interference is prohibited by thl'l constitution of the United States. The purpose and business of express companies is to transport gold, silver, and articles of great value, and those requiring the most speedy and safe transit from one state to another, and for which the express companies x:eceive extra compensation, and !lre strjctly liable. I suppose there is scarcely an exception to this .rule to be found, so that the tax imposed on the complainant,. with all other express companies doing business in the state, is in part, if not mainly, for the privilege of doing the express business in relation to this interstate transportation, and, so far as it relates to that portion of the business of the complainant, is by all these decisions unconstitutional and void. It is held that when the tax is for the privilege of carrying on the transportation exclusively within the state, it is not repugnant to the constitution,and that, when the portion not embraced in the transportation from one state into another can be separated, then only the interstate transportation will be held void, the other valid. Under the decisions referred to in which it was decided that when a separation could be made between the, interstate and the purely local business, that which was interstate was enjoined, and all must be enjoined in this case until the separation can be made, if such a separation is possible. TheAecision relied upon by the attorney general for the state is the case of Osborne v. Jl!Iobile, 16 Wall. 479. I am satisfied that this case is virtually overruled by the case of Leloup v. Port of Mobile, 127 U. S·. 640" 8 Sup. Ct. Rep. 1380. The result is that upon the complainant's entt'ring into bond with one or more sureties in the sum of $4,UOO, payable to the defendants, and conditioned for the payment of such sum as the court may decree to be paid in case the injunction shall be dit>solved, to be approved by the clerk of this court, the writ of injuuction will be issued as prayed for in the bill. The same order will be made in the case of the Pacific Express Company against the same defendants, submitted with this case, and being dependent on the sallle fads.
STOCKSDAT.E, Supervisor of Election, v. UNITED S'fATES. BECKMAN, Special Deputy-Marshal, v. SAME.
Mm'yland. June 17, 18B!).)
Er,RC1'TON-SUPERVISOR-COMPENSATION-UNITED STATES MAHSHAI·.
',he aUorne\' general. by authority from the president. prior to the appointment of the plaintitIs. the one as supervisor and the other as special deputymarshal. notified them that they would be paid for only four days' attendllnee upon the registration and one day at the polls on the day of election for representatives in congress. The registration offices were required by the state law to be open for two days in May, June. July, September. and October. making 10 days in all; and under the act of congress it was the duty of both the supervisor and the special deputy marshal to be present on duty at the offices of registration, and at the election polls. and they did so attend.
Held. that the act of congress prescribed the duties of and the compensation of both the supervisor and the special deputy-marshal. and that, having in the performance of that duty been required to actually!lerve more than 10· days, they were entitled to the full compensation prescribed by the act of congress.
Held. that there Coould be no implied contract by which the appointee nndertook to perform less than the whole duty, and to receive less than the full pay enacted by congress.
(Syllabu8 by the Court.)
At Law. Actions for fees as officers of election. H. Arthttr Stump, for petitioners. Thomas G. Hayes, U. S. Dist. Atty.
MORRIS, J. The case of Supervisor Stocksdale is iflentical with the case of Scholfield v. U. S., reported 32 Fed Rep. 576, except that Stocksdale had notice from the attorney general prior to his appointment as supervisor of election that the department of justice was authorized, under executive order of 5th November, 1886, to pay each employe only for the days served, not exceeding five in number, at five dollars per day. With full knowledge that this notice had been issued with reference to his compensation the petitioner, Stocksdale, accepted his appointment as supervisor under section 2012, was sworn in, and performed 11 days of necessary and proper service; consisting of 10 days' attendance at the sittings of the state registers of voters directed by the laws of Maryland to be held in the city of Baltimore in the months of May, June, July, September, and October in the year 1888, anll attending at the polls on Novemher 6, 1888, the day of election. He has been paid $25 for five days' service, and it is urged that his acceptance of the appointment with the above-mentioned notice precludes him from demanding any greater compensation. The petitioner Stocksdale was appointed by the court, and his duties are prescribed by the act of congress. By section 2016 he was authorized and required to attend at all times and places fixed for the re;jistration of voters, and at all times and places for holding elections. By section 5521, a supervisor of election or a special deputy-mHrshal, who, having taken the oath of office, "neglects or refuses to and discharge fully the duties, obligations, and requirements of such office until the expiration of the term for which he was appointed," is declared punishable by fine and imprisonment. The Maryland law required the register of voters to sit with open doors from 10 o'clock A. M. to 10 o'clock P. M. on the 10 days during the months preceding the election for representatives in congress for which the petitioner claims compensation, and the act of congress explicitly obliged him to be present on those days and on the day of election, and the act of congress with equal explicitness fixes his compensation, and by section 2031 enacts that he shall be paid five dollars per day for each day he is actually on duty, not exceeding 10 days. Congress having thus in explicit terms fixed the duties and the compensation of the petitioner, I cannot see hO\v
any order of the president or of the attorney general, whether issued before or alter his appointment, could compel the petitioner to do less than his whole duty, or to accept less than his whole ('ompensation. The case of Frank Beckman v. U. S. is similar in all respects, except that he was a special deputy-marshal instead of a supervisor. The special deputy-marshals are not, like the supervisors, appointed by the court, but are appointed by the marshal of the district, and by section 362 it is enacted that the attorney general shall exercise general superintendence over the attorneys and marshals of all the districts in the United States as to the manner of discharging their respectve duties. It is contended that this power and duty of superintendence over the marshals gave the attorney general authority to declare that the special deputies should be paid only for four days' attendance upon the registration. But it was impossible for the special deputy-marshals in Baltimore city to perform the duties which congress had required of them in less than 10 days. Section 2021 makes it the duty of the special deputy-marshals to attend each election district or voting precinct, at the times and places where and when the registration may by law be scrutinized, and the names of registered voters marked for challenge, and also to attend at all times for holding elections; and he, like the supervisor, is punishable by fine and imprisonment, if he neglects to fully perform his duties. Special Deputy-Marshlll Beckman, the petitioner, could not possibly have performed the duties imposed on him by congress except by actually serving 11 days. Congress hlls eMcted that his compensation shall be five dollars a day for each day actually on duty, not exceeding 10. I am at a loss to see how the authority to exercise general superintendence and direction over the manner of discharging his duties could confer authority to compel the petitioner to do in four days what could not by any diligence on his part be done in less than ten days, or to deprive him of the compensation which congress explicitly says shall be paid to him. It is urged that the acceptance of the appointment from the marshal, with notice from him that the compensation would be only $25, created a contract between the special deputy-marshal and the United States, by which the petitioner agreed to accept $25 for the service to be rendered. It is not true, however, either in fact or in law, that the petitioner made a contract, or that anyone had authority on behalf of the United States to contract with him. He did not make a contract; he accepted an office, and took an oath to perform the duties appertaining to it. Congress had prescribed those duties, and had fixed his compensation for performing them. Having perJormed the duties, he is under the law entitled to compensation.
& T. C. BY.
EASTON et al. v. HOUSTON & T. C. Ry. CO. et al., (LUNDIEN, Intervenor.)
(Uircuit Court, E. D. Texas.
MASTER AND SERVANT-DANGEROUS
Where an employe knows of the hazardous character of the work which he undertakes. and is injured by an accident which could not be foreseen by his employer, the latter is not liable in damages.
In Equity. Exceptions to master's report. Intervention of John Lundien. Petition for damages for personal injuries to employe. John Dowell, for intervenor. Bnker & Holt, for receivers. Belore LAMAR, Justice, and PARDEE, J. PER CURIAM. In this case we have carefully examined and considered the evidence, and have also duly considered the arguments made in support of the exceptions to the master's report. Our conclusion is that none of the exceptions are well taken. The nature of the intervenor's employment, as one of the bridge gang, to make repairs of railroad bridges, and the character of the work assigned this gang at the time of the accident, to-wit, the pulling down of an elevated water-tank, was a sufficient notice to the intervenor that the kind and quality of work which he had undertaken to do as an employe of the receiver was of a hazardous, if not positively dangerous, character. The intervenor seems to have met his injury by an accident which could not have been foreseen by the receivers, and, if it could have been forespen at all, it was only by hImself and the other members of his gang, fellow-servants of his. The evidence does not show that the pile of old scrap-iron, lying near the foundation of the tank and the railroad track cut any figure in the matter. Conceding for this case, and this case only, that the relation between the receivers and the surgeons who conduct and carryon the railway hospital was that of mabter and servnnt, the weight of evidence is very strongly against the claim of intervenor's of malpractice in the surgical treatment he received. The nature of the fracture was such that it seems to have been impossible to have otherwise properly treated it than by amputation. Amputation, finally resorted to, was long postponed by the surgeons, at the earnest entreaties of intervenor himself. We notice in the evidence that the intervenor was offered half pay, at the rate of his regular wages when employed, on condition that he would waive all claims against the receiver for damages. If, under the rules of the company, a person injured as intervenor was, was entitled to receive wages for the time lost during his treatment and residence in the hospital, we think it should have been given him without exacting a release of any right he may have had to apply to the court. The following decree will be entered in the case: v;39F.no.2-5