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and inserting in lieu thereof the following | him as extra pay at the rate due a captain, language, to wit: mounted, is $166.66.
"To entitle an officer to the pay of a grade above that actually held by him under § 7 of the act of Congress approved April 26, 1898, he must be assigned in orders issued by competent authority to a command appropriate to such higher grade of troops operating against the enemy." Circ. No. 39, A. G. O., Sept. 27, 1898.
At the time that he assumed, and during the time that he exercised, command of troop E, he was the senior officer present with the troop.
The Treasury Department, from the decision of the Comptroller of March 31, 1899 (5 Comp. Dec. 641), to the decision of the court in Humphreys v. United States, 38 Ct. Cl. 689, on May 25, 1903 (pp. 15-16), recognized this sort of orders, so subsequently confirmed, as sufficient authority for the higher pay. Under similar orders, subsequently affirmed, all officers were paid either by the Pay Department or by the Treasury Department in claims presented after the
3. From August 26, 1898, to October 19, 1898, claimant was originally paid the rate due a second lieutenant of cavalry, and from October 20 to October 23, 1898, he originally received the pay of a first lieutenant of cavalry. He subsequently filed a claim for additional pay for command of the troop and was paid by the auditor for the War Department, October 30, 1899, the pay of a captain for the entire period from August 26, 1898, to October 23, 1898.
4. On the 14th day of September, 1898, a furlough of thirty days for said regiment was authorized under General Orders No. 130, A. G. O., 1898, and amendatory circulars. The above-named claimant did not receive such furlough. From the beginning of the furlough to September 26, 1898, the said claimant was sick in Mount Carmel Hospital, Columbus, Ohio. From September 26, 1898, to the end of the furlough period he was detained for duty and actually performed duty. During the whole furlough period he was at all times subject to the orders of his superior officers until final muster out. Claimant was first taken sick at Huntsville, Alabama, before the furlough, but accompanied his regiment to the home station at Columbus, Ohio, where he was placed in the hospital by officers of said regiment, the surgeon being absent. While at the hospital claimant performed some military service by directing a clerk employed by him for that purpose.
5. If claimant is entitled to retain the pay already received by him, the amount due 27 S. C.-30.
"If entitled to extra pay at the rate due a second lieutenant, mounted, the amount due is $125.
If entitled to extra pay, and not entitled to retain the pay of a captain as stated in finding 3, there should be deducted from the extra pay allowed the sum of $79.44.
The court rendered judgment for the claimant in the sum of $166.66. 41 Ct. Cl. 36.
Assistant Attorney General Van Orsdel and George M. Anderson for appellant. Messrs. George A. King, William B. King, and Clark McKercher for appellee.
Mr. Chief Justice Fuller delivered the opinion of the court:
It is conceded by the government that claimant is entitled to extra pay, so that the question is to what amount. Was he entitled to receive one month's extra pay of a captain of cavalry, mounted ($166.66), or one month's extra pay of a second lieutenant of cavalry, mounted ($125)?
We lay out of view the suggestion that if claimant were entitled to the extra pay of a second lieutenant of cavalry only, then that a certain sum or sums ought to be deducted as having been previously improvidently paid by the auditor for the War Department. The United States filed no setoff or counterclaim. and we think we cannot overhaul the allowance by the auditor for the War Department in the circumstances. Such payment, if made in error, did not determine the question before us within United States v. Hite, 204 U. S. 343, 51 L. ed. 514, 27 Sup. Ct. Rep. 386.
The claim is made under § 7 of the act of April 26, 1898 (30 Stat. at L. 364, 365, chap. 191, U. S. Comp. Stat. 1901, p. 895), reading as follows: "That in time of war every officer serving with troops operating against an enemy who shall exercise, under assignment in orders issued by competent authority, a command above that pertaining to his grade, shall be entitled to receive the pay and allowances of the grade appropriate to the command so exercised."
The main question is whether claimant exercised, "under assignment in orders issued by competent authority, a command above that pertaining to his grade?" When he assumed command of his company, August 26, 1898, he was the senior officer present, the captain and the first lieutenant being absent. Section 253 of the Army Regulations of 1895, then in force, provided:
"In the absence of its captain, the command | AMERICAN RAILROAD COMPANY OF
of a company devolves upon the subaltern next in rank who is serving with it, unless
otherwise specially directed."
This embodied the rule of succession by seniority prevailing in the ordinary course of military affairs, while, at the same time, it recognized that there might be exceptions, in respect of which special direction was required, and § 7 of the act of April 26, 1898, applied to such cases.
PORTO RICO, Plff. in Err.,
JULIO P. CASTRO.
Error to district court of Porto Rico-friv. olousness of Federal question.
The exceptions spring from necessity, and where it is apparent that that does not ex-court held at Mayaguez, under the authoriist, orders relied on as the basis for increased pay under § 7 are ineffectual for that purpose.
In Humphreys v. United States, 38 Ct. Cl. 689, the court of claims held that what the law contemplated was "necessary, and not gratuitous, assignments, and only such as would be for the good of the service for the vigorous prosecution of the war." Chief Justice Nott, speaking for the court, said: "It seems to the court incontrovertible that the words 'under assignment in orders issued by competent authority' constitute the controlling limitation of the statute; and the limitation implies that the benefits of the statute extend only to cases where such an order is necessary to impose the burden of the higher command upon an officer." We concur in that view, and, tested by it, Special Orders No. 44, dated August 24, 1898,
whereby the lieutenant colonel of the First
The contention that, because the district court of the United States for the district of Porto Rico is required, by the act of April 12, 1900 (31 Stat. at L. 77, chap. 191), 34, to proceed in the same manner as a Federal circuit court, a term of that that regular terms of such court shall be ty of the further provision of that section held at stated times in San Juan and Ponce, and special terms at Mayaguez at such other times as the judge may deem expedient, is a "special," as contradistinguished from a "regular," term, within the meaning of U. S. Rev. Stat. § 670, U. S. Comp. Stat. 1901, P. 545, forbidding jury trials at special terms of the circuit courts, except in certain specito sustain a writ of error from the Federal fied districts, is too clearly lacking in merit Supreme Court, in view of the substantially uniform requirement of U. S. Rev. Stat. §§ 664-669, U. S. Comp. Stat. 1301, pp. 543-545, that special terms of the circuit courts are to be held where the regular sessions are
Argued and submitted January 14, 1907.
United States for the District of Porto Rico to review a judgment for plaintiff in an action against a railway company to recover damages for the alleged negligent killing of plaintiff's daughter at a highway crossing. Dismissed for want of jurisdiction.
N ERROR to the District Court of the
Statement by Mr. Justice White:
Julio P. Castro, defendant in error, was
Ohio Volunteer Cavalry announced that First Lieutenant Forsyth was relieved of the command of troop E, and, as incident thereto, that Second Lieutenant Mitchell was appointed to the command, cannot be considered as an "assignment in orders issued by competent authority," within § 7. That section was not enacted to give increased pay for the discharge of the ordinary duties of the service, but to give compensation for the greater risk and responsi- plaintiff in the court below, and the plaintiff in error, the American Railroad Combility of active military command, and no assignment in orders when unnecessary to pany, a New York corporation doing business in Porto Rico, was defendant. The that end can make a case within the stat-action was commenced by the filing of a ute. Truitt v. United States, 38 Ct. Cl. 398, complaint in the office of the clerk of the 406; Parker v. United States, 1 Pet. 293, court at Mayaguez, Porto Rico. Damages 297, 7 L. ed. 150, 151. Here the additional in the sum of $15,000 were prayed, because duties discharged by Lieutenant Mitchell of the alleged negligent killing of the daughwere "the ordinary incidental duties of ter of the plaintiff by a train of the commilitary official life which go with each offi- pany, whilst she, with other persons, was cer's commission." 38 Ct. Cl. 692. attempting to pass, in a vehicle, over the railroad of the defendant, at a point where it intersected a public highway leading from the town of San German to the town of
The attempted confirmation by Special Orders No. 97 must fail of effect under § 7 for like reasons.
Other questions argued at the bar need Mayaguez. not be discussed.
Judgment reversed and cause remanded, with a direction to enter judgment in favor of claimant for $125.
A demurrer to the complaint was filed, and also the following plea to the jurisdiction of the court
"Defendant, in the above-entitled action,
comes now, by its attorney, F. H. Dexter, | in question," and when the right so claimed and objects to the jurisdiction of this court is denied the case can be brought here. to try this cause under the terms and provisions of § 670 of the Revised Statutes of the United States (U. S. Comp. Stat. 1901, p. 545), for the reason that all terms of this court held in the city of Mayaguez, under and by virtue of the terms and provisions of the act of April 12, 1900 [31 Stat. at. L. 77, chap. 191], creating a civil government in Porto Rico, and particularly the present term, at which the above cause is set for trial, is a special term of this court, and, therefore, this court is without jurisdiction to try the issues in this cause by a jury..
Serralles v. Esbri, 200 U. S. 103, 50 L. ed. 391, 26 Sup. Ct. Rep. 176; Rodriguez v. United States, 198 U. S. 156, 49 L. ed. 994, 25 Sup. Ct. Rep. 617; Crowley v. United States, 194 U. S. 466, 48 L. ed. 1078, 24 Sup. | Ct. Rep. 731.
"Wherefore, defendant prays for an order either dismissing this cause or transferring the same for trial at a regular term of this court to be held at either San Juan or Ponce."
After the entry of an order overruling the demurrer and the plea to jurisdiction, an answer was filed and the case was tried by a jury. A verdict was rendered in favor of the plaintiff for the sum of $1,600. The objection to jurisdiction was renewed in a motion to arrest the judgment, and, after the overruling thereof, a bill of exceptions was settled by the trial judge, containing exceptions taken during the trial to the admission and rejection of evidence and to instructions given and refused. The case was then brought to this court.
Messrs. Frederic D. McKenney, Francis H. Dexter, and John Spalding Flannery for plaintiff in error.
It is undoubted that the plea to the jurisdiction filed and insisted upon below asserted on the record a right under an act of Congress, which right was denied. But, in harmony with the rule which governs where a right under the Constitution, etc., of the United States is asserted in a case which is brought to this court from a state court, and in accord with the same rule which also governs cases originally brought in a court of the United States (New Orleans Waterworks Co. v. Louisiana, 185 U. S. 336, 46 L. ed. 936, 22 Sup. Ct. Rep. 691, and cases cited; Newburyport Water Co. v. Newburyport, 193 U. S. 561, 48 L. ed. 795, 24 Sup. Ct. Rep. 553), we are of opinion that the mere assertion of a Federal right and its denial do not justify our assuming jurisdiction where it indubitably appears that the Federal right asserted is frivolous, that is, without color or merit. We think the case at bar is of this character.
As appears in the Revised Statutes, it has been the uniform practice of Congress to fix both the time and place for holding sessions of the district and circuit courts of the United States, which, for convenience of expression, have been styled the regular terms of court. Rev. Stat. §§ 572, 658, U. S. Comp. Stat. 1901, pp. 464, 530. Upon the
Mr. Frederick L. Cornwell for defendant district judge has also been conferred the in error.
By the act of April 12, 1900 (31 Stat. at L. 85, chap. 191), the general rule governing the right of this court to review by writs of error or appeal final decisions of the district court of the United States for Porto Rico was made as to amount to conform to that obtaining as to the territories of the United States, viz., $5,000. As this case does not involve the requisite jurisdictional amount, it follows that the right of review does not exist unless the case is within the provision of the statute conferring jurisdiction to review in this court "in all cases where an act of Congress is brought in question and the right claimed thereunder is denied."
It has been settled that where, in the course of litigation pending in the court just referred to, a party asserts a right under an act of Congress, the act "is brought
power of designating the time and place of holding special terms of the district court, in which any business might be transacted which might be disposed of at a regular term. Id. § 581, U. S. Comp. Stat. 1901, p. 477. The asserted application to the district court of Porto Rico of the provision as to special terms of the circuit courts is that upon which was rested the claim of statutory right to exemption from a trial of the cause by jury at Mayaguez, which was denied by the court below, and forms the basis for the contention that this court must exercise jurisdiction to pass upon the assigned errors. The section reads as follows:
"Sec. 670. At any special term of a circuit court in any district in Indiana, Ken. tucky, Missouri, North Carolina, Virginia, and Wisconsin any business may be transacted which might be transacted at any regular term of such court. At any special term of a circuit court in any other district it shall be competent for the court to entertain jurisdiction of, and to hear and
decide, all cases in equity, cases in error or on appeal, issues of law, motions in arrest of judgment, motions for a new trial, and all other motions, and to award executions and other final process, and to do and transact all other business and direct all other proceedings in all causes pending in the circuit court, except trying any cause by a jury, in the same way and with the same effect as the same might be done at any regular session of said court."
The application of this section, it is contended, results from the concluding words of the following portion of § 34 of the act of April 12, 1900.
"The district court of the United States for Porto Rico ... shall have, in addition to the ordinary jurisdiction of district courts of the United States, jurisdiction of all cases cognizant in the circuit courts of the United States, and shall proceed therein in the same manner as a circuit court." Rev. Stat. § 670 is to be interpreted in the light of § 669 (U. S. Comp. Stat. 1901, p. 545), reading as follows:
On the face of this provision it is apparent that it was the intention of Congress to authorize the holding of sessions of the court at Mayaguez at times to be specially designated by the district judge. It cannot be said that the word "special" in the act was intended to affix to the terms authorized by Congress to be held at Mayaguez the character of special terms, as contradistinguished from regular terms, within the purview of Rev. Stat. § 670, without reducing the statute to an absurdity, for unless the act authorized the holding of regular terms at Mayaguez it would be impossible to conceive of the holding of special terms at that place in the sense of Rev. Stat. § 670. What the provision in question plainly meant was that regular terms should be held at Ponce and San Juan at the times fixed by Congress in the statute and that the same character of term might be held at Mayaguez at a time to be specially designated by the district judge. Dismissed for want of jurisdiction.
AMERICAN RAILROAD COMPANY OF PORTO RICO, Plff. in Err.,
"Section 669. In the districts not mentioned in the five preceding sections [California, Oregon, Nevada, Kentucky, Indiana, Tennessee, North Carolina, Virginia, and Wisconsin being the districts mentioned] the presiding judge of any circuit court FELICIA CARDONA DE CASTRO and Julio may appoint special sessions thereof, to be held at the places where the regular sessions are held."
Castro, Her Husband.
This case is governed by the decision in American Railroad Company v. Castro, ante, p. 466.
Keeping in mind that the substantially uniform rule stated in Rev. Stat. §§ 664 to 669 (U. S. Comp. Stat. 1901, pp. 543-545) requires the holding of special terms of a Argued January 14, 1907. Decided Februcircuit court at the place where the regular sessions are authorized to be held, it fol
lows that a special term of a circuit court
of the United States, as the expression is employed in Rev. Stat. § 670, is a session ordered for the disposal of business, supplementary to a regular term, and to be held at the place fixed by Congress for holding such regular term. When the plain result of the legislation just referred to is noted it is apparent that there is no color whatever for the pretension that Rev. Stat. § 670 had any possible application to the term at which this case was tried. That term was held under authority conferred by that portion of § 34 of the act of April 12, 1900, where, referring to the district court of Porto Rico, it was provided:
"Regular terms of said court shall be held in San Juan, commencing on the second Monday in April and October of each year, and also at Ponce on the second Monday in January of each year, and special terms may be held at Mayaguez at such other stated times as said judge may deem expedient."
ary 25, 1907.
N ERROR to the District Court of the United States for the District of Porto
Rico to review a judgment for plaintiffs in an action brought by husband and wife against a railroad company to recover damages for personal injuries sustained by the wife at a highway crossing. Dismissed for want of jurisdiction.
Messrs. Frederic D. McKenney, Francis H. Dexter, and John Spalding Flannery for plaintiff in error.
No appearance for defendants in error.
Mr. Justice White delivered the opinion of the court:
This case is similar in character to that of American R. Co. v. Castro, No. 151, this term, just decided [204 U. S. 453, ante, 466, 27 Sup. Ct. Rep. 466], having been brought to recover for damages resulting from injuries sustained by the wife in the same accident which occasioned the death of the daughter, Eloisa. The right of this court in the case at bar to review a judgment for the plain
tiffs below, entered upon the verdict of a jury, is based upon an objection to the jurisdiction of the trial court, similar to that which was made in No. 151. For the reasons stated in the opinion in that case the writ of error in this case must also be dismissed.
Court, which had affirmed a judgment of the Trial Term of that court, held in and for the county of Monroe, dismissing the complaint in an action by a municipal corporation to recover from a street railway company a portion of the expense of paving a city street. Affirmed.
See same case below in Appellate Division, 98 App. Div. 521, 91 N. Y. Supp. 87; in
ROCHESTER RAILWAY COMPANY, Plff. Court of Appeals, 182 N. Y. 99, 70 L. R. A.
CITY OF ROCHESTER.
Corporations-consolidation of street railways-effect on contract excmption from paving obligations. 1. A contract exemption of a street railway company from paving obligations is not a "privilege" within the meaning of N. Y. Laws 1867, chap. 254, as amended by Laws 1879, chap. 503, empowering a railway company, being the lessee of the property of another railway company, to acquire the whole of the latter's capital stock, in which case its "estate, property, rights, privileges, and franchises" shall vest in and be held and enjoyed by the purchasing corporation "fully and entirely, and without change or diminution."
773, 74 N. E. 953.
Statement by Mr. Justice Moody:
The defendant in error brought an action against the plaintiff in error, a street surface railroad corporation, hereinafter called the Rochester Railroad, to recover $18,274.02, the expense of making new pavements of two streets within the space between the tracks, the rails of the tracks, and 2 feet in width outside the tracks of the railroad. The action was brought under § 98 of chapter 39 of the General Laws of New York, which was enacted in 1890, and is as follows: 1890, and is as follows:
Every street surface railroad corporation, so long as it shall continue to use any of its tracks in any street, avenue, or public
Corporations-conditions of incorporation-place, in any city or village, shall have and effect on exemptions enjoyed by predecessor in title.
3. A street railway company whose capital stock has been wholly acquired by a lessee corporation, pursuant to N. Y. Laws 1867, chap. 254, which, as amended by Laws 1879, chap. 503, provides that in such case the estate, property, rights, privileges, and franchises of the selling corporation shall vest in the purchasing corporation, to be thereafter controlled by the latter in its own name, cannot be regarded as still having a corporate existence which will enable the purchasing corporation to claim and enjoy, on behalf of the selling corporation, a contract exemption from paving obligations which the latter corporation enjoyed.
keep in permanent repair that portion of such street, avenue, or public place between its tracks, the rails of its tracks, and 2 feet in width outside of its tracks, under the supervision of the proper local authorities, and whenever required by them to do so, and in such manner as they may prescribe. In case of the neglect of any such corporation to make pavements or repairs after the expiration of thirty days' notice to do so the local authorities may make the same at the expense of such corporation.
The Rochester Railroad was incorporated on February 25, 1890, under a law of New York enacted May 6, 1884. New York laws 1884, chap. 252. That law authorized the formation of street surface railroad corporations and provided that they should "have all the powers and privileges granted, and be subject to all the liabilities imposed, by this act." Among the liabilities was that imposed by § 9 of the act, which is as follows:
"Every such corporation incorporated under, or constructing, extending, or operating a railroad constructed or extended
Argued January 14, 15, 1907. Decided under, the provisions of this act, within the
incorporated cities and villages of this state, shall also, whenever and as required, and under the supervision of the proper local authorities, have and keep in permanent repair the portion of every street and avenue between its tracks, the rails of its tracks, and a space of 2 feet in width outside and adjoining the outside rails of its track or