33, 47 L. Ed. 90, a postmaster was restrained from carrying out an invalid order of the Postmaster General. See, also, Union Distilling Co. v. Bettman (C.C.) 181 F. 419, wherein enforcement of an unlawful order of the Internal Revenue Bureau was restrained, and Griesedieck Bros. Brewing Co. v. Moore (D.C.) 262 F. 582.
An executive officer who exceeds his authority may be restrained in equity. In such cases, the complainant does not seek to interfere with an officer of the government acting within his official discretion, but challenges his authority to do the things complained of, and the suit is not against the United States ( Philadelphia Co. v. Stimson, 223 U.S. 605, 32 S. Ct. 340, 56 L. Ed. 570; Lane v. Watts, 234 U.S. 525, 34 S. Ct. 965, 58 L. Ed. 1440; Waite v. Macy, supra); and there can be no doubt that it is within the province of the judiciary to determine whether or not acts of executive officers are authorized by law. Magruder v. Belle Fourche Valley Water Ass'n, 219 F. 72, 133 C.C.A. 524. See, also, Kuenster v. Meredith (D.C.) 264 F. 243, where the threatened revocation of a license by the Secretary of Agriculture was enjoined. In determining whether an order should be set aside or suspended, the power to make, and not the wisdom, is the test. See Interstate Commerce Commission v. Illinois Central R. Co., supra.
It was also argued that the bill must be dismissed because those who promulgated or are primarily chargeable with the enforcement of the order are not parties to the suit. The facts thus far developed indicate that applications are accepted, and payments of compensation are made by the officers and employees within this jurisdiction, which acts are performed in pursuance of the unlawful executive order. And, while it is true that the Secretary of Commerce is not actually a party to the present suit, we think it entirely proper to restrain his representatives from performing unlawful acts within this jurisdiction.
A distinction is made between appointments to clerical and other positions in the executive branch of the government referred to in the Veterans' Preference Act and the temporary employment on work relief projects. This appears to be a distinction without any substantial difference. The employment is by and through the executive department and may be called a job, position, or office, regardless of its duration. The order prescribes monthly earnings, regular hours of work, and the conditions of employment. We think the veterans' preference laws were intended to cover all classes of employment in the executive department, and that work relief must be included.
The preferential status given to veterans is not to be considered in the nature of a gratuity. This status was conferred by an appreciative government upon men (and women) who had rallied to their country's service in wars in behalf of American ideals and aspirations. The experience of 10 years of the judge of this court in the Congress leads him to believe that this policy is as fixed as is reverence for the Constitution and the inherent rights of humanity. He believes that, if an attempt were to have been made in the Congress in the passage of the Emergency Relief Appropriation Act of 1935 to have set aside the preferential status given to veterans, it would not have mustered sufficient support worthy of mention. And, further, it is most significant that in the executive order itself the executive does not say that the preferential status of veterans be waived. It has taken bureaucracy, which can assume dangerous proportions, to read into the executive order such an unfair interpretation. A bureaucracy more responsive to the expressed will of the Congress and more in sympathy with the veterans of our wars would have taken a broader and more charitable view of the executive order and would have assumed that, when the President said that preference was to be given to those on relief rolls, the President meant that there should be read into that order a due regard for the rights and privileges conferred upon the veterans. But the executive order is now before us as interpreted by bureau chiefs, and it is this interpretation of the order that does not meet the proper tests required by a court of justice.
The preliminary injunction sought may be granted and the defendants' motion to dismiss the bill of complaint is denied.
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