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trial on the ground of separable controversy | action shall be several which the plaintiff or want of good faith in the joinder. Nor seeks to make joint.' A separate defense did it make such application when plaintiff's may defeat a joint recovery, but it cannot evidence was in, nor on the whole evidence. deprive a plaintiff of his right to prosecute There was no suggestion throughout the his suit to final decision in his own way. trial that the joinder was in itself improp. The cause of action is the subject-matter of erly made, but the contention, as exhibited the controversy, and that is, for all the pur. by the exceptions, was that a verdict could poses of the suit, whatever the plaintiff denot be rendered against the company alone, clares it to be in his pleadings.'” because, if it had been sued alone, it would The view thus expressed was reiterated have had the right of removal. The trial in Chesapeake of 0. R. Co. v. Dixon, 179 court charged the jury that if the proof | U. S. 131, 45 L. ed. 121, 21 Sup. Ct. Rep. 67, failed to show joint and concurrent negli. where the subject was much considered, and gence on the part of all the defendants, yet cases cited. Reference was there made to showed negligence on the part of one or the fact that many courts have held the more of them, resulting in injury to plain identification of master and servant to be tiff, as the sole and proximate cause thereof, so complete that the liability of both may the jury might find a verdict against such be enforced in the same action. And such defendant or defendants as the proof showed is the law in South Carolina. Schumpert were guilty of such negligence; and to this v. Southern R. Co. 65 S. C. 332, 95 Am. St. instruction the railway company preserved Rep. 802, 43 S. E. 813. In that case it was an exception.

held that under the state Code of Civil ProThe railway company also excepted to the cedure, in actions ex delicto, acts of neglirefusal of the court to give several instruc- gence and wilful tort might be commingled tions asked on its behalf, to the effect that, in one statement as causes of injury; that as by the allegation of a joint and concur- master and servant are jointly liable as rent tort, the company had been deprived of joint tort feasors for the tort of the servant, the right to remove the cause, joint and con- committed within the scope of his employ. current tort must be made out against the ment, and while in the master's service; company and at least one of the other de. that the objection that if master and serv. fendants; that to allow plaintiff to recover ant were made jointly liable for the negli. without proof of joint and concurrent tort gence of the latter the master could not call would deprive the company of the right of on the servant for contribution was without renoval guaranteed by the Constitution and merit, as the rule was, as laid down by Mr. laws; and of its property without due proc. Cooley (Torts, page 145), that: “As beess of law, in contravention of the 14th tween the company and its servants the Amendment, in that the company would be latter alone is the wrongdoer, and in call. deprived of the right of reimbursement ing upon him for indemnity, the company which would otherwise exist. But these are bases no claim upon its own misfeasance or matters upon the merits, and recovery default, but upon that of the servant him. against one of several defendants does not self.” And see Gardner v. Southern R. Co. depend on whether, if sued alone, that de 65 S. C. 341, 43 S. E. 816. In Rucker v. fendant might have removed the case. The Smoke, 37 S. C. 380, 34 Am. St. Rep. 758, right of removal depends on the act of Con- 16 S. E. 40, and Skipper v. Clifton Mfg. Co. gress, and the company not only, on the face 58 S. C. 143, 36 S. E. 509, it was decided of the pleadings, did not come within the act, that in actions such as this exemplary dam. but it made no effort to assert the right. The ages may be recovered. The suggestion rule is well settled, as stated by Mr. Justice that the state deprived the company of its Gray in Powers v. Chesapeake & 0. R. Co. property by the rulings of the supreme court 169 U. S. 92, 42 L. ed. 673, 18 Sup. Ct. Rep. calls for no remark. 264, "that an action of* tort, which might 2. The act of March 2, 1893 (27 Stat, at have been brought against many persons, or L. 531, chap. 196, U. S. Comp. Stat. 1901, against any one or more of them, and which p. 3174), provided, in respect of common is brought in a state court, against all carriers engaged in interstate commerce, jointly, contains no separate controversy "that on and after the first day of January, which will authorize its removal by some of eighteen hundred and ninety-eight, it shall the defendants into the circuit court of the be unlawful for any such common carrier to United States, even if they file separate an- haul or permit to be hauled or used on its swers, and set up different defenses from the line any car used in moving interstate traffic other defendants, and allege that they are not equipped with couplers coupling autonot jointly liable with them, and that the matically by impact, and which can be unown controversy with the plaintiff is a sep. coupled without the necessity of men going arate one; for, as this court has often said, between the ends of the cars.” The trial 'a defendant has no right to say that an' court, in one of its instructions, set forth

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this provision, and told the jury that if they resentatives has admitted the parties holding found the railway company was engaged,

the certificates to seats in that body. and these cars were being used, in interstate traffic, and that they were not equipped with

(No. 189.) the automatic couplers required, such fail

was negligence; and it was further argued April 4, 5, 1904. Decided April 25, charged that railroads were required to keep

1904. their appliances in safe and suitable order. It is objected that the instructions assumed IN ERROR to the Circuit Court of the that if the automatic coupler was out of repair, the company failed to comply with of Virginia to review a judgment dismissing the act of Congress; but we do not think so,

a petition for a writ of prohibition to preand the supreme court of the state held that vent the canvass of the votes cast in that there was no error, as Congress must have state at a congressional election. Dismissed. intended that the couplers should be kept in proper repair for use, and moreover, as Statement by Mr. Justice Brewer: such was the law of the state, even if the

On November 14, 1902, plaintiffs in error act of Congress had not specifically imposed filed in the circuit court of the United States this duty. By this ruling no right specific for the eastern district of Virginia in behalf ally set up or claimed under the act of Con of themselves and others similarly situated, gress by defendant below

their petition for a writ of prohibition. The

decided against. There was no pretence that the petition set forth that the petitioners were act of Congress provided that the automatic citizens of the United States, citizens and couplers need not be kept in order, and residents of the state of Virginia, and of the whether the cars in question were used in third Congressional district of that state, moving interstate traffic and whether the and entitled to vote at the election held on coupling appliances were defective or not,

November 4, 1902, for a member of the were facts left to the jury, and determined House of Representatives of the United by their verdict.

States from that district; that they applied The recovery* was not sought on the single ground of want of safetration, and were refused. It was further

to the proper registration board for regisappliances. That was important in its connection with Carson's being ordered to go tion was assembled in Virginia; that it

alleged that in 1901 a constitutional convenbetween the cars, and it was negligence framed a new constitution; that it did not while he was obeying that order, which was submit such constitution to the people for chiefly relied on. At all events, the com- approval, but, by a vote of forty-seven to pany did not specially set up or claim any thirty-eight, ordained it as the organic law right under the act of Congress or dependent of the state. Attached to the petition were on its construction which was denied by the copies of the constitution, of a schedule state courts, and the questions raised on making provisions for putting in force the these instructions, and numerous others on new constitution without inconvenience, and various aspects of the case, were not Federal of an ordinance providing for the registraquestions, and need not be considered. tion of voters, all of which were adopted by Judgment affirmed.

the same convention. The petitioners also charge that the purpose of the party in pow

er was the disfranchisement of the colored (194 U. S. 147)

voters of the state, and specifically set forth WILLIAM H. JONES, John Hill, and Edgar how this disfranchisement was to be accomPoe Lee, Plffs. in Err.,

plished. They averred that at the election held on November 4, 1902, only the registra

tion lists provided for by the ordinance ANDREW J. MONTAGUE, Governor of Vir

were recognized; that abstracts of the votes ginia; David Q. Eggleston, Secretary of cast in the several cities and counties were the Commonwealth of Virginia; Morton certified to the secretary of the common. Marye, Auditor of Public Accounts of Vir wealth, at Richmond, Virginia, and that the ginia, et al.

defendants, as the board of state canvassers,

would assemble on the 24th of November, Appeal-moot case not reviewable.

1902, and would, unless prohibited, canvass

the election returns, declare the result, and The dismissal of a petition for a writ of prohl. give certificates to the parties found to be bition to prevent the canvass of the votes cast elected. The prayer of the petition was that at a congressional election cannot be reviewed in the Federal Supreme Court after the can.

a writ of prohibition issue to the defend. vass has been made, and certificates of elec- ants, “prohibiting them, and each of them, tion have been issued, and the House of Rep.' from considering, canvassing, counting, de

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termining upon, or certifying or otherwise | 293, 16 Sup. Ct. Rep. 132, is decisive, and acting upon, any returns or abstracts of re- compels a dismissal of the writ of error. turns in the office of the secretary of the That was a suit in equity, alleging the callcommonwealth of Virginia, purporting to be ing of a convention to revise the Constitureturns of election held in the state of Vir. tion of South Carolina, and seeking to enjoin ginia, Tuesday, November 4, 1902, for repre an alleged illegal, partial, and void regis. sentatives in Congress from the state of Vir. tration by which the plaintiff, and others ginia, or in any wise dealing with or certify like him, would be deprived of the right to ing the results of said returns as returns of vote for delegates to the convention. An in. a lawful election, held in Virginia on the junction was granted by the circuit court, date aforesaid. That by reason of the mat- but was dissolved by the circuit court of ters and things hereinabove set forth, said appeals, and the suit dismissed. Thereupon pretended election, and any and all pre- the election was held, the convention met cinct, county, district, or state returns made and entered upon the discharge of its duthereunder, may be held to be null, void, ties. An appeal to this court from the or. and of no effect, and the said board of state der of dismissal made by the circuit court canvassers, and the members the may be of appeals was dismissed on the ground that prohibited from in any wise proceeding to the object of the suit could no longer be act upon the same as lawfully before them attained. Mr. Justice Gray, delivering the for their consideration. That pending the opinion, said (pp. 653, 657, 658, L. ed. pp. hearing, and until the final decision upon 294, 295, Sup. Ct. Rep. pp. 133, 134, 135): a this petition for said writ of prohibition, “The duty of this court, as of every other an order may be granted by this honorable judicial tribunal, is to decide actual controcourt suspending any and all proceedings, versies by a judgment which can be carried on the part of said board of state canvassers into effect, and not to give opinions upon and the members thereof, upon any and all moot questions or abstract propositions, or of the matters sought to be prohibited un- to declare principles or rules of law which til the final decision of this cause. And cannot affect the matter in issue in the for such other and further orders in the case before it. It necessarily follows that premises as shall and may make the prayer when, pending an appeal from the judgment of your petitioners effectual.”

of a lower court, and without any fault of After answer by defendants, the writ of the defendant, an event occurs which ren. prohibition was denied by the circuit court, ders it impossible for this court, if it should and the petition dismissed. The dismissal decide the case in favor of the plaintiff, to was based on a want of jurisdiction; where grant him any effectual relief whatever, the upon the petitioners brought the case on er- court will not proceed to a formal judgment, ror directly to this court. A motion has but will dismiss the appeal.

Ip here been made to dismiss the writ of error the case at bar the whole object of the bill on the ground that everything sought to be was to secure a right to vote at the elecprohibited has already been done, and that tion, to be held, as the bill alleged, on the there is nothing upon which any order of the third Tuesday of August, 1895, of delegates court can operate. In support of the mo to the constitutional convention of South tion an affidavit of the secretary of the com- Carolina. Before this appeal was taken by monwealth has been filed, to the effect that the plaintiff from the decree of the circuit after the dismissal of the petition by the court of appeals dismissing his bill, that circuit court the board of canvassers con- date had passed; and, before the entry of vened at the office of the secretary in ac- the appeal in this court, the convention had cordance with the law of the state, and, up- assembled, pursuant to the statute of South on the returns then on file, canvassed the Carolina of 1894, by which the convention votes, determined the parties found by such had been called. 21 Stat. of S. C. pp. 802, canvass to have been clected, and that a s03. The election of the delegates and the certificate to that effect had been prepared assembling of the convention are public and transmitted to each of the persons de matters, to be taken notice of by the court, clared to have been elected a representative without formal plea or proof. ; . . It is in Congress from the state of Virginia. obvious, therefore, that, even if the bill

could properly be held to present a case Mr. John S. Wiso for plaintiffs in error. within the jurisdiction of the circuit court,

Messrs. William A. Anderson and no relief within the scope of the bill could Frank W. Christian for defendants in er- now be granted.”

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See also Codlin v. Kohlhausen, 181 U. S.

151, 45 L. ed. 793, 21 Sup. Ct. Rep. 584; Mr. Justice Brewer delivered the opinion Tennessee v. Condon, 189 U. S. 64, 47 L. ed. of the court:

709, 23 Sup. Ct. Rep. 579. Mills v. Green, 159 U. 8. 851, 40 L. ed. The case before us is one in prohibition


Detition. declared by the petitioners in their | A PPEAL from the Circuit Court of the

• 154



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United States the ited was a canvass of the votes cast at the of Virginia to review a decree denying inelection on November 4, 1902. The facts al junctive relief against the canvass of the leged in respect to the Constitution, the pur- votes cast in that state at a congresssional pose of the dominant party, the action of the election. Dismissed. convention, the refusal to submit the pro Mr. John S. Wise for appellants. posed Constitution to the vote of the people, Messrs. William A. Anderson and and the registration ordinance, were all stat. Frank W. Christian for appellees. ed for the purpose of showing that the election on November 4, 1902, was illegal, and

• Mr. Justice Brewer delivered the opinion that there ought to be no*canvass of the re- of the court: turns cast at that election. The prayer of

This is a suit in equity brought to ob the petitioners specifically is to restrain such tain by injunction the same relief as was canvass. Even the general clause at the sought in the preceding case. The facts close of the prayer is "for such other and and conditions are substantially similar, and further orders in the premises as shall and for the reasons there given the appeal will may make the prayer of your petitioners ef- le dismissed without costs to either party. fectual.” But as shown by the affidavit, and as, indeed, we might, perhaps, take ju.

(194 U. S. 182) dicial notice by the presence in the House

WILLIAM C. GIBSON, Appt., of Representatives of the individuals elected at that election from the various congreg. sional districts of Virginia—the thing

UNITED STATES. sought to be probibited has been done, and

Naoy cannot be undone by any order of court.

pay of captain retired with ranle The canvass has been made, certificates of

of rear admirah allowance for sea re

tions election have been issued, the House of Rep

repeal of statute by implication resentatives (which is the sole judge of the

1. A captain in the United States Navy who qualifications of its members) has admitted

served during the Civil War is entitled to the parties holding the certificates to seats three fourths of the sea pay of rear admirals in that body, and any adjudication which of the nine lower numbers of that grade, this court might make would be only an in

where he has been retired pursuant to U. S. effectual decision of the question whether

Rev. Stat. § 1444 (U. S. Comp. Stat. 1901,

p. 1020), and the Navy personnel act of or not these petitioners were wronged by

March 3, 1899 (30 Stat. at L. 1007, chap. what has been fully accomplished. Under 413, § 11, U. S. Comp. Stat. 1901, p. 1025), those circumstances there is nothing but a with the rank and three fourths the sea moot case remaining, and the motion to dis- pay of the next bigher grade. miss must be sustained.

2. The allowance to naval officers for sea ra Dismissed without costs to either party.

tions, provided for by U. S. Rev. Stat. $$ 1578, 1585 (U. S. Comp. Stat 1901, pp. 1083, 1085), was impliedly repealed by the provi.

sions of the Navy personnel act of March 3, (194 U. S. 163)

1899 (30 Stat. at. L. 1007, chap. 413, § 13, WILLIAM S. SELDEN, William H. Ander

U. S. Comp. Stat. 1901, p. 1072), that officers son, and Clarence B. Gilpin, Appts., of the Navy shall receive the same pay and

allowances, except forage, as are or may be ANDREW J. MONTAGUE, Governor of provided by or in pursuance of law for the Virginia; David Q. Eggleston, Secretary

officers of corresponding rank in the Army. of the Commonwealth of Virginia; Morton

(No. 195.) Marye, Auditor of Public Accounts of Virginia, et al.

Argued April 8, 1904. Decided April 25,

1904. Appeal-moot case not reviewable. The denial of injunctive relief against a canvass

of the votes cast at a congressional election view a judgment dismissing the peti. cannot be reviewed in the Federal Supreme tion of a retired rear admiral in the United Court after the canvass has been made, and States Navy in an action to recover the difcertificates of election have been issued, and the House of Representatives has admitted ference between three fourths the pay of a the parties holding the certificates to seats brigadier general and that of a major genin that body.

eral of the Army, accorded by statute to re

tired rear admirals. Affirmed. (No. 190.)

See same case below, 38 Ct. Cl. 752. Argued April 4, 5, 1904. Decided April 25, Statement by Mr. Justice Day: 1904.

• This is an appeal from the court of daima



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• 186

Tho claimant is a retired rear admiral. This He did not, while so attached to and in comaction was prosecuted to recover the differ- mand of said vessel, receive any sea ration ence between three fourths the pay of a or commutation therefor, under Revised brigadier general and that of a major gen. Statutes, $8 1578 and 1585 (U. S. Comp. eral of the Army, accorded by statute to re Stat. 1901, pp. 1083, 1085). (Reply of tired rear admirals. The court of claims Navy Department not printed.) dismissed the petition, holding the claimant “The commutation therefor, at the rate of entitled to three fourths the pay of a brig. 30 cents per day, would amount to fortyadier general. Upon the hearing in that eight dollars and ninety cents ($48.90)." court the following facts were found: “I. The claimant, William C. Gibson, was

Messrs. George A. King and William duly appointed a captain in the Navy, to B. King for appellant. rank from February 18, 1900. While sery. Assistant Attorney General Pradt and ing in that grade, then being an officer of the Mr. John Q. Thompson for appellee. Navy, with a creditable record, who served during the Civil War, he was retired by the * Mr. Justice Day delivered the opinion of following order:

the court:

The first question presented is whether a "Navy Department, captain in the Navy, retired as a rear adWashington, June 30, 1900.

miral, under § 1444 of the Revised Statutes "Sir: On July 23, 1900, you will regard of the United States and § 11 of the Navy yourself transferred to the retired list of personnel act, shall receive three fourths of officers of the U. S. Navy, in accordance with the pay of the rear admirals in the nine the provisions of g 1444 of the Revised Stat- higher numbers in the list of rear admirals utes (U. S. Comp. Stat. 1901, p. 1020), and or the like proportion of the pay of the nine with the rank and three fourths of the sea lower numbers of the eighteen rear admirals. pay of the next higher grade, i. e., rear ad- Section 1444 of the Revised Statutes pro miral, in accordance with the provisions of vides: “When any officer below the rank of § 11 of the naval personnel act, approved vice admiral is sixty-two years old, he shall, March 3, 1899.1

except in the case provided in the next Respectfully,

section, be retired by the President from John D. Long, active service.”

Secretary. Section 11 of the navy personnel act "Captain William C. Gibson, U. S. Navy, reads: "That any officer of the Navy, with commanding U. S. S. Texas."

a creditable record, who served during*the

Civil War, shall, when retired, be retired "II. Since his retirement he has received with the rank and three fourths the sea pay at the rate of*four thousand one hun pay of the next higher grade." 30 Stat. at dred and twenty-five dollars ($4,125) a L. 1007, chap. 413 (U. S. Comp. Stat. 1901, year, being three fourths of five thousand p. 1025). five hundred dollars ($5,500) the pay fixed Section 13 provides: “That after June by § 1261 of the Revised Statutes of the thirtieth, eighteen hundred and ninety-nine, United States (U. S. Comp. Stat. 1901, p. commissioned officers of the line of the Navy 893), as that of a brigadier general in the and of the medical and pay corps shall reArmy.

ceive the same pay and allowances, except “If paid at the rate fixed by said g 1201 forage, as are or may be provided by or in for a major general in the Army, he would pursuance of law for the officers of corre receive pay at the rate of three fourths of sponding rank in the Army." seven thousand five hundred dollars a year, In the first proviso of § 7 of said act,

five thousand six hundred and twenty. provision having been made for eighteen rear five dollars ($5,625) a year, a difference of admirals in the active list of the line of over and above what he has been receiving the Navy, it is enacted as follows: "Proof one thousand five hundred dollars ($1,- vided, That each rear admiral embraced in 500) a year.

the nine lower numbers of that grade shall “III. From January 22, 1900, to July 3, receive the same pay and allowances as are 1900, inclusive, claimant was, by regular as- now allowed a brigadier general in the Arsignment, in command of the U. S. S. Texas, my.” 30 Stat, at L. 1005, chap. 413 (U. a seagoing vessel in commission. During S. Comp. Stat. 1901, p. 982). that period he was, prior to the 18th of Feb- The claimant, at the time of his retireruary, a commander, in receipt of pay at the ment, was a captain in the United States rate of four thousand dollars ($4,000) a Navy, who had served during the Civil War, year, and from and after that date a cap- and was retired, by order of the Secretary tain, receiving pay at the rate of four thou of the Navy, pursuant to s 1444 of the Re ed five hundred dollars ($4,500) a year.'vised Statutes, with the rank and with three

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SU. &. Comp. St. 1901, p. 10z.

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