and 1910. W. V. Knott, Treasurer of the State of Florida, was made a defendant and the complainant prayed that he be compelled to repay the taxes and costs collected by the sheriff and turned over to him. The Circuit Judges again denied the application for an injunction pendente lite, upon the ground that § 47, read in connection with chapter 5597, provides for a graded license tax and is legal. An appeal was likewise sued out to this court.

On April 21, 1913, by stipulation and order, W. V. Knott was substituted for the appellee, A. C. Croom, in both cases, Croom having died and Knott having succeeded him in the office of Comptroller; and J. C. Lunning was substituted for the appellee, W. V. Knott, in the second case, having succeeded him as Treasurer.

Mr. Frank B. Kellogg, with whom Mr. Gustavus S. Fernald was on the brief, for appellant.

Mr. T. F. West, Attorney General of the State of Florida, with whom Mr. Park Trammell, former Attorney General of the State of Florida, was on the brief, for appellee.

After making the foregoing statement, MR. JUSTICE DAY delivered the opinion of the court.

Section 266 of the Judicial Code, practically a reënactment of § 17 of the act of June 18, 1910 (c. 309, 36 Stat. 539, 557), regulates the granting of injunctions by Federal courts in cases depending upon the alleged repugnancy of state statutes to the Federal Constitution. The requirement is that applications for temporary injunction in such cases shall be heard before three judges, one of whom shall be a justice of this court or a circuit judge, and an appeal from an order granting or denying an interlocutory injunction in such cases may be prosecuted directly to this court. These appeals are brought under that

section. They are from the orders of the court below denying the application for an interlocutory injunction. In that aspect alone the cases are now before the court. In the second suit, it is true, the Treasurer was brought in, with a view to the recovery from him of the moneys wrongfully collected over the protest of the Pullman Company; but no injunction was asked against him, and his presence in the case does not concern the inquiry as to the right to the temporary injunction against the Comptroller, restraining him from levying and collecting the taxes.

The order of substitution was made upon the stipulation and was granted without discussion. In the brief of the Attorney General the matter is submitted to the decision of the court, with an expression of doubt as to whether such substitution of parties can be made in cases of this character, and the question is thus called to the court's attention. In this situation the cases are controlled by the repeated adjudications of this court governing the right of substitution where relief is sought against persons who are situated as was the Comptroller in this case.

The leading case upon substitution of parties in such cases is United States v. Boutwell, 17 Wall. 604, which involved the right to substitute in a suit for mandamus the successor of the Secretary of the Treasury for the one who held that office at the time the suit was commenced. Mr. Justice Strong, who delivered the opinion of the court, pointed out that the purpose of a writ of mandamus is to enforce the personal obligation of the individual, no matter how the duty arose, and that even if the party be an officer and the duty official, mandamus does not reach the office, but is directed solely to the person, who alone can be punished for failure to conform to the mandate, and the suit is therefore a personal action based upon the alleged fact that the defendant has failed to perform a personal duty. And the court concluded that, since the

personal duty of the defendant lasted only so long as he occupied the office, and as his successor was not his personal representative and could not be held responsible for his delinquencies, for the successor might have acted differently than the defendant, such action, in the absence of a statute to the contrary, must abate upon the death or retirement from office of the original defendant. This case has been uniformly followed, and applied to suits for injunction as well as for the writ of mandamus. Warner Valley Stock Co. v. Smith, 165 U. S. 28, 33.

And in United States ex rel. Bernardin v. Butterworth, 169 U. S. 600, it was held that the substitution could not be made, although consent was given by the successor in office. In that case it was suggested that in view of the present state of the law it seemed desirable that Congress should provide for the difficulty by enacting a statute which would permit the successors of heads of departments who had died or resigned to be brought into the case by appropriate method. Thereupon Congress passed the act of February 8, 1899 (c. 121, 30 Stat. 822), under the provisions of which, by proper steps, successors of officers of the United States may be substituted for them in suits commenced against the latter in their official capacity. Subsequently, in Caledonian Coal Co. v. Baker, 196 U. S. 432, 442, this court held, after noticing the cases of United States v. Boutwell, supra, and United States ex rel. Bernardin v. Butterworth, supra, and other cases, and the statute just referred to, that, in so far as the successor to a territorial district judge was concerned, the statute had authorized substitution.

The above cases establish the practice of this court, and until the statute of 1899 the practice was uniformly adhered to. That statute affects only Federal officials and leaves the doctrine of the prior cases undisturbed as to the substitution of state officials. The only exception recognized in the decisions of this court has been boards

and bodies of a quasi-corporate character, having a continuing existence. See Marshall et al. v. Dye, ante, p.

250.

In Richardson v. McChesney, 218 U. S. 487, this court held that the defendant, McChesney, although named as Secretary of the Commonwealth of Kentucky, was sued personally and concluded that (p. 493) "as his official authority has terminated, the case, so far as it seeks to accomplish the object of the bill, is at an end, there being no statute providing for the substitution of McChesney's successor in a suit of this character. The case is governed by United States v. Boutwell, 17 Wall. 604; United States ex rel. Bernardin v. Butterworth, 169 U. S. 600, and Caledonian Coal Co. v. Baker, 196 U. S. 432, 441."

It therefore follows that in the present aspect of these cases, upon appeal from orders denying an interlocutory injunction, the only party appellee involved in this inquiry, A. C. Croom, Comptroller, having died pending the proceedings and there being no statute concerning such cases, the order of substitution made at the former term must be vacated, the matter being still within the control of the court, there having been no final judgment in the case (Iowa v. Illinois, 151 U. S. 238).

It will therefore be ordered that these appeals be dismissed for want of a proper appellee to stand in judgment upon the only question brought to this court,

And it is so ordered.

VOL. CCXXXI-37

Counsel for Plaintiff in Error.

231 U.S.

PHOENIX RAILWAY

COMPANY v. LANDIS,

ADMINISTRATOR OF SANDERS.

ERROR TO THE SUPREME COURT OF THE TERRITORY OF ARIZONA.

No. 61. Argued November 12, 1913.-Decided December 22, 1913. This court is disposed to accept the construction of local statutes by the territorial court, and, therefore, held that the action for death by negligence under Rev. Stats. Arizona 1901, pars. 2764–2766, was for the benefit of the estate and that it was not necessary to allege or prove the existence of beneficiaries or amount of damages sustained by them.

Where the case was tried throughout on the proper theory of the statute, the fact that the court in its charge may have used some terms that were technically inappropriate held not to be ground for reversal as the jury could not have been misled thereby. This court in reviewing on error the judgment of the territorial court is limited to those questions that may be appropriately raised on writ of error, which excludes an objection that the verdict is against the weight of evidence or that the damages allowed are excessive. An instruction that the jury might consider the income and earning capacity of deceased, his business capacity, experience, health conditions, energy and perseverance during his probable expectancy of life, will not be held to be too general in the absence of a suitable request of the defendant for an instruction with greater particularity. An objection to the charge in regard to the subject of damages which was not presented to the court below comes too late when raised in this court for the first time.

This court will not, except in a clear case, hold that the appellate court in a Territory erred in following the established practice and construction of a local statute in regard to the record in cases on appeal. 13 Arizona, 80, 279, affirmed.

THE facts, which involve the validity of a verdict and judgment for damages for negligence causing the death of the judgment creditor's intestate, are stated in the opinion.

Mr. Charles Cowles Tucker, with whom Mr. Louis H. Chalmers, Mr. Edward Kent, Mr. A. B. Browne, Mr.