Elliott v. White

• Decision Date: 09 January 1928
• Docket Number: No. 4552.,4552.
• Citation: 23 F.2d 997
• Parties: ELLIOTT v. WHITE, U. S. Treasurer.
• Court: U.S. Court of Appeals — District of Columbia Circuit

23 F.2d 997 (1928)

ELLIOTT v. WHITE, U. S. Treasurer.

No. 4552.

Court of Appeals of District of Columbia.

Submitted December 6, 1927.

Decided January 9, 1928.

Marx Lewis, of Washington, D. C., for appellant.

Peyton Gordon, L. A. Rover, and Neil Burkinshaw, all of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

ROBB, Associate Justice.

Appeal from a decree in the Supreme Court of the District of Columbia, dismissing appellant's bill for an injunction to prohibit the appellee, as Treasurer of the United States, from disbursing funds of the United States appropriated for salaries of the chaplains of the Senate and House of Representatives and of the army and navy of the United States.

It is the contention of appellant that the employment of such chaplains "constitutes the promotion of religious views and the establishment of religious and sectarian institutions, and as such are in violation of Amendment 1 of the Constitution of the United States."

This case is ruled by Frothingham v. Mellon, 262 U. S. 447, 43 S. Ct. 597, 67 L. Ed. 1078. There it was held that Mrs. Frothingham was without standing, as a mere taxpayer, to restrain the enforcement of the "Maternity Act" of November 23, 1921. 42 Stat. 224 (42 USCA § 161 et seq.; Comp. St. § 9188½ et seq.). Appellant's contention that he brings this suit as a citizen, and not as taxpayer, is without merit, for two reasons: First, Mrs. Frothingham alleged in her bill that she was a citizen of the United States, as well as a taxpayer; and, second, the interest of a citizen in such a suit is no more direct than that of a taxpayer. As the court observed in the Frothingham Case: "We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. * * * If a case for preventive relief be presented, the court enjoins, in effect, not the execution of the statute, but the acts of the official, the statute notwithstanding. Here the parties plaintiff have no such case. Looking through forms of words to the substance of their complaint, it is merely that officials of the executive department of the government are executing and will execute an act of Congress asserted to be unconstitutional, and this we are asked to prevent. To do so would be not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and coequal department, an authority which plainly we do not...