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WHITE V. BERRY, 171 U. S. 366 (1898)

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U.S. Supreme Court

White v. Berry, 171 U.S. 366 (1898)

White v. Berry

No. 589

Argued March 21-22, 1898

Decided May 81, 1898

171 U.S. 366

Syllabus

A court of equity has no jurisdiction over the appointment and removal of public officers, whether the power of removal is vested, as well as that of appointment, in executive or administrative boards or officers, or is entrusted to a judicial tribunal.

The jurisdiction to determine the title to a public office belongs exclusively to the courts of law, and is exercised either by certiorari, error or appeal, or by mandamus, prohibition, quo warranto, or information in the nature of a writ of quo warranto, according to the circumstances of the case, and the mode of procedure established by common law or by statute.

If the assignment of someone 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, as interference by the judicial department in such cases would lead to the utmost confusion in the management of executive affairs.

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, West Virginia;

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

That he was paid at the rate of one hundred dollars 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; chanroblesvirtualawlibrary

Page 171 U. S. 367

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 charges 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 Commissioner of chanroblesvirtualawlibrary

Page 171 U. S. 368

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 two of section three 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 to 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 chanroblesvirtualawlibrary

Page 171 U. S. 369

removal of the plaintiff, and as there were no vacancies created, either by removals or resignations, and there being fifteen percent 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 codefendants 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