White v. Berry, 539

• Decision Date: 31 May 1898
• Docket Number: No. 539,539
• Citation: 18 S.Ct. 917,43 L.Ed. 199,171 U.S. 366
• Parties: WHITE, Collector, et al. v. BERRY
• Court: U.S. Supreme Court

171 U.S. 366

18 S.Ct. 917

43 L.Ed. 199

WHITE, Collector, et al.

v BERRY.

No. 539.

May 31, 1898.

This suit in equity was brought by H. C. Berry, in the circuit court of the United States for the district of West Virginia, against A. B. White, United States collector of internal 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 commencement of this suit he had acted in that capacity at the Hannis Distillery, at Martinsburg, W. Va.;

That he was appointed through the recommendation of E. M. Gilkeson, late collector of internal revn ue for the above-named district;

That he was paid, at the rate of $100 per month, directly from the treasury department, 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 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;

That he had honestly, faithfully, and impartially discharged his duties; being especially well equipped and qualified to discharge 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 Republican;

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 charged 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 commisioner of internal 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;

That rule 2 of section 3 of the civil service rules provides that 'no person in the executive civil service shall dismiss or cause to be dismissed or make any attempt to procure the dismissal of or in any manner change the official rank or position of any other person therein because of his political or religious affiliations,' while section 1 of those rules provides that any person in the executive civil service of the United States who should willfully violate any provision of the civil service act, or of the rules established by the civil service 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 o 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 there were no vacancies created, either by removals or resignations, and there being 15 per cent. now commissioned more than sufficient 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 co-defendants 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.

In conformity with the motion by the plaintiff for a temporary restraining order, it was adjudged, ordered, and decreed 'that A. B. White, United States collector of itnernal revenue for the district of West Virginia, be, and is hereby, restrained, enjoined, and inhibited from recommending, appointing, or aiding in the appointment of, A. L. Hoult, John D. Sutton, Anthony Stroubley, or any other person, to said position, and from removing the said complainant, Berry, aforesaid, until a vacancy therein is created by law, and from assigning and ap- pointing any person to the same position, and from proceeding in the attempt to make such removal, and in any other manner interfere with the said complainant, Berry, in the said office, as aforesaid.' It was further adjudged, ordered, and decreed 'that A. L. Hoult, John D. Sutton, Anthony Stroubley, and all other persons, be, and they are hereby, enjoined and prohibited from acting as gauger in the place and stead of the said complainant, Berry, as aforesaid, or in discharging any of the duties of the said office, until the further order of this court.'

The answer of the defendants states that on the 30th day of September, 1897, the commissioner 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 distillery, and on the 1st day of October, 1897, he took charge as such gauger, and was in charge when defendant White, collector, visited the distillery on that day; that Thayer took charge before 8 o'clock in the morning of October 1st, and before the granting of the injunction, and before any service upon, or other notice of any kind of the granting of or application for the injunt ion to, Thayer, White, or any of the defendants; that the recommendation of defendant White to the commissioner, that the plaintiff be relieved from duty as aforesaid, was made prior to the institution of this suit; that it has been the general policy of the internal revenue bureau 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 officials, and otherwise protecting the interests of the government; that plaintiff having been on duty for a long time prior to the 30th day of September, 1897, as gauger, it was deemed by the commissioner fair and right among the several gaugers, and for the best interests of the public service, to relieve plaintiff from assignment to duty at the Hannis Distillery.

Admitting in their answer that the plaintiff 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...