# White v. Berry

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United States Supreme Court
171 U.S. 366
White v. Berry
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 appointing 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 from the records of his office and of the department for the previous three months, during which he had been collector, the plaintiff was not a first-class 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 the plaintiff be relieved from duty as gauger at that distillery; that the defendant White, as collector, had never declared his intention to appoint any one of the other defendants, or any one else, a storekeeper or gauger, knowing full well, and recognizing the fact, that storekeepers and gaugers are and can be appointed by the secretary of the treasury only; that the secretary of the treasury reinstated Hoult as gauger. Staubley as storekeeper, and Thayer as gauger, in 1897, in accordance with the laws of the United States, and in accordance with the civil service law, each having first been certified as eligible to such reinstatement by the civil 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 defendant White never declared his intention to reinstate any of said officers, or assign them to duty in the place of 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 defendant White admitted that he was a Republican in polities, and the defendants admitted that the plaintiff was a Democrat in politics. White denied that he ever signified or declared his intention to remove the plaintiff from office, or put the defendants or any one else in his place, for the reason that the plaintiff was a Democrat in politics, and for no other reason to appoint or recommend in his stead a Republican; that in fact and in law he could have nothing to do with the removal or appointment of a storekeeper or a gauger, unless it be to recommend the same; that, in short, the appointments of storekeepers and gaugers, and their removals, could be made only by the secretary of the treasury.
The defendants alleged that the revocation of assignment complained of by the plaintiff was made by the commissioner, who the defendants understood was a Democrat.
The defendants admitted that the office of gauger, held by the plaintiff, was in the classified service, and belonged to what was known as the 'Civil Service,' but alleged that, so far as they knew, the plaintiff had not been removed, but, on the contrary, still held the position of United States gauger; that the fact that he had been relieved from assignment to duty at the Hannis Distillery did not remove him from office; that he might be assigned to duty or transferred or nonassigned at any i me 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 assignmnet; 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 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:
'Replying to allegation No. 13 in plaintiff's bill, the defendants again say that the defendant White claims no right or authority to remove the said plaintiff from office, or to appoint any one in his place, and that he never has claimed any such authority. The defendants say that the defendants Hoult, Sutton, Staubley, and Thayer, having been duly appointed to the positions respectively held by each of them by the secretary of the treasury, that the right to hold said positions cannot be questioned in this or any other collateral proceeding; that the question of whether there were or were not vacancies at the time these appointments were made cannot be determined in this suit. Neither of said defendants Hoult, Sutton, Staubley, or Thayer was appointed in place of the plaintiff. The appointment of neither could affect the plaintiff, and whether the secretary of the treasury has more of these officers in commission than he is entitled to have under the law is not a question which can be raised by the plaintiff in this suit. It cannot be ascertained 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 storekeepers and gaugers to be placed on duty at such distilleries. It is submitted that these are questions to be determined by the treasury department, and must be supposed to have been determined before such appointments were made, and the appointments made in conformity to the interests and requirements of the public service. Defendants therefore deny that by the appointment of the defendants Hoult, Sutton, Staubley, and Thayer, more storekeepers and gaugers were placed in commission than were sufficient to perform the duties of such officers in said district.
'The defendants deny that the appointment and qualification of said Hoult, Sutton, Staubley, and Thayer will make necessary the removal of the plaintiff. The defendants, further answering, say that the defendant Hoult was on the ___ day of _____, 1889, appointed a United States gauger; that on the ___ day of _____, 1893, after having served about four years, and there having been a change of administration, he was removed from said position, through no delinquency or misconduct of his; that during the late war 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 h ich he had been removed; that defendants are informed that said petition, together with the requisition of the proper officer of the treasury department, was referred to the civil service commission, and, his eligibility having been properly certified by said commission, he was reinstated and reappointed by the secretary of the treasury. Said petition was originally filed with E. M. Gilkeson, late collector of internal revenue, and, together with the recommendation of said collector, forwarded to the commissioner of internal revenue. The defendants insist that in making said appointment or reinstatement the secretary of the treasury acted in strict conformity with the acts of congress, and the rules and regulations of the civil service commission. The defendants Sutton, Staubley, and Thayer were similarly reinstated and reappointed as storekeepers and gauger. The defendant A. B. White says that the recommendation made by him to the commissioner of internal revenue relative to the plaintiff was made prior to or on the 29th day of September, 1897, and the said recommendation was made in part because the said plaintiff had been on duty for some time, and in part for the reasons hereinbefore stated. Said defendants further say that they believe and charge that the reinstatement and appointment of said defendants Hoult, Sutton, 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.'
The cause having been heard upon the bill, the demurrer to the bill, the answer, and a general replication thereto, the affidavits filed by the parties, and upon the plaintiffs' motion to perpetuate the injunction theretofore granted, a final order was made, 'restraining and inhibiting the defendant White, the collector of the district, the appointing power, the defendant Thayer, and all others, from in any wise interfering with the plaintiff, H. C. Berry, in the possession of his office and in the discharge of his duty as gauger at the Hannis Distillery, located in the town of Martinsburg, W. Va., until he shall be removed therefrom by proper proceedings had under the civil service act, and the rules and regulations made thereunder, or by judicial proceedings at law; and, the said collector having applied heretofore to the court for leave to the commissioner to appoint temporarily a gauger pending this litigation, he, the said collector, is required and directed to recommend, and the commissioner of internal revenue to transfer, the temporary gauger heretofore assigned, and to permit the said gauger, Berry, undisturbed to discharge the duties of his office as gauger, unless hereafter removed as hereinbefore provided.'
Asst. Atty. Gen. Boyd and Joseph H. Gaines, for appellants.
Charles J. Faulkner, for appellee.
Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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