughlin v. Com. 13 Bush, 261; Messim v. McCray, 113 Mo. 382; Mrous v. State, 31 Tex. Crim. Rep. 597. Mr. Justice Harlan delivered the opinion of the court: The record suggests many questions of law, but the only one that may be considered by this court is whether the proceedings against the plaintiff in error were consistent with the provision in the Constitution of the United States forbidding the states from passing ex post facto laws. writing in dispute." Laws Mo. 1895, p. 284. This statute is in the very words of § 27 of the English common-law procedure act of 1854 (17 & 18 Vict. chap. 125). And by the 28 Vict. chap. 18, §§ 1, 8, the provisions of that act were extended to criminal cases. At the second trial, which occurred in 1896, the letters written by the accused to his wife were again admitted in evidence, over his objection, for the purpose of comparing them with the order for strychnine and the letter to the organist. This action of the[382] trial court was based upon the above statute of 1895. The contention of the accused is that as the letters to his wife were not, at the time of the commission of the alleged offense, admissible in evidence for the purpose of comparing them with other writings charged to be in his handwriting, the subsequent statute of Missouri changing this rule of evidence was es Thompson was indicted in the St. Louis criminal court at its November term, 1894, for the murder, in the first degree, of one Joseph M. Cunningham, a sexton at one of the churches in the city of St. Louis. Hav-post facto when applied to his case. ing been tried and convicted of the offense It is not to be denied that the position of the accused finds apparent support in the general language used in some opinions. Mr. Justice Chase, in his classification of ex post facto laws in Calder v. Bull, 3 Dall. 386, 390 [1:648,650] includes "every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the of fender." ex post facto legislation, because, in the use of a modern phrase, it is called a law of procedure? We think it cannot." In conclusion it was said: "Tested by these criteria, the provision of the Constitution of Missouri which denies to plaintiff in error the benefit which the previous law gave him of acquittal of the charge of murder in the first degree on conviction of murder in the second degree, is, as to his case, an ex post facto law within the meaning of the Constitution of the United States." A careful examination of the opinion in Kring v. Missouri shows that the judgment In Kring v. Missouri, 107 U. S. 221, 228, 232, 235 [27:506.509,510,511], the question arose as to the validity of a statute of Missouri under which the accused was found guilty of the crime of murder in the first de-in that case proceeded on the ground that the gree and sentenced to be hung. That case change in the law of Missouri as to the effect was tried several times, and was three times of a conviction of murder in the second dein the supreme court of the state. At the gree-the accused being charged with murder trial immediately preceding the last one Kring in the first degree-was not simply a change was allowed to plead guilty of murder in the in procedure, but such an alteration of the second degree. The plea was accepted, and he previous law as took from the accused, after was sentenced to imprisonment in the pen-conviction of murder in the second degree, itentiary for the term of twenty-five years. that protection against punishment for murHaving understood that, upon this plea, he der *in the first degree which was given him[384) was to be sentenced to imprisonment for only at the time of the commission of the offense. ten years, he prosecuted an appeal, which re- The right to such protection was deemed a sulted in a reversal of the judgment. At the substantial one-indeed, it constituted a comlast trial the court set aside the plea of plete defense against the charge of murder in guilty of murder in the second degree-the the first degree that could not be taken accused having refused to withdraw it-and, from the accused by subsequent legislation. against his objection, ordered a plea of notThis is clear from the statement in ring's guilty to be entered in his behalf. Under the latter plea he was tried, convicted, and sentenced to be hanged. By the law of Missouri at the time of the commission of Kring's of fense, his conviction and sentence under the plea of guilty of murder in the second degree was an absolute acquittal of the charge of This general subject was considered in murder in the first degree. But that law Hopt v. Utah, 110 U. S. 574, 588. 589 [28: having been changed before the final trial oc- 262, 268]. Hopt was indicted, tried, and concurred, Kring contended that the last stat-victed of murder in the territory of Utah, [383]ute, *if applied to his case, would be within the punishment therefor being death. At the prohibition of ex post facto laws. And the time of the commission of the offense it that view was sustained by this court, four was the law of Utah that no person conof its members dissenting. victed of a felony could be a witness in a criminal case. After the date of the alleged offense, and prior to the trial of the case, an act was passed removing the disqualification as witnesses of persons who have been convicted of felonies. And the point was made that the statute, in its application to Hopt's case, was er post facto. In the opinion of the court in Kring's Case reference was made to the opinion of Mr. Justice Chase in Calder v. Bull, and also to the charge of the court to the jury in United States v. Hall, 2 Wash. C. C. 366, 373. In the latter case Mr. Justice Washington said: "An ex post facto law is one which, in its operation, makes that criminal or penal which was not so at the time the action was performed; or which increases the punishment; or, in short, which, in relation to the offense or its consequences, alters the situation of a party to his disadvantage." He added: "If the enforcing law applies to this case, there can be no doubt that, so far as it takes away or impairs the defense which the law had provided the defendant at the time when the condition of this bond became forfeited, it is ex post facto and inoperative." Considering the suggestion that the Missouri statute under which Kring was convicted only regulated procedure, Mr. Justice Miller, speaking for this court, said: "Can any substantial right which the law gave the defendant at the time to which his guilt relates be taken away from him by Case that the question before the court was whether the statute of Missouri deprived "the defendant of any right of defense which the law gave him when the act was committed so that as to that offense it is ex post facto." This court said: "The provision of the Constitution which prohibits the states from passing ex post facto laws was examined in Kring v. Missouri, 107 U. S. 221 [27:506]. The whole subject was there fully and carefully considered. The court, in view of the adjudged cases, as well as upon principle, held that a provision of the Constitution of Missouri denying to the prisoner, charged with murder in the first degree, the benefit of the law as it was at the commission of the offense-under which a conviction of murder in the second degree was an acquittal of murder in the first degree, even though such judgment of conviction was subsequently reversed-was in conflict with the Constitution of the United States. That decision proceeded upon the ground that the state Constitution deprived the accused of a substantial right |