must take care, not to infringe any right se- | whenever one of the parties is a citizen of cured by the Constitution and the laws of the United States. It should, however, be remarked that there is nothing in the Kentucky statute which indicates any purpose on the part of the legislature of that commonwealth to fly in the face of the above cases, or to evade the principles announced in them. It is not to be implied from the statute in question that the state intended to exclude, or supposed that it could exclude, from the Federal courts, jurisdiction of any suit to which the judicial power of the United States extended. It was said that if the case was a removable one, the time for removal was after it was taken by appeal to the state circuit court, where it could be tried de novo. There is nothing in the acts of 1887, 1888, which sustains this view. Was the case, as it was in the county court, a suit in which there was a controversy between corporations of different states? If so, the right of removal was perfect under the acts of 1887, 1888. Under the Kentucky statute the condemning party was entitled, even after appeal to the circuit court, to pay into court the damages assessed in the county court, and, before the case was concluded in the circuit court, to take possession of the land, and oust the owner. Ky. Stat. § 839; 80 Ky. 259, 269. Clearly, the owner was not bound to wait until the proceedings in the county court were concluded, or until he was put out of possession, before exercising his right of removal, if the case was a removable one. We hold that, as the proceeding in the county court was a suit involving a controversy between corporate citizens of different states, it was one of which the circuit court of the United States could have taken original cognizance, under the judiciary act, and it was, therefore, a removable case. And being a removable case, it is to be regarded as having been removed upon the filing of the petition and accompanying bond for removal; in which event, it was competent for the circuit court, having thus acquired jurisdiction of the subject-matter, and of the parties, to enjoin the traction company from proceeding further in the state court. For the reasons stated, the decree of the Circuit Court awarding the injunction must be affirmed. It is so ordered. Mr. Justice Holmes, dissenting: I regret that I am unable to agree with the decision of the court. The question on which I differ is whether a proceeding for the taking of land by eminent domain, authorized by the state of Kentucky to be begun in the courts of Kentucky, can be begun in the circuit court of the United States, another state. Of course, I am speaking of the proceeding for the taking of the land, not of that for compensation, to which I shall refer later. The argument which does not command my assent, stated in a few words, is that such a proceeding in such a case is a controversy between citizens of different states, and therefore, by the very words of the Constitution, must be within the jurisdiction of the United States courts. It seems to me that this is rather too literal a reading, and, on the whole, is a sacrifice of substance to form. The fundamental fact is that eminent domain is a prerogative of the state, which, on the one hand, may be exercised in any way that the state thinks fit, and, on the other, may not be exercised except by an authority which the state confers. The taking may be direct, by an act of the legislature. It may be delegated to a railroad company, with a certain latitude of choice with regard to the land to be appropriated. It may be delegated subject to the approval of a legislative committee or of a board other than a court. When the state makes use of a court, instead, for instance, of a railroad commission, the character of the proceeding is not changed. The matter still is wholly within its sovereign control. The state may intervene after the proceedings have been begun, and take the land. It may direct the entry of a decree of condemnation. An illustration of its continuing power may be seen in Re Northampton, 158 Mass. 299, 33 N. E. 568. The matter of grade crossings had been referred by the legislature of Massachusetts to the courts, and a petition was pending for the abolition of certain grade crossings in Northampton. The case had been sent to commissioners, and they had reported. Pending a motion to confirm their report the legislature passed an act forbidding a change in that case without the consent of the city council. It was held that, as the whole subject was originally within the control of the legislature, it did not cease to be so by being referred to the courts, and the act was sustained. A further illustration, and one in which substance has prevailed over form, is to be found in the case of suits by citizens of another state against officers of a state. In form such suits are controversies between citizens of different states, and within the jurisdiction of the United States courts. But if, in substance, they have the effect of suits against a state, the jurisdiction is denied. And the decisions do not stop there, but when the state has waived its immunity, as it may, and has given permission to a suit against the officer in a state court, it still is held that, although there is a controversy between citizens of different states which thus has become subject to litigation, | tions of this court. I do not think so. The only cases that have any bearing are Mississippi & R. River Boom Co. v. Patterson, 98 U. S. 403, 25 L. ed. 206, and Searl v. School Dist. No. 2, 124 U. S. 197, 31 L. ed. 415, 8 Sup. Ct. Rep. 460. In the former of these cases Mr. Justice Field states, in the most explicit way, that, at the stage the case had reached when it was removed from the state court, the compensation to be paid the ownIt seems to me that, if a state authorizes er of the land was the only question open. a taking to be accomplished by certain ma- I have no criticism to make on that case. It chinery, the United States has no constitu- sems to me to favor my views throughout. tional right to intervene and to substitute I think it very possible that, after the title other machinery because the state has cho- to property has been taken, if the question sen to use its law courts rather than a legis- of compensation still is unsettled, that may lative committee, and thus to give to the ex-be a controversy within the meaning of the ercise of its sovereign power the external Constitution. The sovereign power of the form of a suit at law. It seems to me plain that the exercise of that power depends wholly on the state, may be limited as the state chooses, and cannot be carried further than the state has authorized in terms. Suppose that a proceeding for taking land is removed to the United States court, contrary to the legislation of the state,-by whose authority, I ask myself, is a subsequent taking to be decreed? It is open to any one who can think it to say that the attempt to use the state courts to the exclu sion of the United States courts makes the taking void; but I cannot understand how a taking unauthorized by the state can be good. If I am right in supposing that the state has an absolute right to limit the exercise of eminent domain as it sees fit, then, so far as the construction of the Kentucky statute is concerned, I need only invoke the cases last cited, to show that the statute imports that the state meant to confine the proceedings to it own courts. Certainly it does not purport to authorize them elsewhere, and that is enough. Smith v. Reeves, 178 U. S. 436, 445, 44 L. ed. 1140, 1145, 20 Sup. Ct. Rep. 919; Chandler v. Dix, 194 U. S. 590, 592, 48 L. ed. 1129, 1131, 24 Sup. Ct. Rep. 766. The difference between myself and the majority is not merely on the construction of the Kentucky statutes. If that were all, I should not express my dissent. But the difference as to construction is a consequence and incident of a difference on the far more important question of power. Of course, what I have said is without prejudice to the possibility that, in case a question of rights under the Constitution of the United States should arise and be car ried to the highest court of the state, it might be brought here by writ of error, as was said by Mr. Justice Harlan in Smith v. Reeves. I do not go into that, as it is immaterial now. It is said that the question which I am discussing has been settled by the adjudica state is at an end, and the former owner has a right, under the 14th Amendment of the Constitution of the United States, to get his pay. Mississippi & R. River Boom Co. v. Patterson was followed by Searl v. School Dist. No. 2, seemingly without noticing the distinction that, in the latter case, the property had not yet been appropriated. There was no serious reasoning in the case, and I should think it a most inadequate justification for trenching upon the powers of the states, even if it were strictly in point. It arose, however, under the former statute as to removals, which did not limit them to cases which could have been begun in the United States courts. Whether I should think that a sufficient distinction if that case were before me now I shall not consider; but I feel warranted in believing that no one who took part in that decision imagined that he was establishing the doctrine now laid down or any principle broad enough to cover the present case. I cannot think that even Mr. Justice Matthews would have denied that the day after removal the state could have withdrawn the power to condemn the land, and left the court in the air, or could have condemned the land pending the proceedings, without paying them the slightest regard. If the state did retain those powers, I think it no less retained the delectus personarum and the right to confine its authority, while it left it outstanding, to the persons of its choice. I wish to add only that I am not aware of any limitations in the Constitution of the United States upon a state's power to condemn land within its borders, except the requirements as to compensation. All that was decided in Citizens' Sav. & L. Asso. v. Topeka, 20 Wall. 655, 22 L. ed. 455, and Cole v. LaGrange, 113 U. S. 1, 28 L. ed. 896, 5 Sup. Ct. Rep. 416, was that the Constitu tions of certain states did not authorize the | perceive that they have any bearing upon taking of private property for a private use. what I have said or upon the case at bar. But if those decisions had been rested on the 14th Amendment, which they were not, and in my opinion could not have been, I do not I am authorized to say that the CHIFF JUSTICE, Mr. Justice Brewer, and Mr. Jus tice Peckham concur in this dissent. (196 U. S. 327) UNITED STATES, Appt., บ. WALTER S. CROSLEY. Navy - pay 1. An aid to a rear admiral is entitled, in addition to the regular pay of his rank, to the same compensation for the additional service Pay of a first lieutenant in the Army, as is allowed an aid to a major general, in Pay as aid to rear admiral of corre view of the provision of the Navy personnel act (30 Stat. at L. 1004, chap. 413, U. S. Comp. Stat. 1901, p. 1072), § 13, that officers of the Navy shall receive the same pay and allowances, except for forage, as are, or may sponding grade to major general, be, provided by law for officers of the Army Longevity pay upon the last two of corresponding rank. 2. Mounted pay cannot be given to an aid to [No. 96.] Submitted December 9, 1904. Decided Jan uary 23, 1905. PPEAL from the Court of Claims to review a judgment which awarded a Navy officer additional pay as an aid to a rear admiral, together with, mounted pay for his services as such aid. Modified by disallowing the item for mounted pay and longevity pay based thereon, and, as modified, affirmed. See same case below, 38 Ct. Cl. 82. Statement by Mr. Justice Day: This case was tried in the court of claims upon a petition filed to recover pay for services in the United States Navy, rendered by the defendant in error while he was a lieutenant of the junior grade, and acting as aid to Rear Admiral Watson, then serving with the rank of rear admiral in the nine higher numbers of that grade, and, under § 1466 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 1029), entitled to rank with a major general in the Army. The claimant alleges that he should have received from the 1st day of July, 1899, to the 8th day of September, 1899,— items, under Rev. Stat. § 1262.... Total 150 200 100 30 $1,980 That from September 9, 1899, to September 8, 1900 he was entitled to pay as follows: Pay of a first lieutenant in the Army Pay as aid to rear admiral of corre- He received pay during the period in controversy at the rate of $1,800 per annum, being from July 1, 1899, to September 8, 1899, the rate of pay granted by statute (Rev. Stat. § 1556, U. S. Comp. Stat. 1901, p. 1067) to a lieutenant, junior grade, at sea during his first five years in that rank, and for the period from September 9, 1899, to September 8, 1900, being the rate fixed by Rev. Stat. § 1261, for a first lieutenant not mounted, with the longevity allowance of the statute (§ 1262) for the third five years of service; and he claims that, in addition to the amount allowed, he is entitled to pay or allowance as aid to a rear admiral; also, mounted pay due for such service, with the longevity pay arising from the items in question. In all, he claims the sum of $394. The court of claims, upon the hearing, made the following findings of fact: "I. The claimant entered service in the United States Navy on the 9th day of September, 1899, and from the 1st day of July, 1899, until the 8th day of September, 1900, was a lieutenant, junior grade, in the Navy, or may be provided by or in pursuance of law for the officers of corresponding rank in the Army." and an aid to Rear Admiral J. C. Watson; | pay and allowances, except forage, as are Rear Admiral Watson was at that time one of the nine higher numbers of the grade of rear admiral, and was entitled, under § 1466 of the Revised Statutes, to rank with a major general in the United States Army. II. During said period claimant was paid at the rate of $1,800 a year." And as conclusions of law held: "Upon the foregoing findings of fact the court decides, as a conclusion of law, that the claimant recover judgment of and from the United States in the sum of three hundred and ninety-four dollars ($394)." From the judgment of that court the United States appeals to this court. Assistant Attorney General Pradt and Mr. John Q. Thompson for appellant. Messrs. George A. King and William B. King for appellee. Mr. Justice Day delivered the opinion of the court: The decision of this case turns upon the answers to two questions arising under the facts stated: First, was the claimant entitled to the extra $200, the same as allowed an aid to a major general in the Army? Second, was he entitled to the "mounted pay" as allowed to the major general's aid? The Navy personnel act, so called, has been so frequently before this court in recent cases as to require little general discussion of its objects and purposes. Rodgers v. United States, 185 U. S. 83, 46 L. ed. 816, 22 Sup. Ct. Rep. 582; White v. United States, 191 U. S. 545, 48 L. ed. 295, 24 Sup. Ct. Rep. 171; Gibson v. United States, 194 U. S. 182, 48 L. ed. 926, 24 Sup. Ct. Rep. 613; United States v. Thomas, decided at this term, 195 U. S. 418, 25 Sup. Ct. Rep. 102, 49 L. ed. 259. As pointed out in the opinion in the lastnamed case, while the act of July 16, 1862 (Rev. Stat. § 1466, U. S. Comp. Stat. 1901, p. 1029), had fixed the relative rank of Army and naval officers, no provision for similarity of pay was made until the passage of the Navy personnel act (30 Stat. at L. 1004, chap 413, U. S. Comp. Stat. 1901, p. 1072), which act, while providing against a reduction of then existing pay of commissioned officers of the Navy, undertook to equalize the pay of naval officers (theretofore generally below that paid to officers of corresponding rank in the Army) with that of officers in the Army of equal rank. Under the act of July 16, 1862, rear admirals ranked with major generals. Section 13 of the Navy personnel act provides: "That after June 30, 1899, commissioned officers of the line of the Navy and of the Medical Pay Corps shall receive the same The claimant, as lieutenant of the junior grade in the Navy, corresponded in rank with a first lieutenant in the Army (Rev. Stat. § 1466, U. S. Comp. Stat. 1901, p. 1029), the rank of "master," named in § 1466, being subsequently changed to lieutenant, junior grade. 22 Stat. at L. 472, chap. 97, U. S. Comp. Stat. 1901, p. 986. By § 1098 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 807) it is provided that each major general shall have three aids, who may be chosen by him from the captains or lieutenants of the Army. First lieutenants, officers of the Army, under § 1261 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 893), are entitled to pay as follows: "The officers of the Army shall be entitled to pay herein stated after their respective designations: First lieutenant, mounted, sixteen hundred dollars a year; first lieutenant, not mounted, fifteen hundred dollars a year; aid to major general, two hundred dollars a year, in addition to the pay of his rank." For each five years of service it is provided in § 1262 (U. S. Comp. Stat. 1901, p. 896): "There shall be allowed and paid to each commissioned officer below the rank of brigadier general, including chaplains and others having assimilated rank or pay, ten per centum of their current yearly pay for each term of five years of service." For The contention of the government is that, while the pay of naval officers is made to correspond with that of Army officers of like rank, the naval officer assigned to duty as aid may not receive the $200 additional pay, as it is not pay on account of rank, but on account of service. But we think this is too narrow a construction of the terms of the act, in view of its intent and purpose. while we may not add to or take from the terms of a statute, the main purpose of construction is to give effect to the legislative intent as expressed in the act under consideration. An aid to a rear admiral renders services similar to those rendered by an aid to a major general in the Army. The naval aids are appointed under paragraphs 343 and 345 of the Naval Regulations of 1895, which are: "§ 343. The chief of staff, flag lieutenant, clerk, and aids shall constitute the personal staff of a flag officer. " 345. (1) A flag officer may select any officer of his command to serve as flag lieutenant or clerk, provided his grade accords with the rules laid down in article 344. |