Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1897-11-17
JUDGE JACKSON'S OPINION
10 The Case of Butler, Berry and Ruck-
man VS.. A. B. White,
In Which the Collector is Perpet-
ually Enjoined from Removing
Plaintiffs from Ofhce-A Sum-
mary Of a Very Interesting and
Valuable Judicial Conclusion.

Derry and l. G. Ruckman from office,
and we have no hesitation in pronounc-
ing it one of the strongest and most
learned opinions ever handed down by
any judge in this State. The opinion
is very long, making about eight col
umns of the Register print, and it is
therefore impossible to give it in full,
but below will be found extracts from
the document which will show its gen,
eral tenor, and the forcible reasons
brought to bear.
After stating the object and purpose
of the bills of plaintiffs, and the fact
of the commissioning Of plaintiffs and
their assignment to duty, the Court
says:
THE demurrers to the bills in these
cases raise fourteen grounds of Cbjec-
ton, which may all be embraced in
three points.
"First-Is the act of Congress known
as the civil service act, passed in 1871,
and as amended in 1888, constitutional?
"In considering this question it is we'll
to refer to the history of the country
which finally leo to the passage of this
act"
Judge Jackson then reviews the his
torical facts necessary to full and per-
! feet understanding of the civil service
| law, its aim and purposes, quoting from
Presidents Grant and Arthur. Judge
Marshall, ETC.. and then reaches the con-
clusion that
There can be no question as to the
constitutional power of Congress to
pass these acts In support of tho po-
siton I cite article l, section 8, clause
IS, of the Constitution of the United
States: Maybury VS.. Madison, l Kranoh'
-.-AA-.c----.vOiI rdIU, 4 w nea-
ton, 421; exparte Hennen, 13 Peters,
259; eXparte Curtis, 106 United States,
| 81; United States VS.. Perkins, ZIG
United States, 4S3.
The second ground of demurrer is
that the assignment or revocation of
| assignment of these parties to duty is
/ net protected by the provisions of the
civil service law or the regulations in
pursuance thereof"
Regarding this, he says:
ut is urged that the plaintiffs hold
position not technically in the exc
cutive civil service. | can not agree
with this position. Rule 8, section l, of
the revised rules promulgated May 6,
1896, declares that all that part of the
executive civil service of the United
States which has been or may here
after be classified under the civil SER
vice act, shall be arranged in branches,
as follows: The departmental service,
the custom house service, the postoffice
service, and the internal revenue SER
vice.
'Storekeepers and gaugers are ap-
pointed by the Secretary of the Treas
ury and are required by the statute
to take an oath to faithfully perform
the duties of their offices, and to give
bond for the faithful discharge of their
duties. The storekeepers are to receive
a compensation not to exceed four dol
lars a day, to be determined by the
Commissioner of Internal Revenue,
and are not permitted to engage in any
other business while in the service OF
the United States without the written
permission of the Commissioner of In
ternal Revenue. The fees of gaugers
are to be determined by the quantity
gagged, under such regulations as the
Commissioner may prescribe
''These places held by the plaintiffs
are positions of honor and trust and
have attached to them a fair compen-
sation. 1t is true that their duties are
ministerial, yet the faithful discharge
of them is so important to the govern
ment as to require men Of capacity
and integrity. Section Of the same
rule declares that the internal revenue
service shall include officers and en-
ployes in any internal revenue district
who have been, or may hereafter be.
classified under the civil service act
BY the direction of the President. the
Secretary of the Treasury classified all
persons not before classified in the in
ternal revenue service, except those
merely employed as laborers or work
men and those whose appointments
are subject to confirmation by the Sem
ate, and made report to the commits
sion in pursuance of rule u, section 1.
1t must be apparent that gaugers and
storekeepers are either officers or en-
ployes' in the internal revenue depart
ment, and it is immaterial whether
they are officers or employees. In
either event they are protected under
the rules of the civil service. as they
do not fall within the exception of rule
II. section l..
After a long and full consideration
of the facts, the Court concludes:
ITO my mind it is clear that store
keepers and gaugers are employees of
the government that are protected bv
the rules and regulations promulgated
under the civil service act by the
executive and the commission: that a
revocation of the assignments. or
transfer Of the plaintiffs in these
actions, is in effect removal. and that
a removal for political reasons falls
within the inhibition of the civil SER
vice act and the rules promulgated I'M
der it; that there can be no appoint
ment to any position unless there is
a vacancy, and that the vacancy must
be filled in conformity to the pro-
visions of the civil service act and the
rules made under it.
hjrd GROUND of demurrer Is