gous to that of Francis v. Flinn, 118 U. S. 385, 6 Sup. Ct. 1148, 30 L. Ed. 165, which charged the defendants with conspiring to destroy a business by publications in newspapers and other and divers means, and asked injunctive relief. Mr. Justice Field said, "If the publications are false and injurious, he can prosecute publishers for libel;" adding, "If a court of equity could interfere and use its remedy of injunction in such cases, it would draw to itself a greater part of the litigation properly belonging to courts of law." Judgment should be for the defendant, and decree entered dismissing the bill of complaint.

SOUTHERN RY. CO. v. NORTH CAROLINA CORP. COMMISSION et al. SEABOARD & R. RY. CO. v. SAME. ROANOKE & T. R. CO. v. SAME. RALEIGH & G. RY. CO. v. SAME. RALEIGH & A. AIR-LINE RY. CO. V. SAME. CAROLINA CENT. RY. CO. v. SAME. ATLANTIC COASTLINE RY. CO. OF VIRGINIA v. SAME. WILMINGTON & W. RY. CO. V. SAME. NORFOLK & C. RY. CO. v. SAME.

(Circuit Court, E. D. North Carolina. January 12, 1900.)

FEDERAL COURTS-FOLLOWING STATE

STATUTES.

DECISIONS-CONSTRUCTION OF STATE

The decision of the highest court of a state, construing a state statute, or determining whether or not a statute has been repealed by a subsequent act, will be recognized as authoritative by a federal court, subject to certain exceptions, as where prior acquired rights are affected; and, where such court has independently rendered a contrary decision, it will be recalled, if still within the court's control, in deference to a later decision of the state court.1

In Equity. On rehearing.

For former opinion, see 97 Fed. 513.

SIMONTON, Circuit Judge. These cases having been heard together, an opinion was filed directing that injunctions issue as prayed for in the several bills. 97 Fed. 513. Before the expiration of the term within which the opinion was filed, and therefore while the cases were within the control of this court, a petition for rehearing was filed by the defendants. After due notice to all parties, this petition was heard, and full argument had thereon. The petition seeks to reopen the cases, because, as is alleged, the supreme court of North Carolina has rendered a decree construing the acts of the legislature of North Carolina, and reaching a different conclusion from that of this court.

The legislature of North Carolina, in 1891, passed an act to provide for the general supervision of railroads, steamboat or canal companies, express and telegraph companies, doing business in the state of North Carolina, being chapter 320 of that year, and popularly known as the "Railroad Commission Act." This act constituted a railroad commission, consisting of three members, elected

1 As to state laws as rules of decision in federal courts, see note to Wilson v. Perrin, 11 C. C. A. 71, and, supplementary thereto, note to Hill v. Hite, 29 C. C. A. 553.

by the general assembly, holding their offices for a term of years, removable, under certain circumstances, by the governor, who in such case could fill the vacancy so created, and enjoying a salary of $ The act, in minute detail, specifies the duties of this board. This act went into effect on 1st April, 1891. It was amended once by name by chapter 206, Acts 1897. The original act and its amendment give the railroad commission full power of supervision over the management of railroads. Neither of them make any ref erence whatever to the assessment and taxation of railroad property. At the session of 1891 (9th March), the legislature passed what is known as the "Machinery Act." This is an act providing the ways and means of meeting the expenses of the state government in the assessment of property and the collection of taxes, and seems to be passed for an occasion, and so to be temporary in its character. Each year the legislature passes a machinery act having almost identical provisions. This would be wholly unnecessary if the act were permanent in its character. In this machinery act of 1891 is section 44, as follows:

"The commissioners elected from time to time under the authority of an act to provide for the general supervision of railroads, steamboat or canal companies, express and telegraph companies, doing business in the state of North Carolina, shall constitute a board of appraisers and assessors, for railroad, telegraph, canal and steamboat companies."

in the machinery At the session of The one of these

This same provision is repeated year by year act of each year, from 1891 to 1899, inclusive. 1899, two acts were ratified on 6th March, 1899. declared "that chapter 320, Public Laws of 1891, and all acts amendatory thereof and supplementary thereto, be and the same are hereby repealed." The other of these was an act to establish the North Carolina corporation commission. This act provided for the election, by the general assembly passing it, of three commissioners, who shall have general supervision of railroads, steamboat, navigation, and canal companies, express, telegraph, and telephone companies, building and loan associations, banks, and sleeping-car companies. Those then elected held for a term ending January 1, 1901. Thenceforward the commissioners were to be elected by the people at the general election, the first election to be in 1900, one of them for a term of two years, another for a term of four years, and another for a term of six years. At all subsequent elections the term of the person elected shall be six years. The duties of this board are minutely specified, very similar to those of the railroad commissioners with respect to the railroad, steamboat, or canal companies and express and telegraph companies, and adds to these supervision over telephone companies, building and loan associations, sleepingcar companies, and banks. A separate, distinct provision in the act is "to perform all the duties and exercise all the powers imposed or conferred by chapter 320, Public Laws of 1891, and the acts amendatory thereto." Neither this act,-which, by the way, was made of force the day after the repeal of the railroad commission act,—nor, as has been seen, this last-named act itself, say anything whatever about the assessment and taxation of railroad property. The cor

poration commission proceeded to assess for taxation the property of the complaining railroad companies, and the question was made as to the right of the commission so to do.

Unaided by any decision on this point of the court of last resort in North Carolina, the conclusion was reached that it had no such power. This power of assessment was intrusted to the commissioners elected under chapter 320, Laws 1891, and for this purpose they were constituted a board of appraisers. The machinery act of each succeeding year had done this, including that of the year 1899. The legislature of 1899 repealed that act in toto, so far as language and intent could do so. The conclusion then seemed inevitable that the act was in fact repealed. Besides this, one day after that act was said to be repealed the legislature put in force the corporation commission act, by which they declared their purpose to establish the North Carolina corporation commission, by electing then and there three commissioners, to whom was given a different term from that of the railroad commissioners, whose successors would hold for a term differing wholly from the railroad commissioners, who, after one election by the legislature, would thereafter be elected by the people, whose vacancies were filled, not by the governor, but by the board of internal improvements, and who received a different salary, and took a different oath of office. With this light, the conclusion was reached that the act providing for railroad commissioners was repealed; that other officers had been elected, differing in tenure and in other important respects from them; and that, as was stated at bar, two of the former railroad commissioners, having accepted election under the new act, and having taken the oath of office thereunder, necessarily vacated their former office, and there remained but one person who could claim to be a railroad commissioner. So, as he could not act as a board himself, and in fact did not act with any one, and as the corporation commission was not empowered to make the assessment, the conclusion was reached that the supposed assessment was void, and action under it was enjoined. But, while the case was before this court, there was pending in the courts of North Carolina an action of the state ex relatione Abbott, the railroad commissioner who was not elected on the corporation commission, against Beddingfield, who, never having been a railroad commissioner, was elected on the corporation commission. Abbott claimed that he had property in his office, of which he could not be deprived, except by the abolition of the office, and that, so long as the duties of the office were continued, a mere change of the name of the office did not abolish it or extinguish his right to it; that the corporation commission was but the railroad commission under another name; and that its passage in no way affected his right to his office, and that Beddingfield was an intruder therein. The cause was heard in the court of last resort in North Carolina. That court awarded the office to Abbott, and excluded Beddingfield. Construing the acts quoted above, the court held that the railroad commission act was not repealed in fact; that the corporation commission was the same commission, to all intents and purposes, except the name; that, when the legislature passed it, they defeated

their declared purpose, because, under the law of North Carolina, established by a current of decisions from Hoke v. Henderson, 15 N. C. 1, a public office is property, of which the incumbent cannot be deprived so long as the duties of the office, under whatever name or title, must be performed; that, construing these two acts in pari materia, the corporation commission act was an amendment to the railroad commission act, and that the two commissions were one and the same. They seated Abbott on the corporation commission, and held that he was a component part thereof, by virtue of his office as railroad commissioner. This decision as to the action of the legislature, and the construction put upon the repealing act of 1899 and the corporation commission act, differ toto cœlo from the conclusion reached by this court on the case presented by these bills in equity.

The question now is, what effect should the judgment of the su preme court of North Carolina have upon the action of this court? Ought it to lead to a reconsideration of its opinion, and the recall of its action thereon?

We are bound to presume that, when a question arose in the state court, it was thoroughly considered by that tribunal, and that the decision rendered embodied its deliberate judgment. Cross v. Allen, 141 U. S. 539, 12 Sup. Ct. 67, 35 L. Ed. 843. It is the practice of the supreme court of the United States, whose practice controls all federal courts, to adopt the interpretation given by the highest tribunals of the several states to their respective acts of legislation, where such interpretation does not conflict with the paramount authority of the constitution of the United States, binding on their own courts, or with the fundamental principles of justice and common right. Murray v. Gibson, 15 How. 421, 14 L. Ed. 755. There are exceptions to this rule: When the meaning of a state statute has not become established (Burgess v. Seligman, 107 U. S. 20, 2 Sup. Ct. 10, 27 L. Ed. 359; Carroll Co. v. Smith, 111 U. S. 556, 4 Sup. Ct. 539, 28 L. Ed. 517); when the decision is in conflict with previous decisions of this court; and when the rights which it affects here were acquired before the decision of the state court was made (Carroll Co. v. Smith, supra). In these cases the federal courts exercise their independent judgment. Subject, however, to these exceptions, by comity or by the suggestion of public policy, federal courts adopt the decision of state courts as to the construction and validity of their local laws. In these cases the supreme court will change its decision when the highest tribunal of a state has given a different interpretation. In Morley v. Railway Co., 146 U. S. 162, 13 Sup. Ct. 54, 36 L. Ed. 925, these propositions were affirmed. The rule of construction adopted by the highest court of the state, in construing its own constitution and one of its own statutes, in a case not involving any question re-examinable in this court, under section 25 of the judiciary act, must be regarded as conclusive in this court. Provident Inst. v. Massachusetts, 6 Wall. 611, 18 L. Ed. 907. "The construction given to a statute of a state by the highest judicial tribunal of such state is regarded as a part of the statute, and is as binding upon the courts of the United States as the text." Leffingwell v. Warren, 2 Black,

599, 17 L. Ed. 261. The meaning of a state statute declared by the highest court of a state is conclusive on this court. Randall v. Brigham, 7 Wall. 523, 19 L. Ed. 285. In Kibbe v. Ditto, 93 U. S. 674, 23 L. Ed. 1005, the decision of the highest court of a state, as to whether a statute has repealed the provisions of a former act, was held conclusive on the supreme court. So, also, the decision of the highest court of a state that an act of such state has not been repealed, was followed by the supreme court. Peik v. Railway Co., 94 U. S. 164, 24 L. Ed. 97. Even if there be a diversion of opinion between the members of the state supreme court, such diversion, although a close one, does not prevent the opinion of the majority from becoming the decision of the court, and as such conclusive on the supreme court of the United States. Williams v. Eggleston, 170 U. S., at page 311, 18 Sup. Ct., at page 617, 42 L. Ed., at page 1047. This general current of decisions is approved in the latest case upon the subject. Hartford Fire Ins. Co. v. Chicago, M. & St. P. Ry. Co. (Nov., 1899) 20 Sup. Ct., at page 33, Adv. S. U. S. 33, 44 L. Ed. The case of State ex rel. Abbott v. Beddingfield (N. C.) 34 S. E. 412, involved the construction of the acts of the legislature of 1899, repealing the railroad commission act, and establishing the corporation commission. The language of the court is distinct, and its purpose is clear. It says this: "It is established to be the law of this state by Wood v. Bellamy, 120 N. C. 221, 27 S. E. 113, Day v. State Prison, 124 N. C. 362, 32 S. E. 748, and State v. Jordan, 124 N. C. 683, 33 S. E. 139, that an act is not repealed by the legislature's saying it is repealed, when the same act or contemporaneous acts show that it is not repealed. And it is established to be the law of this state by State v. Jordan, supra, and the authorities there cited, and by Arendell v. Worth (at this term) 34 S. E. 232, that contemporaneous legislation about the same subject-matter is in pari materia, and may be read and construed together. It is established law in this state by Hoke v. Henderson, 15 N. C. 1 (which has been approved in as many as 40 cases decided by this court, as shown in the concurring opinion of Justice Douglas in State v. Jordan), by Wood v. Bellamy, and by Day v. State Prison, supra, that a public office, to which there is attached a salary, is a vested interest,a property in the holder,-and, as such property holder, he is protected by the law and constitution of this state and the laws and constitution of the United States. It is the settled law of this state (Wood v. Bellamy, Day v. State Prison, and State v. Jordan, supra) that the change of the name from 'railroad commission' to that of 'corporation commission' does not deprive the relator of his office,his legal and constitutional rights to hold said office. If we consider the two acts of 1899 in pari materia, and read them together, as we are bound to do, unless we disregard all the former decisions of this court, we find that the two acts of 1899 did not repeal the act of 1891 or the act of 1897, but are amendatory thereof; that the re-enactment of the act of 1891 and the act of 1897, amendatory thereof, in the same legislation that it is contended by defendant repealed them, had the effect to continue in force the acts of 1891 and 1897. State v. Williams, 23 S. E. 250.” The same court, at the